author: STEAKLEY, Justice.

text:
    The STATE of Texas v. Clara HILTON et al.
    No. A-11715.
    Supreme Court of Texas.
    March 1, 1967.
    Crawford C. Martin, Atty. Gen., Watson Arnold, Asst. Atty. Gen., Austin, for petitioner.
    Frank B. McGregor, Waco, for respondents.
   STEAKLEY, Justice.

In this eminent domain proceeding the State has condemned certain property consisting of 19.07 acres of land and a drainage easement over .46 acres of land; compensation to the Respondent landowners for a resulting land locked tract of .29 acres is also involved. The property is out of an original 66.445 acres tract owned by Respondents and it was stipulated that payment with respect to the .29 acres and the .46 acres would be as if taken in fee simple. The property lies approximately one-half mile east of the city limits of Itasca, Texas. It is divided by Farm Road 66 into a north tract of 29.575 acres and a south tract of 36.87 acres. The property was required in connection with the construction of Interstate Highway 35 which runs north and south and intersects Farm Road 66. The board of special commissioners awarded $6,-000 as the value of the land taken and $6,000 as severance damages to the remainder. The State appealed. Judgment was entered by the trial court on a jury verdict awarding Respondents $7,928 for the land taken and $6,993.75 as severance damages, or a total of $14,921.75. Upon appeal by the State the court of civil appeals recognized that the trial court erred in certain respects but held that such errors were not reversibly harmful under Rule 434, Texas Rules of Civil Procedure. State v. Hilton, Tex.Civ.App., 405 S.W.2d 715. We granted the State’s application for writ of error principally to review the holding of the court of civil appeals that the error of the trial court in denying the State the right of cross-examination of Respondents’ witness, Ira Beard, in respects later noted, was harmless error. We hold that such constituted reversible error.

Ira Beard, the witness in question, was a member of the board of special commissioners appointed to determine the amount of compensation to be awarded Respondents. He, together with the other two commissioners, signed the $12,000 award under oath. The award attributed to the property in question a market value of approximately $300 an acre. As a witness for Respondents upon the trial, however, the witness Beard testified that the Hilton farm before the taking was worth “$500 or $600 an acre” and as to the remainder he testified, “Well, the way it looks right now, it looks to me like it reduced it right smart down to $175 or $200 an acre.” Under this testimony the minimum value of the part taken would be $9,910, the maximum value $11,892; the minimum decrease in the value of the remainder would be $13,-987.50, the maximum decrease $19,815.62; the total minimum damages would be $23,-897.50, and the total maximum damages would be $31,707.62. Generally, of course, the award of the board of special commissioners is inadmissible. See Dueitt v. Harris County, 249 S.W.2d 636 (Tex.Civ.App.—Galveston 1952, writ ref’d); Schwab v. County of Bexar, 366 S.W.2d 952 (Tex.Civ.App.—San Antonio 1963, writ ref’d n. r. e.); 22 Tex.Jur.2d, Eminent Domain, § 303, p. 428. Here, however, there was an obvious inconsistency between the award of the special commissioners and Beard’s trial testimony, notwithstanding which the trial court denied the State the right to cross-examine him in such respects. C. R. Young-blood, the value witness for the State, testified that the value of the property taken was $5,705 and the decrease in the value of the remainder was $380. The jury findings were that the part taken had a value of $7,928 and that the decrease in value of the remainder was $6,993.75, an approximate mean betweén the testimony of Beard and Youngblood. A similar problem was presented in City of Dallas v. Holcomb, 381 S.W.2d 347 (Tex.Civ.App.—Dallas 1964, writ ref’d n. r. e.), 383 S.W.2d 585 (Tex.Sup.1964). In our Per Curiam opinion refusing the application for writ of error with the notation, no reversible error, we expressly approved the holding of the court of civil appeals that the trial court erred in refusing full cross-examination of a trial witness for the condemnee concerning the award of the board of special commissioners of which he was a member, the award representing a substantially lower property value than that to which he testified in the trial. On motion for rehearing (381 S.W.2d 352), the court of civil appeals had concluded that the error in denying such right of cross-examination was harmless under Rule 434, the court pointing to the fact that the testimony of the witness in question was supported by the testimony of seven disinterested and legally qualified witnesses whose testimony would have easily justified a verdict of more than the total damages found by the jury and whose testimony would not have been affected by the complete obliteration of the testimony of the witness in question.

In the instant case, however, we are not in accord with the harmless error holding of the court of civil appeals. The record convincingly establishes that the witness Beard was the real supporting witness for the Respondents. His credentials were impressive in the facts of his disinterest and life-long residency in Itasca, together with his dealings in real estate in the area for many years. He testified with authority and in direct terms. The ruling of the trial court prevented any challenge to his trial testimony based on the award of the special commissioners. Cf. State v. Willey, 360 S.W.2d 524 (Tex.Sup.1962). There were two other witnesses offered by Respondents whose testimony was generally supportive of that of Beard, but one was the husband and son-in-law of the two landowners, and hence interested, while the testimony of the other was characterized by mistakes, retractions and internal inconsistencies. We conclude from a consideration of the factors which were necessarily involved in the consideration of the evidence by the jury, and from an examination of the record as a whole, that but for the error in depriving the State of the right of cross-examination of the witness Beard with respect to the award of the commissioners which he signed and to which he swore, a different verdict would probably have been reached. Cf. Pittman v. Baladez, 158 Tex. 372, 312 S.W.2d 210 (1958) and Texas Power & Light Co. v. Hering, 148 Tex. 350, 224 S.W.2d 191 (1949).

We will pretermit discussion of the other rulings of the trial court held to be error by the court of civil appeals, but harmless under Rule 434, since these errors cannot be expected to occur upon another trial.

The judgments below are reversed and the cause is remanded to the trial court.

      . Respondents argue that the witness Beard stated in an affidavit supporting their answer to the State’s amended motion for new trial that he was of the same value opinion as a special commissioner as that testified at trial but that the other two commissioners finally “beat him down” since he was of the opinion that all of the commissioners had to sign the award. The saving effect of a similar showing was denied in Holcomb, infra.


source: Caselaw Access Project

author: POPE, Justice

license: Public Domain

text:
    Ex parte Eugene L. SLAVIN, Relator.
    No. A-11821.
    Supreme Court of Texas.
    March 1, 1967.
    William J. Salyer, San Antonio, for relator.
    Robert Valdez, San Antonio, for respondent.
   ORIGINAL WRIT OF HABEAS CORPUS

POPE, Justice

Relator, Eugene L. Slavin, brought this original habeas corpus proceeding after the district judge held him in contempt and committed him to jail for three days and until he purged himself of contempt by paying $212.00 which the court found was the amount he had not paid under a child-support order. The question presented for decision is whether the terms of the child-support order are definite and certain enough to be enforced by contempt. Our opinion is that the order is ambiguous, and, therefore, the relator should be discharged.

Relator and his wife Gloria Slavin were divorced on February 8, 1963. The divorce decree awarded custody of the three minor children to Gloria. They were at that time aged four, nine and fourteen. The portion of the decree which ordered relator to pay support and which is in question is:

“The Defendant is further ORDERED to pay the sum of ONE HUNDRED FIFTY AND NO/lOO DOLLARS ($150.00) per month for the care, support and maintenance of the three minor children until said children attain the age of eighteen years, that the Defendant, EUGENE L. SLAVIN, shall pay the sum of THIRTY-SEVEN AND 50/100 DOLLARS ($37.50) each week for the care, support and maintenance of his minor children beginning with the 7th day of February, 1963, and shall pay a like sum on the Thursday of each succeeding week thereafter, * *

The decree was sufficiently certain as long as all three of the children were less than eighteen years of age. Relator urges, however, that the order became reasonably subject to either one of two constructions after one of the children reached eighteen. Relator paid the monthly support of $150.00 until one year after the oldest of the three children reached eighteen. He then reduced the support payments proportionately and began paying $100.00 for the two children who were still less than eighteen. He urges that art. 4639a, § 1, Vernon’s Ann. Civ.St., only authorizes a court to order a parent to make payments for the benefit “of such child or children, until same have reached the age of eighteen (18) years * * Relator says that by his payment of $150.00 monthly for a year after the oldest child reached eighteen, he actually paid $318.00 more than he was required by law to pay. He says this construction of the support order is a reasonable one and is consistent with innocence.

The order is subject to another construction, one that would support the order of contempt. That construction is that the court which ordered relator to pay support intended that he would pay the fixed monthly sum of $150.00 until the youngest of the three children reached the age of eighteen. By such a construction, the father would continue to pay $150.00 to the two children beneath the age of eighteen, and when the second child reached that age, the sum would continue until the youngest child reached eighteen.

It is an accepted rule of law that for a person to be held in contempt for disobeying a court decree, the decree must spell out the details of compliance in clear, specific and unambiguous terms so that such person will readily know exactly what duties or obligations are imposed upon him. Walling v. Crane, 158 F.2d 80 (5th Cir.1946); Berry v. Midtown Service Corporation, 104 F.2d 107, 122 A.L.R. 1341 (2d Cir.1939); Lynch v. Uhlenhopp, 248 Iowa 68, 78 N.W. 2d 491 (1956); Middleton v. Tozer, 259 S.W.2d 80 (Mo.Ct.App.1953); 17 Am.Jur. 2d Contempt § 52 (1964); 17 C.J.S. Contempt § 12 (1963). The underlying reason for this rule is that:

“The rights of the parties under a mandatory judgment whereby they may be subjected to punishment as contemnors for a violation of its provisions, should not rest upon implication or conjecture, but the language declaring such rights or imposing burdens should be clear, specific and unequivocal so that the parties may not be misled thereby.” Plummer v. Superior Court of the City and County of San Francisco, 20 Cal.2d 158, 124 P.2d 5 (1942).

Texas decisions hold that an order of a court, such as an “injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing.” San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 156 Tex. 7, 291 S.W.2d 697 (1956); Villalobos v. Holguin, 146 Tex. 474, 208 S.W.2d 871 (1948). In Ex parte Kottwitz, 117 Tex. 583, 8 S.W.2d 508 (1928), the court stated the measure of certainty required to sustain the validity of a contempt order. The reasons for certainty in such an order are similar to those required of the order which one is charged with violating. The court said:

“ * * * where, as in the instant case, the order does not state that the commitment is until the defendant shall do or perform certain acts in compliance with the orders of the court, but simply states in indefinite language that he is committed until he purges himself of contempt, the order is too indefinite, and is void.”

In Ex parte Duncan, 42 Tex.Crim. 661, 62 S.W. 758 (1901), the court of criminal appeals reversed a contempt conviction on the grounds that the court order upon which the contempt action was based was too indefinite to be enforced. In its opinion the court said:

“ * * * Where the court seeks to punish either by fine, arrest, or imprisonment for the disobedience of an order or command, such order or command must carry with it no uncertainty, and must not be susceptible of different meanings or constructions, but must be in the form of a command, and, when tested by itself, must speak definitely the meaning and purpose of the court in ordering.”

In Garza v. Fleming, 323 S.W.2d 152 (Tex.Civ.App.1959, writ ref. n. r. e.), the court of civil appeals held that an order which provided that the father should pay “$100.00 per month * * * for the support of said minor children until David E. Garza shall reach his eighteenth birthday, * * * ” was certain enough for enforcement by contempt. David was the youngest of three children. The order was definite in that it made clear to the father that his payments would be the same fixed sum until David, the youngest child, reached eighteen. The order in the present case lacks that clarity. It orders, on the one hand, that the support is for “the three minor children,” but, on the other, it limits the support payments by the further provision, “until said children attain the age of eighteen years.” It is uncertain whether this means that relator must support his oldest child after reaching eighteen, or whether the support is to continue unreduced for the other two children, or whether the support payments should be proportionately reduced.

The language of the support order in the present case is equivocal. When the commands of the order and the provisions of art. 4693a are read together, we are unable to say that the order can be readily understood. The ambiguity of the support order renders it unenforceable.

The relator is discharged from custody.


author: PER CURIAM.

text:
    Lulu Elizabeth THORMAN et al., Petitioners, v. Waggoner CARR, Attorney General of Texas et al., Respondents.
    No. A-11788.
    Supreme Court of Texas.
    March 1, 1967.

      Lang, Byrd, Cross, Ladon & Oppenheimer, Neill Boldrick, Jr., San Antonio, for petitioners.
    Waggoner Carr, Atty. Gen., J. Arthur Sandlin, David Longoria, Asst. Attys. Gen., Austin, for respondents.
   PER CURIAM.

The Court of Civil Appeals in its opinion, reported in 408 S.W.2d 259, affirmed the judgment of the trial court which held that the trustees under the will of decedent, Lulu Elizabeth Thorman, had improperly allocated to income a Colonial Finance Corporation debenture and the net proceeds from the sale of 117 shares of One William Street Fund but had properly allocated to income the gain or rise in value of the 117 shares since the inception of the trust. The holding by the Court of Civil Appeals regarding the gain of the 117 shares is not before this Court for review.

The holdings regarding the debenture and the proceeds from the 117 shares of stock, excluding the gain earned by the shares, were brought forward for review. We approve the judgment that these items were improperly allocated by the trustees to income, and that they must be allocated to the corpus of the trust. However, we attach no significance to the absence of such words as “absolute,” “full,” or “uncontrollable” in describing the discretionary powers of the trustees.

The application for writ of error is refused, no reversible error.

SMITH, J., not sitting.


author: McDonald, judge. WOODLEY, Judge ONION, Judge.

text:
    Ex parte Melvin Carl DAVIS.
    No. 39935.
    Court of Criminal Appeals of Texas.
    Nov. 9, 1966.
    On Rehearing Feb. 15, 1967.

      Melvin Carl Davis, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

McDonald, judge.

This is an original application for habeas corpus by relator who is confined in the Texas Department of Corrections under sentence in Cause No. 11692-A of the District Court of Wichita County, Texas.

The indictment in said cause charged relator with the offense of assault with intent to rape and the judgment, upon a plea of guilty before the court, and the sentence reflect that the punishment was assessed at confinement in the penitentiary for life.

The punishment provided by statute for the offense of assault with intent to rape is “for any term of years not less than two.” Art. 1162, Vernon’s Ann.P.C.

Relator relies upon Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403, to sustain his position. True, in that case a life sentence was imposed for this identical offense. This was a 1956 case, opinion written by Judge Woodley and a dissenting opinion by Presiding Judge Morrison. The writ of habeas corpus was granted and relator was ordered discharged. The holding of this court at that time in the Rolen case was that “Life imprisonment for such offense is not authorized by statute and is excessive.” Relator had served more than the minimum punishment provided by law for the offense for which he was charged and convicted, and as to the excessive punishment, the judgment was held void and relator was held to be entitled to his discharge.

Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675, is the only case to reach this Court, prior to this one, since this writer has been a member of the Court, in which a petitioner sought his discharge under the rule announced by this Court in Rolen, supra. While the writer agreed with Judge Wood-ley’s opinion in the Webb case, supra, he is now convinced that he erred in so doing, and now confesses error. The writer does not agree with the holdings of this Court in Rolen, supra. Cases similar to the case at bar are: Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Daugherty v. State, 146 Tex.Cr. R. 303, 174 S.W.2d 493; Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Ex Parte Geisling, Tex.Cr.App., 243 S.W.2d 833 and Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250. The writer feels and believes that the correct disposition of this case is controlled by the case of Bailey v. United States, 74 F.2d 451, 452, wherein the Court of Appeals for the Tenth Circuit had before it practically the identical question as is here presented. There the court said:

“It is our opinion that Congress did not use the phrase ‘term of years’ in the technical sense attributable to it when applied to estate in lands. Life being of limited duration and death being certain, a sentence for life is definite and certain. It is tantamount to a sentence for a definite term of years greater than the possible life span of the person sentenced.”

The identical language contained in the foregoing holding was used by Presiding Judge Morrison in his dissent in Ex Parte Goss, supra.

The writer is committed to that school of thought expressed by this Court in the cases of Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842, and Joseph v. State, Tex.Cr.App., 367 S.W.2d 330. Judge Woodley dissented in the Joseph case and while he did not participate in the Brown case, he did express his disagreement over the disposition of the Brown case in his dissent in Joseph.

As may be readily apparent from the foregoing discussion of the various cases, we have a divided court and a, difference of opinion. The writer, with whom Presiding Judge Morrison concurs, feels that the line of cases relied upon by petitioner, Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226; Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493; Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250; Ex Parte Geisling, Tex.Cr.App., 243 S.W.2d 838; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403; Ex Parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132 and Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675, should all be overruled, and they are accordingly overruled.

From what has been said, it is clear that petitioner should be denied the relief sought. It is so ordered.

WOODLEY, Judge

(dissenting).

In the opinions prepared by him which are today overruled, the writer has fully expressed his views regarding a life sentence for an offense such as assault with intent to rape; attempt to rape; burglary of a private residence, and robbery with firearms, where the statute does not in terms provide a life sentence as punishment.

The majority today announce i new rule of law which is directly contrary to the uniform decisions of this Court over a period of more than twenty years, and do so upon authority of the very decision which this Court considered, discussed and declined to follow in Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493, decided in 1943.

To reach the conclusion that a life sentence may be imposed as punishment for the offense of assault with intent to rape, the majority find it necessary to overrule opinions written by Judges Graves, Hawkins, Beauchamp, Davidson and the writer, the earliest of which is Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226, decided in 1943, and the most recent being Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675.

The majority have not overlooked their holding as to the punishment for a second conviction for the offense they now say is punishable in ordinary cases by confinement in the penitentiary for life.

The writer’s views as to the applicability of Art. 62 P.C. in such cases is set out in his dissenting opinions in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187; and Sellars v. State, Tex.Cr.App., 401 S.W.2d 835.

Unless the majority is prepared to hold that a life sentence is no longer the highest punishment that may be assessed for a felony less than capital, they find themselves in the position of saying that a life sentence may be assessed for assault with intent to rape in ordinary cases but on a second or other subsequent conviction for such offense Art. 62 P.C. fixes a definite punishment of 99 years.

To the majority opinion and to the application of the new construction of statutes announced therein retroactively to uphold a life sentence for assault with intent to rape pronounced on February 2, 1962, I respectfully dissent.

OPINION ON REHEARING

ONION, Judge.

Being convinced that the previous opinion which denied relief and overruled many decisions of this Court under which relator is entitled to relief was wrong, four judges of the present five judge Court directed that the cause be set for submission on motion for rehearing and that Ex Parte Balas, 412 S.W.2d 53, be filed and submitted.

Relator, an inmate of the Texas Department of Corrections, seeks his discharge by writ of habeas corpus. The judgment and sentence, a copy of which relator attached to his pro se application, indicate he plead guilty on February 2, 1962, to the offense of assault with intent to rape in the 30th District Court of Wichita County, Texas, and was assessed a punishment of confinement in the state penitentiary for life.

The relator’s contention made herein is that Article 1162, Vernon’s Ann.P.C., denouncing the offense of assault with intent to rape provides for a penalty of “any term of years not less than two”; that a life term is not included within the statute, and that therefore the judgment and sentence providing for a life term are unauthorized; that the same not being authorized the minimum term is two years; and relator having served more than such minimum term, he is entitled to his discharge as the remainder of the sentence is excessive and void.

Life imprisonment has been authorized by the Texas Legislature for the offenses of murder, rape, treason, destroying an unborn child, and for a third conviction for sale of narcotics. It is also a punishment authorized for robbery, but not for robbery when a firearm or other deadly weapon is used. Article 1408, V.A.P.C.

In addition to Article 1162, V.A. P.C. (assault with intent to rape) and the above mentioned portion of the robbery statute, other statutes authorizing confinement in the penitentiary for an unlimited term but which do not provide for life imprisonment include Article 1190, V.A.P.C., attempt to rape; Article 1398, V.A.P.C., burglary by explosives, and Article 1391, V.A.P.C., burglary of a private residence at night. It should be observed that a statute which affixes a minimum, but not a maximum, term of years as punishment is a valid statute. Myers v. State, 51 Tex.Cr.R. 463, 103 S.W. 859.

The fixing of penalties for crime is a legislative function. What constitutes an adequate penalty is a matter of legislative judgment and discretion, and the courts will not interfere therewith unless the penalty prescribed is outside of constitutional limitations.

In Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493, this Court, speaking through Judge Beauchamp, said:

“The legislature has, in some cases, provided for life sentences and in others, for a term of years. It appears that such has been done with care and caution. We are unable to find that they have, in any case, used the two expressions interchangeably as meaning the same thing and there is no basis for a conclusion that they did. In the absence of such practice, we have heretofore reached the conclusion that the expressions are used in a technical sense; that the intention is clearly expressed and that this court should follow it. That holding will be adhered to.”

In Ruiz v. United States, 365 F.2d 500, the U. S. Court of Appeals, Third Circuit, when confronted with a similar question as one now before us, said:

“[W]e are in accord with the Court of Criminal Appeals of Texas which held in Daugherty v. State, 1943, 146 Tex.Cr.R. 303, 174 S.W.2d 493; Cuellar v. State, 1947, 151 Tex.Cr.R. 176, 206 S.W.2d 250, and Ex Parte Goss, 1953, 159 Tex.Cr.R. 235, 262 S.W.2d 412, that imprisonment for life is not for a term of years and is authorized only when the statute so provides.”

Relator cites as authority Ex Parte Rolen, 163 Tex.Cr.R. 525, 294 S.W.2d 403. There a life sentence was imposed for the offense of assault with intent to rape. In discharging the relator, the court held that “Life imprisonment for such offense is not authorized by statute and is excessive.” Ex Parte Rolen, supra, is in accord with the uniform holding of this Court over a period of twenty-three years that a life sentence was not authorized under such statutes which provided no maximum term of years.

The prior majority opinion in the case at bar handed down November 9, 1966, held that “life” term was included with the phrase “any term of years not less than two.”

This prior opinion was based in part upon Bailey v. United States, 10 Cir., 74 F.2d 451, and in part upon the “school of thought” expressed by this Court in Joseph v. State, Tex.Cr.App., 367 S.W.2d 330 and Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842, and followed in Sellars v. State, Tex.Cr.App., 401 S.W.2d 835; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187. Cf. Clark v. State, Tex.Cr.App., 396 S.W.2d 886.

We do not feel that the Bailey decision, supra, is applicable for the very same cogent reasons that this Court in 1943 declined to follow that decision in Daugherty v. State, 146 Tex.Cr.R. 303, 174 S.W.2d 493.

The decisions in Brown, Joseph, Madeley and Sellars, supra, are to the effect that the trial court is authorized to assess punishment under Article 62, V.A.P.C., at 99 years when the Legislature has not provided a maximum penalty for the instant or primary offense.

Article 62, V.A.P.C., provides:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

This statute has been held to create no offense, but merely to authorize increased punishment to be affixed to subsequent convictions. Beyer v. State, 172 Tex.Cr.R. 279, 356 S.W.2d 436; Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842; Williams v. State, 109 Tex.Cr.R. 450, 5 S.W.2d 514. The provisions are reformatory in nature, Childress v. State, 134 Tex.Cr.R. 504, 116 S.W.2d 396, and must be strictly construed. Garcia v. State, 140 Tex.Cr.R. 340, 145 S.W.2d 180.

The decisions in Joseph, Madeley, and Sellars, supra, seem to have been based upon the reasoning set forth in Brown v. State, supra. There the conviction was for the instant or primary offense of assault with intent to rape and the punishment enhanced under the provisions of Article 62, supra, was set at 99 years by the trial court.

The court affirmed the conviction holding that it was the trial court’s duty to assess the maximum number of years which a jury could assess in an ordinary assault with intent to rape case, and that only if it found the Legislature had provided no maximum punishment would it be authorized to reverse.

The rationale of the Brown decision seems to be that the court observed that many cases had been appealed wherein the punishment for assault with intent to rape had been assessed at a term of 99 years, and that the Legislature had met and adjourned without amending Article 1162, V.A.P.C., prescribing the penalty for assault with intent to rape at confinement in the penitentiary for “any term of years not less than two”, and that this warranted the conclusion that the trial court was therefore authorized to assess the punishment at ninety-nine years under the provisions of Article 62, V.A.P.C.

The Court further reasoned that while a term of years greater than ninety-nine years could be assessed in an ordinary assault with intent to rape case, a sentence of ninety-nine years is in excess of the expected life span of any defendant and any greater number of years assessed would be without significance. The fallacy of the reasoning of the Court in such case is apparent on its face and is further pointed up in the dissents in Joseph, Madeley and Sel-lars, supra. See 1 Houston Law Review, 177.

The Court apparently overlooked the history of the statute dealing with the offense of assault with intent to rape. The statute formerly had a maximum term of 7 years. (Tex.Sess.Laws, 1879, Tex.Pen.Code, title XV, Ch. 3., Art. 503). The maximum term was eliminated in 1895, (Tex.Sess.Laws, 1895, Ch. 75, Sec. 1) by the Legislature which re-enacted the statute in 1911 and again in 1948 subsequent to the decision in Myers v. State, 51 Tex.Cr.R. 463, 103 S.W. 859, holding that the statute was valid without a maximum punishment. See also Tarver v. Staate, 108 Tex.Cr.R. 655, 2 S.W.2d 439.

Research does not reflect support for the court’s statement that many cases have been appealed involving ninety-nine year convictions for the offense of assault with intent to rape. Only one such case has been found. Wells v. State, 128 Tex.Cr.R. 318, 81 S.W.2d 89. With such a background it can hardly be argued that the Legislature’s silence authorized the trial court to fix the punishment based upon a prior conviction.

The effect of Brown, supra, and the cases following it was to provide for no maximum for the first offense, but a maximum for the second conviction making it possible for a first offender to receive a greater punishment than a second offender despite the clear purpose of Article 62, V.A.P.C.

To arrive at the conclusion that the Court did in Brown, Joseph, Madeley and Sellars, supra, is to read into the statutes involved language the Legislature did not see fit to employ and to engage in judicial legislation.

We cannot substitute our judgment for the judgment and the discretion of the Legislature. Where the statute is clear and unambiguous the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute.

Therefore we hold that Article 62, V.A.P.C. does not apply where the statute fails to provide a maximum term or a life term as punishment for the primary offense. To the extent of any conflict, Sellars v. State, Tex.Cr.App., 401 S.W.2d 835; Madeley v. State, Tex.Cr.App., 388 S.W.2d 187; Joseph v. State, Tex.Cr.App., 367 S.W.2d 330; Brown v. State, 171 Tex.Cr.R. 167, 346 S.W.2d 842 are hereby overruled.

We are fully cognizant of the fact that under this holding the provisions of Article 62, V.A.P.C., are rendered inapplicable to such common offenses as assault with intent to rape, attempt to rape, burglary of a private residence at night and burglary by explosives, however, no other conclusion seems logical from the language used by the Legislature in the statutes involved. We observe that any prior conviction otherwise available under Article 62, V.A.P.C., would certainly be admissible in the separate hearing on punishment before either the judge or the jury by virtue of the provisions of Article 37.07, Sec. 2 (b), Vernon’s Ann.C.C.P.

The wisdom of the Legislature in fixing either no maximum or minimum punishment is not the concern of this Court. The determination of penalties for violation of the Penal Code is within the sound discretion of the Legislature.

It is clear from what has been said that to construe Article 1162, V.A. P.C. (assault with intent to rape) and other similar statutes authorizing confinement in the penitentiary for any term of years without prescribing a maximum penalty as including the term of life would render all statutes authorizing confinement in the penitentiary “for life” or for “any term of years” redundant.

Such a construction would pry the lid off of Pandora’s box, i.e., it would mean a verdict of a jury assessing life as punishment would be proper even though inconsistent with the express penalty provisions of the statute involved and the charge of the court. Cf. Belton v. State, 162 Tex.Cr.R. 436, 286 S.W.2d 432.

It having been shown by certificate of the Texas Department of Corrections that the relator has credit in excess of the minimum punishment provided for the offense of assault with intent to rape, he is entitled to discharge. Ex Parte Rolen, supra; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226.

Judge Morrison remains convinced of the soundness of his dissents in Ex Parte Goss, supra; Ex Parte Rolen, supra; Ex Parte Foight, supra, and Ex Parte Webb, supra. He also remains convinced of the correctness of the majority opinions in Sellars v. State, supra; Madeley v. State, supra; Brown v. State, supra, and Joseph v. State, supra, and does not agree with this opinion on rehearing.

The order denying the relief sought is set aside, and the authorities listed in the original opinion as being overruled are reaffirmed.

The petition for writ of habeas corpus is granted, and relator is ordered released from further confinement under the life sentence.


author: ONION, Judge.

text:
    Ex parte Albert C. BALAS, Jr.
    No. 40147.
    Court of Criminal Appeals of Texas.
    Feb. 15, 1967.
    Albert C. Balas, Jr., pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

This is an original application for ha-beas corpus by relator who is confined in the Texas Department of Corrections. The judgment, a copy of which relator attached to his pro se application indicates he plead guilty on September 26, 1955, before the Court to the offense of burglary of a private residence at night, in the 54th District Court of McLennan County and was assessed a punishment of confinement in the state penitentiary for life. The attached sentence applying the indeterminate sentence law recites a punishment of not less than 5 years nor more than life.

The relator’s contention made herein is that Article 1391, Vernon’s Ann.P.C., denouncing the offense of burglary of a private residence at night, provides for a penalty of “any term not less than five years that a life term is not included within the statute, and that therefore the judgment and sentence providing for a life term are unauthorized; that the same not being authorized, the minimum term is five years; and relator having served more than such minimum term, he is entitled to discharge as the remainder of the sentence is excessive and void.

Relator cites as his authorities, Ex Parte Webb, Tex.Cr.App., 374 S.W.2d 675; Ex Parte Foight, 165 Tex.Cr.R. 153, 306 S.W.2d 132; Ex Parte Goss, 159 Tex.Cr.R. 235, 262 S.W.2d 412; Ex Parte Geisling, Tex.Cr.App., 243 S.W.2d 833; Cuellar v. State, 151 Tex.Cr.R. 176, 206 S.W.2d 250; Ex Parte Whitten, 151 Tex.Cr.R. 169, 205 S.W.2d 588; Ex Parte Wheat, 146 Tex.Cr.R. 171, 172 S.W.2d 344; Ex Parte O’Dare, 146 Tex.Cr.R. 162, 172 S.W.2d 336; Ex Parte Erwin, 145 Tex.Cr.R. 504, 170 S.W.2d 226. These authorities sustain his contention.

In discussing the penalty provision of Article 1391, V.A.P.C., this Court in Cuel-lar v. State, supra, said:

“This means that the punishment must be fixed at a term of years. Life imprisonment in the penitentiary is not for a term of years and is authorized only when the penalty fixed by statute so provides. See Ex parte Pruitt, 139 Tex.Cr.R. 438, 141 S.W.2d 333; Square v. State, 142 Tex.Cr.R. 493, 154 S.W.2d 852.”
“The Court having fixed a punishment not authorized, the judgment is reversed * 4c * »

To the same effect is the opinion on rehearing of this Court in Ex Parte Davis, Tex.Cr.App., 412 S.W.2d 46, handed down this day.

For Judge Morrison’s views, see Ex Parte Davis, supra.

It having been shown by certificate of the Texas Department of Corrections that the relator has credit for over twenty years which is in excess of the minimum punishment provided for the offense of burglary of a private residence at night, he is entitled to discharge.

It is so ordered.


author: MORRISON, Judge.

text:
    James Byrl CARTER, Appellant, v. The STATE of Texas, Appellee.
    No. 40106.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1967.
    Rehearing Denied March 22, 1967.

      M, G. Nahas, Jr., Houston, for appellant.
    Carol S. Vance, Dist. Atty., Phyllis Bell and Gene Miler, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is aggravated assault on an officer; the punishment, 90 days in jail.

Trial was had before the court without the intervention of a jury.

In order to pass upon appellant’s ground of error that his arrest was unlawful, it will be necessary to recite most of the testimony. Officer French testified that on the night in question he received radio instructions to go to a certain address (which was shown to be the appellant’s house) and investigate a disturbance involving a gun which had been fired. He was in uniform, and after he brought his police vehicle to a halt in front of appellant’s home, he proceeded on foot toward appellant’s closed front door. Before he reached the door, it “flew open”, and appellant stuck a shotgun out and said, “You sorry s o — b—, I am going to kill you.” French took cover and from his vantage point called upon appellant to put down the gun and come out to talk with him and his fellow officers. Appellant declined and soon thereafter, handed the gun to his son and told him, “If any of these s_o_b_’s come in the yard, kill them.” Shortly thereafter, Officer Keefe came through the back of the house, wrenched the shotgun from appellant’s son and in an effort to subdue appellant, French was kicked by appellant. It was this act of kicking and the resulting injury which constituted the basis of this prosecution.

Appellant’s son, testifying in his father’s behalf, admitted that he alerted appellant to the arrival of the police cars and responded to appellant’s instruction to get his shotgun with which appellant pushed open the front door, and also admitted that appellant engaged in a fight with the officers in the front yard, but stated that the only conversation which appellant had with the officers was to inform them that he would go with them if they had a warrant.

In Duke v. State, 168 Tex.Cr.R. 403, 328 S.W.2d 189, we had almost the identical fact situation and the same ground of error. There we said:

“If we concede that Officers Stowe and Young, who were crouched behind the vehicles, were trespassers, this would not prevent the abusive language which was addressed toward them from constituting a violation of Article 482, V.A.P.C., which would authorize appellant’s arrest by Hawkins without a warrant and which would mean that Hawkins was at the time he made such arrest in the lawful discharge of the duties of his office.”

French testified that prior to the display of the weapon and the abusive language, he had no intention of arresting appellant or searching his premises.

We have concluded that the trial court did not err in declining appellant’s motion for a finding of not guilty on the grounds that the arrest of appellant was illegal.

The judgment is affirmed.


author: DICE, Judge.

text:
    Audry Lee LACY, Appellant, v. The STATE of Texas, Appellee.
    No. 40086.
    Court of Criminal Appeals of Texas.
    Feb. 8, 1967.
    Rehearing Denied March 22, 1967.
    Howard O. Lake, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Erwin G. Ernst, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

The conviction is for statutory rape; the punishment, life imprisonment.

Notice of appeal was given on April 27, 1966.

The prosecutrix, fifteen years of age, lived, with her mother and father, the appellant, in the city of Houston. Two younger brothers and two younger sisters also lived in the home. The prosecutrix testified that on December 18, 1965, while her mother was at work, appellant had an act of sexual intercourse with her without her consent. At such time, appellant told the prosecutrix he wanted to instruct her in sex. She stated that this was the first act of sexual intercourse with the appellant but that for several years he had fondled her breasts and private parts and, in November, attempted to have sexual relations with her but failed to accomplish the act. She stated that she did not report the act to her mother when she came home from work on the evening in question because she was scared and afraid of what he would do to her mother if she did report it; that appellant told her on prior occasions if she told her mother she (the mother) would not live to do anything about it. Two days later, she did tell a younger sister, whom appellant had also attempted to fondle, of the act of intercourse and later, when asked by her mother, she told her of the act.

Medical records of the physical examination of the prosecutrix, as interpreted by Dr. Robert Bucklin, indicated that she had engaged in only one act of sexual intercourse.

Testifying in his own behalf, appellant denied having an act of sexual intercourse with the prosecutrix at any time and denied that he had fondled the prosecutrix or her sister.

In his brief filed in the trial court, appellant urges as sole ground of error that the evidence is insufficient to sustain the conviction.

It is first insisted that the evidence is insufficient because the prosecutrix did not make prompt outcry and her testimony was not corroborated.

In Hindman v. State, 211 S.W.2d 182, this court, in overruling a similar contention, said:

“As a general proposition, this court has refused to apply the rule stated — that is, requiring corroboration where the prosecutrix fails to make outcry promptly or within a reasonable time, in a statutory rape case.”

In Hindman, the court went further and pointed out that the law requires close scrutiny of convictions resting, alone, upon the uncorroborated testimony of a prosecutrix who testifies to facts showing a rape by force and who makes no outcry, but that the jury are the exclusive judges of the facts proved and the credibility of the witnesses, which the courts should be slow to overturn. See: Brazil v. State, Tex.Cr.App., 401 S.W.2d 843, for a further discussion and application of the rule.

We find that the testimony of the pros-ecutrix comports with human experience and is sufficient to sustain the conviction.

It is also insisted that the evidence is insufficient to support the conviction because the proof shows that the prosecutrix was fifteen years of age and of unchaste character at the time of the act of intercourse in December.

We find no merit in the contention, as the evidence is conclusive that the pros-ecutrix had had only one act of sexual intercourse and there was no evidence of her being of unchaste character.

The judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Willie Eugene CRAWFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 40040.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied March 22, 1967.

      Fred D. Moore, Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Stauf-fer, John C. Vance and Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is assault with intent to murder; the punishment, 25 years.

The indictment, returned January 31, 1966, alleged that the assault was made upon Velma Pauline McLemore on or about November 16, 1965. A prior conviction for a like offense was alleged for enhancement of punishment purposes.

Trial was before a jury. Having been found guilty of the primary offense, appellant requested that the punishment be assessed by the jury. Further evidence having been heard, the jury found the allegations as to the prior conviction were true and assessed the maximum punishment. (Art. 62 Vernon’s Ann.P.C.)

Appellant’s amended motion for new trial was overruled on May 6, 1966. Sentence was pronounced and notice of appeal was given on the same day.

A transcript of the evidence furnished appellant was approved by counsel and by the court on August 5, 1966.

Appellant has requested in writing that the appeal brief filed in the trial court by his trial counsel be “cancelled out” and returned to him, stating: “this attorney has been fired from my case several months ago.”

Without counsel’s brief which assigned the errors relied upon, and upon which said counsel presented oral argument, there would be nothing for this Court to review.

The points relied upon in said brief will be considered.

Appellant’s first point of error deals with several sidebar remarks made by the prosecutor which appellant says were so prejudicial, improper and inflammatory that they were not subject to correction, though the objections to these remarks were sustained by the court.

Assuming that the remarks were prejudicial to appellant, it was incumbent upon appellant to move for a mistrial in order for him to complain on appeal. Purifoy v. State, 163 Tex.Cr.R. 488, 293 S.W.2d 663.

Appellant’s second point of error is that the complainant was allowed, during direct examination of her by the state, to exhibit the scars and wounds received by her as a result of appellant’s actions against her. It is not reversible error to permit the injured party to exhibit resulting scars where it is not shown that the scars were so revolting in appearance as to inflame the minds of the jurors. McMurrey v. State, 145 Tex.Cr.R. 439, 168 S.W.2d 858.

Appellant complains of testimony concerning statements made by him and the complainant to a policeman at the scene of a prior arrest of appellant.

Sergeant Bellamy, of the Cockrell Hill Police Department, testified that in 1962 he stopped appellant for running a red light and the complainant was in the same car. While the officer was talking with appellant the complainant indicated by gestures that something was wrong. The officer had appellant get out of the car, and then asked the complainant what was wrong. The complainant, within the hearing of appellant, told the officer that appellant had put a knife to her throat and threatened to kill her. He had told her that he was taking her to a graveyard to kill her. The officer told appellant he was going to put him in jail. Appellant responded that it would do no good because when he got out of jail he would go back to the complainant’s house and finish the job that he had started.

This testimony was admissible with regard to the contested issue of whether there was intent on the part of appellant to kill the complainant. Jones v. State, 156 Tex.Cr.R. 475, 243 S.W.2d 848. Also the prior relationship between the accused and the assaulted party is ordinarily pertinent and admissible. Bruno v. State, 163 Tex.Cr.R. 540, 295 S.W.2d 211.

Appellant’s next point relates to the cross-examination of appellant in regard to prior misdemeanor offenses.

The evidence shows that Velma Pauline McLemore was formerly the wife of appellant. He was interrogated on cross-examination and admitted having been convicted for assault with intent to murder her on a prior occasion. He was also asked regarding a conviction for an aggravated assault upon Velma Pauline McLemore during the time they were married and another conviction for aggravated assault upon her at a time when they were not husband and wife. The only objection offered related to the conviction on January 2, 1964, at which time the injured party was the wife of the appellant. We see no error. Dempsey v. State, 159 Tex.Cr.R. 602, 266 S.W.2d 875, 877.

The remaining point of error is that the state failed to prove the essential element of intent to kill.

The evidence introduced by the state includes the following testimony:

On the afternoon of November 16, 1965, appellant called the complainant, Mrs. Pauline McLemore, and told her that he was going to kill her. Forty minués later, while the complainant was in the kitchen of her home, she heard someone enter the front door of her house. She walked to the door between the kitchen and the living room and saw appellant standing approximately ten feet away, pointing a shotgun at her. Appellant at that time told her he was going to blow her head off, and she turned and ran out the back door of the house into the back yard and behind a bush. Appellant followed her into the yard and came to the other side of the bush, approximately two yards from complainant, and fired the gun at her, hitting her in the leg.

The complainant then ran and climbed over a fence, and appellant shot her again as she was climbing, hitting her in the hip. He fired one more shot, but it is unclear from the record whether this shot hit her. The complainant then crawled behind a cement porch in front of her neighbor’s house. Appellant did not follow her but went back into the complainant’s house.

The evidence is sufficient to sustain the jury’s verdict. Flores v. State, 168 Tex.Cr.R. 629, 331 S.W.2d 219; Thornton v. State, 145 Tex.Cr.R. 490, 169 S.W.2d 177; Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583, 586; Kincaid v. State, 150 Tex.Cr.R. 45, 198 S.W.2d 899; Cheeks v. State, 157 Tex.Cr.R. 184, 247 S.W.2d 893.

The judgment is affirmed.


text:
    Freddie Ray GILBREATH, Appellant, v. The STATE of Texas, Appellee.
    No. 39505.
    Court of Criminal Appeals of Texas.
    Feb. 1, 1967.
    Rehearing Denied March 22, 1967.

      C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Richard M. DeGuerin and John Gilleland, Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

ONION, Judge.

The offense is felony theft; the punishment, two years confinement in the Texas Department of Corrections.

Notice of appeal was given on November 23, 1965, prior to the effective date of the 1965 Code of Criminal Procedure.

J. H. Goddard testified that on February 11,1965, he was the owner of a 1960 Chevrolet having a value in excess of $50.00. He related that on that date his automobile, bearing 1965 Texas license plates and with the title certificate in the glove compartment, was taken without his consent or permission from a location at the Calvary Lutheran Church in Harris County, Texas. The theft was reported to the Harris County Sheriff’s Office on the same day.

Harris County Deputy Sheriff Hubbell testified that on February 21, 1965, while on an investigation with Deputy Sheriff Shipley, he observed the 1960 Chevrolet in question parked in front of the appellant’s residence. Noting that the automobile bore 1964 Texas license plates known to have been stolen, and determining after further investigation that the license plates had not been issued for the 1960 Chevrolet, Officer Hubbell approached the appellant at his home and inquired about the automobile.

The appellant claimed he purchased the automobile from Charles Dale Blevins, his co-indictee, and exhibited to the officers a title certificate with an assignment of title and a bill of sale allegedly signed by J. H. Goddard. Officer Hubbell testified that upon request appellant agreed to accompany him and Officer Shipley to the Goddard home, and this is confirmed by the appellant in his testimony. At the Goddard home the complaining witness identified his stolen automobile and denied the signatures on the bill of sale and assignment of title.

Hubbell related that as a result of a conversation with the appellant at that time, the appellant admitted that he and Blevins had stolen the Chevrolet, and in the same conversation he revealed the location of the blow out rings and the 1965 license plates that had been on the automobile at the time it was stolen. The location of these items was unknown to the officers and this statement led to their recovery.

The following day, while in custody, the appellant gave a written confession concerning the theft.

Appellant insists that his arrest without a warrant was illegal and therefore both his oral and written confessions were inadmissible in evidence over his objections.

It is not clear from the record just when the arrest was effected. The appellant testified that he and Blevins were arrested after he had led the officers to the location where they recovered Goddard’s 1965 license plates from Blevins’ automobile. These events occurred after the appellant’s “oral confession”. Whether the accused is or not under arrest is to be determined from the sufficiency of the facts to reasonably create the impression on his mind that he is under arrest. De Lira v. State, 164 Tex.Cr.R. 194, 297 S.W.2d 953; Branch’s P.C., Sec. 85, p. 84, 2nd Edition.

In Rolan v. State, 170 Tex.Cr.R. 88, 338 S.W.2d 457, this Court held that statements made by the appellant when interviewed by the Sheriff during a theft investigation were properly admitted in a prosecution for felony theft, even though the interview after 45 minutes was terminated by the arrest of the appellant.

Assuming the arrest occurred at the Goddard home prior to any oral confession, the officers knew at that time that the automobile was stolen, that it bore license plates stolen at another time and place, and that the owner had denied his signatures on the bill of sale and assignment of title in possession of the appellant. With such information the arrest without a warrant was authorized.

The statements made by the appellant at the Goddard home, if he was under arrest, in which he admitted his guilt and which led to the recovery of the license plates and blow out rings were admissible as an oral confession under the provisions of Article 727, Vernon’s Ann.C.C.P., in effect at the time of the trial. Foster v. State, Tex.Cr.App., 400 S.W.2d 552; Guillory v. State, Tex.Cr.App., 400 S.W.2d 751; Edmond v. State, 169 Tex.Cr.R. 637, 336 S.W.2d 946; Smith v. State, 166 Tex.Cr.R. 614, 317 S.W.2d 539.

The State’s evidence further shows that the written confession was given by the appellant after he had been given the statutory warning required by Article 727, V.A.C.C. P., and after he had waived his right to counsel. The careful trial judge conducted a separate hearing in the absence of the jury on the voluntariness of the confession in accordance with the procedure recommended by this Court in Lopez v. State, Tex.Cr.App., 384 S.W.2d 345, and entered a separate order finding the confession voluntary and resolving the factual disputes.

The disputed issues of the voluntariness of both the oral and written confessions subsequently raised by the evidence were submitted to the jury under appropriate instructions. We find no merit in appellant’s first contention.

The appellant’s remaining contention is that the trial court erred in failing to exclude evidence of handwriting. The appellant’s contention refers to the signature and initials on the written confession and the alleged signatures of J. H. Goddard and other writing on the assignment of title and bill of sale. He cites Article 731, V.A.C.C. P., (now Article 38.27 without change) as his authority. This article provides as follows :

“It is competent to give evidence of handwriting by comparison, made by experts or by the jury. Proof by comparison only shall not be sufficient to establish the handwriting of a witness who denies his signature under oath.”

The State did not rely upon comparison testimony to prove appellant’s signature and initials on the written confession, but offered witnesses who saw the appellant sign the confession and initial the corrections. Goddard denied that the signatures and writing on the bill of sale and assignment of title were his, and Blevins, the co-indictee, testifying for the State, contradicted appellant’s testimony that he (Blevins) had written the bill of sale and signed the assignment of title.

The State on cross-examination did ask the appellant if there was any similarity between the signature on the confession with the words “sold to Freddie Ray Gilbreath” on the bill of sale, but only after appellant had made a similar inquiry about such instruments on direct examination.

Under these circumstances Article 731 V.A.C.C.P. has no application. See Lieb v. State, 163 Tex.Cr.R. 1, 288 S.W.2d 110; Newby v. State, Tex.Cr.App., 384 S.W.2d 133.

The judgment is affirmed.


author: WOODLEY, Judge. MORRISON, Judge.

text:
    Ex parte Marvin Niles STUBBLEFIELD.
    No. 39994.
    Court of Criminal Appeals of Texas.
    Dec. 31, 1966.
    Rehearing Denied Feb. 1, 1967.
    Second Rehearing Denied March 22, 1967.
    Marvin Niles Stubblefield, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Judge.

Petitioner, who is serving the life sentence for burglary affirmed by this Court in Stubblefield v. State, No. 32,218, presented to District Judge J. E. Winters an application for writ of habeas corpus in which he alleged that his prior conviction in Johnson County for the felony offense of drunk driving used to enhance his punishment in the burglary conviction was void because District Judge Penn J. Jackson, who presided at his trial for such felony offense, represented him at the trial in the misdeameanor drunk driving case at which he was first convicted of drunk driving.

Without having ascertained the facts, the writ applied for by petitioner was granted by Judge Winters and ordered returned to the Court of Criminal Appeals, the district attorney’s office suggesting that we ask the Cleburne Court to gather information.

The granting of the writ returnable before this Court made it necessary that the case be filed in this Court and an opinion be handed down.

Had the petition been referred to Judge Jackson, or the facts developed, it would have been revealed that Judge Jackson did not in fact represent petitioner in the misdemeanor case, and that the attack upon the felony conviction for drunk driving at the trial in Johnson County, at which Judge Jackson presided, was without merit.

The relief prayed for by petitioner is denied and he is remanded to custody of the Texas Department of Corrections.

OPINION ON MOTION FOR REHEARING

MORRISON, Judge.

Petitioner now asserts that it is not his contention that Judge Jackson represented him in the misdemeanor case in question, but that Judge Jackson had represented him in various other criminal actions prior to his trial in Johnson County for driving while intoxicated.

Such representation as he now asserts would not come within the meaning of “counsel in the case” under Article V, Sec. 11, Constitution of Texas, Vernon’s Ann.St. and Article 552, now Article 30.01, Vernon’s Ann.C.C.P., relied upon by petitioner.

The motion for rehearing is overruled.


author: FRASER, Chief Justice.

text:
    Joe C. POTTER et ux., Appellants, v. LONGHORN SERVICE & DRILLING COMPANY, a co-partnershlp et al., Appellees.
    No. 5790.
    Court of Civil Appeals of Texas. El Paso.
    Nov. 30, 1966.
    Rehearing Denied March 8, 1967.
    Don M. Nugent, Kermit, Max E. Ramsey, Andrews, for appellants.
    John R. Lee, Finley & Scogin, Kermit, Shafer, Gilliland, Davis, Bunton & McCol-lum, Odessa, for appellees.
   OPINION

FRASER, Chief Justice.

This is an appeal from a judgment entered in the District Court of Winkler County, Texas. The case involved a collision between plaintiff-appellant, Mrs. Sarah Jo Potter, who is joined in this case by her husband, Joe C. Potter, and defend-Bobby D. Crawford who, it is claimed, is one of the members of a co-partnership known as the Longhorn Service & Drilling Company. It is alleged that the car driven by Mr. Crawford, while on official business for the company, was in collision with the one driven by Mrs. Sarah Jo Potter. The accident happened December 13, 1963, a few (about five) miles out of Kermit, Texas on the highway known as the Kermit-Jal Highway. The collision is. alleged to have happened as the car driven by appellant was making a right turn off the main highway to go into the area occupied and known as the El Paso Natural Gas Main Line Camp, which is about six miles north of Kermit on the said highway. The left front portion of Mr. Crawford’s car apparently struck the rear end of Mrs. Potter’s car.

The jury, in answer to special issues, found that the defendant-driver did not follow the plaintiff-driver too closely; that the defendant-driver failed to timely apply brakes in order to avoid collision, but that such was not negligence; that defendant-driver failed to keep a proper lookout, but that such was not negligence; that defendant-driver was not driving at an excessive speed and that plaintiff’s damages were $20,000.00. In answer to the defense issues the jury found that the plaintiff-driver had failed to keep a proper lookout and that such was a proximate cause (the definition of “proper lookout” included the element of negligence); that the accident was not unavoidable; that plaintiff-driver failed to signal her intention to make a right turn; that such was negligence and a proximate cause of the collision; and lastly, the jury found that the defendant-driver was acting in an emergency. The record does not contain the testimony of any eye witnesses to the collision except the parties involved, and of course their testimony differed and was conflicting in some major matters. Based on these findings the court rendered judgment for defendant-appellees.

Appellants have set forth seven points of error, their brief stating that “The evidence in this case is wholly insufficient to support the verdict of the jury; that the verdict, examined one issue at a time and as a whole, is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.” Further, “In view of the fact that virtually every point of error Appellant complains of is based on sufficient supporting evidence, the Appellant will submit its analysis and argument from the standpoint of the evidence as a whole * * * ” It should be noted that although appellants’ first three points complain of matters relating to the court’s charge, these points are not discussed other than as indicated above by the language in appellants’ brief. Plaintiffs did not move for instructed verdict or judgment N.O.V., and did not file any motion to disregard a jury finding.

In pursuance of the language in appellants’ brief and the reasons set forth therein, we have considered the entire case as a whole, which means that we have considered all the evidence as it applies to the entire case and to each point of error as raised by appellants.

It is uncontested that there are only two drivers involved in this collision. There are no passengers involved and the record does not contain the testimony of any eye witness, but contains only the testimony of the plaintiff, defendant-driver Crawford, the doctor, and the husband of the plaintiff. There are exhibits consisting of pictures taken some time after the collision, presumably not earlier than the next day, as it was dark at the time of the accident, and the pictures are obviously taken in good daylight. Also, there are statements from doctors and bills for various types of medication.

Viewing this matter as a whole, as briefed and requested by the plaintiffs, it appears that the plaintiff-driver claims she was on her way to the turn-off and had just turned in, at or near the cattleguard, when she felt her car hit and propelled across the cattleguard. She says that at one time prior to the collision, she did notice a light in her rear-vision mirror and formed the impression that whoever it was was going at a “tremendous” rate of speed and in her mind must have been in a big hurry. She further says that as was her custom when her car arrived opposite a certain roadway sign, she turned on her blinker signal for a right-hand turn; that this had always been her habit and that she did so on the night of the accident. She also claims that she checked the blinker on her car immediately after the accident and that it was still working. Appellee Crawford testified that he was traveling this same highway on his way to a drilling rig operated by the ap-pellees here, when he saw the appellant’s car in front of him and, although he “showered down” on his brakes, he felt that he would not be able to miss hitting the car driven by appellant, so he concluded that because of an oncoming car, he would try to go around plaintiff to the right. He further testified that he did not see her give any hand or visual signal, and that her turning to the right without any signal to him caused his car to collide with the rear end of plaintiff’s car. So the testimony of the two drivers is in sharp conflict. Mr. Joe C. Potter, husband of the plaintiff-driver, testified that he went out on the main highway on the morning after the accident and found two sets of skid marks, one 90 and the other 40 steps away from the turnoff.

Although appellants complain of the jury’s answers to many of their issues, claiming that they were not supported by sufficient evidence, we feel this case must be affirmed because, on the defensive issues, the jury convicts Mrs. Potter of contributory negligence in that she did not keep a proper lookout and that she did not signal her intention to make a right-hand turn. The jury also found that both of these matters were negligent and a proximate cause of the collision; and finally, the jury found that the defendant-driver was acting in an emergency. We believe that the answers to Issues 17, 18, 19 and 20 are all sufficiently supported in the evidence. Issue 17 relates to plaintiff’s failure to signal an intention to turn. Issues 18 and 19 deal with negligence and proximate cause, and Issue 20 asks if the defendant-driver was acting in an emergency. It is true that the only evidence to support the jury’s answers to these issues comes from appellee Crawford, but it was obviously believed and taken as true by the jury. We have a conflict here with the evidence, and sharp disagreement, with the jury finding on behalf of the defendant . The jury apparently believed Mr. Crawford’s testimony that he suddenly saw the car driven by Mrs. Potter in front of him, and that after trying to apply his brakes, realized that he could not stop in time, but would have to — as he said — ease around her on the right-hand side because of an oncoming car on the left side of the highway. Therefore, the jury convicted Mrs. Potter of contributory negligence and found that the defendant-driver was confronted with a sudden emergency. Regardless of how strong or how weak the evidence may be with respect to the other issues, we are constrained to hold that the jury’s answers to Issues 17, 18 and 19 are decisive of the case, as it is elementary that a plaintiff must be free from contributory negligence in order to recover. It is true, as stated above, that the evidence here comes only from the parties, but this is often true. It has been held that failure to give an appropriate signal for turn or stop can be contributory negligence. Riles v. Reichardt, Tex.Civ.App., 366 S.W.2d 655. In the case of Lovell v. Stanford, Tex., 386 S.W.2d 755 (which concerned a three-car rear-end collision on a freeway), the Supreme Court reversed both the lower courts, stating: “It was error for the trial court to fail to submit to the jury issues inquiring as to the negligence of each of the defendants, and if such negligence, if any, was a proximate cause of the injury and damages suffered by the plaintiffs.” Chief Justice Calvert was joined by Justices. Smith and Norvell in his concurrence wherein they agree with the majority holding, but believe that the only matter requiring submission to the jury was that of proximate cause. It will be noted that this decision by the Supreme Court reverses the Court of Civil Appeals opinion which was cited and relied upon in appellants’ brief.

Therefore, it seems clear that we must hold that there was sufficent supporting evidence to warrant the submission of Issues 17, 18, 19 and 20, and to support and substantiate the jury’s answers thereto. This being true, the appellants could not recover, regardless of the answers to any of the other issues, because of the finding of contributory negligence, decisive and terminal in nature.

Accordingly, all of the appellants’ points are overruled and the judgment of the trial court affirmed.


author: NORTHCUTT, Justice.

text:
    AMERICAN EMPLOYERS INSURANCE COMPANY, Appellant, v. E. M. KILGORE et al., Appellees.
    No. 7682.
    Court of Civil Appeals of Texas. Amarillo.
    Jan. 30, 1967.
    Rehearing Denied March 6, 1967.
    Key, Carr & Clark, Lubbock, Bernard P. Evans, Lubbock, of counsel, for appellant.
    James F. Moore, Lubbock, for appellees.
   NORTHCUTT, Justice.

American Employers Insurance Company, as plaintiff, filed suit against T. E. McConnell & Company, Inc., a Texas corporation, T. E. McConnell, Mrs. T. E. McConnell and E. M. Kilgore, as defendants, to recover upon a general indemnity agreement executed by T. E. McConnell & Company, Inc., T. E. McConnell and Mrs. T. E. McConnell individually. It was the contention of plaintiff that E. M. Kilgore, as undisclosed principal, acting by and through his duly authorized agent, T. E. McConnell & Company, Inc. made a series of purchases of cotton from Commodity Credit Corporation under Commodity Credit Corporation’s cotton export program. Commodity Credit Corporation will hereafter be often referred to as Commodity.

Plaintiff filed its motion for summary judgment electing to proceed against E. M. Kilgore only and Kilgore filed his motion for summary judgment contending there was no genuine issue as to any material fact and that he was entitled to judgment that the plaintiff take nothing against him. The trial court granted defendant’s motion for summary judgment and denied plaintiff’s motion for summary judgment. From that judgment the plaintiff perfected this appeal. Hereafter American Employers Insurance Company will be referred to as appellant and Kilgore as appellee.

Appellant presents this appeal upon four points of error contending the trial court erred in overruling appellant’s motion for summary judgment because as a matter of law there was an agency relationship between Kilgore and T. E. McConnell & Company, Inc.; that T. E. McConnell & Company, Inc. was acting within the course and scope of its agency when it executed the general indemnity agreement and bonds forming the basis of this action; that the undisputed facts show that as a matter of law T. E. McConnell & Company, Inc. was the agent of Kilgore and in the alternative, that Kilgore’s motion for summary judgment does not establish as a matter of law that there was no agency relationship between T. E. McConnell and Kilgore. Therefore, there was and is a fact issue concerning the relationship between Kilgore and T. E. McConnell which should have been submitted to a jury.

The sole issue here involved is whether T. E. McConnell & Company, Inc. was the agent of E. M. Kilgore in buying the cotton from Commodity Credit Corporation and in executing the indemnity agreement here sued upon.

Mr. Kilgore had been a cotton merchant for many years and had dealt with Carl Pratt for a long time. Carl Pratt was the first person to approach Kilgore about the transaction here involved. Their conversation was concerning the sale of rights, a term commonly used in the cotton business. Pratt told Kilgore the cotton was coming from T. E. McConnell and for Kilgore to go ahead and book so many bales. Thereafter Kilgore offered a bid of so much plus McConnell’s rights at 8.90 net. Kilgore knew what cotton Commodity had in storage and instructed appellant what he, appellee, would bid and how many bales designating the grades, etc., and what he would pay for McConnell’s rights. All of these dealings were according to the practice and understanding of the cotton business. McConnell could present to Commodity whatever bid he cared to bid but not less than what ap-pellee would pay as he had the margin for his rights to the extent of 8.90.

T. E. McConnell & Company, Inc. would buy the cotton from Commodity Credit Corporation and Commodity would draw a draft upon T. E. McConnell & Company for the purchase price and then McConnell & Company would draw a draft upon Kilgore for the amount of his offer. Kilgore paid McConnell & Company the 8.90 above the price paid Commodity. Appellee knew nothing about McConnell’s transaction as to how it was handled or what McConnell & Company had bid and would know nothing until he received the invoices and drafts drawn on him by McConnell. Commodity sold its cotton to the highest bidder and the one purchasing the cotton from Commodity had to export by July 31, 1964, a like number of pounds of cotton. To assure Commodity that this exportation would be fulfilled it required the successful bidder to post security, either in cash deposit, a performance bond or a letter of credit in an amount equal to $50.00 per bale for each bale. T. E. McConnell & Company, being the one purchasing the cotton here in question from Commodity, secured performance' bonds from appellant as required. In securing such bond from appellant, T. E. McConnell & Company, Inc., T. E. McConnell and wife, Mrs. T. E. McConnell, executed the indemnity agreement sued upon herein.

T. E. McConnell & Company defaulted on the exportation of a like number of pounds of cotton prior to July 31, 1964, as required by Commodity. Appellant pleads it had to pay to Commodity the amount of the bonds it issued because of T. E. McConnell & Company’s default. After T. E. McConnell & Company, T. E. McConnell and Mrs. T. E. McConnell failed to pay appellant the amount appellant paid to Commodity as they had agreed to do under the indemnity agreement, appellant brought this suit contending appellee was liable as an undisclosed principal throughout the cotton purchases and was liable to appellant under said indemnity bond.

In connection with appellees’ motion for summary judgment T. E. McConnell made an affidavit that during the 1963 year he was engaged in the business of merchandising cotton, buying and selling cotton and handling cotton on a commission basis; that he and E. M. Kilgore entered into an agreement whereby he sold the rights to 1,500 bales of cotton to Kilgore. In the event that Kilgore accepted the cotton McConnell would receive approximately 8.90 points per bale which was approximately $45.00 per bale. Appellee testified it would amount to $44.50 per bale. McConnell further stated, among other matters, that he was not an agent of Kilgore in his employee or acting for him in connection with the purchase of the cotton in Commodity sales; that if he had failed to comply with his agreement with Kilgore he would have been liable on that agreement. It was his obligation under the particular program to export 1,500 bales to offset what he had bought from Commodity; that that was a common practice in the cotton trade, the buying and selling of rights.

Appellant cites Restatement, Second, Agency, Section 14K as follows:

“One who contracts to acquire property from a third person and convey it to another is the agent of the other only if it is agreed that he is to act primarily for the benefit of the other and not for himself.” (Emphasis ours).

That same authority states:

“Factors indicating that the one who is to acquire the property and transfer it to the other is selling to, and not acting as agent for, the other are: (1) That he is to receive a fixed price for the property, irrespective of the price paid by him. This is the most important. (2) That he acts in his own name and receives the title to the property which he thereafter is to transfer. (3) That he has an independent business in buying and selling similar property.”

Under the undisputed record herein Kilgore had no control over McConnell & Company, Inc. as to the amount it could bid on this cotton regardless of what it paid to Commodity, it received a fixed price from Kilgore. There is no agency unless one is acting for and in behalf of another and subject to the other’s control. Bertrand v. Mutual Motor Co., 38 S.W.2d 417 (Tex.Civ.App.—Eastland, 1931, writ ref’d) ; Roper v. Compania De Perforaciones Y Servicio, S.A., 315 S.W.2d 30 (Tex.Civ.App.—Austin, 1958, writ ref’d nre).

It is undisputed that McConnell & Company acted in its own name and the cotton was sold to it and when the draft was paid the title to the cotton was in it. McConnell was in an independent business buying and selling cotton and also on a commission basis. It seems clear to us that McConnell & Company was buying and selling this cotton on a profit basis of 8.90 for its rights as understood in the cotton business.

It is stated in St. Louis & S. F. R. Co. v. Blocker, 138 S.W. 156 (Tex.Civ.App.—Texarkana, 1911, writ ref’d) as follows:

“If the agent as such buys, he buys for his principal, and the price he pays is paid for the principal. The title acquired is the title of the principal. The retention of title by one who acquires property at one price to be again sold to another at a different price is wholly inconsistent with the relation of principal and agent.”

Under this undisputed record we are of the opinion, and so hold, that McConnell & Company was not the agent of Kilgore and overrule appellant’s assignments of error.

Judgment of the trial court is affirmed.


author: RENFRO, Justice.

text:
    WICHITA CONSTRUCTION COMPANY, Appellant, v. PROGRESS PETROLEUM PRODUCTS, Appellee.
    No. 16803.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 10, 1967.

      Marvin F. London, Bowie, for appellant.
    Schenk & Wesbrooks, and Perry Wes-brooks, Wichita Falls, for appellee.
   OPINION

RENFRO, Justice.

Suit was brought by Wichita Construction Company against Progress Petroleum Products, a corporation, in which plaintiff alleged that on September 30, 1962, it sold to defendant vessels, tanks, air compressors, controls, valves, pipe, fittings and other items for an agreed price of $5,000.00.

The suit was filed on November 8, 1965.

Defendant filed numerous exceptions to plaintiff’s petition and pleaded the two year statute of limitation.

Plaintiff pleaded that defendant reaffirmed its obligation to pay such debt by written agreement dated August 10, 1964.

On July 11, 1966, in a non-jury trial, the court rendered judgment for defendant on its claim that the debt was barred by the two year statute of limitation.

Plaintiff’s point one reads: “The trial court erred in hearing evidence touching on the limitation feature of the case then sustaining the same, this having been previously heard and determined by another court in a pre-trial hearing formally set, heard and fully determined.”

It is agreed that Judge Driver conducted the pre-trial hearing. It is agreed that Judge Driver orally overruled certain exceptions pleaded by defendant. It is disputed whether he overruled defendant’s limitation plea.

It is agreed that Judge Driver did not enter any order following the pre-trial hearing.

Judge Jones presided at the trial on the merits, and, as above stated, rendered judgment for defendant on July 11, 1966. Thereafter, on July 28, 1966, or 17 days after entry of judgment, Judge Jones signed an order which began, “On this the 22nd day of March, 1966 * * * ”, and stated that defendant’s plea of the two year statute of limitation was overruled.

It is agreed that Judge Jones never held a pre-trial hearing or acted on the pleadings prior to trial.

No attempt was made to set aside the judgment.

Rule 166, Texas Rules of Civil Procedure, provides that orders by the judge when entered shall control the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

Assuming, without deciding, that Judge Jones had authority to enter the order of July 28, attempting to say what another judge had ruled orally on March 22, we hold that under the record he still had authority to hear evidence on the two year statute of limitation at the time of the trial.

The Rule limits the issues for trial to those not disposed of by admissions or agreements of counsel.

That, said the Supreme Court in Provident Life & Accident Ins. Co. v. Hazlitt, 147 Tex. 426, 216 S.W.2d 805 (1949), is the purpose of the Rule.

In the instant case the plea of limitation defense certainly was not disposed of by admissions or agreements of counsel.

In view of the written language relied upon by plaintiff as acknowledgment of debt, we hold that defendant’s plea of limitation was not, as a matter of law, insufficient to support, or at least raise, the limitation issue.

If Judge Driver erroneously ruled on a matter of vital defense at the pre-trial hearing, Judge Jones was not required to compound the error by incorporating it in his judgment following a full trial on the merits. Under Rule 166, and the authorities, Judge Jones had authority to “modify at the trial * * Pan American Petroleum Corp. v. Texas Pacific C. & O. Co., 340 S.W.2d 548 (Tex.Civ.App., 1960, ref., n. r. e.); Sneed v. Martin, 292 S.W.2d 891 (Tex.Civ.App., 1956, no writ hist.).

In its other point of error plaintiff contends the court erred in applying the two year limitation statute.

In Article 5526, V.A.T.S., it is provided that “There shall be commenced and prosecuted within two years after the cause of action shall have accrued, and not afterward, all actions or suits in court of the following description: * * * 4. Actions for debt where the indebtedness is not evidenced by a contract in writing.”

It is conceded the items sold by plaintiff to defendant in September, 1962, were sold by oral agreement.

Supporting the judgment was evidence that: in September, 1962, defendant’s construction superintendent dealt with the president of plaintiff in regard to some materials plaintiff no longer needed; several items were sold to defendant through its superintendent; no price was agreed upon; some of the items were unusable in defendant’s business; later defendant received a letter from plaintiff saying the price was $5,000.00; defendant protested the price by writing and by telephone; the president of plaintiff corporation apparently let the matter drop; after his death, however, plaintiff renewed its request for payment; in the meantime defendant and plaintiff had engaged in other trades and on August 10, 1964, a letter agreement was signed in which all matters in controversy were settled except the items concerned in this suit; the last sentence of the letter read: “The sum of Five Thousand Dollars ($5,000.00) as shown by Invoice No. 9-2512 covering the equipment from C & H Gas Plant, may be adjusted by later agreement of the parties”; there was no other reference in the letter to the $5,000.00; as of the date of the letter defendant was still protesting the justness of the $5,000.00 claim and that is the reason said claim was not included in the settlement; defendant never made any payment on the $5,000.00 item, but, instead, protested the price at all times; it never acknowledged the justness of the debt and never admitted that it owed said sum.

A statement in writing, signed by the party sought to be charged, which clearly acknowledges the existence of a debt against him, carries with it an implied promise to pay the same. Stein v. Hamman, 118 Tex. 16, 6 S.W.2d 352 (Com.App., 1928), 118 Tex. 16, 9 S.W.2d 1104 (Com. App., 1928).

Generally, to take a case out of the operation of the statute of limitation, the writing must contain an acknowledgment of the justness of the claim, and an expression of willingness to pay. 37 Tex.Jur.2d 341, § 162; Windom v. Howard, 86 Tex. 560, 26 S.W. 483 (1894); York v. Hughes, 286 S.W. 165 (Com.App., 1926); Elsby v. Luna, 15 S.W.2d 604 (Com.App., 1929).

In our opinion the statement contained in the letter of August 10, 1964, failed to meet either requirement necessary to take the claim out of the operation of the statute. The writing merely recites that the sum of $5,000.00 is shown by an invoice and that it may be adjusted, by later agreement of the parties. Defendant did not acknowledge the justness of said claim, it merely recited an invoice showed that amount; it did not express a willingness to pay but merely a possibility of making an agreement at some unspecified time.

In view of the record we think the writing was insufficient to raise the implication of a new promise to pay the indebtedness.

In Smith v. Fly, 24 Tex. 345 (1859), the court held: “ * * * if the expressions be equivocal, vague and indeterminate, leading to no certain conclusion, but at best to probable inferences only, it would not amount to an acknowledgment sufficient to take the case out of the operation of the statute.”

Believing the trial court was correct in holding the two year statute of limitation was applicable, its judgment is affirmed.

Affirmed.


author: WILSON, Justice.

text:
    Gene THORNHILL et al., Appellants, v. Mrs. Trupy ELSKES et al., Appellees.
    No. 4591.
    Court of Civil Appeals of Texas. Waco.
    Feb. 16, 1967.

      T. E. Kennerly, Houston, for appellants.
    McLaughlin, Clark, Fisher, Gorin & McDonald, Waco, for appellees.
   WILSON, Justice.

This is the third appeal in this cause. Plaintiffs’ initial petition prayed for a declaratory judgment construing a will; for such orders as were proper or needed to effectuate the interpretation, including partition and distribution; and for attorneys’ fees and general relief. The action was brought by Mrs. Elskes, an independent executrix and the testamentary trustee under the will, against her co-executors and other devisees. Our opinion in Thornhill v. Elskes, Tex.Civ.App., 381 S.W.2d 99, writ ref. n. r. e., narrates the proceedings. The will was. there construed and the trial court judgment was reversed for further proceedings not inconsistent with the opinion.

The amended petition in the case is the trial petition on this appeal. It is summarized in our opinion in the second appeal, Thornhill v. Elskes, Tex.Civ.App., 403 S.W.2d 449, no writ, in which we passed on venue issues under the amended pleading.

The case was then heard again on “further proceedings not inconsistent with” the first opinion, and judgment resulted which recited that all debts and expenses of the estate had been paid except certain specified expenses and attorneys’ fees. The representatives were directed by the judgment to pay these out of assets on hand and distribute the balance of the estate.

Findings of fact were filed, including findings that Mrs. Elskes, as independent executrix, employed attorneys and instituted the suit in good faith for the benefit of the estate, and that her co-executors also in good faith employed attorneys and defended the suit, likewise for the benefit of the estate. The reasonable value of the services of the attorneys was found, fixed and ordered paid.

Appellants are the defendants. They first assert that the trial court “should have granted their summary judgment motion.” There is no motion for summary judgment in the record. Appellants made an oral motion which, if interpreted as a motion for instructed verdict, was waived by subsequent introduction of evidence. Travelers Ins. Co. v. Arnold, Tex.Civ.App., 378 S.W.2d 78, Syl. 1, no writ, and authorities cited.

As we understand their argument, appellants contend the probate court in which the will was probated had exclusive jurisdiction, and the district court had no jurisdiction to fix the reasonable amount of attorneys’ fees and to direct payment of these and other expenses. They cite cases holding the district court jurisdiction is only appellate. The present case involves an independent administration. Mrs. Elskes and her co-executors are made independent of the probate court as authorized by Probate Code Sec. 145, Vernon’s Ann. Tex.Stats. The cases cited are those in which the representative was subject to the control of the probate court. The jurisdiction of the district court was properly invoked and exercised in the present case to fix and approve expenses and direct their payment in order to effect distribution of the assets of the estate after it had been determined that the distributive shares or devises were burdened by these expenses. Griggs v. Brewster, 122 Tex. 588, 62 S.W.2d 980, 985. The probate court had no jurisdiction over the subject matter of the present suit. Roy v. Whitaker, 92 Tex. 346, 355, 48 S.W. 892; Simkins Administration of Estates, 3d ed., Secs. 14, 128.

It is also urged, as we understand, that the only attorneys’ fee recoverable for services of attorneys employed by Mrs. Elskes was that provided for in a written contingent fee contract, and the trial court was not authorized to fix a reasonable fee to be paid out of the assets of the estate. It is further insisted that although Mrs. Elskes brought the suit as independent executrix of decedent’s estate, she also acted as trustee of a testamentary trust created by her decedent’s will, that “she cannot contend the suit was brought for the benefit of the estate, and it was error to assess the attorneys’ fee as an expense of the estate.

After testator’s death Mrs. Elskes and her co-executors engaged an attorney to probate the will and attend to the settlement of the estate. In the course of that attorney’s services he expressed an opinion to his clients on the legal questions involved in the first appeal. Some of the defendants sought counsel from appellants’ present attorneys. His advice was contrary to that of the attorney first employed by the three executors. If the advice of the former attorney had been followed, it is apparent that the trust estate of which Mrs. Elskes was trustee would have benefited more than if that of appellants’ counsel had been pursued. It was necessary or proper, in the exercise of good faith, consequently, for Mrs. Elskes (who thus occupied dual capacities) to seek the relief prayed for, including that of construction of the will and direction as to further procedure leading to final distribution. In doing so, she was authorized to employ counsel on behalf of the estate, and their services, in the action in which all devisees and personal representatives were parties, benefited the estate.

Attorneys’ fees, reasonable in amount and necessarily incurred in good faith by the executor for services in behalf of the estate are payable as an expense of administration. Probate Code Sec. 242; Lang v. Shell Petroleum Corp., 138 Tex. 399, 159 S.W.2d 478.

The fact that Mrs. Elskes was trustee as well as independent executrix does not preclude liability of the estate for such fees as were reasonable and necessary for services rendered on behalf of the estate. Rowe v. Dyess, Tex.Com.App., 213 S.W. 234, 235. See Salmon v. Salmon, (Tex.Sup., 1965) 395 S.W.2d 29, 32.

The argument that the court was limited by the written contract to a contingent fee is answered by the fact that the contingent fee agreement concerned only the trust of which Mrs. Elskes was trustee, and the fee was agreed to be a sum equal to one-third of the amount or value of the charges involved in the first appeal of this case ultimately “avoided by said trust.” The contingent fee agreement did not pertain to the expenses of administration or the fee to be paid for services rendered on behalf of the estate.

Appellants’ points are overruled. Affirmed.