text:
    Ex parte Donald K. HEARD.
    No. A-9781.
    Supreme Court of Texas.
    Dec. 11, 1963.
    Frank Campbell Fourmy, La Porte, Joe J. Newman, Houston, for appellant.
    Sam Hoover, Pasadena, for appellee.
   CALVERT, Chief Justice.

This is a habeas corpus proceeding whereby relator seeks to be discharged from confinement in the Harris County jail by virtue of a certain contempt order of a Judge of a Court of Domestic Relations of Harris County, Texas.

On January 9, 1963, in a divorce suit then pending in the Court of Domestic Relations No. 2, Harris County, Texas, as a result of an agreed judgment, relator was ordered to make certain payments during the pend-ency of the divorce action. These payments were $300.00 per month for child support; $250.00 per month temporary alimony; payments on the family home, occupied by the wife, of $107.55 per month; $71.00 per month on the family automobile used by the wife; and $12.00 per month on a television set in the home. The total of these monthly payments is $740.55.

On July 31, 1963, relator being in arrears on these payments, a hearing was held upon complaint of the wife, on a “show cause” order why relator should not be held in contempt. After hearing the evidence, the trial judge recessed the hearing until August 9, 1963.

On August 9, 1963, the trial court resumed the hearing, and after hearing the evidence, adjudged relator in contempt of court for failure to make the child support and temporary alimony payments as set out in the January 9th order. The trial court’s judgment directed that relator be committed to the Harris County jail. The commitment was stayed until August 12, 1963, at which time relator was taken into-custody. On August 13, 1963, this Court issued its writ of habeas corpus and fixed the amount of bond required of relator at $3500.00. That same date, relator furnished the required bond and was released from custody.- . .

We granted writ of habeas corpus upon relator’s representation that the judgment of the trial court found relator guilty of contempt “and ordered that he be punished by confinement in the County Jail of Harris County, Texas, for a period of three (3) days and for such further period of time until he should purge himself by paying into registry of' the Court the sum of $1322.65.” An examination of the court’s judgment discloses that its terms are not as represented by relator. The court’s judgment, as entered, finds relator guilty of contempt, fixes his punishment for such contempt at three days confinement in the County Jail, and provides that relator may “purge himself of such contempt by paying the sum of $1322.65 as temporary alimony and child support to the Probation Department of Harris County, Texas.”

Inasmuch as relator is not required by the judgment to pay the sum of $1322.65 as a condition to his release from imprisonment after he has served three days in jail, the only questions before this court are whether the judgment of January 9th is a valid judgment, and whether the evidence adduced on the contempt hearing shows conclusively that relator’s failure to comply with the judgment was because of involuntary inability to comply. If the judgment was a valid judgment when entered, punishment for its violation by confinement in the County Jail for three days was authorized by Article 1911, Vernon’s Texas Civil Statutes, unless relator’s subsequent failure to comply therewith was due to his involuntary inability to do so.

Relator urges that although the judgment of January 9th directing him to make monthly payments was an agreed judgment, it was invalid at the time it was entered because it was impossible for him to comply therewith “if such compliance was to be effected out of current earnings.” He does not assert that the judgment was invalid for any other reason. His real contention, however, is not that the judgment was invalid when entered — indeed, his counsel stated at the hearing that relator had complied with the judgment for two months — , but that he was involuntarily unable to continue to comply with its terms. His testimony given at the contempt hearing does not support him in this respect.

Relator’s testimony discloses, as heretofore indicated, that the monthly payments required of him under the judgment of January 9th total $740.55. It also discloses that his monthly income from January 1, 1963 through June 30,' 1963 averaged $1064.78. These figures alone are sufficient to show that relator was able to comply with the terms of the judgment of January 9th.

Relator’s claim that he was unable to comply with the court’s judgment is based upon his testimony that in addition to the monthly payments required by the courts judgment, he was paying $250.93 per month on bank and finance company loans and $92.33 per month as premiums on life insurance policies. In other words, it is relator’s position that after paying $343.26 per month on such loans and premiums, it was impossible for him to pay the sum of $740.55 per month in discharge of his obligations under the court’s judgment.

Relator’s own testimony at the contempt hearing reflects that he made a deliberate choice between meeting his monthly obligations to banks and finance companies and for insurance premiums, on the one hand, and meeting his obligations under the trial court’s judgment on the other. His testimony was that if he became delinquent on his installment loans to banks he was almost sure it would jeopardize his position with his employer. He continued: “I’m highly respected in La Porte by most people. I pay my bills as they become due. My credit rating at the bank is fairly good and I’m afraid it would jeopardize my position with the company * *

Relator’s determination to meet his other obligations promptly is commendable. However, his wish to preserve his credit rating and to make certain that his position was not jeopardized cannot be made to override his obligations under a valid judgment of a court. His remedy for a difficult and onerous financial situation was to seek from the trial court a reduction in the amounts he was required to pay; and, failing there, to seek final disposition of the divorce suit, thus terminating his obligations under the January 9th judgment. He was not at liberty to meet his other obligations, subordinating the obligations of the trial court’s judgment, and then assert inability to comply. It follows that the evidence heard by the trial court does not establish that relator was involuntarily unable to comply with the terms of the judgment of January 9th.

It appearing that relator has served two days in the County Jail, he is remanded to the custody of the Sheriff of Harris County, Texas, to serve one day in the County Jail. When he has served one day, he shall be discharged.


source: Caselaw Access Project

author: MORRISON, Judge. McDONALD, Judge

license: Public Domain

text:
    Paul Doyle ARTELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35418.
    Court of Criminal Appeals of Texas.
    March 13, 1963.
    Rehearing Denied April 24, 1963.
    Certiorari Denied Dec. 16, 1963.
    See 84 S.Ct. 439.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Daniel P. Ryan, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is carrying a pistol; the punishment, 60 days in jail.

Officer Garcia of the narcotics division of the Houston police testified that on the day in question he received information by telephone from a reliable and credible person that appellant could be found in the 1600 block of Houston Avenue in a 1960 green Chevrolet, license number SR 6700, and that he had a quantity of narcotics in his possession; that he, in company with Officer Strickland and others, proceeded at once to said location, and as he approached the automobile which had been described to him he observed appellant, who was seated therein alone, “reaching under the front seat directly behind him.” He identified himself as' an officer, reached under the seat and pulled out a black holster that contained a .38 caliber Smith & Wesson revolver. Appellant was then carried to the station, and Officer Strickland took charge of the weapon and made out the offense report. Appellant did not testify or offer any evidence in his own behalf, and we find the evidence sufficient to support the conviction.

Appellant’s attack upon the legality of the search is overruled upon authority of French v. State, 162 Tex.Cr.R. 48, 284 S.W.2d 359; Sanders v. State, 166 Tex.Cr. R. 293, 312 S.W.2d 640; Slaughter v. State, 314 S.W.2d 92; Bridges v. State, 166 Tex. Cr.R. 556, 316 S.W.2d 757; Baray v. State, 167 Tex.Cr.R. 456, 321 S.W.2d 87; McCall v. State, 167 Tex.Cr.R. 559, 322 S.W.2d 291; and Leal v. State, 169 Tex.Cr.R. 222, 332 S.W.2d 729.

The court did not err in declining to require Officer Garcia to name his informer. Bridges v. State, supra, and Sikes v. State, Tex.Cr.App., 334 S.W.2d 440. This is especially so since there is no showing that the informant took any material part in bringing about the offense, was present when it occurred or might be a material witness as to whether or not accused committed the offense. Anno. 76 A.L.R.2d 262, sec. 20, p. 307.

The sole remaining question which requires discussion is the refusal of the trial court to permit appellant to make Officer Strickland's offense report which Officer Garcia had read some time before the trial and from which he had refreshed his memory available for the purpose of cross-examining Garcia or for the purpose of perfecting his bill of exception. This Court has recently in Gaskin v. State, Tex.Cr. App., 353 S.W.2d 467; Martinez v. State, Tex.Cr.App., 354 S.W.2d 936; and Pruitt v. State, Tex.Cr.App., 355 S.W.2d 528, made what we consider wholesome progress in protecting the rights of an accused. We have been cited no case, nor has an exhaustive inquiry revealed one, which requires that a report made by a person other than the witness be made available under the rule set forth above.

We are not inclined at this juncture to expand the rule, especially in view of the relatively recent expression of the Supreme Court of the United States in Palermo v. U. S., 360 U.S. 343, 79 S.Ct. 1217, 3 L.Ed. 2d 1287, on a similar problem, as follows:

“It is clear that Congress was concerned that only those statements which could properly be called the witness’ own words should be made available to the defense for purposes of impeachment.”

Finding no reversible error, the judgment of the trial court is affirmed.

McDONALD, Judge

(dissenting).

I disagree with the majority opinion in their holding that the trial court did not commit error in refusing to permit appellant to examine the offense report for the purpose of cross-examining Officer Garcia or for the purpose of perfecting his bill of exception.

It seems clear to me that when the trial court refuses to direct a prosecutor to produce a memorandum or writing which a State’s witness has used to refresh his recollection, and make same available to the appellant’s counsel, that the right of adequate cross-examination is seriously impaired. The prime objective of cross-examination is to either attempt to impeach or to test the credibility of a witness.

In a case like the one at bar, when it is apparent from the testimony that the witness is today testifying to information obtained by him two weeks ago to refresh his memory, he has definitely placed the instrument in issue, whether he produces it in court physically or not. Officer Garcia was asked: “Two weeks ago you say you read the offense report?” “Yes, sir, approximately two weeks ago,” he responded. He was then asked: “And you are testifying from that refreshed memory today?” He replied: “Yes, sir, I am.” Officer Garcia did testify that Officer Strickland made the report, and he had no part in it himself. Yet Garcia’s testimony reflects that he and Officer Strickland were together with some other officers at the time of the arrest. It is my thought that this testimony of Officer Garcia was inádmissible for'the reason that the offense report was hearsay as to him. Yet the court allowed this officer to testify and adduce testimony based upon a refreshed collection from a hearsay offense report, which the court refused to direct the district attorney to make available to appellant’s counsel. Appellant’s counsel was not given the right or opportunity to explore or test the memory of Officer Garcia. I think the rule has been correctly stated by this Court in Erwin v. State, 171 Tex.Cr.R. 323, 350 S.W.2d 199, wherein we said: “The right to see a document or writing does not obtain when [it] is not used by the state before the jury in some way so as to make [its] contents thereof an issue." In this case, the document might not have been physically present before the jury, but it definitely became an issue before them by virtue of having been used two weeks previous to refresh the recollection of the witness. The witness based his testimony upon this document.

From what I have said, it is vividly clear that I would reverse the case. I respectfully dissent. ... •


author: BELCHER, Commissioner. WOODLEY, Presiding Justice. McDonald, judge.

text:
    Edward Otho HAGANS, Appellant, v. The STATE of Texas, Appellee.
    No. 34125.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    Rehearing Denied Jan. 2, 1963.
    Second Rehearing Denied Feb. 20, 1963.
    Third Rehearing Denied March 27, 1963.

      Marion G. Holt, Jack Pierce, Nacog-doches, for appellant.
    Hul.on B. Brown, Dist. Atty., Jacksonville, Edmund F. Benchoff, County Atty., Nacogdoches, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant, Edward Otho Hagans, and Elsie Marie Hagans, alias Elsie Marie Milner, were jointly indicted and tried for the murder of Zoura F. Hagans. Upon conviction, the death penalty was assessed against the appellant (life imprisonment was assessed against his companion) and he alone appeals.

The evidence introduced by the state reveals that the appellant is guilty of the violent, cruel and brutal murder of Zoura F. Hagans by beating her with some unknown instrument and by shooting her with a pistol. The voluntary written statements made and signed by the appellant and his companion were introduced in evidence by the state without objection and they show a killing without justification; and said statements were sufficiently corroborated.

Appellant did not testify but called numerous witnesses including three medical doctors, one of whom was a psychiatrist, and by their testimony he sought to support his plea of insanity at the time of the commission of the offense and at the time of trial.

The jury resolved the issues of insanity against the appellant and the evidence is sufficient to support their verdict.

Appellant contends that the trial court erred in overruling his motion for a change of venue which alleged that there existed in Nacogdoches County so great a prejudice against him that he could not obtain a fair and impartial trial. The motion was supported by the affidavits of an owner of a local radio station and two local attorneys.

Upon the hearing of the motion two of the three affiants, the publisher of the local daily and weekly newspapers, another local attorney and the other radio station owner testified that extensive coverage and publicity had been given the crime, the return and subsequent confessions of the appellant and his companion.

Two local attorneys testified that the case had received more publicity in the county than any other one, that the facts of the case had been discussed in every section of the county, that in their opinion public sentiment and prejudice was against appellant, and the case had been already prejudiced by the people against him, and that he could not get a fair and impartial trial in Nacogdoches County. The owner of one of the local radio stations testified that in his opinion the case had been widely publicized and pretty well discussed, that public sentiment was against “them”, and the majority of the persons he had heard ■discuss the crime were “adverse toward the defendants” and “a lot of people say they .are guilty” but “If you can qualify them (jurors) I think they would give a fair trial.”

The owner of the other radio station ■gave substantially the same testimony as that of his competitor. The publisher testified that the case had been widely discussed, and those who had not heard about it would be in the minority, but that he had no definite opinion on whether appellant ■could get a fair and impartial trial.

The state called four persons as witnesses, the appraiser and collector of a hank, the owner and operator of a cafe, a ■service station operator and the county surveyor, and each expressed the opinion that appellant could get a fair and impartial trial in Nacogdoches County.

At the conclusion of the voir dire examination of sixty-eight veniremen eight jurors had been selected. Then appellant again submitted his original motion for a change of venue. In support thereof he called. Jack Pierce, the attorney for appellant’s companion. He testified that of the eight jurors chosen four stated that they had some sort of opinion as to the guilt or innocence of the defendants; that the judge questioned each of the four above referred to by Pierce and they stated that they could lay aside any opinion that they might have and try the case strictly upon the evidence in accordance with the law in the court’s charge; and that they had no bias or prejudice against the defendants.

It is evident that the trial judge was in a position to appraise and determine the examination of all the jurors that Pierce testified about on renewal of the motion. No statement of facts showing the voir dire examination of the venire accompanies the record. The defendants had exhausted eleven peremptory challenges when the eighth juror was chosen. The record docs not reveal whether all of the defendants’ peremptory challenges had been exercised when the jury was completed, nor does it reveal that any objectionable juror served.

The record before this Court shows no abuse of discretion by the trial court in refusing to grant appellant’s motion for a change of venue. McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; Tyler v. State, 163 Tex.Cr.R. 441. 293 S.W.2d 775; Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661; Slater v. State, 166 Tex.Cr.R. 606, 317 S.W.2d 203; Phillips v. State, 168 Tex.Cr.R. 463, 328 S.W.2d 873.

By several formal bills of exception filed with the clerk of the trial court the appellant urged that reversible error had been committed. These bills were refused and returned by the trial court for the reasons noted thereon within the time allowed by statute. No further action pertaining to said bills is shown by the record. Therefore, they' cannot be considered. Beale v. State, 171 Tex.Cr.R. 319, 350 S.W. 2d 207; Campos v. State, Tex.Cr.App., 356 S.W.2d 317. However, these bills have been examined and it is concluded that they do not present error.

The complaints of the court’s action in overruling the objections to the charge cannot be considered because no exception was reserved thereto. Eldredge v. State, 162 Tex.Cr.R. 282, 284 S.W.2d 734; Redman v. State, 162 Tex.Cr.R. 524, 287 S.W.2d 676; Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291; Stone v. State, 171 Tex. Cr.R. 201, 346 S.W.2d 323; Medlock v. State, Tex.Cr.App., 356 S.W.2d 312.

The other contentions presented have been considered and do not show error.

The judgment is affirmed.

Opinion approved by the Court.

On Appellant’s Motion for Rehearing.

WOODLEY, Presiding Justice.

Appellant re-urges (his contention) that the failure of the court to change the venue should result in reversal. We are unable to agree with his contention that the trial court had no discretion in the matter under the evidence, or that the court’s action in overruling his motion for change of venue is shown by the record herein to constitute a denial of appellant’s rights under the Due Process clause of the Constitution of the United States. (14th Amendment)

In this regard it should be noted that appellant’s defense was insanity, and no prejudgment on such issue among the citizenry of the county was shown. Also there was testimony that a fair and impartial jury could be secured in the county and from the record before us, we are in no position to say this was not accomplished.

By brief and oral argument counsel for appellant contends that appellant’s wife was used as a witness against him in violation of Art. 714 Vernon’s Ann.C.C.P., in that her confession was introduced in evidence.

Appellant correctly contends that under said statute and our decisions the defendant could not waive the disqualification of his wife to testify against him as a witness for the state.

The rule has no application here because the state did not call appellant’s wife as a witness.

Assuming that appellant’s co-indictee, Elsie Marie Hagans, was appellant’s wife, she was a co-defendant jointly tried and her confession was admissible against her, and was admitted without objection.

The court in his charge instructed the jury “* * * you shall not consider the written statement, if any you find, of the defendant Elsie Marie Hagans, alias Elsie Marie Milner, against the defendant Edward Otho Hagans * *

We remain convinced that the appeal was properly disposed of on original submission.

Appellant’s motion for rehearing is overruled.

ON APPELLANT’S SECOND MOTION FOR REHEARING

McDonald, judge.

When it is shown that an accused has been tried by a jury who did not enter the jury box with open minds, we do not hesitate to reverse. Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239.

The Supreme Court of the United States applied this same test in its holdings in Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751, and in Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98.

The record before us, however, does not reveal that appellant was tried by a jury who did not enter the jury box with open minds.

Remaining convinced that this case was correctly disposed of in our original opinion and in the opinion on appellant’s first motion for rehearing, appellant’s second motion for rehearing is overruled.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    HARRY NEWTON, INC. et al., Appellants, v. J. C. BROADDUS, Jr., Appellee.
    No. 11123.
    Court of Civil Appeals of Texas. Austin.
    Nov. 13, 1963.
    Rehearing Denied Dec. 11, 1963.
    Jennings, Montgomery & Dies, 'Graham,, for appellants.
    No appearance for appellee.
   ARCHER, Chief Justice.

This is a plea of privilege case.

J. C. Broaddus, Jr., sued Harry Newton, Inc. and Commonwealth Insurance Company of New York, in the District Court of Milam County, seeking a recovery of $1,-323.27 as the balance due for material and services performed on a State of Texas— Texas Highway Department Project known as F-FG 191 (12), Milam County, to W. S. Luckie, Inc., a sub-contractor, and attorney’s fees.

We have not been favored with a brief by appellee. The defendants filed pleas of privilege and subject to such, general denials.

The pleas of privilege were controverted and a hearing was had and such pleas were-overruled.

The appeal is predicated on two points, to-wit:

“The trial court erred in overruling the pleas of privilege of the appellants inasmuch as there is no evidence to show that the appellee was entitled to the benefits of Article 5160.
“The trial court erred in holding that proof of notices under Article 5160 was not necessary on the theory that such notices were not venue facts.”

The allegation of plaintiff’s petition and ■of the controverting plea have been summarized by appellant as follows:

“(a) That defendant-appellant Harry Newton, Inc., was the prime or general contractor on a Texas Highway department road building project in Milam County, Texas, and that the defendant-appellant Commonwealth Insurance Company of New York furnished the payment bond for Newton pursuant to -Article 5160 of the Revised Civil Statutes of the State of Texas.
“(b) That Broaddus furnished material and services to W. S. Luckie, Inc., who was a sub-contractor of appellant Newton on the project, and that W. S. Luckie, Inc., had not paid Broaddus for such services.
“(c) That ‘by reason of said failure and refusal, plaintiff, on or about the 15th day of January, 1963, by affidavit, notified Harry Newton, Inc., and defendant, Commonwealth Insurance Company of New York, of its claim as aforesaid, said notification being given pursuant to the provisions of Article 5160 et seq., Revised Civil Statutes of the State of Texas, 1925, as amended,’ and
“(d) That venue is maintainable in Milam County, Texas, under the pro-visons of Section G. of said Article 5160, which reads as follows:
“ 'All suits instituted under the provisions of this act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated.’
“No other exception to the right of exclusive venue in the county of one’s residence was raised by the appellee. The truth of the matters concerning residence of the appellants in their pleas of privilege was not controverted in any particular. Upon the venue hearing counsel for all parties stipulated that the Texas Highway Department project in question was known as a Milam County project; that the work of Broaddus was performed in Milam County, Texas; that Harry Newton, Inc., was the prime or general contractor; and that pursuant to Article 5160, Revised Civil Statutes of Texas, the Commonwealth Insurance Company of New York furnished a payment bond for the project.”

Appellee testified that he had a contract with Luckie, a sub-contractor of Newton, Inc., with which concern he had no contract; that his contract for labor and materials was made with Luckie alone, and that he had performed his final work three or four weeks prior to September 28, 1962, the date of the final estimate.

There is no contention that appellee notified appellants of an asserted claim under Article 5160. In fact the evidence is that he did not, and the trial court so found, but concluded that proof of such notice is not necessary because such were not venue facts.

The burden was on the plaintiff, appellee, to establish the determinative venue facts. McDonald, Vol. 1, Texas Civil Practice, 417; Leonard v. Maxwell, 365 S.W.2d 340, Supreme Court.

The question of venue facts with regard to Article 5160 appears to be of first impression.

The article is divided into seven major sections numbered A through G. Section A provides for bonds between the prime contractor and the authority ordering construction. Subsection B requires the type of bond involved in this litigation of the prime contractor, for the protection of all claimants supplying labor and material.

Section B deals with the “Rights of persons furnishing labor or material. Notice required.” providing that: a claimant who: (1) has furnished labor or material in the prosecution of the work, and (2) has not been paid in full therefor, “shall, have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety * * * provided: (a) notice required has been given, etc.

If a claimant cannot prove the conditions (notices) the suit is not instituted under the provisions of the act. General Casualty Company of America v. United States, 5 Cir., 205 F.2d 753.

The judgment of the trial court is reversed and the cause remanded to the trial court with instructions to transfer the cause to the counties of the residence of the appellants.

Reversed and remanded with instructions.

HUGHES, Justice

(dissenting).

The only authority cited to sustain the majority opinion is General Casualty Co. of America v. United States, 205 F.2d 753, Circuit Court of Appeals, 5th Circuit (1953). This case is not a venue case, hence its details need not be stated. The Court held that the claim of the United States was for taxes and not “wages” for which reason Art. 5160 V.A.C.S. had no application. The Court, however, made this further statement:

“Further, the appellee did not comply with the provision of Article 5160 of the Civil Statutes of Texas (Footnote 1, supra) with reference to the filing of an itemized sworn claim with the County Clerk of Guadalupe County, Texas. That provision was not a mere statute of limitation, but was a substantive condition precedent to the existence of a cause of action against the surety. See Fidelity & Deposit Co. of Md. v. Big Three Welding Equipment Co., Tex.Sup., 249 S.W.2d 183."

The Big Three case merely holds that a claimant not filing their claims as required by Art. 5160 cannot recover.

These cases construe Art. 5160 prior to its amendment in 1959. I quote the present provisions of this Article which have any bearing on the proper venue of this case:

“B. Every claimant who has furnished labor or material in the prosecution of the work provided for in such contract in which a Payment Bond is furnished as required hereinabove, and who has not been paid in full therefor, shall have the right, if his claim remains unpaid after the expiration of sixty (60) days after the filing of the claim as herein required, to sue the principal and the surety or sureties on the Payment Bond jointly or severally for the amount due on the balance thereof unpaid at the time of filing the claim or of the institution of the suit; provided:
“(a) Notices Required for Unpaid Bills, other than notices solely for Re-tainages as hereinafter described.
“Such claimant shall have given within ninety (90) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material was delivered, in whole or in part, for which such claim is made, written notices of the claim by certified or registered mail, addressed to the prime contractor at his last known business address, or at his residence, and to the surety or sureties, * * *
“(b) Additional Notices Required of Claimants Who Do Not Have a Direct Contractual Relationship With the Prime Contractor.
“Excepting an individual mechanic or laborer who is a claimant for wages, no right of aption shall be legally enforceable, nor shall any suit be maintained under any provision of this Act by a claimant not having a direct contractual relationship with any prime contractor for material furnished or labor performed under the provisions of this Act unless such claimant has complied with those of the following additional requirements which are applicable to the claim: * *

Sections (1), (2) and (3) follow in which are stated the circumstances under which 36 day and 45 day notices are to he given.

Sec. (c) provides for 90 day notices for claims of unpaid retainages.

See. G, entitled Venue, reads, in part:

“G. All suits instituted under the provisions of this Act shall be brought in a court of competent jurisdiction in the county in which the project or work, or any part thereof, is situated. No suit shall be instituted on the performance bond after the expiration of one (1) year after the date of final completion of such contract. No suit shall be instituted by a claimant on the payment bond after the expiration of one (1) year after the date suit may be brought thereon under the provisions of Section l.B. hereof.”

This suit was brought in the County in which roads were constructed under a contract between Harry Newton Inc. and the State Highway Department. Appellee furnished materials and services to a subcontractor under Newton and he was not paid for them. Appellee alleged in his original petition:

“Repeated demands were made by Plaintiff upon Defendant, Harry Newton, Inc., for the payment of said sum, however, Defendant, Harry Newton, Inc. failed and refused to pay the same or any part thereof. By reason of said failure and refusal, Plaintiff, on or about the 15th day of January, 1963, by Affidavit, notified Harry Newton, Inc. and Defendant, Commonwealth Insurance Co. of New York, of its claim as aforesaid, said notification being given pursuant to the Provisions of Article 5160, et seq, Revised Civil Statutes of the State of Texas, 1925, as Amended.
“III.
“Plaintiff is advised that Harry Newton, Iric., as prime Contractor, on the aforescribed State of Texas — -Texas Highway Department Project furnished a payment Bond in accordance with the requirements of Article 5160, Revised Civil Statutes of the State of Texas, 1925, as Amended, and that such payment Bond was furnished by Commonwealth Insurance Co. of New York and Plaintiff here alleges and claims that said Defendant, Commonwealth Insurance Co. of New York, is liable to Plaintiff by reason of said furnishing of materials as aforesaid.”

This petition was filed March 30, 1963.

It is obvious to me that this suit was instituted under the provisions of Art. 5160 and that the mandatory and exclusive venue provisions of that act should control.

Whether or not notices were given in proper time or in proper form are questions which are defensive in nature and are not pertinent to venue hearings. See 43-B Tex.Jur. Venue, Sec. 152, p. 365, Ulmer v. Dunigan Tool and Supply Co., 163 S.W.2d 901, Eastland Civil Appeals.

The record here discloses that notices required by Art. 5160 were not timely given. These statutory provisions are in essence statutes of limitation.

As such, they are, under Rule 94, T.R.C.P., and Heldt v. Martin, 368 S.W.2d 9, Austin Civil Appeals, writ dism., w. o. j., of a purely defensive character.

The fact that Art. 5160 provides that a claimant shall have the right to sue the principal and surety on a payment bond “provided” he has given certain notices within prescribed times or that it states that “no right of action shall be legally enforceable, nor shall any suit be maintained under any provision of this Act” unless certain other notices are timely given does not alter their defensive nature. Most limitation statutes prohibit the bringing of a cause of action after a stated period of time. Arts. 5524, 5526, 5527, V.A.C.S. are examples. Art. 5472b-1, V.A.C.S., provides, in part, that “no action shall be brought on such bond” (bond for release of lien fixed by Art. 5472a) after the expiration of six months from its date of filing. No stronger prohibitory language could be used yet it is nothing but a statute of limitations. Employers’ Liability Assurance Corp., Ltd. v. Young County Lbr. Co., 122 Tex. 647, 64 S.W.2d 339.

That a suit cannot be brought or maintained or successfully brought or maintained are matters which go to the merits of the controversy. They are not matters which relate to venue under Art. 5160 which only requires a showing that the suit be instituted under its provisions.

The venue of actions is of utmost importance. The Legislature has clearly indicated that laborers and materialmen should have the right to bring and prosecute suits of this nature in the County where the labor was performed or the materials furnished were used.

In spite of this exclusive, mandatory and plain statutory language fixing the venue of suits brought on bonds given to comply with Art. 5160, the majority has converted this small and relatively simple suit from one trial in Milam County where the road was built, as the Legislature directed, into three trials, one on venue in Milam County, one on the merits in Dallas County and one on the merits in Young County. To this «tion, I respectfully dissent.

      . “Any law which creates a condition of the enforcement of a right to be performed within a fixed time is a statute of limitations.” 34 Am.Jur., Limitations of Actions, p. 15, footnote 1, citing Hay v. City of Baraboo, 127 Wis. 1, 105 N.W. 654, 3 L.R.A.,N.S., 84, 115 Am.St.Rep. 977.


author: BELL, Chief Justice.

text:
    Clyde S. SMITH et al., Appellants, v. CROCKETT PRODUCTION CREDIT ASSOCIATION, Appellee.
    No. 14211.
    Court of Civil Appeals of Texas. Houston.
    Nov. 21, 1963.
    Rehearing Denied Dec. 12, 1963.

      Ted Musick,_ Houston, for appellants.
    Adams & Granberry, F. P. Granberry, Crockett, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment overruling appellants’ pleas of privilege.

Appellee filed suit against Clyde S. Smith, as maker of several promissory notes, to recover the balance due on those notes, and to foreclose its chattel mortgage lien on various items of personal property. It joined Carol Warnki, C. D. Sheffield and Carel Rasberry as defendants because they had allegedly purchased certain items of personal property covered by the chattel mortgage and judgment of foreclosure was sought against each of them. None of the defendants resided in Houston County.

Each defendant filed his plea of privilege to be sued in the county of his residence. The appellee filed its proper controverting plea, asserting that venue lay in Houston County because the notes executed by Smith were payable in Houston County and that this also being a suit to foreclose a lien on personal property the other defendants were necessary parties since each had purchased some of the property after the execution and recording of the chattel mortgage which created the lien securing the notes sued upon. The case was subsequently dismissed as to Warnki and Rasberry. After hearing, the pleas of privilege filed by Smith and Sheffield were overruled.

The various notes were introduced in evidence. Each note provides that Clyde S. Smith will pay the amount of the note to appellee “in the City in Texas in which said Association’s principal office is located.” Testimony established that ap-pellee’s principal office was at all material times located in Crockett, Houston County. The execution of the chattel mortgage and its proper filing were proven. Evidence also established that Sheffield had bought some of the cattle and some of the equipment covered by the chattel mortgage and that he claimed such property by reason of trade or purchase from Smith.

The appellee, contrary to appellant Smith’s contention, sufficiently sustained venue in Houston County as to Smith. It alleged and proved the execution of the notes sued on. Each note provides for payment “in the City in Texas in which said Association’s principal office is located.” The evidence showed its principal office was at Crockett in Houston County. This satisfies the requirements of Subdivision 5 of Article 1995, V.A.T.S.; Harrison et al. v. Nueces Royalty Co., 163 S.W.2d 244 (CCA), writ of error dism.; Butler, Williams & Jones v. Goodrich, 288 S.W.2d 887 (CCA), writ of error refused, n. r. e.

Venue was properly sustained as to appellant Sheffield under Subdivision 29a of Article 1995. Venue as against Smith being properly laid in Houston County under Subdivision 5, all necessary parties against whom a cause of action is alleged and proven can be sued in Houston County also. A cause of action showing Sheffield to be a necessary party to the suit against Smith was alleged and proved because he was shown to be a claimant of some of the property covered by the chattel mortgage that was given to secure the notes and on which foreclosure was sought. Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (S.Ct.) ; Deal v. Grand Finance Co., Inc. of Austin, 228 S.W.2d 984 (CCA), Pet. Wr. Mand. overruled; First National Bank of Pleasanton v. Southwestern Investment Co., 301 S.W.2d 192 (CCA), writ dism.

The controverting plea was not subject to the charge that it was insufficient because sworn to by appellee’s attorney. Rule 14, T.R.C.P. authorizes an attorney to make an affidavit in a case for a party. The affidavit shows on its face that the attorney was authorized to make it and that he was “cognizant” of the matters therein stated in the controverting plea and he swore to their truth.

There is no merit in appellants’ contention that the pleas of privilege should have been sustained because appellee failed to obtain a timely hearing. A hearing was held and action taken by the court prior to trial on the merits. Narveson v. Nock, 214 S.W.2d 842 (CCA), no writ hist.; Ragland v. Short, 245 S.W.2d 368 (CCA), app. writ of mandamus overruled;' Gourley v. Fields, 348 S.W.2d 787 (CCA), no writ hist.

Appellants erroneously urge the venue facts were not proven because there was failure to prove default; that no fraud was shown; that no consideration was shown; there was no showing of credits of payments made on the notes; that there was no demand made for payments and no proof of a sale to Sheffield of any mortgaged property. The venue facts in a suit against a maker of promissory notes, such as we have here, are the written instrument providing for payment in a named county or a named place in the county. Here the note so payable was proven. The above asserted deficiencies go not to the venue facts but to the merits. Bradley v. Trinity State Bank, 118 Tex. 274, 14 S.W.2d 810 (Com.App.), opinion adopted by S.Ct. As to Sheffield, we have already noticed the proof of a cause of action against him showing him to be a necessary party was sufficient.

All other complaints have been considered and are overruled as being without merit.

The judgment of the trial court is affirmed.


text:
    Clyde S. SMITH et al., Appellants, v. CROCKETT PRODUCTION CREDIT ASSOCIATION, Appellee.
    No. 14274.
    Court of Civil Appeals of Texas. Houston.
    Nov. 21, 1963.
    Rehearing Denied Dec. 12, 1963.

      Ted Musick, Houston, for appellants.
    Adams & Granberry, F. P. Granberry, Crockett, for appellee.
   BELL, Chief Justice.

This is an appeal from a summary judgment against Clyde S. Smith in which the court rendered judgment against Smith, on April 19, 1963, for $6,517.20, the balance due on a promissory note which was in renewal and extension of several prior notes, including past due interest and attorney’s fees. Also, the judgment provided for foreclosure of a chattel mortgage lien against certain described personal property, the judgment of foreclosure being against both Smith and C. D. Sheffield, who claimed some of the property by reason of purchase or trade from Smith.

The motion for summary judgment was heard while an appeal by these same appellants was pending in this Court from an order of the trial court in overruling appellants’ pleas of privilege. We have this day affirmed the action of the trial court in overruling appellants’ pleas of privilege.

Appellee’s suit was on a promissory note, it seeking to recover the balance due on the note, past due interest, and attorney’s fees. Foreclosure of the chattel mortgage lien was also sought as against both appellants.

Appellant Smith, the maker of the note, subject to his plea of privilege, filed an answer containing a general denial and this special plea:

“Defendant, Clyde S. Smith, alleges that the Plaintiff has changed the original mortgages on this land many times and are attempting now to foreclose upon items not set out in the original mortgages. The mortgages were fraudulently drawn. The Plaintiff gave the Defendant permission to sell the items that the Defendant has sold, which Defendant can prove, and the Plaintiff has received all of the money from all of the sales, except one check for $1800.00, which the Plaintiff received and returned to this Defendant. With the exception of the items sold by permission to the Plaintiff, all of the items listed under the original mortgages are still in tact at Defendant’s homestead. This Defendant has been guilty of no sale of mortgaged property without the permission of the Plaintiff, its agents, servants and employees.”

Prayer was that plaintiff take nothing.

Appellant Sheffield, subject to his plea of privilege, filed his answer containing only a general denial.

On April 5, 1963, appellee filed its motion for summary judgment, stating there was no genuine issue of fact to he decided. The motion was supported by an affidavit of its Secretary-Treasurer swearing to the truth of all of the facts alleged in Plaintiff’s Original Petition as well as to the exhibits attached to the motion. The exhibits attached were the promissory notes, the credits shown thereon, and the chattel mortgage, which were the basis of the suit. The appellee in its Petition had very specifically described the notes, the chattel mortgage, the property covered by it, and all items of credit it had given on the notes. It had also specifically alleged the transfer to Sheffield of certain property covered by ■the chattel mortgage. The affidavit did except the allegations appellee made against defendant Carel Rasberry. Rasberry and Warnki, another defendant, were dismissed from the suit. Notice was given the appellants of the hearing of the motion for summary judgment to be held on April 19.

By a plea in abatement, filed April 16, “Defendants” moved to “abate the motion for summary judgment” until this Court passed on the appeal here pending from the order of the trial court in overruling appellants’ pleas of privilege. The plea in abatement was overruled.

We are unable to find that appellant Sheffield filed anything in response to ap-pellee’s motion for summary judgment. Appellant Smith filed an answer to the motion, in which he asserted “ * * * that there are several fact situations to be determined by a jury, * * *” He made an attached affidavit, which was made -by him a part of his answer. The affidavit is as follows:

“My name is Clyde Smith, and I am one of the Defendants in the above styled and numbered cause, and in support of my answer to Plaintiff’s motion for summary judgment, respectfully show the Court the following:
“1. Several fact situations exist in this case, in that the payments were always made timely by this Defendant, and there is no allegation by Plaintiff that the Defendant not up to date on his payments.
“2. This defendant never did sell anything without the permission of the Plaintiff, and therefore, the Plaintiff has no right to attempt to foreclose on any mortgage pledged by the Defendants.
“3. The Plaintiff is attempting to rely on hearsay testimony that is not competent evidence, and therefore should not be a basis for motion for summary judgment.
“4. There has been no allegation in Plaintiff’s petition on motion for summary judgment for any true basis for judgment at all in this case. Therefore, a fact situation exists as to whether anything was owing at the time of institution of this suit, and if so, what.
“5. The Plaintiff has not given this Defendant credit for all of the offsets and payments that have been made, and therefore, there is a fact situation that exists as to what, if anything, is owed.
“With these fact situations outstanding that must be ruled on by a jury, the Court should deny Plaintiff’s motion for summary judgment.”
/s/ Clyde Smith

On April 16 appellant Smith filed an unsworn motion for continuance, signed by his attorney, based on the assertion that his attorney had two cases set in Harris County April 19 and the attorney could not reach Crockett for hearing the motion for summary judgment. The motion for continuance was overruled.

Appellants’ complaint, that their plea in abatement should have been sustained and no action should have been taken on the merits of the case while the appeal from the judgment of the trial court overruling their pleas of privilege was pending in this Court, is without merit. Where a plea of privilege is overruled and appeal is taken, the trial court may proceed to trial on the merits. It is only where there is an appeal from an order sustaining a plea of privilege that further proceedings by the trial court are suspended. Article 2008, V.A.T.S.; Allen v. Woodward, 111 Tex. 457, 239 S.W. 602 (S.Ct.) ; Ex Parte Scott, 133 Tex. 1, 123 S.W.2d 306; Magnolia Petroleum Co. v. State, 218 S.W.2d 855 (CCA), ref., n. r. e.

Neither is there merit in appellants’ contention that there was error in the over-ruing of their motion for continuance. The motion was not sworn to. Our rules require that a motion for continuance he supported by affidavit. Rule 251, T.R.C.P.; Coleman v. Banks, 349 S.W.2d 737 (CCA), ref., n. r. e.

Appellants’ third Point is that there were fact issues raised as to there being failure of consideration, whether the chattel mortgage sued on was correct and whether all payments had been credited on the notes.

We note this Point is not briefed and we could consider the point waived. On the merits of the Point, we are of the view that appellants are incorrect.

We find no statement of fact in appellant Smith’s affidavit (Sheffield filed none) attacking the mortgage or showing failure of consideration.

With regard to their contention that there was a fact issue as to whether all payments made have been credited, we are of the view it is without merit. It is observed that appellants in their pleading have not pled payment in any form. We are not unaware that in summary judgment proceedings the absence of such a pleading is not fatal if the affidavit, etc., filed in reply to the motion for summary judgment, establishes facts which if true would constitute a defense. Womack v. Allstate Insurance Co., 156 Tex. 467, 296 S.W.2d 233 (S.Ct.). However, we are of the view that the plea in appellant Smith’s affidavit, there being nothing more, stating that all offsets and credits have not been allowed, is but a conclusion. It should have gone further and specified what such credits and offsets were. If this had been a trial on the merits, and the only thing stated by appellant was that all offsets and payments had not been credited, the court would have been required to instruct a verdict against appellant. His testimony in such a trial, that all payments and offsets had not been allowed, without more, would be a pure conclusion. See Franklin Life Ins. Co. v. Rogers, 316 S.W.2d 116 (CCA), ref., n. r. e.

Appellant Smith’s affidavit that “the payments were always timely made by this Defendant, and there is no allegation by Plaintiff that the Defendant (is) not up to date on his payments” does not raise any fact issue. The notes show on their face they were not installment notes but were due absolutely on a date certain, and suit was filed many months after the due date of the last note.

The judgment of the trial court is affirmed.


author: STOCKARD, Commissioner.

text:
    Mary Jane FARKAS, Appellant, v. Calogero CALAMIA, Individually and as Executor of the Estate of Caterina Calamia, and Gregorio Calamia, Respondents.
    No. 49919.
    Supreme Court of Missouri, Division No. 2.
    Dec. 9, 1963.

      Edward J. Delworth, Clayton, for appellant.
    Robert G. Ruhland and Gossom & Ruh-land, St. Louis, for respondents.
   STOCKARD, Commissioner.

Plaintiff has appealed from an adverse judgment in her action for a declaratory judgment to construe the will of Cate-rina Calamia, deceased. Appellate jurisdiction is in this court because appellant seeks to have the will construed to vest in her a fee simple title to- certain real estate.

Caterina Calamia, a widow, died testate on August 9, 1961, and her will was admitted to probate in the Probate Court of St. Louis County. By her will she first directed that all her just debts and funeral expenses be paid, and then by “Article Second” she made the following provision:

“All the rest, residue and remainder of my estate, both real and personal, and wherever situated, I hereby give, bequeath and devise unto my three children, Calogero Calamia, Gregorio Calamia and Mary Jane Farkas, to be divided between them equally share and share alike. However, the portion of Mary Jane shall be paid to her in monthly installments of $20.00 until exhausted, in the event that she shall die before her share is used up, then any balance thereof shall revert to my above named two sons to be divided between them equally. For the purposes of Mary Jane’s share, I name my son, Calogero, to act as trustee, in the event he cannot act as such, then I name Gregorio, my son, to act as such.”

The assets of the estate, as inventoried, consists of real estate valued at $12,000 and personal property valued at $9,267.45. The value of the net estate is not shown. The only witness at the trial was appellant. From her testimony it appears that she was the adopted daughter of the testatrix, having been adopted when three or four years of age, and that she was about thirty-five years of age at time of trial.

Appellant contends that she was devised a fee interest in the real estate and that she was bequeathed an absolute ownership of an interest in the personal property. She asserts that the trial court erred in holding that “the intent of the testator was to grant a contingent remainder” to Calogero and Gregorio Calamia as to the one-third of the estate in which she is to receive an interest because after the testator had granted a fee or an absolute interest to her by the first sentence, an attempt by use of the subsequent language to reduce that interest was of no effect.

By the first sentence of “Article Second,” if the testatrix had there stopped, she would have devised fee simple title to appellant of an undivided one-third interest in the real estate and would have bequeathed to her absolutely an undivided one-third interest in the personal property. However, the “keystone of construction” in determining the meaning of a will is the intent of the testator, McMillan v. Barnard Free Skin & Cancer Hospital, 304 Mo. 635, 264 S.W. 410, 413, and this intent must be gathered from the whole will, St. Louis Union Trust Co. v. Kern, 346 Mo. 643, 142 S.W.2d 493, 496, and “ ‘not from single words, passages, or sentences.’ ” Shaw v. Wertz, Mo., 369 S.W.2d 215, 217. See also Vaughan v. Compton, 361 Mo. 467, 235 S.W.2d 328; Smith v. Smith, 359 Mo. 44, 220 S.W.2d 10, 12. The rule for determining the effect of subsequent language which purports to reduce the quantum of a devise or bequest made by previously used language is well stated in Housman v. Lewellen, 362 Mo. 759, 244 S.W.2d 21, 24, as follows: ‘“[T]he devise of a fee in terms, or by words necessarily describing an absolute estate * * * cannot be annulled except by later language in the will, which expressly or by necessary implication, arising from words equally as clear and conclusive as those in granting the fee, cuts down the previous grant of the fee.’ ” See also Presbyterian Orphanage of Missouri v. Fitterling, 342 Mo. 299, 144 S.W.2d 1004, 1007. The converse of the above rule is stated in Vaughan v. Compton, supra, 235 S.W.2d at p. 331, as follows: “It may be conceded that when property is devised in general terms, and without the use of any qualifying words denoting that a specific quantum as to estate is being conveyed, that such estate may be later limited or converted to a life estate by the further use of other words or clauses implying that of necessity the estate granted is only for the life of the devisee, with a remainder over to certain named others. * * * But such a limitation over must clearly appear, and the expressions and words used to denote such limitation over must be not only free from ambiguity but must exclude any other construction.” This rule was quoted with approval in Shaw v. Wertz, supra, 369 S.W.2d at p. 218. The same rule applies to personal property bequeathed by a will. Housman v. Lewellen, supra, 244 S.W.2d at p. 24; Deacon v. St. Louis Union Trust Co., 271 Mo. 669, 197 S.W. 261, 265. The second sentence of “Article Second” of the will starts with the word “However,” which modifies that which has gone before, i. e. the first sentence. Then in clear, concise and unequivocal language the testatrix provided that appellant’s share should be paid to her in monthly instalments of $20.00 until exhausted, and that in the event of her death before her share was paid to her in the manner provided, the balance should go to her two sons. This necessarily means tha. the testatrix intended that appellant’s interest in the one-third share should be only for her lifetime, and that she was not to receive absolute ownership thereof. The devise and bequest in the first sentence were in general terms without the use of any qualifying words denoting the quantum of the estate. In clear and unambiguous language the testatrix then limited or defined the quantum of the estate she intended to convey to appellant, and under these circumstances her clearly expressed intent is to be given effect by the courts. See for example, Threlkeld v. Threlkeld, 238 Mo. 459, 141 S.W. 1121. We necessarily agree with the ruling of the trial court in this respect.

Appellant also contends that the trial court erred in holding that there was a valid trust provision because there are no ascertainable duties of the trustee as to the real estate or personal property, and for that reason she says “the attempted trust is dry.”

We need not in this case enter into a detailed discussion of the effect of the Statute of Uses. Section 456.020 RSMo 1959, V.A.M.S. See generally 54 Am.Jur. Trusts §§ 9-14; 90 C.J.S. Trusts § 176; 1A Bogert, Trusts and Trustees §§ 206-208; and the introduction to the annotation at 165 A.L.R. 550. It may be said that by reason of the application of the above statute as to real estate, and by reason of the application of general principles of equity as to personalty, Vol. 1A Bogert, Trusts and Trustees, § 207, p. 293; Fisher v. Fisher, 203 Mo.App. 45, 217 S.W. 845, if there are no substantial duties to be performed by the trustee to carry out the purpose of the set-tlor the trust is declared to be passive or dry, and the legal and equitable title is merged in the beneficiary. For a trust to be active it is essential that the interposition of the trustee be necessary to carry out the valid puposes of the trust, the test being that, with respect to the control, protection, management, or disposition of the trust property, the trustee has imposed on him, expressly or by implication, some active and substantial duty to perform, or useful purpose to subserve, or has by virtue of his trust obligation some discretion to exercise, such as the investment or reinvestment and care of property; * * * or the receipt and payment over of the rents, income, profit, or proceeds of the trust property to, or for another with, remainder over; or the preservation of estates for those in remainder; or the protection of the estate for a given time or until the occurrence of a certain event; or the conveyance of the trust property to the beneficiary or beneficiaries after a life estate or the happening of some specified event; * * 90 C.J.S. Trusts § 177; 54 Am. Jur. Trusts § 13. In this case the trustee is not to pay all the gross receipts to appellant but only a specified sum per month. See Vol. 1A Bogert, Trusts and Trustees § 206 at pp. 284-285 for the effect of this difference in duties. Therefore, the trustee necessarily has the implied duty to preserve the corpus of the trust. After making the specified payments to appellant he then has the duty to pay that portion of the corpus of the trust remaining, if any, to the specifically named contingent beneficiaries upon the occurrence of the stated event, the death of appellant. As was stated in Craig v. Kimsey, 370 Ill. 321, 18 N.E.2d 895, “If any agency, duty or power be imposed on the trustee, as to preserve contingent remainders * * * the operation of the Statute of Uses is excluded.” See also In re Hickok’s Will, 61 N.M. 204, 297 P.2d 866, where it was held that “where property is placed in trust for a term and the trustees at the expiration of the term are to divide the corpus among contingent remain-dermen, the trust is an active one.” In addition, see DiCarlo v. Licini, 156 Pa.Super. 363, 40 A.2d 127; Vol. 1A Bogert, Trusts and Trustees § 207, pp. 288-289; and the cases in 165 A.L.R. at pp. 558-559. In 54 Am.Jur. Trusts § 13, p. 31, it is stated that the test of whether a trust is active or passive, in terms of result, is whether the result will be different from what it would be if the trust were executed into a legal estate. In this case, if appellant had the legal estate the result would not be the same as when the trustee carries out the clearly expressed intent of the testatrix. Therefore, we conclude that the trust is active and is not void for the reason contended by appellant.

The judgment is affirmed.

BARRETT, C., concurs.

PRITCHARD, C., not participating.

PER CURIAM.

The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    STATE of Missouri, Respondent, v. Solomon JACKSON, Appellant.
    No. 50054.
    Supreme Court of Missouri, Division No. 1.
    Dec. 9, 1963.

      H. H. McNabb, Jr., Belisle & McNabb, Butler, for appellant.
    Thomas F. Eagleton, Atty. Gen., Jefferson City, Arthur S. Margulis, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   HOLLINGSWORTH, Judge.

On the evening of July 10, 1962, in the City of Butler, Bates County, Missouri, Solomon Jackson, hereinafter referred to as defendant, shot and severely wounded his mother-in-law, Mrs. Helen Sweets. By an information filed in the Circuit Court of Bates County, he was charged under § 559.-180 RSMo 1959, V.A.M.S., (to which revision all statutory references herein are made) with having willfully, unlawfully, feloniously, on purpose and of his malice aforethought so assaulted and shot her, with intent then and there to kill her. Upon trial to a jury, defendant was found guilty of willful and felonious assault with intent to kill, without malice aforethought, and his punishment was assessed at imprisonment for a term of four years, in accordance with the provisions of § 559.190, which latter offense is included within § 559.180. State v. Parrish, Mo., 214 S.W.2d 558. Following hearing of his motion for new trial, defendant was adjudged guilty of the offense of which he was found guilty and was committed to the custody of the State Board of Corrections for a term of four years. This appeal ensued.

Defendant, represented by counsel at the trial and by the same counsel on this appeal, does not challenge the sufficiency of the evidence to support the verdict. Error is assigned in the failure of the trial court to instruct the jury on the subject of the good character of the defendant, and in denying defendant’s objection to statements made by the prosecuting attorney during the course of the trial wherein he allegedly expressed his personal opinion as to the guilt of the defendant.

A brief statement of the evidence will suffice. The evidence in behalf of the State supports a finding of the following facts. About one week prior to the day of the shooting, defendant’s wife, Anna Marie, (then separated from defendant) came to and stayed at the home of her mother, Mrs. Sweets, in Butler. That home, facing west, was on the east side of Olive Street, which is about 20 feet wide. The front porch was within a few feet of the east side of that street. Between 8 and 9 o’clock on the evening of the shooting, Mrs. Sweets and her sister sat on the porch. Several of Mrs. Sweets’ children and grandchildren were also on or about the porch. Defendant sat in his car parked on the west side of Olive Street directly in front of the Sweets home, talking with Anna Marie, who stood by his car. Defendant soon drove away but, within about ten minutes, returned, parked his car in the same general area, got out of his car, reached back of the front seat and pulled out a shotgun. Mrs. Sweets went from the front porch to the front door of the home, opened the screen door and entered the home. Defendant fired two shots from the gun. The first shot went through the screen door and struck the right rear side of Mrs. Sweets below her waistline; the second shot went in the direction of, but did not strike, Anna Marie as she ran from where she had been standing near defendant’s car.

Further evidence adduced in behalf of the State was that defendant made threatening statements immediately before firing the gun: to Mrs. Sweets he said, “If you go in that house I’ll kill you”, or, as another witness testified, “Don’t go in there”; to Anna Marie he said, “Anna Marie, don’t cause me to hurt a lot of people.” Another witness testified he said, “I’ll kill all of you sons-of-bitches.” The sheriff of Bates County testified that on the day following the shooting he asked defendant why he did what he did, to which defendant replied, “Oh, that old lady [Mrs. Sweets] has been giving me trouble for 13 or 14 years.”

Defendant testified: He resided in Kansas City. One week before the day of the shooting, he called the Sweets home and was told by Mrs. Sweets that Anna Marie was not there, but he “went on down”. Mrs. Sweets would not let him talk to Anna Marie and had him arrested. He then had some papers made out to sell or lease his and Anna Marie’s home in Kansas City and sent them to Anna Marie, but she did not return them. He went to the Sweets home on July 10th and he and Anna Marie discussed divorce; he wanted her to come back home. After they had talked awhile, he drove away but shortly thereafter returned and tried to talk to Anna Marie out in the street. Mrs. Sweets kept calling Anna Marie to come into the house. Defendant reached for his shotgun, which he kept back of the front seat of his car, “turned around and went to pump it down and that’s when it went off.” As to pointing the gun at Mrs. Sweets, defendant said, “I didn’t, I never had any intention to point it at her.” His intention “was just to try to scare them to make them leave me alone, that’s all I intended to do.” His further testimony was that both shots were accidentally fired as he attempted to “pump the gun”; that he accidentally pulled the trigger; and that he made none of the remarks attributed to him by the witnesses for the State.

Further evidence adduced in behalf of defendant consisted of the testimony of two witnesses who, without objection, testified that defendant’s reputation as a peaceful, law-abiding citizen was good. The trial court, however, gave no instruction on the subject of the good character of defendant. He assigns prejudicial error in that respect. The Attorney General insists that the testimony as to defendant’s good character was neither competent nor substantial and that the trial court is not to be convicted of prejudicial error in failing to instruct the jury upon the subject of good character, as provided by S.Ct. Rule 26.02(6), V.A.M.R., as follows:

“In all criminal cases the court, whether or not it shall have been requested so to do by either party, must instruct the jury in writing upon all questions of law necessary for their guidance in returning their verdict which shall include whenever necessary the subjects of good character and reasonable doubt. In all felony cases failure so to instruct shall be good cause for setting aside a verdict of guilty by the jury and granting a new trial.”

The first of defendant’s character witnesses was Dr. Otis Miller, who testified: He was Professor of Business, Rockhurst College, Kansas City, and held a Ph.D. degree in Economics. He was also in the real estate business and among other phases of that business managed an apartment house and other properties. Defendant was a tenant in the apartment house. The witness had only known defendant for the past two months. (The shooting occurred July 10, the trial was held on October 8.) Defendant worked for the witness in the upkeep of the apartment house, where he earned the respect of the tenants, during which time the witness became familiar with defendant’s reputation as a peaceful, law-abiding citizen. His reputation in that respect was “very good”. On cross-examination the witness testified he had not known defendant or his reputation prior to the shooting.

The second witness, John Taylor Brady, testified: He is and has been a building contractor, residing in Overland Park, Kansas, for about IS years, during which period he has employed men. Defendant started working for the business there operated by the witness about 14 or IS years ago; he sees him every day on the job. Defendant has been a foreman for the past five years. He knows defendant’s reputation among “those people he deals with” as it relates to his being a peaceful, law-abiding, nonviolent person; it is good.

S.Ct. Rule 26.02(6), in substance the same as § 546.070, in specific terms requires the trial court, whether requested or not, to instruct the jury on the subject of good character whenever necessary, and when the defendant is found guilty the failure to so instruct the jury constitutes grounds for setting aside the verdict. The words “whenever necessary”, as used in the rule, mean whenever there is any substantial evidence of defendant’s general reputation of good character. State v. Baird, 288 Mo. 62, 231 S.W. 625, 627, 15 A.L.R. 1035; State v. Brown, Mo., 62 S.W.2d 426, 427; State v. Fowler, Mo., 189 S.W.2d 549, 550-551; State v. Terry, Mo., 325 S.W.2d 1, 8; State v. Cross, Mo., 343 S.W.2d 20, 25. The reason for such rule is that in Missouri, as in most other states, proof of good character is considered to be substantive proof of the defendant’s innocence; that is, to show the improbability of his committing the crime charged. State v. Nienaber, 347 Mo. 541, 148 S.W.2d 537, 541; 22A C.J.S. Criminal Law § 676, pp. 699-700.

We aré constrained to hold, however, that the testimony of Dr. Miller that defendant bore a good reputation as a peaceful, law-abiding man constituted no substantive proof of his innocence of the crime of which he was charged; this for the reason that the doctor’s testimony in that respect was predicated upon the reputation acquired by defendant several months subsequent to the date on which he shot Mrs. Sweets. “ * * * [E]vidence of character must be confined to proof of character or reputation at or prior to the commission of the offense, and must not he allowed to cover character after the commission of the offense or what was said after the offense as to accused’s character either before or after the offense.” 22A C.J.S. Criminal Law § 677(2), pp. 709-710. See also State v. Carson, Mo.App., 239 S.W. 2d 532, 536 [7].

The State also insists that the testimony of defendant’s employer, John Taylor Brady, for a period of 14 or 15 years prior to the shooting, was wholly incompetent and constituted no substantial evidence of defendant’s character as invoked in this case. In support of that contention we are cited the case of Pittman v. United States, 8 Cir., 42 F.2d 793. In that case, the defendant, a resident of Taney County, one of the essentially rural counties of Missouri, was on trial for violating the National Prohibition Act. During the course of a lengthy consideration of the admissibility of evidence with respect to his character, under a state of facts not apposite here, the court made these observations, loc. cit. 42 F.2d 796:

“A witness sufficiently qualified may testify as to the general reputation of a defendant as to good character prior to the time of the charges in the indictment or information in the community where he resides.”

And further, loc. cit. 42 F.2d 798:

“General reputation as to good character of a defendant is founded on the opinion of the people in the community where the defendant lives. The test is the consensus of opinion of the community, and, while it may be possible, of course, that one living outside a community may know of the general reputation of a defendant therein, ordinarily the proper witnesses to prove this are citizens of the community.”

The observations made by the court in the above case are not dispositive of the contention made by the Attorney General in the instant case. Generally, it may be said, as stated in Wigmore on Evidence, 3rd Ed., Vol. Ill, § 692, p. 18:

“The admissible reputation is that which is built up in the neighborhood of a man’s domicile or in the circle where his livelihood is followed (post, § 1615); and it is of slow formation. It is the sum of all that is said or not said for or against him.” (Emphasis supplied.)

The author of the above treatise more fully thus states in Vol. V, § 1615, p. 488, the modern and more trustworthy rule:

“In that type of community where the ordinary person’s home is under the same roof as his store or workshop, or where the stores, workshops, offices, and homes are all collected within a small village or town group, and one’s working associates are equally the neighbors of one’s home, there is but one community for the purpose of forming public opinion, and there is but a single capacity in which the ordinary person can exhibit his character to the community. In other words, he can there have but one reputation. But in the conditions of life today, especially in large cities, a man may have one reputation in the suburb of his residence and another in the office or the factory at his place of work; * * *.
“There is every reason why the law should recognize this. Time has produced new conditions for reputations. The traditional requirement about ‘neighborhood’ reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary limitations not appropriate in other times. ‘Alia témpora, alii mores.’ What the law, then as now, desired was a trustworthy reputation; if that is to be found among a circle of persons other than the circle of dwellers about a sleeping-place, it should be received.”

In this case the undisputed evidence shows that, although defendant resided in Kansas City, his working days, for a period of 14 or 15 years, had been spent in close association with his fellow employees, during the first 9 or 10 years of which employment he had worked as a common laborer and for the last 5 years had been a foreman. His employer testified, without objection, that he had known defendant’s reputation among “those people he deals with” during the course of his employment for being a peaceful, law-abiding, non-violent person; and it was good.

It is a matter of common knowledge that the reputation of the average man residing in a large metropolis often is much better known among those with whom he spends his working days than among those residing in the immediate area of his residence. There is no suggestion in the record that defendant had established any general reputation in the “community” or, possibly, several “communities” in which he had resided. There is evidence of his general reputation for the traits of character here material among those with whom he associated during his working hours for a period of 14 or 15 years.

It is our conclusion that the testimony of John Taylor Brady, adduced in behalf of defendant, constituted material, relevant and substantial evidence of defendant’s general reputation as a peaceful, law-abiding, non-violent person “in the circle where his livelihood [was] followed”; that such evidence, having been admitted without objection, placed his character in those respects in issue as a matter for consideration of the jury; and that the trial court erred to the prejudice of defendant in not instructing the jury as required under S.Ct. Rule 26.02(6).

The conclusion here reached makes it not necessary to rule the other error assigned. It is suggested, however, that if in any future trial the court, in its discretion, finds it advisable to give an instruction on the credibility of witnesses, as it did in the trial here reviewed, the case of State v. Fingers, Mo., 357 S.W.2d 89, should be taken into consideration; and that, if any instruction be given on the subject of the good character of the defendant, the case of State v. Jackson, Mo., 369 S.W.2d 199, be taken into consideration in the wording of such instruction.

The judgment is reversed and the cause remanded.

All concur.