author: PALMORE, Judge.

text:
    Joseph C. HOFGESANG, Appellant, v. WOODBINE AVENUE REALTY COMPANY et al., Appellees.
    Court of Appeals of Kentucky.
    March 17, 1967.
    As Modified on Denial of Rehearing June 2, 1967.

      Ewing L. Hardy, Ben B. Hardy, Louisville, for appellant.
    Richard C. Oldham, Fred M. Goldberg, B. C. Van Arsdale, Charles P. Suit, Jr., Louisville, for appellees.
   PALMORE, Judge.

Joseph C. Hofgesang brought this suit to enjoin Woodbine Avenue Realty Company (hereinafter Woodbine Company) and North American Fertilizer Company (hereinafter North American) from obstructing an area he contends has been dedicated to public use as a street. After conclusion of the testimony the circuit court made findings of fact and conclusions of law and entered a judgment denying relief to Hofge-sang and awarding Woodbine Company $1,-596 on a counterclaim for damages resulting from the removal of its fence by Hofge-sang. Hofgesang appeals. The basic issue is whether the evidence to establish a dedication was conclusive, in which case the chancellor’s finding in the negative would be “clearly erroneous.” CR 52.01.

About 100 years ago Peter J. Marret owned a triangular piece of land containing 24½ acres on the east side of Preston Street in Louisville. In 1875, what was left of it after the sale of a tier of lots facing on Preston Street was partitioned among his heirs. On the plat filed by the commissioners appointed to effect the partition the lots sold are separated from the lots divided among the heirs by a 20-foot alley running parallel with and 150 feet east of Preston Street. Two 60-foot streets, Marret and Peter (now Woodbine), run eastward from Preston Street to the alley and terminate there, Woodbine being 315 feet south of Marret. One of the division lines runs coincident with the center line of Woodbine Street, if extended, from the alley to the eastern boundary of the Marret tract, which is a line running diagonally southwest to northeast from a point in Preston Street several hundred feet south of Woodbine to a point some distance northeast of the eastern end of Woodbine if extended through the Marret estate.

Hofgesang now owns two lots which together front 213.84 feet on the north side of the north line of Woodbine at its eastern extremity if extended. Woodbine Company owns a triangular lot fronting 247.44 feet on the south side of the center line of Woodbine at its eastern extremity if extended. Hence the two properties in question, according to the deed descriptions, are separated by a 30-foot strip which is the north half of Woodbine Street if extended. North American owns the property immediately west of Woodbine Company’s lot. North American’s deeds also call for the center line of Woodbine Street, if extended, as its north boundary.

Several of the various conveyances since 1875 have reserved private easements for ingress and egress along certain portions of Woodbine Street if extended, but except for the possibility that North American has made a dedication by deed, as hereinafter mentioned and discussed, none of the owners of any of the property in the area under dispute ever has made a formal dedication by deed, plat or otherwise, of any part of the street. The first question to be determined is whether a dedication has been proved by evidence of public user. The second is whether, if North American has made an express dedication, Hofgesang is entitled to equitable relief to enforce it.

The titles of Woodbine Company and North American go back to J. Lithgow Smith, who acquired in 1892 the whole triangular parcel east of the alley and south of the center line of Woodbine Street, if extended. Evidently the first use of the areas on both sides of Woodbine Street was for sand pits and then a dump and fill operation. In 1910 or 1911, at the time of earliest eyewitness recollection, the sand excavation was still going on and the dumping had started. Though Hofgesang’s brief says a street was maintained and was used by the City of Louisville and the general public, the evidence is that such use was mostly on the business of the owners of the property, who were excavating and selling sand and filling the pits through the operation of a public dump on a fee basis. One witness, Hon. W. J. Hardy, who as a young man lived in the neighborhood during the winter of 1910 and 1911 and used to shoot rats in the dump area, did recall that “people working over at Standard used to come through here and go that-a-way up in Germantown” and that the fire department had to come out frequently to extinguish fires in the dump, but that is about the only testimony of any use of Woodbine Street except for the trade purposes of its owners until about the year 1947.

Hofgesang himself first became familiar with Woodbine Street in 1927. He had wagons and teams of horses and mules with which he collected garbage under contract with the City of Louisville and disposed of it in one or more of the dumps operated by Andy Hoertz and Ben Humpich Sand Company. He and other contractors used Woodbine Street in entering and crossing the dump area. The city had a contract or contracts with the owners. Other users of the dump paid or were supposed to pay fees according to the size of load. The roadway now in dispute had been built up with ashes and with gravel out of the sand pits. This situation continued until 1939 or 1940.

By 1947 the lands along Woodbine Street had been substantially filled and leveled, and from that point on the evidence conducing to suggest a dedication by way of public user begins to take on a little more life. During that year a firm called Consolidated Contractors purchased what is now the Hofgesang property and constructed two buildings on it, one of which is presently leased by Hofgesang to Ohio Chemical Company and the other is occupied by one of his own enterprises, Eagle Engineering Company. A year or so later Griffin and Company built a manufacturing plant on the property directly to the east of the eastern end of Woodbine Street. The main entrance to Griffin and Company’s place is on the other side, but it has a gate in its fence for access to and from the north half of Woodbine Street and for a time had a gate opening into the triangular piece now owned by Woodbine Company.

Both Consolidated Contractors and Griffin and Company and their customers used the north half of Woodbine Street for access to and from the west of their respective properties. The triangular lot now owned by Woodbine Company, which embraces the south half of Woodbine Street, was used by Consolidated Contractors and its customers for parking and for turn-around purposes, without permission or hindrance. According to Hofgesang, ever since 1947 the city has put down rock and asphalt patching, as have Hofgesang himself, Griffin and Company, and other owners to the west. He testified also that from time to time the city fire department would come down the street and conduct training exercises. How often or regularly these activities by the city took place he did not say.

Hofgesang succeeded to the title of Consolidated Contractors in 1952. Woodbine Company purchased the triangular lot (for-merely owned by the Humpich family) in 1963. William J. Griffin, chairman of the board at Griffin and Company, is president and one-third shareholder of Woodbine Company, which affiliation no doubt explains why Woodbine Company is able to fence its north line without doing itself more harm than good. The harm done to Hofgesang is that the arrangement of his buildings with respect to the north line of the street opposite the Woodbine Company lot is such that he needs the full 60 feet in order to get large trucks in and out of the premises and will suffer considerable inconvenience and damage from being limited to 30 feet.

Numerous maps and plats were introduced, including the master plan for Louisville and its environs, maps maintained by the city’s department of public works, and unofficial plats from the files of the Louisville Title Company, on which Woodbine Avenue is indicated as a public street. So were an 1884 “Atlas” and several city directories of various antiquity. All of these were obj ected to but were admitted for what they were worth. Obviously, of course, if the owner of property has never dedicated it or suffered it to become a public way by prescription, no amount of map-making by others can make it one. On the other hand, it may be conceded that the adoption of an official map by ordinance constitutes acceptance of streets shown on it if they have been dedicated. Sullivan v. City of Louisville, 291 Ky. 60, 163 S.W.2d 17, 19 (1942).

Other witnesses for Hofgesang testified that Woodbine has been freely and extensively used during their various periods of observation since 1947, but Hofgesang himself admitted that those who used it were people who came to do business with the occupants of the abutting premises, and that there is “no through traffic. They turn around on lot 23.” With particular reference to the Woodbine Company lot, including the south half of Woodbine Street, it would therefore seem reasonable to conclude that the users other than the owner and its customers were not the general public, but the occupants of Hofgesang’s property and their customers. This distinction is of importance because Hofgesang’s claim is founded on the establishment of a public right through dedication, and not the acquisition of a private easement by prescription.

The factual situation in respect to North American is different from that which exists with regard to Woodbine Company. North American owns all of the property on the south side of Woodbine Street from Woodbine Company’s west line to the 20-foot alley lying ISO feet east of Preston Street except for the right-of-way of Jackson Street, which was relocated in 1953 and cuts through Woodbine Street in a north-south direction. North American acquired some of this property in 1936 and the rest in 1945. Both descriptions run to the center of Woodbine Street if extended, and in 1945 North American erected a chain link fence along that line. East of Jackson Street the fence has remained in place continuously until the present. It follows, of course, that since 1945 there cannot have been any public use of the south half of Woodbine Street east of Jackson Street except for that portion which is or was a part of the Hum-pich lot (now Woodbine Company).

On August 6, 1953, contemporaneously with negotiations relating to the right-of-way for Jackson Street, North American’s board of directors adopted a resolution authorizing its president to execute in favor of the City of Louisville a deed dedicating for public use as a street the south 30 feet of Woodbine Street from the 20-foot alley eastwardly to the line of what is now the Woodbine Company lot. The deed was prepared and an unexecuted carbon copy of it has been found in the files of the draftsman. On September 11, 1953, the board of aldermen of the city adopted a resolution reciting that the dedication had been made and accepting it. However, the deed was not put to record and cannot be found; the then president of North American is deceased ; and no one was able to testify from personal knowledge that the deed actually was signed and delivered.

In his findings of fact and conclusions of law the chancellor did not mention the question of whether North American had made a dedication by deed, and he overruled Hofgesang’s motion that this omission be supplied by amendment of the findings and conclusions. Thus we are prevented from a review of his judgment in this respect without remanding the case, unless the question can be resolved as a matter of law. Cf. Perry v. McLemore, Ky., 414 S.W.2d 141 (decided February 10, 1967).

“It is settled that dedication is a matter of intention.” Smith v. City of Kuttawa, 222 Ky. 569, 1 S.W.2d 979, 985 (1928). “The intent of the dedicator is the foundation and life of all dedications, and the intent must be clearly and unequivocally manifested.” 11 McQuillin, Municipal Corporations § 33.36, at 719 (3d ed. rev. Ellard 1964). “And, of course, the term ‘intention’ as it is used in the context of this rule is not to be taken in the sense of an actual intent, inasmuch as the basis of a common-law dedication often rests on mere conduct of the owner of land relied on by others to their injury so as to constitute an estoppel against the owner, and effectuate a dedication notwithstanding that there was never in the mind of the owner any actual intent to dedicate, the theory being that the owner must be held to intend the reasonable and necessary consequences of his acts. In other words, the acts of the owner must either be such as to show an intent to dedicate, or such as to estop him from denying that such was his intent * * * In brief, the intent may be actual or presumed, as in other branches of the law where intent is material.” Id. § 33.29, at 696-697.

As heretofore indicated (footnote 2), both intention to dedicate and acceptance can be established by evidence of public user. However, the user must be by the general public. Id. § 33.50, at 767. “When the appropriation is for the use of particular persons only, and made under circumstances which exclude the presumption that it was intended to be for public use, it will not amount to a dedication.” Hall v. McLeod, 59 Ky. (2 Mete.) 98, 104, 74 Am.Dec. 400 (1859). So, in accordance with this principle, it was held in Foulk v. City of Louisville, 270 Ky. 828, 110 S.W.2d 665 (1937), that a private alley was not made a public alley through use “by the owners of property abutting on the alley, by delivery trucks, coal trucks, and other conveyances belonging to parties having business with abutting owners, by children going to and from the Holy Cross school, by rag pickers and people of that character, and by the contractor who constructed Hazel street.” See also Louisville & N. R. Co. v. Whittle’s Adm’r, 216 Ky. 314, 287 S.W. 894 (1926), and Rominger v. City Realty Company, Ky., 324 S.W.2d 806, 808 (1959), in which the same distinction was observed.

It seems clear to us that the proof in this case falls far short of establishing, as a matter of law, dedication through acquiescence in public user. When the abutting property was being used for the excavation and sale of sand and filling of the pits with garbage, the main traffic on Woodbine Street was on the business and for the convenience of the owners, and this has continued to be true with the changes in ownership and character of business since 1947. It makes no difference if the city has made sporadic use of or repairs to the street. Cf. City of Irvine v. Smith, 304 Ky. 868, 202 S. W.2d 733, 734 (1947). There is no real evidence in the case that the city has ever assumed or exercised such physical dominion over the street that it would be reasonable to conclude or presume that the abutting owners had come to regard it as a public property. Hofgesang cites the existence of a utility line, but it runs along the northern 30 feet of the street, whereas this litigation is confined to the south 30 feet. We are not called upon to determine the status of the north 30 feet.

It is extremely doubtful that the evidence as a whole was sufficient to support a judgment favorable to Hofgesang had it been granted, but as that is not the question before us we do not decide it. We do hold that the evidence does not establish conclusively, so as to force a judgment, that any part of the south 30 feet of Woodbine Street east of Jackson Street has become a public street by way of user.

The decisions discussed in the briefs for Hofgesang have been carefully examined, and they are all sound, but each of them involved a user by the general public and is therefore distinguishable on the salient facts.

Coming now to the factual situation applicable only to that portion of Woodbine Street which is enclosed by North American’s fence, we find it unnecessary to decide whether the evidence demands a conclusion that the deed of dedication prepared in 1953 actually was executed or, if not, whether a dedication took place anyway.

It is the general rule in this state that a property owner within the block where a street has been obstructed suffers an injury distinct from that suffered by the general public and is therefore entitled to injunctive relief in his own right. Volpenheim v. Westerfield, 216 Ky. 157, 287 S.W. 545, 546 (1926). And in Morrow v. Richardson, 278 Ky. 233, 128 S.W.2d 560 (1939), it was held that the owners of property abutting on a dedicated street could enjoin its obstruction even though it had not been accepted by the city and actually had not been opened to public travel. However, we have not found any case which in fact or principle is exactly like this one.

When a street has been dedicated to the general public but has not been accepted by the corporate public authority, cf. Morrow v. Richardson, supra, there may be some reason why equitable relief to have it opened should be available to a private citizen. But when the dedication occurs solely by virtue of a direct transaction between the owner and the public authority, it seems to us that ordinarily the public authority should have the exclusive right to decide if, when, and to what extent obstructions existing at the time of the dedication will be removed. In fact, unless Morrow v. Richardson be construed to the contrary, that may be the law even if the dedication has been effected in another manner. See, for example, Chicago, St. Louis, New Orleans Co. v. Dixon, 215 Ky. 353, 284 S.W. 1091, 1093 (1926), in which it was said:

“It is argued * * * by appellees that the reservation in the deed * * * put the railroads upon notice, if it did not actually acknowledge the right of the city to open streets over and through the property * *. If the reservation * * * is enforceable * * * the city alone could do so, and it does not lie in the power of an individual, even though a citizen and property holder in the city, to enforce such right on his own behalf independently of the municipality.” (Footnote added.)

It is common knowledge, hence a matter of judicial notice, that in many instances cities have never found it necessary or desirable to utilize the full width of streets as originally laid out, and abutting owners have continued to occupy and even place improvements on the unused portions. Unquestionably a city may exercise the public right whenever it chooses to do so, but in the absence of some special circumstance showing otherwise we find it difficult to understand how any individual citizen suffers a special injury from being deprived of something he never had in the first place.

When the 1953 dedication was made, if it was made, North American’s fence was already in place. For ten years thereafter no one was moved to complain of its continued presence. The city has never evinced a desire to have it removed. Hofgesang makes no claim that he purchased his property in reliance upon the deed of dedication. It is our conclusion that he simply does not show the special injury that is essential to justify injunctive relief at the suit of a private individual. It follows that the chancellor’s omission to find whether the 1953 deed was executed is immaterial and that his judgment denying relief against North American was correct.

On the eve of this litigation Woodbine Company put up a chain link fence along its north border on the center line of Woodbine Street. Shortly thereafter it was wrecked by a bulldozer owned by Hofgesang. Woodbine Company then had the fence put up again and hired guards to protect it. When Hofgesang filed suit he procured a mandatory injunction requiring Woodbine Company to remove the fence, which it did. Woodbine Company’s counterclaim demanded $25,000 in damages for its expenses in connection with the replacement and protection of the fence and for the loss of use of its space within the area the fence was intended to close off. In the judgment Woodbine Company’s recovery was limited to $1596, $1496 of which was for the expenses of replacing and repairing the fence in the first instance and $100 of which was for the expense of removing it pursuant to the injunction.

Hofgesang contends the evidence was not sufficient to authorize the award. Except for the $100 we think it was. Mr. Griffin testified that on August 23, 1963, Griffin and Company paid Falls City Fence Company $1,496.76 for the fencing, and that Woodbine Company later reimbursed Griffin and Company in the amount of $1,-281.18 and now owes it the balance. Although the question to which this information was given in response did not expressly and in so many words confine it to that fencing only which was purchased and erected in replacing the first fence, we do not think it was unreasonable for the chancellor to assume it. If there was any question in that respect it could and should have been raised on cross-examination, but was not.

There was nothing in the evidence to support the allowance of $100. The judgment should be modified to delete it.

As modified in accordance with this opinion the judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, MONTGOMERY and STEINFELD, JJ., concur.

      . Another of the lines is an eastward extension of the center line of Marret Street, which apparently has been opened and is now a public street through what was formerly the Marret tract.

      . “Both the intention of the owner to dedicate and the acceptance by the public may be inferred from use by the public for a substantial number of years.” Commonwealth, Dept. of Highways v. Wynn, Ky., 396 S.W.2d 798, 800 (1965). See also Freeman v. Dugger, Ky., 286 S.W.2d 894, 896-897 (1956).

      . Henceforth in this opinion the qualification “if extended” is omitted, and “Woodbine Street” means the area within an eastward projection of the street as shown on the 1875 plat.

      . Hoertz owned the west portion of North American’s property from 1896 until 1936. The Humpich family owned Woodbine Company’s property most of the time from 1893 until 1952.

      . To be exact, Griffin and Company’s fence and gates are separated from the Hofge-sang and Woodbine Company lots, and from the end of Woodbine Street, by a 10-foot alley running diagonally from southwest to northeast along what formerly was the east boundary of the Marret tract. Though used extensively in the dumping days, this alley is now grown up in weeds. Its status is not in controversy here, nor is the status of the north half of Woodbine Street.

      . Of. KRS 100.046 et seq.

      . The official maps of the City of Louisville adopted from time to time by ordinances show Woodbine Street as a public street.

      . Lot 23 is the triangular lot owned by Woodbine Company.

      . As, for example, when the individual has purchased property in reliance upon a plat. See Salyers v. Tackett, Ky., 322 S.W.2d 707 (1959).

      . The fence in Morrow v. Richardson was erected subsequent to the dedication, though it replaced one that had been there at the time of the dedication.

      . The complainant was an abutting owner.

      . Cf. Shurtleff v. City of Pikeville, 309 Ky. 420, 217 S.W.2d 976 (1949).


source: Caselaw Access Project

author: JOHN J. WINN, Special Commissioner.

license: Public Domain

text:
    STATE AUTOMOBILE MUTUAL INSURANCE COMPANY, Appellant, v. E. T. TRAUTWEIN, Appellee.
    Court of Appeals of Kentucky.
    March 24, 1967.
    Rehearing Denied June 2, 1967.

      John G. Crutchfield, Jones, Ewen & Mackenzie, Louisville, for appellant.
    Richard M. Trautwein, Rubin & Traut-wein, Louisville, for appellee.
   JOHN J. WINN, Special Commissioner.

The plaintiff, E. T. Trautwein, had just completed constructing a four-unit apartment building. Vandals or thieves forcibly entered three of the units by jimmying the entrance doors. The fourth unit had already been rented and its entrance door was not locked. An air conditioning unit had been permanently installed in each apartment by Trautwein and these units were removed and carried off by a person or persons whose identity has never been discovered.

It is agreed that the replacement value of the air conditioners is $648.00 and that other damage to the apartments amounted to $194.50. Trautwein sued the State Automobile Mutual Insurance Company claiming that his total loss was covered by his insurance policy with that company. The case was submitted by agreement for summary judgment on the respective motions of the litigants. The trial court awarded Trautwein the full amount of the loss and this appeal is from that judgment.

The policy contained a “Vandalism and Malicious Mischief Endorsement,” which in its pertinent part reads as follows:

“1. In consideration of the premium for this coverage shown on the first page of this policy, and subject to the provisions of this policy of fire insurance and the Extended Coverage Endorsement attached thereto and of this endorsement, the coverage under said Extended Coverage Endorsement is hereby extended to include direct loss to the described property by Vandalism and Malicious Mischief.
“2. The term ‘Vandalism and Malicious Mischief as used herein is restricted to and includes only wilful and malicious physical injury to or destruction of the described property.
“3. When this endorsement is attached to a policy covering direct loss to the described property, this Company shall not be liable under this endorsement for any loss
(a) * * *
(b) by ,pilferage, theft, burglary or larceny, except loss by wilful and malicious physical injury to or destruction of a building described and insured hereunder.” (All Emphasis Ours)

The sole question to be decided is whether or not all or any of claimant’s loss was covered by the policy. The facts are not in dispute since the only testimony in the case is the deposition of E. T. Trautwein taken by the company. According to this testimony an opening in the wall of each apartment was provided for the permanent attachment of a sleeve and an air conditioner was placed in this sleeve and fastened by screws and a rubber seal. The air conditioners were intended to remain permanently fixed in place. They could not be removed without considerable force and probable damage to the sleeves and the sleeves could not be removed without serious damage to the walls. These air conditioners were fixtures and part of the building insured by appellant. Doll v. Guthrie, 233 Ky. 77, 24 S.W.2d 947. As pointed out in the opinion rendered by the trial judge, malice may be presumed from the unlawful act itself. Had these trespassers merely damaged or destroyed the air conditioners without carrying them off, malice still would have to be presumed because it would be unreasonable to require that some particular personal animosity of the unknown predators against the owner be proven to exist before recovery could be had- on the policy. There can be no doubt that theft was the purpose of the burglars and that they did steal the property of the insured. It is equally certain that the insured realty, of which the air conditioners were integral parts, was damaged in the process.

It will be noted that the restrictions provide that the term “Vandalism and Malicious Mischief” as used in the endorsement is restricted to and includes only wilful and malicious physical injury to or destruction of the described property. Yet this is enlarged or limited, as the case may be, by 3(b) which provides that the company shall not be liable for any loss by “pilferage, theft, burglary or larceny, except loss by wilful and malicious physical injury to or destruction of a building described and insured hereunder.” This provision must have been inserted for some purpose and we feel it is reasonable to conclude that the purpose was to recognize that injury to or destruction of the building was covered although occurring in connection with a burglary.

In accordance with the general legal principle that exceptions and exclusions should be strictly construed so as to make insurance effective, we believe that it is fair to construe this policy as covering the entire loss claimed, and we do so construe it.

The judgment is affirmed.

WILLIAMS, C. J., and MONTGOMERY, MILLIKEN, STEINFELD and PALMORE, JJ., concur.


author: HILL, Judge.

text:
    Gerald TANKERSLEY, Appellant, v. Dillie GILKEY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 10, 1967.
    Rehearing Denied June 2, 1967.

      Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.
    Carroll S. Franklin, Franklin & Gordon, Madisonville, for appellee.
   HILL, Judge.

Dillie Gilkey sued Gerald Tankersley in Hopkins Circuit Court according to Chapter 188 of Kentucky Revised Statutes for damages she claimed resulted from an automobile accident which occurred in Hopkins County on October 13, 1960. Appellant Tankersley was at all times mentioned herein a resident of Oxford, Alabama.

A letter from the Secretary of State of the Commonwealth of Kentucky and a copy of the petition were mailed to appellant by properly registered mail but were returned marked “refused." The suit was filed September 21, 1961, and summons was served on the Secretary of State on September 25, 1961. No steps were taken by Gilkey for some time, but on the following May 12, 1962, Tankersley, claiming he received information of the filing of the suit in a “round-about way,” filed motion to quash the summons. After an oral hearing, at which the court announced from the bench the overruling of Tankersley’s motion to quash, the judge signed an order “on the book,” but neither the judge nor circuit clerk furnished copies to Tankersley or Gil-key or their attorneys so far as this record discloses. However, it appears that the order was noted on the civil docket.

Counsel for Tankersley contends he kept a watch on the court file to determine whether and when the judge “signed” an order overruling his motion to quash, but the court file never contained such an order because, as noted above, the clerk “wrote the order” on the order book and the judge subscribed his name on the order book.

Counsel for appellant took no further steps after filing the motion to quash on May 12, 1962, until September 27, 1962, when he served notice that on September 29, 1962, he would renew his motion to quash.

On October 1, 1962, the judge signed another order overruling appellant’s motion to quash, and on the same date signed an order adjudging appellant to be in default and taking the allegations of the complaint as confessed except as to the amount of damages. Thereupon appellant hastened to serve notice on the appellee that he would file motion on October 6 for permission to file answer. This motion was not heard for some unimportant reason. Again, on October 8, appellant served another notice that on October 9 he would file motion to be permitted to file answer. This motion was overruled on October 10. Later the case was tried by a jury on the amount of damages only.

One of the main arguments advanced by appellant in this court questions the correctness of the order of the circuit court refusing to set aside the default judgment and allow appellant to file answer. It was the conclusion of the trial judge that appellant was in default on May 12, 1962, for failure to show excusable neglect.

Since the adoption of our present rules of procedure, the clerk is required to keep a book known as the civil docket (CR 79.01), on which notations are kept of all steps taken in the case. He is also required by CR 79.02 to “keep” a “book in which shall be copied every judgment and order of the court.” Clearly, this last section contemplates that judgments and orders shall be signed by the judge on separate paper and delivered to the clerk, who “copies” such orders on the “book.” The judge is not required to sign this book. CR 79.02 goes on to state: “The clerk shall subscribe his attestation to the effect that the judgments and orders are true copies. The judge need not sign the book * * *.” It should be noted that the rules do not say the judge may not sign the book, but that he “need not” sign it.

The order of May 12 was not signed and entered in strict conformity with civil rules. However, an order was “entered” on the order book and signed by the judge. The circuit clerk also entered the proper “notation” on the civil docket as required by CR 58; this, we think, was a substantial compliance with the requirements of the rules here involved.

Furthermore, the record herein reveals appellee’s motion for default judgment was served on appellant on June 14, 1962. The filing and serving of this motion for default constituted further notice to appellant that counsel for appellee was under the impression the order had been theretofore properly entered.

The provision of CR 4.10 allowing defendants constructively summoned some grace in the presentation of their defense does not apply to the present case. Appellant was not constructively summoned. The manner of service of process on nonresidents of this State in automobile accident cases is authorized and justified on the proposition that nonresidents using the highways consent to the constitution of the Secretary of State as their agent for the service of process. Statutes of this character have been uniformly adopted by practically all the states of this Union. The procedure for getting a nonresident before the court is a reasonable and practical one considering the large volume of interstate traffic. A nonresident involved in a collision in this State certainly knows about it and he may anticipate being sued. Indeed, we think it would not be unreasonable to impose some duty of inquiry. In the present case, appellant was summoned according to law in September and did not make an appearance in the action until the following May.

We conclude appellant did not show “excusable neglect” for his failure to file answer and present his defense as required by the rules of civil procedure discussed herein. We cannot say that the trial judge abused his discretion in granting default judgment and in declining to set it aside and allow appellant to file answer.

Next, appellant assails the verdict of $7,208 as excessive.

Appellee was sixty-four years of age when she testified in May 1965. There is scant evidence of the manner in which she received her claimed injury; she only said her neck was “hurt.” The only evidence pertaining to the manner in which she received injury is her own testimony that the right side of her car was damaged. It is assumed, therefore, that her car was not struck in the front or rear and that her claimed injury was not likely a “whiplash” injury. She remained at the scene of the accident for about an hour and then drove her car home, a distance of about twenty-five miles. It was four days before she went to Dr. O. E. Hudson, a chiroprac- • tor. He admitted she had received no broken bones or lacerations due to the accident.

Dr. Hudson gave appellee 141 “adjustments” from October 17, 1960, until the date of the trial on June 27, 1965. He took X-rays, which were studied and commented upon by appellant’s physician, Dr. George E. Ainsworth.

Appellee was referred to Dr. John E. Harned for glasses and for an examination of her right eye. He testified that he fitted appellee with glasses and corrected her trouble; that she had a “Horner’s syndrome” of the right side, which was evidence of trouble “somewhere else,” but that her eyesight was “normal”; that the “Horner’s syndrome” could have been caused by arthritis in the cervical spine or by the pronounced chronic curvature of the spine. When he last examined appellee, the syndrome had disappeared.

Appellee was also referred to two physicians in Nashville, Tennessee, but from her testimony they were of no help to her because she could not take their medicine as it caused her to go “backward” and fall. They did not testify.

Dr. Ainsworth was introduced as a witness for appellant. He testified after an examination of appellee and the X-rays taken by Dr. Hudson. He stated that “there was no evidence of any acute or remote injury to the cervical spine, the region of the spinal column in the neck”; there was no evidence of misalignment or subluxation of the first vertebra below the skull or in that area at all; that the X-rays did disclose a severe deformity of the neck, a marked increase in the normal bend of the neck of “almost ninety degrees,” which “results in a very high humpback which mechanically forces the head and neck forward”; that this condition takes “many years to develop” ; that it could have been congenital, “even taking the patient’s entire life to develop, having started with a mild deformity from birth”; that this condition produces an “abnormal stress and strain on the muscles and ligaments and joints * * * and will get progressively worse as the years go on”; that he thought, from the X-rays, “because of this curvature and the abnormal motion of the joints, the patient was developing wear-and-tear arthritis in her upper thoracic spine, and also in the lower portion of her cervical spine.” He also stated: “It is my opinion that the arthritis that we see in her neck and in the upper portion of her back are directly due to the mechanical deformity in the neck, with constant wear and tear on these abnormally placed joints.”

Appellee stated that she had had this condition (curvature of the neck) all of her life.

Dr. Ainsworth also stated:

“We see perhaps fifty such cases each year, and I have never seen a Horner’s syndrome as a result of this (lashing injury) type of injury. * * * I had to base my evaluation of the patient on her history, the physical examination as it was at that time, and the X-ray findings, and it was my conclusion that all the symptoms, the pain, stiffness and difficulty the person has could be directly related to the abnormality of her spine, and the arthritis which she had, and I could not directly relate her symptoms or findings at that time with any injury in the patient. * * * I never recommend any type of chiropractic manipulation or treatment of any sort — knowing what I know, I would not.”

It is fair to assume that the abnormal curvature of appellee’s neck did not suddenly result from a traumatic injury.

It is written in Lincoln Income Life Ins. Co. v. Mann, 297 Ky. 681, 180 S.W.2d 877 (1944) that:

“Therefore, the observations of lay witnesses as to the appearances and activities of the one so afflicted is insufficient to contradict the professional testimony on that issue.”

There is grave doubt that plaintiff’s evidence is sufficient to prove that her claimed injury was the proximate cause of her condition. Aside from this question, we conclude from the evidence the amount of the verdict was excessive.

Appellant’s final charge against the verdict and judgment relates to instruction one, authorizing the jury to award damages for “permanent” disability. The charge is a double-barreled one. First, it is said the instruction is objectionable because it assumes there was an injury. The allegations of the complaint, except as to the amount of damages, were taken as confessed by the default judgment. Hence, the first barrel is loaded with a blank cartridge. Second, it is said the evidence was insufficient to authorize the giving of an instruction on permanent impairment of her power to earn money. Dr. Hudson testified that in his opinion appellee sustained permanent injuries. In view of appellee’s testimony and the length of time from the injury to the trial date, we conclude there was sufficient evidence to authorize the giving of an instruction on permanent impairment of appellee’s power to earn money. The second barrel, like the first, was harmless.

The judgment is reversed with directions to grant appellant a new trial on the question of damages.

All concur.


author: NORVELL, Justice.

text:
    Ex parte Antonio L. GONZALES, Relator.
    No. B-113.
    Supreme Court of Texas.
    May 3, 1967.
    Peter S. Navarro, Jr., Houston, for relator.
    Victor R. Blaine, Houston, for respondent.
   NORVELL, Justice.

We need not' discuss all the contentions raised in relator’s brief because he must be discharged as the evidence adduced at the hearing which resulted in his commitment establishes his involuntary inability to comply with the court’s order requiring the relator to make child support payments. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948); Ex parte White, 154 Tex. 126, 274 S.W.2d 542 (1955); Ex parte Padfield, 154 Tex. 253, 276 S.W.2d 247 (1955); Ex parte Kollenborn, 154 Tex. 223, 276 S.W.2d 251 (1955).

The following constitutes a chronological statement of the facts:

February 5, 1957 — Relator, Antonio L. Gonzales, was divorced from Beatrice Ramirez Gonzales and directed to pay the sum of $15.00 per week to the Probation Department of Harris County, Texas, until the couple’s two minor children “shall become 18 years of age”.

January 9, 1967 — Antonio L. Gonzales was found guilty of contempt of court for failing to make the child support payments as ordered by the February 1957 decree. As punishment, he was ordered confined to the county jail for a period of three days. The coercive portion of the order directed that relator be further confined by the Sheriff of Harris County “until he shall have purged himself of said contempt by paying to the Harris County Probation Department the sum of $490.00 as child support for his minor children and all costs of court accrued herein; * *

January 15, 1967 — Relator filed a sworn application for discharge from imprisonment for contempt of court in which he stated that he was confined in the Harris County jail because of his failure to pay the sum of $490.00 back child support,' plus $29.00 court costs; that he was unable to pay such sums or any part thereof; that he had a second family consisting of a wife and seven children; and that he was unemployed and had no money. This motion was overruled by the trial court on January 30, 1967, apparently without hearing evidence.

February 22, 1967 — Writ of habeas corpus was granted by this Court and the case set for hearing at which time the attorney for relator appeared, but respondents have neither appeared nor filed a brief herein.

Despite the direction of Article 2324, Vernon’s Ann.Tex.Stats. that, “Each Official Court Reporter shall: Attend all sessions of the court; take full shorthand notes of all oral testimony offered in cases tried in said courts,” etc., there apparently was no court reporter in attendance at the hearing held on January 7,1967. However, relator has filed a brief narrative statement of facts agreed to by the relator and the attorney for Beatrice Ramirez Gonzales. No objection has been raised to the filing of this statement of facts in this Court.

The relator and his former wife were the only witnesses heard. Beatrice Ramirez Gonzales testified that she still had custody of the two minor children, that relator had been irregular in his weekly support payments, that the last payment received from him was two months ago and that he was $490.00 in arrears with his support payments. She gave no testimony as to his employment, working capabilities and the like.

The relator testified that he was not steadily employed; that because of this, his earnings were not constant but varied from time to time depending upon his employment, and that at the present time he had no money to pay on the child support payments which he owed.

Relator had served the three dáys assessed against him as punishment for his disobedience of the court’s support order at the time we granted the writ and we are concerned only with the coercive part of the order. Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948). Cf. Ex parte Jones, 160 Tex. 321, 331 S.W.2d 202 (1960) as to punitive and coercive orders.

Although the only testimony as to his inability to pay the back support payments because of a lack of employment came from the relator, it was of a nature that could have been contradicted either directly or circumstantially, if untrue. No attempt at contradiction was made and, accordingly, we cannot disregard the direct although brief statements of relator as to his financial condition and inability to secure steady employment. Upon the record before us, we must conclude that relator cannot effect his own release by complying with the court’s order to pay up his arrearages. “The law is, of course, well settled that inability to comply with an order requiring the payment of money, resulting from poverty, insolvency, or other cause not attributable to the fault of the party charged, will under ordinary circumstances be received as a valid excuse from the consequences of contempt, * * In re Sobol, 242 F. 487 (2d Cir.1917). As stated in Ex parte De Wees, 146 Tex. 564, 210 S.W.2d 145 (1948), “To order that one be imprisoned for an indefinite period of civil contempt is a purely remedial measure. Its purpose is to coerce the contemner to do an act within his or her power to perform. He must have the means by which he may purge himself of contempt”.

The relator is discharged.


author: WOODLEY, Presiding Judge.

text:
    Overton Harris CASEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40121.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Rehearing Denied May 24, 1967.

      William C. McDonald (appointed counsel), San Angelo, for appellant.
    Royal Hart, Dist. Atty., San Angelo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The conviction is for the felony offense of drunk driving; the punishment, 5 years.

Two grounds of reversal are presented by appellant’s brief.

The first relates to the sufficiency of the indictment, raised by motion to quash, the contention being that the indictment fails to disclose that it was presented in the district court of the county where the grand jury was in session, as required by Article 396 C.C.P., 1925, now Article 21.02 Vernon’s Ann.C.C.P.

The indictment alleges, in the first paragraph :

“The Grand Jurors, duly selected, organized and impaneled as such for the County of Runnels, State of Texas, at the October term, A.D., 1965, of the 119th District Court for said County, upon their oaths present in and to said Court that on or about the 26th day of November, A.D., 1965, in the County and State aforesaid, and anterior to the presentment of this indictment Overton Harris Casey did then and there unlawfully, while intoxicated and while under the influence of intoxicating liquor, drive a motor vehicle upon a public highway within said County and within said State.”

These allegations are in the form suggested in Willson’s Texas Criminal Forms, Seventh Edition, Sec. 14, p. 15, and meet the requirements of Art. 21.02 C.C.P. Tunnell v. State, 168 Tex.Cr.R. 358, 327 S.W.2d 590.

The second ground for reversal relates to the sufficiency of the evidence to sustain the conviction.

The undisputed evidence, including a stipulation between appellant and his counsel and counsel for the state, shows that appellant drove his pickup into the pickup which was parked in front of R. L. Carey’s residence in Winters, Runnels County, Texas, and paid for the damage which amounted to $128.00.

The state’s evidence shows that Mrs. Carey witnessed the collision and saw appellant as he drove from the scene and into the driveway at his home nearby. Mrs. Carey or her husband called the police and some ten minutes later Police Officer Milton Dillard found appellant slumped over the steering wheel of his pickup, in the driveway of his home.

Officer Dillard testified that he tried to talk to appellant but “he just kind of mumbled; wouldn’t say anything to me * * *. He had his shirt unbuttoned and his trousers unbuttoned. He had on one tennis shoe * * * there was a scent of alcohol * * He testified that, based upon his observations of appellant’s dress, his actions, the smell of alcohol, he formed the opinion that appellant was intoxicated * * * “He was just drunk.”

Officer Dillard further testified that he asked to see appellant’s driver’s license and asked him to get out of the pickup but “He just sat there; wouldn’t move.” However, when he went to the patrol car and reported where he was, appellant got out of the pickup and started into the alley behind his house, and he caught and arrested him, and that appellant “took a swing at him” but “said nothing to make sense.”

Chief of Police Joe Stephens, who went with Dillard to take appellant to the County Jail at Ballinger, testified that he formed the opinion that appellant was intoxicated, basing such opinion upon “his actions; his speech was slurred; he was unstable on his feet; and there was a strong smell of alcohol about him.”

Highway Patrolman Kenneth Wilson, who saw appellant at the jail in Ballinger, gave similar testimony as to the basis of his opinion that appellant was intoxicated, and further testified:

“Q. And what was the nature of his walk?

“A. He staggered. We had to hold him up.”

Officer Dillard testified that appellant was in his custody until he was delivered to Patrolman Wilson and that appellant did not drink or consume alcoholic beverage while his prisoner.

The prior conviction for the misdemeanor offense alleged in the indictment was proved by the testimony of a deputy county clerk and the original information, complaint and judgment.

The court charged on circumstantial evidence.

The hypothesis that appellant may have driven his pickup into his driveway before he became intoxicated does not appear to be a reasonable hypothesis such as referred to in the charge.

In view of the punishment assessed against the 73 year old appellant, we further note that at the hearing before the jury on the punishment to be assessed, evidence was introduced by the state to the effect that appellant had been convicted and given a 5 year suspended -sentence for murder in 1961 upon an indictment drawn under Art. 802c Vernon’s Ann.P.C.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


text:
    Larry O. SMITH, alias Phillip Mystro, Appellant, v. The STATE of Texas, Appellee.
    No. 40134.
    Court of Criminal Appeals of Texas.
    April 12, 1967.
    Rehearing Denied May 24, 1967.

      Otis Scruggs, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and W. Louis White, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is robbery by assault; the punishment, 5 years.

Trial under the 1965, Vernon’s Ann. Code of Criminal Procedure was before a jury on a plea of not guilty. The jury having found appellant guilty, and he having filed application before the trial began praying that the court or jury grant probation (Art. 42.12, subd. B, C.C.P.), requested that the jury which had found him guilty assess the punishment. (Art. 37.07 C.C.P.)

The sufficiency of the evidence to identify appellant and to show that he participated in the robbery is presented as ground for reversal.

Earl Routt, the party alleged to have been assaulted and robbed, testified that while walking home from work about midnight on the date alleged in the indictment, he was assaulted, beaten, kicked and robbed by three men. He positively identified appellant as the man who kicked his teeth loose and fractured his ribs before all three men fled with his wallet; his watch; a pencil holder and $31.00.

Appellant testified and offered testimony of fellow musicians to the effect that he was at McDaniel’s Lounge singing with a dance band at the time, and was not and could not have been one of the men who committed the robbery. The state’s evidence shows that McDaniel’s Lounge was about two blocks from the scene of the robbery.

The issue of alibi was submitted to the jury and resolved against appellant.

We find the evidence sufficient to sustain the jury’s verdict.

The remaining grounds of error relate to the admissibility of evidence at the trial or hearing at which it was offered.

Appellant’s ground of error which relates to the hearing on the punishment to be assessed is that the trial court erred in permitting character witnesses called by the state to testify that they knew the defendant’s reputation in the community in which he lived and among people with whom he associated as being a peaceful and law abiding citizen and that it was bad.

The testimony of character witnesses was admissible at the hearing on the proper punishment to be assessed under the express provisions of Art. 37.07, Sec. 2(b) of the 1965 Code of Criminal Procedure which reads, in part:

“Regardless of whether the punishment be assessed by the judge or the jury, evidence may be offered by the State and the defendant as to the prior criminal record of the defendant, his general reputation and his character.”

The ground of error which relates to the trial on the issue of guilt or innocence is: “The Court erred in refusing to allow the defendant to establish by his own testimony that he had never been convicted of a felony in this state or any other state in his lifetime.”

The testimony of the defendant excluded at the, trial on the issue of guilt or innocence would have been admissible at the hearing on the question of the proper punishment to be assessed, under the above quoted provisions of Art. 37.07, Sec. 2(b) C.C.P. It was not admissible under such provisions of Art. 37.07, Sec. 2(b) above quoted at the trial where the only issue was the guilt or innocence of the defendant.

The rule which allows a witness (including the defendant, if he testifies) to be impeached by proof that he has been convicted of a felony, does not render admissible testimony that a witness who is not so impeached has never been convicted of a felony.

An accused may introduce evidence of his good character to show that it is improbable that he did the act charged. Hamman v. State, 166 Tex.Cr.R. 349, 314 S.W.2d 301; Jones v. State, 10 Tex.App. 552; McCormick & Ray’s Texas Law of Evidence, Vol. 2, p. 332, Sec. 1492; 22A C.J.S. Criminal Law § 676, pp. 699-700.

It appears to be the settled law, however, that the good character of the accused may not be proved by testimony that he has never been previously charged with or convicted of a criminal offense. Perez v. State, 221 S.W.2d 915; Marberry v. State, 106 Tex.Cr.R. 474, 292 S.W. 1107; 23 Tex.Jur.2d 262, Sec. 171.

The inquiry as to character must be limited to the general reputation of the person in the community of his residence or where he is best known. Brownlee v. State, 13 Tex.App. 255; Watson v. State, 156 Tex.Cr.R. 585, 244 S.W.2d 515; 23 Tex.Jur.2d 260, Sec. 171.

We know of no rule of evidence which would allow a defendant to testify to facts which he would not be allowed to prove, if he could, by other evidence.

The rules stated apply alike to testimony of the defendant and the testimony of another witness in his behalf. The evidence which the trial court excluded at the trial on the issue of guilt was not admissible to show that the defendant’s character was good.

Testimony that he had never been convicted of a felony was not only admissible but was proof required on the issue of the proper punishment to be assessed and whether the jury which had found him guilty would recommend probation.

The question we are called upon to decide is whether the filing of a motion for probation before the trial on a plea of not guilty begins renders inapplicable the rule which would allow the court to exclude such testimony until the hearing on the question of the proper punishment to be assessed and whether probation should be recommended.

If the defendant may testify at the trial where the only issue is his guilt or innocence that he has never been convicted of a felony, he may prove such fact at such trial by other evidence.

If the filing of a motion for probation authorizes such proof at such trial, it is admissible even though the defendant does not testify or does not upon return of a finding of guilty elect to have the same jury fix the punishment.

We hold that the excluded testimony, admissible on the issue of whether probation should be recommended, was subject to objection by the state when offered at the trial on the issue of guilt or innocence alone.

To hold otherwise would destroy the beneficial effect of the statute for a separate hearing on the issue of punishment, which of course includes probation.

It should be clearly understood that the question before us is not the probative value of evidence introduced at the trial on the issue of guilt or innocence, or whether evidence introduced at the trial on the issue of guilt may be considered by the jury in assessing the punishment. What we decide is that evidence admissible under Art. 37.07, Sec. 2(b), C.C.P. only on the question of punishment, when offered at the trial on the issue of guilt or innocence alone, may, upon objection, be excluded and not admitted until the hearing on the proper punishment to be assessed.

The judgment is affirmed.


author: DICE, Judge.

text:
    William K. FINLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40351.
    Court of Criminal Appeals of Texas.
    May 10, 1967.

      No Attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is under Art. 802b, Vernon’s Ann.P.C., for the subsequent offense of drunk driving; the punishment, five years.

Trial was after January 1, 1966, under the 1965 Vernon’s Ann.Code of Criminal Procedure.

The issue of appellant’s guilt or innocence was first submitted to the jury under the alternate procedure provided in Art. 37.07, subd. 2 of the Code of Criminal Procedure.

Upon return of the verdict of guilty, appellant requested that the same jury assess the punishment. A separate verdict was then returned by the jury, assessing the punishment.

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

Appellant was represented at the trial by court-appointed counsel, and there is no showing that he has been permitted to withdraw from the case.

We have examined the record and find nothing which should be considered as unassigned error in the interest of justice, under the provisions of Art. 40.09, subd. 13 of the Code. We further observe that we have found no reversible error in the record.

The judgment is affirmed.


author: ONION, Judge.

text:
    Henratta Udora CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40241.
    Court of Criminal Appeals of Texas.
    April 5, 1967.
    Rehearing Denied May 24, 1967.

      Bill Cox, of Woodruff, Hill, Bader & Kendall, Dallas, for appellant.
    Henry Wade, Dist. Atty., Joe Max Hend-ley, Joe Max Hendley, Jim Law and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Shoplifting; the punishment assessed by the jury is ninety (90) days in jail and a fine of $500.00. The trial commenced on February 10, 1966.

In her first ground of error, appellant challenges the sufficiency of the evidence to sustain her conviction.

Verdine Shelby, a saleslady at Levine’s, testified while working at above named Dallas County Department Store on November 12, 1965, she waited upon appellant who asked to see a pair of pants, size 16. She related appellant selected from one of the racks a $5.99 pair of blue Capri stretch pants, size 16, and the only one of its kind in stock, and immediately inquired if there were any better pants available. She revealed that when she returned with a second pair of pants, appellant had retired to a completely enclosed dressing room with only one entrance where she observed that the appellant had removed the black pants she had worn into the store and was “putting on the blue pair of stretch pants”. Thereafter, Mrs. Shelby related she remained just outside of the curtained entrance of the dressing room. Five to seven minutes later, the appellant emerged from the dressing room, handed the second and better pants to Mrs. Shelby, saying, “They didn’t fit.”, and started leaving the store with her male companion, in a hurry. Immediately checking the dressing room, Mrs. Shelby found only “the tag that said $5.99 and size 16”. She quickly alerted the store’s security officer, Robert Counts. Officer Counts observed the appellant leaving the store with a large purse, but was unable to stop her. He related he hollered and tried to attract her attention and while she looked at him, she drove off in a 1960 Ford automobile. He secured the license number of appellant’s car and was able to secure her home address through her motor vehicle registration. Approximately thirty (30) minutes after her departure from the store, appellant was arrested at her home and returned to the store. Appellant’s niece admitted the officers to appellant’s home, but appellant’s home and automobile were not searched. On that same day and subsequently at the trial, appellant was identified by Mrs. Shelby and Officer Counts as the woman they had seen at the store at the time in question.

Abe Goldberg, Manager of Levine’s located on Second Avenue in the City of Dallas, testified that the merchandise involved was in his care, custody, and control on November 12, 1965; and that he did not give appellant his consent and permission to take the blue Capri stretch pants. He related that these pants had never been recovered.

Testifying in her own behalf, appellant denied taking the blue stretch pants and stated she had not been in Levine’s on the day in question, though she had that day parked her automobile in front of Levine’s when she visited another department store two (2) doors away. She related that she wore size 12 or 14 pants, depending upon how they were made.

The careful trial judge charged the jury on the law of circumstantial evidence, and the jury by their verdict rejected appellant’s explanation of the transaction.

To support her contention that the evidence is insufficient to sustain the conviction, appellant cites Phea v. State, ISO Tex.Cr.R. 77, 199 S.W.2d 160; Jaso v. State, 144 Tex.Cr.R. 492, 164 S.W.2d 695; and Kahn v. State, 142 Tex.Cr.R. 307, 152 S.W. 2d 761. In none of these cases were the appellants ever shown to have had possession of the missing items. Further, in Kahn v. State, supra, unlike the case at bar, there was a lapse of an hour before it was discovered that the mink coat had been taken. The record here reveals that it was not a busy day at Levine’s whereas in Kahn, supra, there were a number of other persons in the fur salon at the time of the theft.

Appellant was the last person seen in possession of the pants, and her actions as described by Mrs. Shelby and Officer Counts, and her flight from the scene were amply sufficient to warrant a finding by the jury that appellant removed the pants from the store with the intent to deprive the owner of the value of the same and appropriate it to her own use and benefit. See Woods v. State, Tex.Cr.App., 394 S.W. 2d 513.

In view of the foregoing, we find no merit in appellant’s second ground of error that the trial court erred in overruling her motion for instructed verdict based upon the lack of sufficient evidence.

In her third ground of error, appellant ■contends that the trial court erred in allowing her to be interrogated about statements made under arrest.

On cross examination, the Assistant District Attorney inquired whether appellant hadn’t told the police officers at her Ihome, when she started to talk to them, that she had never even been on Second Avenue that day. Appellant’s counsel objected on the ground that the answer would constitute a statement made while under arrest. Upon the objection, being overruled, appellant’s counsel asked to perfect his Bill of Exception, action upon which the court deferred until later. Thereafter, in the presence of the jury, the following questions were asked by the prosecutor and answered by the appellant:

“Q (By Mr. Law) All right, now let me re-ask that question, Miss Carter. Didn’t you in fact tell the police officers that you had not been on Second Avenue at all that day ?

A I didn’t tell them I hadn’t been on Second. When they asked me, I’d say yes. They asked me where I was, and I told them I was at the Morris Department Store. He asked me where I parked, I told him in front of Levine’s Store.

Q And you didn’t tell them that you had not been on Second Avenue?

A No sir, I did not say I hadn’t been on Second Avenue.

Q And then after you admitted to the police that you had parked in front of Levine’s and had then been to another store around there some place, didn’t you after that say that you had been in Levine’s?

A No sir, I didn’t.

Q So now is it your testimony that you had not been in Levine’s at all that day ?

A I had not been in there since the 9th, on Tuesday.

Q So you just parked in front of Levine’s and that’s all?

A I parked in front of the store and that’s all.

Q And you were doing your shopping at some other store, but you just happened to park in front of Levine’s ?

A That’s right.”

Appellant’s answers were consistent with her testimony on direct examination.

Immediately thereafter, the court retired the jury and permitted the appellant to perfect her Bill of Exception.

Testimony given prior to appellant’s objection was to the effect appellant’s conversation with the officers as to her whereabouts earlier that day occurred at the very beginning of their visit; that subsequently she left her house to check her automobile license plates and had returned; that she had not been arrested until some time after the officers had arrived at her home and only when she became belligerent and created a disturbance.

At no time did appellant testify as to her impression as to just when she was placed under arrest. However, in view of Officer Counts’ rather inconsistent testimony on the Bill of Exception as to the exact time of the arrest, the cautious trial judge sustained the objection, and at the request of the appellant instructed the jury to disregard any statements made by the appellant to officers at her home. The motion for mistrial was overruled.

Thereafter, no further evidence was offered as to any conversation between appellant and the officers at her home.

At the time of the first objection and before proceeding further, the appellant should have been permitted to establish, if she could, that appellant was under arrest at the time of the statements inquired about.

A confession or statement of facts amounting thereto, made by an accused, while in custody or confinement, which would not be admissible as original evidence could not be used for impeachment. Freeman v. State, 172 Tex.Cr.R. 144, 354 S.W.2d 141. See Article 38.22, Vernon’s Ann. C.C.P.

Nevertheless, in the case at bar, the appellant denied making such statements. Such statements, even if made, were not in and of themselves incriminating or in the nature of a confession, the jury was instructed to disregard any testimony as to such statements, and the State made no further attempt to impeach the appellant. No proof that appellant had denied her presence on Second Avenue to the officers was ever offered before the jury. See Mason v. State, 74 Tex.Cr.R. 256, 168 S.W. 115.

There is no evidence here to indicate that the prosecution deliberately attempted to produce before the jury evidence known to be inadmissible hoping that the State would be relieved of liability in the matter by having the Court instruct the jury to disregard the testimony. See Stafford v. State, 125 Tex.Cr.R. 174, 67 S.W.2d 285.

We cannot say that the asking of questions under the circumstances here presented was so obviously prejudicial that the instruction of the Court could not cure the error.

The judgment is affirmed.


text:
    Ex parte Antonio Surita MENDOZA.
    No. 40417.
    Court of Criminal Appeals of Texas.
    April 26, 1967.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is an appeal from an order of the 147th Judicial District Court of Travis County, denying a reduction of bail pending an appeal to this court.

The record reflects that following appellant’s conviction and sentence to fifteen years in the Department of Corrections for the offense of unlawful possession of a narcotic drug, District Judge Mace Thurman fixed the amount of his bail at $50,000. When the trial commenced, appellant was on bail set in the sum of $10,000.

At the habeas corpus hearing in which a reduction in the amount of bail was sought, appellant testified that in his effort to make the bail he talked with three persons but they refused to make the same because “they told me $50,000 was too high, and they would make a lower bond on me and bail me out, but $50,000 was just too high.” Appellant further stated that he had two automobiles and two pieces of property “to put up as security,” but no value of the property was shown.

It was shown that appellant had been twice before convicted of felony offenses less than capital and had served terms in the penitentiary.

Art. 44.04(d) of the 1965 Vernon’s Ann. Code of Criminal Procedure provides:

“If the defendant is on bail when the trial commences and is convicted of a misdemeanor appealable to the Court of Criminal Appeals or of a felony and his punishment is assessed at a fine or confinement not to exceed fifteen years, or both, he shall remain on such bail and the bail shall not be considered discharged until his conviction has become final, either through his failure to obtain a new trial or to perfect or pursue an appeal or through final affirmance by the appellate court on appeal and the filing of a mandate thereof with the clerk of the trial court.
“After conviction, either pending determination of any motion for new trial or pending final determination of the appeal, the court in which he was tried may increase or decrease the amount of his bail, as it deems proper, either upon its own motion or the motion of the State or of the defendant, which bail and the sureties thereon shall be approved by such trial court in the event any additional bond is required.”

Under the statute, Judge Thurman was authorized to increase or decrease the amount of appellant’s bail pending appeal.

In seeking a reduction of bail, the burden was on appellant to show that he could not make the bail and that it was excessive. Ex parte Bailey, 106 Tex.Cr.R. 649, 294 S.W. 213; Ex parte Alonzo, 151 Tex.Cr.R. 361, 208 S.W.2d 651.

The fact that persons approached by appellant thought that bail was set too high is not a reason for this court to hold it excessive. Ex parte Ramos, 141 Tex.Cr.R. 379, 148 S.W.2d 1109.

This court judicially knows that defendants have forfeited bonds on appeal by failing to appear when the judgments of conviction became final. This should be considered in determining whether bail pending an appeal is excessive.

Under the record, we are unable to hold that appellant’s bail, pending appeal, in the sum of $50,000 is excessive and that Judge Thurman abused his discretion in fixing the same in that amount.

The excerpt cited by appellant from this court’s opinion in Korn v. State, 400 S.W. 2d 564, that in setting bail “ ‘the nature of the offense and the circumstances under which it was committed are to be considered’ ” has no application to the matter of setting bail after conviction.

The judgment of the trial court is affirmed.


author: ONION, Judge. WOODLEY, Presiding Judge.

text:
    Rudolph De LA ROSA, Appellant, v. The STATE of Texas, Appellee.
    No. 40310.
    Court of Criminal Appeals of Texas.
    May 3, 1967.

      John W. O’Dowd, John Michael lile, Houston, for appellant.
    Carol Vance, Dist. Atty., Richard M. De-Guerin and Gerald Applewhite, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

Appellant was • convicted as a second offender of unlawfully possessing a narcotic drug under the provisions of the Uniform Narcotic Drug Act and his punishment was assessed by the jury at confinement in the Texas Department of Corrections for twelve (12) years.

The trial commenced on October 7, 1965, and concluded the following day prior to the effective date of the 1965 Code of Criminal Procedure. Notice of appeal, however, was given on January 28, 1966, and the provisions of the 1965 Code will control as to appellate procedure. Carter v. State, Tex.Cr.App., 408 S.W.2d 507; Jones v. State, Tex.Cr.App., 406 S.W.2d 451; Ross v. State, Tex.Cr.App., 403 S.W.2d 138; Rivera v. State, Tex.Cr.App., 403 S.W.2d 130.

In his brief filed in the trial court, appellant, in his first ground of error, contends that the trial court erred in allowing the State to fingerprint the appellant in open court, after the State had announced ready, in violation of his privilege against self-incrimination.

This contention that he was compelled to give evidence against himself when the State was permitted to introduce fingerprints taken on the morning of his trial in open court in the absence of the jury has been determined adversely to him in Platt v. State, Tex.Cr.App., 402 S.W.2d 898; Dennison v. State, Tex.Cr.App., 399 S.W.2d 365; Gage v. State, Tex.Cr.App., 387 S.W.2d 679. See Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; 8 Wigmore, Evidence, Sec. 2265 (McNaughton Rev.1961).

In his next ground of error, appellant contends that the trial judge erred in denying him and his attorneys the right to examine each member of the jury panel on voir dire and such action deprived him of a fair and impartial trial by jury, of the right to counsel, as well as the effective assistance of counsel in violation of the Federal and State Constitutions.

The record reflects that prior to the voir dire examination of the jury panel, the Court instructed the attorneys that each side would have thirty minutes to conduct their portion of voir dire examination. To which action of the Court, the appellant vigorously objected in writing, pointing out that thirty-two prospective jurors would have to be qualified before the exercise of peremptory challenges; that such arbitrary limitation would deprive him of asking each prospective juror his name, address, marital status, place of employment, religious and educational background, prior jury service and attitude toward “second offender cases” and certain principles of law. He requested the Court to allow him to propound approximately fifteen questions which he set out in his motion. All such questions appear to be proper voir dire questions. The objection was overruled and the request denied.

Thereafter, the Court propounded to the jury panel certain principles of law concerning the presumption of innocence, burden of proof, the defendant’s failure to take the stand, etc., the law applicable to the trial of criminal cases in general, the responsibility and duties of jurors, and addressed questions to the panel as a whole as to their qualifications. At the conclusion of which two of the members of the panel were excused because of their prejudice arising from the nature of the charge. The State thereafter concluded its individual examination of the thirty-two jurymen in approximately twenty minutes. The appellant propounded certain questions collectively to the jury panel concerning principles of law and while he was questioning the sixteenth juror individually, he was informed by the Court his time was up and he was given five minutes in which to strike his jury list. His request to continue the voir dire examination was denied as was a similar motion renewed after the selection of the jury, but prior to the impaneling. The jury panel was not excused until after the jury list had been struck. The record further reflects that his request to perfect his bill of exception to show what the jurymen’s answers would have been and how he had been harmed was denied. His additional request for the same purpose to question those jurors selected, but not yet impaneled, who had not been previously interrogated individually was likewise denied. The record reveals that appellant exercised at least four of his peremptory challenges on prospective jurors that he had not been allowed to question individually, being numbers 20, 22, 28, and 31 on the jury list.

It is abundantly clear from the record that the appellant attempted to perfect his bill of exception at the time all prospective jurors were present, to show that he had exhausted his peremptory challenges and had been forced to take an objectionable juror and was thus harmed, but he was prevented from doing so by the action of the Court.

A review of appellant’s voir dire examination of the prospective jurors reveals no attempt to prolong the voir dire. Not a single objection was addressed to any of his questions, and they do not appear to be irrelevant, immaterial or unnecessarily repetitious. The docket sheet reflects that jury selection began at 2.32 P.M. and concluded at 3:20 P.M.

Trial by impartial jury has been considered a bulwark of Anglo-American liberties particularly in criminal cases where it operates as a protection of civil liberties. An impartial jury has been said to be one which favors neither party, which is unprejudiced, disinterested, equitable, and just, and which is composed of jurors who have not pre-judged the merits of the case. See Duncan v. State, 79 Tex.Cr.R. 206, 184 S.W. 195.

The voir dire process is designed to insure — to the fullest extent possible — that an intelligent, alert and impartial jury will perform the duty assigned to it by our judicial system.

Both Article 1, Sec. 10, Texas Constitution, Vernon’s Ann. St., and Article 4 (now 1.05) Vernon’s Ann.C.C.P. provide that an accused person shall have the right of being heard by himself or counsel or both. It is well established by numerous decisions of this Court that this constitutional guarantee of the right to be represented by counsel carries with it the right of counsel to interrogate the members of the jury panel to the end that he may form his own conclusion, after his personal contact with the juror, as to whether in counsel’s judgment he would be acceptable to him or whether, on the other hand, he should exercise a peremptory challenge to keep him off the jury. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629; Olliff v. State, 161 Tex.Cr.R. 336, 276 S.W.2d 839; Carlis v. State, 121 Tex.Cr.R. 290, 51 S.W.2d 729; Pendergrass v. State, 121 Tex.Cr.R. 213, 48 S.W.2d 997; Hirschberg v. State, 108 Tex.Cr.R. 175, 299 S.W. 641; Plair v. State, 102 Tex.Cr.R. 628, 279 S.W. 267; Belcher v. State, 96 Tex.Cr.R. 382, 257 S.W. 1097; Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072; Kerley v. State, 89 Tex.Cr.R. 199, 230 S.W. 163; Barnes v. State, Tex.Cr.App., 88 S.W. 805.

Further in Plair v. State, supra, it was said:

“To prepare himself for the intelligent exercise of the peremptory challenges allowed him by statute, one accused of crime has the right, through his counsel, to direct to the veniremen appropriate questions. See Vernon’s Tex.C.C.P. art. 690; Belcher v. State, 96 Tex.Cr.R. 382, 383, 257 S.W. 1097, and precedents cited therein. He has such right also when his questions are framed with the view of challenging for cause. In each instance, it is within the province of the presiding judge to limit and control the examination; and, in so doing, his discretion is broad, but does not embrace the right to deny the privilege of having counsel examine the veniremen. When the effort is to lay a predicate for challenge for cause, the relevancy and materiality of the question propounded and the answer sought is important, in order that the trial court may intelligently rule, and the appellate court review. In ascertaining whether a peremptory challenge is to be used, the inquiry is intended to elicit information upon which the accused or his counsel may determine whether the privilege of arbitrarily excusing the juror shall be exercised. These principles are stated in the cases collated in Belcher v. State, supra; Kerley v. State, supra; also in Reich v. State, 94 Tex.Cr.R. 449, 251 S.W. 1072, and cases therein collated.”

The State points out in its brief that there was no limitation placed by the Court on the type of question to be asked nor was there a refusal of a specific question. Many of the cases cited above did involve such situations. The unrealistic time limitation here imposed had the same effect, however of depriving the appellant of asking the prospective jurors individually proper and pertinent questions.

As we understand the State’s position, it is that appellant was not harmed in view of the Court’s collective examination of the jury, the State’s voir dire examination and the appellant’s own collective examination. We cannot agree. In addition to the appellant being denied the opportunity to show harm, this Court in Plair v. State, supra, said,

“We think no case can be found in this state where it has been held permissible for the trial court to refuse to allow counsel to examine the jurors individually as to their qualification. We think the distinction is clear between an examination of this character and the mere asking of jurors the same questions in a group. There is a certain degree of timidity and diffidence about some jurors that would be calculated to cause them to remain silent unless personally called upon to answer any questions.”

We recognize that it is not only the right but the duty of the trial court to confine the examination of prospective jurors within reasonable limits. If this was not so, some trials would never terminate. Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816. This duty does not carry with it, however, the authority to refuse appellant’s counsel the privilege of examining each juror individually within reasonable limits.

In Carter v. State, 100 Tex.Cr.R. 247, 272 S.W. 477, this Court said,

“It is always commendable for a trial court to dispatch business with promptness and expedition, but this salutary result must never be attained at the risk of denying to a party on trial a substantial right.”

Given the circumstances of this cause, we conclude that the imposition of the strict time limitation was unreasonable, and that the able and learned trial judge fell into error.

In view of our disposition of this case, we do not deem it necessary to discuss the remaining grounds of error.

The judgment is reversed and cause remanded.

DISSENTING OPINION

WOODLEY, Presiding Judge.

The question which controls the proper disposition of this case is not whether the court should have allowed more time than 30 minutes but whether the trial court’s action in limiting counsel for the state and for appellant to 30 minutes to complete their voir dire examination of the jury panel, following the examination and remarks of the court, requires reversal without any showing (1) that the defendant exhausted his peremptory challenges or (2) that he was required to accept an objectionable juror.

Appellant failed to avail himself of the opportunity afforded him by Art. 40:09 C.C.P. to have his list of peremptory challenges included in the record on appeal, or to show by bill of exception presented pursuant to Art. 36.20 C.C.P. that he exhausted such challenges, or that an objectionable juror served on the jury.

Art. 40.09 C.C.P. provides, in part, that the clerk prepare an appellate record comprising a true copy of the matter designated by the parties.

Section 2 provides:

“Each party may file with the clerk a written designation specifying matter for inclusion in the record. The failure of the clerk to include designated matter will not be ground for complaint on appeal if the designation specifying such matter be not filed with the clerk within sixty days after notice of appeal is given.”

Art. 36.20 C.C.P. furnished another means whereby appellant could have shown that he exhausted his challenges or was required to accept an objectionable juror.

So far as this record shows, the jury may have been chosen from the 16 that had been fully examined during the time allowed.

The following authorities support the view of the writer that a showing of injury was necessary in order to obtain reversal.

Ross v. State, 102 Tex.Cr.R. 364, 277 S.W. 667, 668, opinion by Judge Hawkins.

“Bill of exception No. 5 complains of the refusal of the court to permit counsel for appellant to ask the prospective jurors certain questions. It is doubtful if the bill should be considered because of its form, but, if considered, we are of the opinion it presents no error. It fails to show that any objectionable jurors were forced upon appellant by reason of the court’s ruling.’’
35 Tex.Jur.2d, p. 176 (Footnote 17)
“In order that reversal may be predicated on refusal of trial court to permit question to be propounded on voir dire, it is necessary to show that accused was forced to accept objectionable juror because of being required to exercise peremptory challenge to stand aside one who should have been challenged for cause. Williams v. State, Tex.Cr.App., 179 S.W.2d 297.”
I respectfully dissent.


text:
    Ivory Lee BRADLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 40332.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Howard M. Wayland (On Appeal Only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Frank Puckett, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for murder; the punishment, twenty-two years.

Trial was after January 1, 1966, under the 1965 Code of Criminal Procedure.

Appellant’s plea was that of “Not guilty” and the state made it known that it would not seek the death penalty.

The issue of appellant’s guilt was first submitted to the jury under the alternate procedure provided in Art. 37.07, subd. 2. of the 1965 Code of Criminal Procedure.

Upon return of the verdict of guilty, appellant requested that the same jury assess the punishment. A separate verdict assessing the punishment was then returned by the jury.

In his brief filed in the trial court, error is assigned by appellant to his cross-examination by the state relative to three prior convictions.

The state insists that we should not consider the assigned error because the brief was not filed within the time provided by Art. 40.09, subd. 9, of the 1965 Code of Criminal Procedure.

While the brief was not filed within thirty days after approval of the record by the trial court, as required by subd. 9 of Art. 40.09, supra, the record shows that additional time was granted by the court to appellant to file the brief. The brief was filed within the time granted. The error assigned will be considered.

The record reflects that on direct examination appellant testified as follows:

“Q Ivory, let me ask you, have you ever been convicted of a felony in this or any other state? A Yes, I have.
“Q You served time, did you not? A Yes, sir.
“Q When was that? A In ’59.
“Q Since that time you haven’t been convicted of anything, have you ? A No, sir.”

On cross-examination, appellant was questioned by state’s counsel as follows:

“Q Way back in 1959 — in 1960 you were convicted of three felowyi, were you not? A No, sir.
“MR. PUCKETT: May I have this instrument marked as State’s Exhibit No. 1?
“(The reporter marked the instrument ' as requested by counsel.)
“QUESTIONS BY MR. PUCKETT:
“Q Ivory, looking at State’s Exhibit No. 1, which is a certified copy of the records of the Texas Department of Corrections—
“MR. JARVIS: I haven’t seen it yet and he is reading from something I haven’t checked and I would like to have the jury retired.
“THE COURT: You may have him on cross examination.” (Emphasis, supplied.)

Other than the quoted statement, appellant made no further request to examine the instrument.

Upon further cross-examination, appellant admitted that he had been to the penitentiary for “burglary and attempted murder” but insisted that the convictions were in 1959.

State’s exhibit #1 was not introduced in evidence and the inquiry was confined to appellant’s cross-examination.

We perceive no error.

The state was authorized to cross-examine appellant relative to the three felony convictions, in view of his testimony on direct examination. 62 Tex.Jur.2d 130, Sec. 205, Witnesses; Fernandez v. State, Tex.Cr.App., 382 S.W.2d 935.

The judgment is affirmed.


text:
    Jimmie L. PEARSON, Appellant, v. The STATE of Texas, Appellee.
    No. 40218.
    Court of Criminal Appeals of Texas.
    March 29, 1967.
    Rehearing Denied May 24, 1967.
    Fred D. Moore, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stin-son, John H. Stauffer and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is Robbery By Assault; the punishment, 20 years confinement in the Texas Department of Corrections.

John D. Montgomery testified he was assaulted and robbed of $1,200.00 by four (4) Negro boys at 10:10 P.M. bn March 5, 1966 immediately after he had closed his Dallas County liquor store. He spent two weeks in the hospital as a result of the injuries received. He was unable to identify any of his assailants though he had seen the appellant in his store on several occasions.

The appellant’s written confession was admitted into evidence after the trial judge, in absence of the jury, found the confession voluntary and resolved the conflicting factual disputes in accordance with the procedure recommended by this court in Lopez v. State, 384 S.W.2d 345.

The issue of voluntariness of the confession subsequently raised was properly submitted to the jury in the court’s charge.

Both of appellant’s grounds of error relate to the admissibility of his confession and shall be discussed together. He first contends that his warrantless arrest was without probable cause. Appellant was arrested shorty after midnight on April, 5, 1966, at his place of employment by a Dallas city policeman. Officer G. F. Rose testified he had been investigating the robbery in question for approximately a month, and a few minutes before the arrest learned for the first time of the whereabouts of the appellant. He related he arrested the appellant for the robbery after a brief period of questioning, and within twenty-three (23) minutes thereafter took the appellant before' a magistrate. The record reveals that the magistrate carefully complied with the provisions of Article 15.17 Vernon’s Ann., C.C.P., including advice as to his right to retained or appointed counsel. The appellant was further offered the opportunity to use the telephone, which he declined.

On April 7, 1966, the appellant while still in custody gave the written confession after he had again been warned by the officer taking the statement in accordance with the provisions of Article 38.22, C.C.P., and again advised of his right to counsel.

The testimony relating to probable cause for the arrest was not fully developed but we need not determine whether probable cause existed for the warrantless arrest. We have concluded that even if appellant’s arrest was illegal under the circumstances, of this case, the confession is not rendered inadmissible. In its brief, the State points out that on many occasions this court has held that it is the illegal detention and' not an illegal arrest which vitiates a confession. See Hughes v. State, Tex.Cr.App., 409 S.W.2d 416; Dugger v. State, Tex.Cr.App., 402 S.W.2d 178; Ward v. State, Tex.Cr.App., 399 S.W.2d 567; Garza v. State, Tex.Cr.App., 397 S.W.2d 847; Benitez v. State, Tex.Cr.App., 377 S.W.2d 651; Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344; Head v. State, 160 Tex.Cr.R. 42, 267 S.W.2d 419.

It is true that an illegal arrest, may under certain circumstances, vitiate a confession, particularly an incriminating verbal statement made contemporaneous with the unlawful arrest where surrounding conditions and circumstances show the statement not to be an act of a wholly free will. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441.

This does not mean that every confession which follows an illegal arrest is ipso facto inadmissible, Lacefield v. State, Tex.Cr.App., 412 S.W.2d 906; Hollingsworth v. United States, 321 F.2d 342, 350-351 (10th Cir.); Burke v. United States, 328‘ F.2d 399, 402-403 (1st Cir.), affirming-D.C., 215 F.Supp. 508-511; United States v. McCarthy, D.C., 249 F.Supp. 199; State v. Kitashiro (Hawaii) 397 P.2d 558.

Even if it be conceded that appellant’s arrest was illegal, the State has. shown by clear and convincing evidence that the connection between the arrest and the statement had become so attenuated as to dissipate the taint. The appellant was taken within twenty-three (23) minutes after arrest before a magistrate where he was informed of his constitutional rights and afforded an effective opportunity to obtain the assistance of counsel. While mere passage of time alone will not dissipate the taint of an unlawful arrest, the record reflects that almost two (2) days elapsed after his arrest and appearance before the magistrate before the confession was given subsequent to a second warning by the police officer. The record does not demonstrate that defendant was held incommunicado for an extended period of time, denied food or drink, or critically deprived of his capacity for self determination.

Appellant next contends that the warnings given to him of his constitutional rights did not meet the test laid down by the United States Supreme Court in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, for such warnings, and that the State has not sustained its burden of showing an affirmative waiver of such rights. Be that as it may, it is observed that this trial commenced on May 23, 1966, and Miranda v. State of Arizona, supra, is applicable only to cases commencing after June 13, 1966. Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Burleson v. State, Tex.Cr.App., 409 S.W.2d 855; Nixon v. State, Tex.Cr.App., 406 S.W.2d 445.

Appellant’s claims that he gave the confession upon a promise of probation and that he requested and was refused counsel, etc., were decided contrary to his contentions by the trial judge when he found the •confession voluntary and by the verdict of the jury.

Finding no reversible error, the judgment is affirmed.


author: BELCHER, Judge.

text:
    Robert Lee WALZER, Appellant, v. The STATE of Texas, Appellee.
    No. 40261.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    No attorney of record on appeal.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the possession of heroin, a narcotic drug; the punishment, life.

The trial was had before a jury on May 3, 1966. At appellant’s election to have the jury assess the punishment, it was assessed by them at life.

The record was approved by the trial judge on November 25, 1966.

No brief was filed by the appellant in the trial court. The record on appeal was filed in this court on February 17, 1967.

The record on appeal reflects that appellant was represented by counsel at the trial and his counsel was present and represented him throughout the trial, and there is no showing that he has withdrawn from the case.

Nothing appears in the record which should be considered by this court as unassigned error in the interest of justice.

The judgment is affirmed.


text:
    Ex parte James Allen JOSEPH.
    No. 40381.
    Court of Criminal Appeals of Texas.
    May 3, 1967.
    Baldwin, Goodwin & Matheny, by Joe B. Goodwin, Beaumont, for petitioner.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking the conviction with sentence of 99 years, affirmed by the majority opinion of this court in Joseph v. State, 367 S.W.2d 330.

In Ex parte Davis, 412 S.W.2d 46, this court on rehearing held that Art. 62, Vernon’s Ann.P.C. does not apply where the statute fails to provide a maximum term or a life term as punishment for the primary offense, and overruled Joseph v. State, supra, and other cases to the extent of any conflict.

The 99 year sentence petitioner is serving was not assessed by the jury but was erroneously pronounced upon the theory that appellant’s prior conviction for burglary, alleged and proved, made applicable the provisions of Art. 62 P.C.

As to the punishment in excess of 5 years (the minimum punishment for burglary of a private residence) the 99 year sentence is void. Ex parte Balas, 412 S.W. 2d S3, and cases cited.

Petitioner having more than seven years credit on his sentence for burglary of a private residence at night, it is ordered that he be released from further confinement under the 99 years sentence.