author: BELCHER, Judge. WOODLEY, Presiding Judge.

text:
    Beverly Ann SIMMONS, Appellant, v. The STATE of Texas, Appellee.
    No. 33947.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.
    On Motion for Rehearing Jan. 24, 1962.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Clyde Bracken, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Judge.

After a plea of not guilty before the court, a jury being waived, the appellant was convicted for the unlawful possession of a dangerous drug (Art. 726d, Vernon’s Ann.P.C.); the punishment, 30 days in jail.

Officer Herring testified that on November 27, 1960, he stopped the appellant, Beverly Ann Simmons, after having observed her driving an automobile “haphazardly” along a public road, and he expressed the opinion that she was either intoxicated or under the influence of some type of drug at that time, and that he did not detect any odor of alcohol about her.

The jail matron testified that on November 27, 1960, she searched the appellant, who appeared to be intoxicated, and found two prescription bottles in her brassiere, one bottle containing red capsules and the other containing white tablets. She delivered these to Officer Herring.

Officer Herring testified that the jail matron, after searching the appellant, delivered two bottles to him, one containing ten red capsules and the other, fifteen white tablets. He delivered these to Chemist McDonald for analysis.

Chemist McDonald, testifying at the trial, identified two bottles that Officer Herring had delivered to him on November 27, 1960. He testified that one of the bottles contained IS tablets of Miltown, and that an analysis of each of the 10 capsules in the other bottle revealed that each capsule contained secobarbital, a derivative of barbituric acid.

The testimony of a physician shows that about 7 or 8 P.M. on November 26, 1960, he received a telephone call at his home from a person for a prescription, specifically requesting seconal and Miltown, and the said person stated that they were for her mother, Mrs. Mertice Pettaway. This name caused him to think that the mother was one of his patients, and he called a pharmacist and directed him to fill the prescriptions for 20 capsules of seconal and 15 tablets of Miltown for Mertice Petta-way. The person calling said that she would pick up the prescriptions at the pharmacy. A later check of his records by the physician showed that he had prescribed the same types of drugs for a patient named Attaway, but that she was a woman in her early fifties who had no children.

While testifying, the pharmacist identified the prescription bottles as those he used November 26, 1960, in filling two prescriptions, one for Secobarbital and the other for Miltown, that a physician gave him by telephone for M.rs. Mertice Petta-way. He further testified that the bottles exhibited to him at the trial bore the labels he had placed on them showing that they were for Mrs. Mertice Pettaway, with the physician’s name thereon that had telephoned him. He testified that the red capsules in one of the bottles contained Seco-barbital, and that they were delivered to a person at the pharmacy, but he did not know the person.

Proof was offered that seconal and seco-barbital are the same thing.

The appellant did not testify or offer any evidence.

It is concluded that the facts and circumstances in evidence are sufficient to warrant the conviction of the appellant for the unlawful possession of secobarbital, a dangerous drug.

The contentions that the state failed to prove the corpus delicti of the offense and also that it failed to make out a prima facie case of illegal possession of secobarbital cannot be sustained.

The evidence of the state showing that the appellant possessed the secobarbital was. sufficient to show that the possession was. unlawful. If the possession was legal on any ground, the burden was on the appellant to so show. This she failed to do-Waite v. State, Tex.Cr.App., 334 S.W.2d 816.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

We were in error in our conclusion that appellant’s possession of the 10 capsules containing secobarbital or seconal was sufficient to show a violation of Art. 726d, V.A.P.C.

Section 3(d) of Art. 726d declares the possession of a barbiturate by any person to be unlawful “unless such person obtained the drug under the specific provision of Section 3(a) (1) and (2) of this Act and possesses the drug in the container in which it was delivered to him by the pharmacist or practitioner selling or dispensing the same; and any other possession of a barbiturate * * * shall be prima facie evidence of illegal possession.”

The undisputed evidence shows that appellant obtained the capsules containing a barbiturate under the specific provisions of Section 3(a) (1) of Art. 726d, that is: the drug was delivered by a pharmacist; upon an original prescription; in a container bearing the name and address of the pharmacy from which it was delivered ; the date filled; the number of the prescription; the name of the physician who prescribed the drug; and the name and address of the patient (defined in the act as the individual for whom a dangerous drug is prescribed, or to whom administered).

Under the provisions of Art. 726d, V.A. P.C., “any other possession of a barbiturate” would be prima facie evidence of illegal possession but, having been obtained “under the specific provision of Section 3 (a) (1) * * * of the Act”, possession ■of the drug in the container in which it was delivered to her by the pharmacist, was not such possession of a dangerous drug as is made unlawful by said Art. 726d, V.A.P.C.

We find no basis for holding that the possession of the drug was unlawful because the prescription therefor was obtained by appellant through a telephone call; or because the physician believed that he was prescribing for a patient for whom he had prescribed similar drugs several years before; or because the drug was prescribed for appellant’s mother; or because appellant may have taken some of the capsules or may have been under the influence of such drug at the time of her arrest. If the evidence in these regards shows an offense, it is not the offense alleged in the information, namely, the unlawful possession of a dangerous drug. There was no evidence showing any false pretense or false representation by appellant in obtaining the secobarbital or the prescription therefor.

The responsibility for any irregularity or mistake on the part of the physician, in prescribing the drug, or the pharmacist in delivering it, does not rest upon appellant. Art. 726d, V.A.P.C., upon which this prosecution rests, states that its purpose is to regulate and control the handling, sale and distribution of dangerous drugs as therein defined, and places upon manufacturers, wholesalers, licensed compounders of prescriptions, and persons prescribing dangerous drugs, “a basic responsibility for preventing the improper distribution of such drugs to the extent that such drugs are produced, handled, sold, or prescribed by them.” Art. 726d, Sec. 1, V.A.P.C.

The evidence being insufficient to show the unlawful possession of a dangerous drug, appellant’s motion for rehearing is granted, the order of affirmance set aside, and the judgment is reversed and the cause remanded.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Garrett Milton RAMSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34084.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    Mays & Mays, Fort Worth, Frank D. Coffey and Dave Miller, Fort Worth, of counsel, for appellant.
    William Hunter, Dist. Atty., Dalhart, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, 8 years.

During the trial the district attorney, on cross-examination, asked appellant:

“Have you ever been indicted for a felony?” It was agreed and stipulated “that at the time the District Attorney asked said question he knew that defendant was under certain indictments and had certified copies of such indictments; and that to his knowledge defendant had not been convicted of any felony.”

The trial court sustained objection and instructed the jury to disregard the question, but overruled appellant’s motion for mistrial.

Art. 732a Vernon’s Ann.C.C.P., enacted in 1951, provides in part:

“The fact that a defendant in a criminal case * * * is, or has been, charged by indictment * * * with the commission of an offense against the criminal laws of this State, of the United States, or any other State shall not be admissible in evidence on the trial of any criminal case for the purpose of impeaching any person as a witness unless on trial under such indictment * * * a final conviction has resulted, or a suspended sentence has been given and has not been set aside, or such person has been placed on probation and the period of probation has not expired.”

The propounding of the question by the district attorney when “to his knowledge defendant had not been convicted of any felony” was highly prejudicial, and the harm was such as could not be removed by the trial court’s instruction to the jury to disregard it.

We are unable to agree with the state’s contention that the indictment referred to in the question may have been that upon which appellant was on trial, rather than other indictments of which he had certified copies.

We conclude that the appellant was deprived of a fair trial by the asking of the question and his motion for mistrial should have been granted.

Garza v. State, 159 Tex.Cr.R. 105, 261 S.W.2d 575, may be distinguished, not only because there a mistrial was not requested,, but by the stipulation above quoted.

For the error mentioned, the judgment is reversed and the cause is remanded.


author: MORRISON, Judge.

text:
    Bert Wade CHRISTESSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34015.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.

      Blythe & Norvell, Clovis, N. M., Billy Hall, Littlefield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

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

The prime question in this case is the propriety of the court charging on provoking the difficulty. The 750-page statement of facts will be condensed with that question in mind; that is, was there any evidence in this record to show that appellant, by his own willful act, brought about the necessity of assaulting the injured party and thus deprived himself of his right of self-defense. Appellant did not testify, but offered a number of witnesses in his behalf.

Hartwell, the injured party, and two companions had repaired across the state line to a bar in New Mexico. While there, he met Betty Miller (appellant’s ex-wife and a former waitress at the bar in question), who had come from Clovis, New Mexico, with a group of eight people, one of whom was appellant. While appellant was engaged in other matters, Betty went to the bar, where, she and Hartwell were drinking and talking when, unfortunately for all concerned, Mrs. Hartwell, who was out looking for her missing husband, entered the bar and observed what was transpiring. Angered at what she saw, Mrs. Hartwell approached Betty and gave her a resounding slap. Betty testified that she would have replied in kind but was restrained.

Following this, both groups left the bar and proceeded to their automobiles. Betty, according to her own testimony, approached the automobile in which the Hartwells were seated and invited Mrs. Hartwell outside. Upon Mrs. Hartwell’s refusal, Betty told her that Hartwell on repeated occasions had offered her money to “go with him”; this Hartwell denied. Mrs. Martin, a member of appellant’s party, approached the automobile in a belligerent manner, and, in defense of his wife, Hartwell hit her. After this, both automobiles containing the two groups left the bar and drove to a cafe. It was the testimony of those in appellant’s group that, while at the cafe, Hartwell said, “There is that s. o. b. and that g. d. slut with him.” This was denied by Hart-well, his wife, and Mrs. Venable, the only other person in the automobile. Neither group got out of their respective automobiles, and both parties drove away from the cafe, with Hartwell’s car in the lead. A short distance away, Mrs. Venable stopped the automobile in which the Hartwells were riding to pick up her husband at a roadside park, and appellant also brought his automobile to a halt, alighted, and struck both Hartwell and the automobile (with the weapon which is described later in this opinion), denting' the top and cracking the glass, after which Mrs. Hartwell and her husband hastily fled the scene in the Venable automobile, with appellant in hot pursuit, leaving his passengers afoot on the roadside. Both automobiles came to a halt at a filling station in Farwell. During the course of this last trip, appellant’s automobile “bumped” the one in which Hartwell was riding several times, causing $130.00 in damage to its rear end. At the station, Hartwell, with á railroad type of lantern in his hand, got out of his automobile, and soon thereafter appellant got out of his automobile armed with a flexible club, fabricated from a doubled cable bound together with tape. There is a conflict in the evidence as to whether Hartwell struck the first blow. The lantern was demolished either before or as a result of this first blow. However, an affray did follow in which Hartwell received the injuries which constitute the basis of this prosecution. According to the State’s testimony, appellant’s companion Martin held Hartwell’s wife for a time to prevent her from interceding, and later kicked Hartwell as he was lying on the ground.

The court charged on appellant’s right of self-defense against an unlawful attack by Hartwell, based upon the testimony that Hartwell made the first overt act with the lantern. This was a proper submission of the defensive issue raised by the evidence. He then charged on provoking the difficulty. This was predicated upon the evidence concerning the pursuit by appellant from the cafe tO' the roadside park, his assault with the flexible club at that point, his continued pursuit after the Hartwells left the park, coupled with his act of ramming the rear end of the automobile in which the Hartwells were riding and his act of stopping at the filling station in question and alighting, armed with the weapon Heretofore described. This, we have concluded, was a proper submission of the two theories raised by the evidence. See Britton v. State, 95 Tex.Cr.R. 209, 253 S.W. 519, and Tapley v. State, 158 Tex.Cr.R. 495, 256 S.W.2d 583, 585, and cases there cited. Under the evidence, we find no error in the giving of the charge.

Having disposed of the most difficult question in the case, we pass on to the sufficiency of the evidence to support this-conviction for assault with intent to murder. Hartwell testified that he was beaten into unconsciousness by means of the flexible cable. Other witnesses testified that he was kicked by appellant and his companion while lying on the ground. It was-shown that Hartwell sustained the loss of one tooth and a bridge containing two other teeth; one eye was closed from swelling;, his lips were swollen and he received a painful blow to one kidney; and he was-hospitalized for three days. Dr. Spring, who treated Hartwell and to whom the flexible cable was exhibited at the trial, expressed the opinion that it was an instrument which from the manner of its use was capable of inflicting serious bodily injury, and testified that Hartwell was “severely beaten.”

According to the State’s witnesses, during his assault on Hartwell, appellant, in answer to his mother’s warning that he would go to jail again if he did not stop, said, “I will kill the bastard.” At another juncture, when someone in the crowd attempted to call the police, appellant said, “Call the g. d. law, I am not scared of them, I have been in the pen before.”

We have concluded that the evidence is sufficient to support the conviction and shall discuss the remaining contentions which we view as raising a substantial question. During the closing argument, the prosecutor said, “Bert Christes-son is a gangster. His actions show that.” The court instructed the jury not to consider this statement. We must determine whether the court erred in declining to grant a mistrial. The nature of the instruJ ment used by appellant is of prime importance. A picture thereof is part of this record. The weapon, a doubled cable bound with tape, does not taper at one end as a whip, and therefore would not be properly usable to discipline animals. Its only possible use, apparent to us, is to inflict injury and is the type that would be fabricated and carried by one planning to engage in an assault upon another person.

Appellant was accompanied by seven companions in his pursuit of Hartwell and his wife, and whenever the automobiles halted appellant struck at Hartwell with this weapon, and one of such blows caused a dent of over a half inch in depth in the top of a sedan. At least one of appellant’s companions kicked Hartwell as he lay unconscious on the ground.

Webster’s New International Dictionary, 2nd Ed., defines “gang” as a “company of persons acting together for some purpose, usually criminal, or at least not good or respectable.” Appellant, accompanied by Martin and six others, pursued Hartwell, assaulted him whenever the opportunity arose, and stated that he intended to kill him. It is difficult to see anything “good or respectable” in such conduct. We have concluded that the prosecutor was warranted in arguing that “his actions” did “show that” he was acting as a member of a gang, and hence “a member of a gang of roughs” (Webster’s supra), i. e., a gangster.

We find no reversible error reflected by the testimony of Hartwell that he felt he was going to be killed by the assault. No objection was made until after the answer had been elicited, and no motion to withdraw the answer was made; therefore, the error, if any, was not preserved. Matthews v. State, 164 Tex.Cr.R. 169, 297 S.W.2d 142.

There was no error in admitting the testimony relating to appellant’s res gestae statement that he had been in the “pen” before. Such evidence was held admissible in Carrier v. State, 159 Tex.Cr.R. 421, 264 S.W.2d 728.

There was no error in permitting the witness Coffman to testify that after the day charged in the indictment he had a conversation with appellant in which appellant asked him to go talk to Hartwell and offer him a thousand dollars “if he wouldn’t push the case or if he would drop it.” Booth v. State, 52 Tex.Cr.R. 452, 108 S.W. 687, and McCormick & Ray, Texas Law of Evidence, Vol. 2, Sec. 1143, p. 33.

We have examined the remaining bills of exception and fail to find error reflected thereby.

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


author: DICE, Commissioner.

text:
    Richard C. ZEPEDA, Appellant, v. STATE of Texas, Appellee.
    No. 33827.
    Court of Criminal Appeals of Texas.
    Nov. 15, 1961.

      Maynard F. Robinson, San Antonio, for appellant.
    Charles J. Lieck, Jr., Cr. Dist. Atty., by Edward E. DeWees, Jr., Asst. Cr. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for unlawfully carrying a pistol; the punishment, a fine of $500.

The evidence was undisputed that on the night in question the appellant, while carrying a pistol on his person, came to the Fiesta Club, a night club on Commerce Street in the City of San Antonio, where his former wife was employed. The wife testified that some thirty minutes before appellant came to the club, he had called and invited her to supper; that she refused and appellant then stated that he was coming to the club where she was employed; and that she asked him not to come. She stated that when appellant arrived he went to the bar and asked her for a beer; that she first told him she could not serve him because “the boss” didn’t want him in the place; that appellant then put his hand into his coat; that, thinking he had a gun, she served him the beer. She further stated that while he was drinking the beer appellant looked at her employer and said, “I sure could shoot him from where I am right now.” She stated that she then informed her employer that she thought appellant was armed, and the police were then called. The proof shows that when the police arrived, appellant was searched and a .22 calibre pistol, loaded with six cartridges, was taken from his person.

Appellant, testifying as a witness in his own behalf, admitted going to the Club Fiesta and having the pistol on his person. In explaining his carrying the pistol, appellant testified that on the night in question he was working for his cousin, Raymond Garza, at a tavern on Zarzamora Street in the city; that while he was working Garza called and instructed him to bring the money, which had been taken in at the place, to him in front of Schilo’s by the Fiesta Club on Commerce Street. Appellant testified that he then took the money, which amounted to over $300, and a pistol from the place and drove to Commerce Street in a cab, where he delivered the money to Garza. Appellant stated that he then went into the club where his former wife was employed to see her about a doctor’s bill for one of their children. He further stated that he was carrying the pistol because of the amount of money he was taking to Garza and that it was his intention to carry the pistol from the club to his home.

Raymond Garza, upon being called as a witness by appellant, corroborated appellant’s testimony with' reference to appellant bringing the money to him on the night in question.

The court, in submitting the issue of appellant’s guilt to the jury, instructed the jury, “ * * * If you believe from the evidence, or have a reasonable doubt thereof, that the defendant, Richard C. Zepeda, had the pistol at his place of work and was carrying the same home, following the most practical and direct route without any unusual delay, you will find the defendant ‘not guilty.’ ”

The charge, to which appellant presented no objections in writing, fairly submitted his defense to the jury.

By their verdict the jury chose to accept the state’s testimony and reject that of appellant.

We first overrule appellant’s contention that the evidence is, as a matter of law, insufficient to support the conviction.

We have carefully examined the record in the light of appellant’s contention that the court in his rulings made certain remarks which constituted a comment upon the weight of the evidence and were calculated to convey to the jury his opinion in the case, and we find no statement by the court in the jury’s presence which constitutes reversible error under Art. 707, Vernon’s Ann.C.C.P.

Complaint is made to certain jury argument of state’s counsel.

The entire argument is before us with appellant’s objections thereto.

We find no reversible error in state counsel’s argument, “ * * * If he [appellant] had come in here and told the truth about this situation and plead — guilty, I would say that maybe this is aminimum case, a case that he should receive the minimum punishment on.” Counsel for the prosecution may with propriety argue that severe punishment ■ should be assessed by the jury. 42 Tex.Jur., par. 220, p. 284; Long v. State, 154 Tex.Cr.R. 587, 229 S.W.2d 366.

We are unable to agree that the statement by state’s counsel, “Now all of you know where Schilo’s is. It is about a block from Joske’s down there. Before midnight at 11:30, what place is open along there? * * presents reversible error because not supported by the evidence. Upon a belated objection by appellant the jury were instructed by the court that they would be governed by the testimony heard from the witness stand and not by statements made by counsel.

Appellant’s remaining complaint is to a portion of the dosing argument of state’s counsel. A part of the argument was clearly proper. Appellant made a blanket objection and did not specifically point out the objectionable portion of the argument. His objection presents nothing for review. Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597.

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

Opinion approved by the Court.


text:
    Morgan Carter BAKER, Appellant, v. The STATE of Texas, Appellee.
    No. 33977.
    Court of Criminal Appeals of Texas.
    Dec. 13, 1961.

      John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Erwin G. Ernst, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

Tried under an indictment alleging a subsequent offense of driving while intoxicated, appellant was convicted of the misdemeanor offense and the jury assessed his punishment at 90 days in jail and a fine of $100.00.

The evidence from the standpoint of the state shows that appellant drove his automobile into the rear of a truck. The driver of the truck and his passenger talked to and observed appellant and testified that, in their opinion, he was intoxicated.

William G. Sanders, accident investigator for the City of Houston, responded to a call and found appellant leaning on his automobile ; found an empty pint and a half-full half-pint bottle of Vodka, and a cold practically empty can of beer in the automobile. Officer Sanders testified that from his observation of appellant, his appearance and manner of walking and talking, he formed the opinion that appellant was intoxicated.

Appellant was taken to a hospital where a blood sample was drawn. An analysis of such blood was made by Robert F. Crawford, Chemist and Toxicologist, who testified that it contained twenty hundredths of one percent alcohol by weight, and that based upon his studies and research, there was no doubt that a person with that blood-alcohol content would definitely be intoxicated.

At the close of the state’s evidence the court ruled that the state had failed to establish the prior misdemeanor offense alleged, and that the trial would proceed on the primary offense, a misdemeanor.

Appellant testified that the minute he saw the truck “I slapped on my brakes. When I did my foot slipped off the brake onto the foot feed * * * it caused a greater momentum and I hit the truck.”

Appellant testified that he did not have any beer cans in the car; that the empty Vodka bottle was not from that day; that he did drink some out of the other bottle that the officer took from the car, “drank four jiggers”; that he bought the half-pint bottle of Vodka about 9 A.M. “as soon as the' liquor store opened”; that he felt like he had “the reasonable normal use” of his physical and mental faculties at the time of the accident.

Appellant and his wife testified that at the time of the accident he was under treatment for a nervous condition and was taking three different kinds of medicine under the prescription of a doctor.

The first ground relied on for reversal is the refusal of a requested charge to the effect that if the jury believed from the evidence that appellant had lost the normal use of his physical and mental faculties while operating a motor vehicle, on the occasion in question, but that such loss was not occasioned by the use of intoxicants by him, but by other causes, they should acquit.

The court, in his charge, required the jury to find before they could convict that appellant was intoxicated, as that term was defined in the charge, and defined intoxication as meaning that a person does not have the normal use of his physical and mental faculties by reason of the use of intoxicating liquor.

We do not agree that the testimony of appellant and his wife raised an affirmative defense that he lost the normal use of his physical and mental faculties by some cause other than the use of intoxicants. Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432.

The remaining claim of error relates to the statement by the trial judge in connection with his ruling that the state had failed to prove the prior misdemeanor conviction alleged in the indictment.

Appellant argues that the court’s reference to “any previous conviction” clearly conveyed to the jury the court’s opinion that appellant had been previously convicted of some offense and that the court had formed such opinion from the evidence the jury had heard.

Officer Sanders testified that appellant told him “he had been convicted before of driving while intoxicated a good many years back.”

Certain instruments had been offered by the state in an effort to prove the allegation of the indictment that appellant was convicted April 27, 1953, under the name Marvin Carter Baker, in Calhoun County, Texas, for driving while intoxicated. The court admitted the documents in evidence, but after the state rested without appellant being identified as the defendant in the Calhoun County case, withdrew the documents from the jury and instructed the jury not to consider them, and ordered the trial to continue on the misdemeanor offense, and only the misdemeanor offense was submitted.

We see no error in the court’s instruction. If there was error in the matter it was the withdrawal of the documents and the reduction of the offense to a misdemeanor before the close of the evidence, which was favorable to the appellant.

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

The judgment is affirmed.


text:
    Lloyd Snell REID, Appellant, v. The STATE of Texas, Appellee.
    Nos. 34184-34186.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    Lloyd Snell Reid pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offenses are passing forged instruments ; the punishment in each, 7 years.

Appellant was convicted upon his plea of guilty in each case before the trial judge, without the intervention of a jury.

Article 996, Vernon’s Ann.P.C., which denounces the offense with which appellant was charged, provides that the punishment for a violation thereof shall he confinement in the penitentiary fof not less than two nor more than five years.

The punishment assessed in these cases is not authorized by the statute, and they must be reversed and remanded. Ex parte Willis, 158 Tex.Cr.R. 333, 255 S.W.2d 510.

It is so ordered.


text:
    Louis Patrick HENDERSON, Jr., Appellant, v. STATE of Texas, Appellee.
    No. 34061.
    Court of Criminal Appeals of Texas.
    Jan. 3, 1962.
    M. Gabriel Nahas, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Daniel P. Ryan, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of narcotic paraphernalia; the punishment, 5 years.

Officer A. J. Gefifert of the Houston Police Department, Narcotics Division, testified that on the day in question, he had a conversation with appellant, who at such time was incarcerated in jail; that in the conversation, appellant told him that if he would go to a motel at 4012 Airline, cabin No. 1 where appellant lived, “I would find the rest of the pills and narcotics that he had at that location”; that with appellant’s consent he went to the address and searched the cabin; that in the search he found a hypodermic needle and eyedropper under the sink in the bathroom and four bottles containing an assortment of pills and capsules in a suitcase.

Officer C. L. Burton, upon being called as a witness, corroborated Officer Geffert’s testimony relative to the search of the cabin and finding the needle, eyedropper and bottles of pills and capsules. .

The evidence shows that the needle, eyedropper and the four bottles of pills and capsules were delivered by Officer Geffert to Chemist and Toxicologist Thomas L. Metz of the Houston Police Department. Chemist Metz testified that the needle was used for subcutaneous injections and the eyedropper was also adapted for such use into a human being. Chemist Metz further testified that he ran a quantitative analysis on the needle and eyedropper which revealed that they contained .715 milligrams of morphine, a narcotic drug and that a quantitative analysis run upon the pills and capsules revealed that some contained a derivative barbituric acid and some contained amphetamine.

Appellant did not testify or offer any evidence in his behalf.

Appellant insists that the court erred in permitting Officer Geffert to relate the conversation which he had with appellant concerning the location of the narcotic paraphernalia because it was in the nature of a confession which was not in writing and did not otherwise comply with Art. 727, Vernon’s Ann.C.C.P.

Appellant’s oral statement to Officer Geffert that he had the narcotics in his cab- . in which led to the officers finding the narcotic paraphernalia therein was admissible .as an oral confession under the exception contained in Art. 727, supra, which reads, “ * * * or, unless in connection with said confession he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property, or the instrument with which he states the offense was committed. * * * ” Glaze v. State, 165 Tex.Cr.R. 626, 310 S.W.2d 88; Sikes v. State, Tex.Cr.App., 334 S.W.2d 440 and Graves v. State, Tex.Cr.App., 336 S.W.2d 156. We are unable to agree ^dth appellant that this statutory exceptioft in Art. 727, supra, is unconstitutional because it compels an accused to take the stand and testify in order to submit the matter as a fact question to the jury.

Appellant also contends that the search of the cabin without a search warrant was an illegal search and the court therefore erred in admitting in evidence the results of the search.

The evidence was undisputed that appellant consented to the search. The fact that appellant was under arrest when he gave the consent did not vitiate the same. Feather v. State, Tex.Cr.App., 333 S.W.2d 851; Sikes v. State, supra and Graves v. State, supra.

We have carefully reviewed the cases cited by appellant in support of his contention that the search was illegal and do not deem them here controlling. Many of the cases cited relate to searches incident to an arrest. Such is not the situation in the instant case where the search was with appellant’s consent.

We find no merit in appellant’s contention that the court erred in admitting in evidence the four bottles containing the barbiturates and amphetamine tablets because it constituted proof of other extraneous crimes. The finding of the barbiturates and amphetamine in the cabin was a part of the search and of the res gestae and proof thereof was admissible. Brown v. State, 159 Tex.Cr.R. 306, 263 S.W.2d 261; Aaron v. State, 163 Tex.Cr.R. 635, 296 S.W.2d 264 and Windham v. State, Tex.Cr.App., 335 S.W.2d 221.

We overrule appellant’s remaining contention that the evidence is insufficient to support the conviction because his oral confession to Officer Geffert was not corroborated.

Officer Geffert’s testimony and the other evidence which shows that pursuant to appellant’s instructions the officers did go to thet cabin, searched the same and in the search found the narcotic paraphernalia and barbiturates which appellant stated he had in the cabin is sufficient to corroborate appellant’s oral confession.

The judgment is affirmed.


text:
    James Elmer RAWLS, alias James E. Yost, Appellant, v. The STATE of Texas, Appellee.
    No. 34126.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    Pena & Pena, Laredo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is robbery with firearms; the punishment, 25 years.

The indictment alleged the taking of “one hundred eighty-nine American Express Travelers checks of the value of Two Thousand Seven Hundred Eighty Dollars, and Eighty-Six Dollars in lawful money of the United States of America.”

The sole ground upon which reversal is sought is the overruling of appellant’s motion to quash the indictment, the contention being that the checks alleged to have been taken were not sufficiently described.

The state correctly points out that, in addition to the checks, the indictment alleged the taking of Eighty-Six Dollars in lawful money of the United States of America, and that proof of the taking of the money alone would be sufficient to convict.

The money alleged to have been taken was sufficiently described. Moore v. State, 154 Tex.Cr.R. 638, 230 S.W.2d 217; Livingston v. State, 152 Tex.Cr.R. 302, 214 S.W.2d 119; 5 Branch’s Ann.P.C.2d Ed. 17, Sec. 2576.

Appellant was identified by the complaining witness as the person who appeared at the Western Union office in Laredo about 9:15 at night, exhibited a pistol and, by putting her in fear, took Eighty-Six Dollars in United States Currency and one hundred eighty-nine American Express Travelers checks: 100 tens and 89 twenties. He was identified by other witnesses as the person who was driven by taxicab from Laredo to Zapata shortly thereafter and who registered in Room 17 at the Siesta Motel where American Express Travelers checks introduced in evidence were found the next day.

The court in his charge required the jury to find that appellant took the money as well as the checks described in the indictment in order to convict.

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

The judgment is affirmed.


author: BELCHER, Commissioner. McDonald, judge.

text:
    Marvin Leroy WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 33928.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 24, 1962.

      ■ No attorneys for appellant of record on appeal.
    Frank J. Baughman, Dist. Atty., Amarillo, Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted under an indictment charging burglary, with two prior convictions for felonies less than capital alleged for the purpose of enhancement; the punishment, life imprisonment.

The evidence is sufficient to show the primary offense of burglary.

To prove the two prior convictions alleged for enhancement, the state introduced a certified copy of the judgment in each of said causes. It further proved that the appellant was the same person named in each of the judgments.

The appellant did not testify or offer any evidence.

There is no evidence in the record showing that sentence was pronounced upon the appellant in the prior convictions alleged. The pronouncement of sentence upon the defendant in all felony cases less than capital is essential to a final judgment of conviction. In the absence of any evidence showing a final conviction of the appellant in the two prior convictions alleged for enhancement, the evidence is insufficient to support the conviction. Art. 767, C.C.P.; 5 Tex.Jur.2d 169, Sec. 110; 16 Tex.Jur.2d 570, Sec. 372.

The judgment is reversed and the cause remanded.

Opinion approved by the court.

ON STATE’S MOTION FOR REHEARING

McDonald, judge.

The State takes the position that when it offered in evidence the certified copies of the judgments of conviction, it made out a prima facie case that continued until attacked in some manner which was not done.

The State relies on Arnold v. State, 127 Tex.Cr.R. 89, 74 S.W.2d 997. An examination of the record in Arnold shows that the judgment and sentence in each of the two prior convictions alleged were introduced in evidence. In Christoph v. State, 166 Tex.Cr.R. 453, 314 S.W.2d 840, which cites the Arnold case, the judgments and sentences of the two prior convictions alleged were each introduced in evidence.

Article 767, Vernon’s Ann.C.C.P., provides that:

“A 'sentence’ is the order of the court, made in the presence of the defendant, and entered of record, pronouncing the judgmént, and ordering the same to be carried into execution in the manner prescribed by law.”

The mandate of the above statute requires that the sentence order the judgment of the court to he carried into execution. In a felony case, the sentence is the final judgment of conviction, without which there is no final conviction. 1 Branch’s Ann.P.C.(2d), 684, Sec. 699; Ex parte Hayden, 152 Tex.Cr.R. 517, 215 S.W.2d 620.

It is the State’s contention that Article 767, V.A.C.C.P., stands for the proposition that a sentence in a felony case, less than capital, is necessary in the record to give the Court jurisdiction of that case when an appeal is filed but that in cases like the one at bar, where we are not concerned with an appeal but with judgments introduced to make out the State’s case for enhancement purposes, the introduction of the judgments only, without introducing the sentences, makes out a prima facie case. With this contention, we do not agree. Convictions justifying enhanced punishment under Article 63, Vernon’s Ann. P.C., must constitute a final disposition of the case, and if the judgment for any reason be set aside and another trial awarded, there is no conviction. Brittian v. State, 85 Tex.Cr.R. 491, 214 S.W. 351.

We know of no way to show a final judgment in a felony case other than to also show the sentence. We do not feel that Arnold and Christoph are in conflict with this opinion, and that they have been distinguished from the case at bar.

The motion is overruled.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Kenneth Wayne EAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 33638.
    Court of Criminal Appeals of Texas.
    Dec. 6, 1961.
    Rehearing Denied Jan. 24, 1962.
    Howard M. Wayland, Thomas D. White, Houston, Clyde W. Woody, Houston (On Rehearing Only), for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Our prior opinions are withdrawn.

The offense is operating a motor vehicle at an unlawful rate of speed; the punishment assessed in County Court at Law #4 of Harris County was a fine of $25.00.

By proper motion to quash, the information was attacked because it failed to allege that said vehicle was operated at said location at a speed which was greater than was reasonable and prudent under the conditions then existing, or words of similar import.

The question of the constitutionality of Subsection 1 of Section 8, Article 827a, Vernon’s Ann.P.C., a part of the 1951 speed law, is now squarely before this Court for determination. The writer has heretofore not found it necessary to pass upon the question, as will be seen from the original opinion and that on appellant’s second motion for rehearing in Rowland v. State, 166 Tex.Cr.R. 118, 311 S.W.2d 831. The case at bar requires a decision. While there is much to be said for the soundness of the dissenting opinion of my former colleague Judge Davidson in Rowland, the writer is faced with the fact that the legislatures of 30 states have adopted similar statutes, plus the fact that the Supreme Courts of 16 states have upheld the constitutionality of similar statutes where it has been challenged. An analysis of the opinions of the Supreme Courts of West Virginia and Georgia indicates that only they may hold to the contrary.

The aim of every appellate judge should be to achieve uniformity in interpretation of similar laws. It is with this in mind ■ that I align myself with the great weight of authority and hold the statute constitutional. It therefore follows that this case must be reversed because the information failed to allege that the motor vehicle was driven at a speed which was greater than was then reasonable and prudent under the conditions presently existing, having regard to the actual and potential hazards, and in excess of 30 miles per hour in a business (or residence) district, to-wit, at a speed of 40 miles per hour, the maximum lawful speed in said district and at said location for said vehicle then and there being 30 miles per hour.

An analysis of the opinion of this Court in Alston v. State, 154 Tex.Cr.R. 148, 226 S.W.2d 443, makes such a holding imperative once the 1951 act is accepted. See also 61 C.J.S. Motor Vehicles § 641, p. 747, and § 647, p. 751, and cases there cited.

The judgment is reversed and the prosecution is ordered dismissed.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The state’s motion for rehearing suggests that this Court “now chooses to base its opinion upon the fact that a number of legislative bodies have found such legislation popular and a lesser number of Supreme Courts have found these statutes to be constitutional.”

To clarify our decision herein we direct attention to the opinion prepared by the writer on appellant’s motion for rehearing in Rowland v. State, 166 Tex.Cr.R. 118, 311 S.W.2d 831, 836, which was the majority holding at the time it was handed down and is now re-affirmed.

Upon authority of said opinion and the cases there cited, we here hold: (1) That Art. 827a, Vernon’s Ann.P.C. as amended in 1951 and again in 1955, as applied to the driving of a motor vehicle upon a public highway in this state in a business or residential district as therein defined, at a speed in excess of 30 miles per hour, which speed is greater than is reasonable and prudent under the conditions then existing, is constitutional; and (2) appellant’s motion to quash the information should have been granted because of the absence of any allegation that the speed at which the accused was alleged to have driven was unreasonable or imprudent under the conditions then existing.

Judge MORRISON’S reasons for joining in such holdings are stated in the opinion reversing the conviction herein.

Remaining convinced that the questions raised have been properly disposed of, the state’s motion for rehearing is overruled.


text:
    Ex parte John J. BREEN.
    No. 34359.
    Court of Criminal Appeals of Texas.
    Jan. 24, 1962.
    John J. Breen, represented himself.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator, an inmate of the penitentiary, seeks his discharge by writ of habeas corpus, alleging that his conviction is void because the jury fixed his punishment at life imprisonment under Article 63, Vernon’s Ann. P.C., after finding him guilty of the primary offense of robbery and finding that he had been convicted of two other felonies less than capital as charged in the indictment.

Relator contends that only the trial judge has the power to assess the punishment under the enhancement statutes. This contention is overruled. In 16 Texas Jurisprudence 2d 645, Section 413, we find the following statement of the law:

“Under those statutes that govern felony punishment enhancement, that leave no discretion to the jury on the matter of punishment, it is proper to instruct the jury to assess punishment at that so fixed in case they find the defendant guilty.” Cooper v. State, 106 Tex.Cr.R. 118, 290 S.W. 537.

Petitioner also contends that Article 63, V.A.P.C., is unconstitutional in that it is not uniformly applied and administered throughout the State. We answered this contention in Ex parte Boman, 160 Tex.Cr.R. 148, 268 S.W.2d 186, as follows:

“The fact that a law may not be invoked against others could not in anywise affect its constitutionality because invoked against relator. As written, it is capable of uniform enforcement.”

The application for writ of habeas corpus is denied.


author: POPE, Justice.

text:
    MISSOURI PACIFIC RAILROAD COMPANY, Appellant, v. Juan MARTINEZ et ux., Appellees.
    No. 13838.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 29, 1961.
    On Rehearing Jan. 3, 1962.
    Rehearing Denied Jan. 31, 1962.

      Boyle, Wheeler, Gresham, Davis & Gregory, San Antonio, for appellant.
    Arnold W. Franklin, Jourdanton, for ap-pellees.
   POPE, Justice.

We have concluded, on rehearing, that our original opinion was in error. The trial court rendered judgment upon a jury verdict which found that defendants, Juan Martinez and wife, had matured ten-year limitation title to portions of five city lots in Jourdanton. Plaintiff under the evidence has record title to the disputed thirty-foot strip and also the adjoining land to the west. Defendants have record title to the land which adjoins the disputed strip on the east. The controversy, therefore, concerns only the strip of land which is located between lands owned by the plaintiff on the west and defendants on the east. Defendants concede that plaintiff has record title to the strip and rely on limitations. Defendants proved possession of the thirty-foot strip, but they failed to prove that their possession was exclusive.

The proof, without dispute, shows that plaintiff in 1950, leased the disputed strip and its land to the west to J. J. Dornalc. Dornak erected a grain elevator on the land west of the disputed strip, and his customers, each year from the time of its erection up to the year 1958, used the strip as an approach to the grain elevator, for parking and for turning vehicles. The public also used the same area. Grain trucks would drive across the strip to load and unload grain. Not until 1958 did the defendants exclude the record owner from this use. Defendants explain this joint use by plaintiff’s tenant and themselves by arguing that they tacitly consented to this use by the owner of the land. They did not dispute the owner’s use, but argue that it was a permissive use. The legal point, therefore, is, Can an adverse user maintain exclusive possession of a tract though he permits the owner to use it jointly with him? The negative answer to the question has been settled by the Supreme Court. “It follows that the law’s requisites are not satisfied if the occupancy is shared with the owner or his agents or tenants.” Rick v. Grubbs, 147 Tex. 267, 214 S.W.2d 925.

The motion for rehearing is granted and the judgment is reversed and here rendered that plaintiff have and recover title and possession of the disputed strip of land.


author: HUGHES, Justice.

text:
    Mary BEESON, Appellant, v. Don MARSHALL, Appellee.
    No. 10919.
    Court of Civil Appeals of Texas. Austin.
    Jan. 10, 1962.
    Rehearing Denied Jan. 31, 1962.

      Ronald Smallwood, Karnes City, for appellant.
    Groce & Hebdon, Richard Tinsman, San Antonio, for appellee.
   HUGHES, Justice.

This suit is by Don Marshall, appellee, against Mary Beeson to recover sums of money allegedly retained by her in excess of the amounts authorized by a contract or contracts between the parties. The Contracts related to services required of appellant in connection with appellee’s business of furnishing communications equipment to users and conducting an answering service and radio dispatching service. These businesses were conducted by ap-pellee under the names of Air-Page, Television Repair Company and T. V. and Rental Service. Appellant cross claimed, contending that she was entitled to more compensation than she had received.

Trial to a jury resulted in verdict and judgment for appellee and against appellant on her cross action.

The first point presented by appellant is that the Court erred in sustaining a special exception to paragraph eight of her Third Amended Original Answer and Cross Action. We copy from said paragraph eight:

“Defendant specially denies the allegation of sub-paragraph (c) of paragraph V of said petition to the effect that plaintiff and defendant agreed that defendant would receive $32.00 per month for servicing Capitol Wrecker Service so long as it had three mobile units. In this connection, defendant says that prior to the execution of said contract, plaintiff orally represented to the defendant that each mobile unit to be serviced by defendant would be computed, under the terms of said contract, on the basis that each code number serviced by defendant would be, and would be considered as, a mobile unit serviced. Defendant relied upon such representation of the plaintiff, believing the same to be true, and except for her belief in and reliance upon such representation, she would not have entered into the contract with the plaintiff as she did. The defendant serviced five code numbers for said Capitol Wrecker Service during each of said months, December, 1957, to August, 1958, inclusive.
“Said contract provides that Beeson ‘is to be paid the sum of $12.00 per month for the first two mobile units serviced per customer, any other units added to be charged for on a graduated scale mutually agreed upon by Bee-son and Air Page, payable monthly in advance.’ After the execution of said contract, defendant and plaintiff did orally and mutually agree that defendant would be paid on the following scale for each customer having more than two mobile units, as follows: * ⅝ ⅝ «

There follows a scale of prices from which appellant concludes that she was entitled to be paid $54.00 per month for services rendered to Capitol Wrecker Service instead of the $32.00 per month allowed her by appellee.

Appellant then pleaded:
“Plaintiff is estopped to claim or assert that defendant serviced less than five mobile units per month for Capitol Wrecker Service, since she serviced five code numbers assigned to Capitol Wrecker Service for each of said months.”

The exception made, and sustained, to this pleading was that it constituted an attempt to vary the terms of a written unambiguous contract.

It is to be noted that appellant did not seek reformation or cancellation of the contract.

It is also to be observed that appellant did not allege that the contract was ambiguous, nor does she take this position in her brief. We quote the substance of argument:

“Obviously the allegations stricken were not subject to the supposed vice that they tended to vary a clear and unambiguous contract. They alleged a state of facts which would constitute an estoppel against appellee, which would prevent him from recovering on the basis that appellant only serviced 3 mobile units per month for Capitol Wrecker Service if she in fact serviced 5 code numbers.”

The prior agreement pleaded by appellant being inconsistent with the provisions of the subsequent written contract was merged in it and the parol evidence rule precludes enforcement of the prior agreement. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30.

There was no pleading that the prior agreement was omitted from the written contract through fraud, accident or mistake. See Distributors Investment Co. v. Patton, 130 Tex. 449, 110 S.W.2d 47, Albers v. Schumacher Company, 314 S.W.2d 852, Waco Civil Appeals.

Neither can such prior unenforceable agreement form the basis of an estop-pel. Ford Motor Co. v. Maddox Motor Co., Tex.Civ.App., 3 S.W.2d 911, 920, Affirmed 23 S.W.2d 333, Tex.Comm. of App. See Hillman v. Graves, 134 S.W.2d 436, San Antonio Civil Appeals.

It is our opinion that the Trial Court did not err in striking the allegations, above quoted, from appellant’s pleading.

Appellant’s third and fourth points, jointly briefed, are that the Trial Court erred in sustaining special exceptions to paragraphs thirteen and fourteen of her cross action by which appellant sought recovery of $1500.00 in attorneys’ fees by reason of having demanded payment of her accounts, in the sum of $684.68, for a period of more than thirty days.

There is no need to discuss or decide this point since appellant did not recover on her cross action and we are affirming this judgment.

Appellant’s fifth through eighth points are jointly briefed. They complain of the action of the Court in sustaining special exceptions to paragraphs 19 through 22 of her trial petition.

Paragraphs 19 and 21 pleaded, in general, that because of appellee’s failure to maintain certain of its one-way and two-way equipment in good operating condition that she, appellant, lost customers and earnings from them amounting to $477.32 (par. 19) from “one-way” customers and $249.50 from the “two-way” customers.

The written contract between the parties obligated appellee to furnish and maintain this, and other, equipment and to pay for its installation, maintenance and repair.

Appellee’s exception to this pleading, which the Court sustained, was that it fails to plead the proper measure of damages, asserting that lost profits and not lost earnings should be the measure of recovery.

Appellant filed a trial amendment supplementing paragraph 19 by adding and alleging that even though she recovered the amount of her lost earnings, she would still have no profit under this contract, and that the sum stated was a monetary loss to her.

This pleading was not excepted to, and was not stricken.

It is unnecessary to plead a measure of damages. It is only necessary to plead facts from which, if proved, the Court or jury can apply the proper criterion. 17 Tex.Jur.2d p. 263.

We believe, that as to this feature of the case, the pleadings were adequate to admit proof of damages for the breach of the contract alleged.

Appellee contends that no such evidence is found in the record and appellant does not suggest the presence of any such evidence. It is our opinion that, under those circumstances, appellant has suffered no injury by the Court’s action under consideration. Appellant simply failed to sustain the burden of proving her case as pled.

Paragraph 20 of appellant’s cross action alleged that the Federal Communications Commission had suspended the license of appellee to operate the two-way transmitter for his violation of its rules and that this prevented her from operating such equipment for the benefit of her customers, and that she was thereby damaged.

Appellee excepted to this paragraph on the ground that it did not allege in what manner appellee had violated the rules of the Commission, and this exception was sustained.

Appellant filed a trial amendment deleting the allegation that the license was suspended on account of appellee’s violation of Commission’s rules, but retaining the allegation of its suspension.

There is no mention of this operator’s license in the contract between the parties, and we are uninformed as to any legal duty on the part of appellee to keep such license current.

There is no evidence in the record that appellant sustained any monetary damages as a result of the suspension of this license.

Under these circumstances, harmful error is not shown in the ruling of the Court.

Paragraph 22 of appellant’s cross action pleaded her damages resulting from the alleged breach of contract by appellee in not properly maintaining the equipment furnished appellant, in particular that she was required to employ additional employees.

The exception to this paragraph was that it did not name the employees appellant alleged she was required to hire to perform the services required of her under the contract, and other details of their employment.

Appellant, after this exception was sustained, amended her cross action and furnished the desired information. Thus, no error is shown. Further, we do not find this point briefed, except, perhaps, in a most general way.

Points nine through thirteen are jointly briefed. They complain of the admissibility of parol evidence to explain or interpret the meaning of the words “graduated scale” as used in this paragraph of the contract:

“As a partial consideration for the service to be rendered by Beeson she is to be paid the sum of $12.00 per month for the first two mobile units serviced per customer, .any other units added to be charged for on a graduated scale mutually agreed upon by Beeson and Air Page, payable monthly in advance.”

The objection was that in the absence of pleading fraud, accident or mistake, parol evidence was inadmissible as varying the written terms of the contract.

This objection was untenable. Standing alone, this provision of the contract, as to additional units, is incomplete and unenforceable.

We do not consider the words “graduated scale” as having great significance. The important inquiry is: What charge did the parties agree upon for such additional units, and how were such charges to be divided between the parties? Any such charge and division would, in our opinion, constitute a “graduated scale” for the purpose of the contract.

Appelleee testified to agreements with-appellant regarding the division of specific charges. Appellant testified contrarily. These differences were submitted to the-jury which made findings upon which the judgment is based. We need not discuss, the evidence because appellant contends-only that the verdict is not supported by admissible evidence.

The testimony objected to did not vary the written contract. It for the first time-created a contract for charges and division of charges as to customers having more-than two units. That the charges or division were not uniform as to all customers-is of no moment. The parties could agree as they pleased. The jury found the terms, of such agreement, and we have no cause-to disagree with its findings.

Point fourteen complains of the Court’s-refusal to submit special issues to the jury based on appellant’s pleading made the subject of her first point, her contention being that the prior agreements there considered may constitute an estoppel against appellee. If the prior agreements were merged in the written contract, as we have held, then such prior agreements cannot form the basis of an estoppel. To so hold would greatly impair written agreements, and would practically eliminate preliminary negotiations between contracting parties. Each would be estopped by something said during such negotiations, although the executed written contract conflicted with such statements or agreements. The discussion made and authorities cited under Point One show this point to be wholly without substance.

By her last point, appellant complains of the action of the Court in refusing to permit, her to testify that certain of her customers who discontinued their service gave as their reason the poor condition of the equipment furnished by ap-pellee.

No customer was called to testify. The testimony was objected to on the ground that it was hearsay.

Appellant cites no authority to sustain the admission of this testimony. She gives as her only reason for its admissibility that "Under the contract she constituted an agent or intermediary between Marshall and his customers.” The contract does not bear this out. In fact, it repudiates this relationship, and we quote from it:

“It is intended by this contract to create the relationship of independent contractor and owner between Beeson and Air Page, respectively. Beeson shall not be deemed an employee or partner of Air Page, Beeson shall not have, any right of decision over the kind or amount of equipment to be furnished by Air Page, the maintenance thereof, nor the nature of the communications, and the decision on all such matter shall be in the exclusive discretion of Air Page.”

By cross • point, appellee seeks to invoke Rule 438, Texas Rules of Civil Procedure, and have us find that this appeal was taken for delay and without sufficient cause. The point is overruled.

No reversible error being found, the judgment of the Trial Court is affirmed.

Affirmed.


text:
    AMERICAN SUPPLY & EQUIPMENT COMPANY et al., Appellants, v. STEVES INDUSTRIES, INC., Acting Through Ingram Equipment Co., Appellee.
    No. 13872.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1962.

      Pat F. Timmons, Thomas L. Moore, Collins & Moore, Houston, for appellants.
    Kampmann & Kampmann, San Antonio, for appellee.
   POPE, Justice.

Steves Industries, Inc., sued American Supply & Equipment Company and A. D. Lee for the balance owing on four promissory notes. Defendants answered by un-sworn denial. See Rule 251, Texas Rules of Civil Procedure. In January, 1961, plaintiff’s attorney in San Antonio, phoned defendants’ attorney in Houston, and, they selected February 10 as the trial date. That date was confirmed by a registered letter sent to defendants’ attorney on January 11. Defendants’ attorney withdrew from the case, and on January 24 they employed new counsel. Plaintiff, on February 1, by registered mail, notified defendants’ new counsel of the February 10 setting. The defendants at no time prior to trial conferred with their attorney. On February 9, defendants’ counsel filed a motion for continuance which stated that his clients had been unable to confer with him. He also phoned the trial judge in San Antonio, who directly informed him that the case was set for trial the next day. When the case was called for trial, defendants did not appear either for trial or to urge the motion for continuance. Plaintiff proceeded to prove its case, and obtained judgment. Defendants’ subsequent motion for new trial was overruled.

The record shows no diligence on the part of the defendants. With the case already set for trial, they at no time conferred with their attorney. No reason for this failure, or for their inability to appear at trial, is offéred. Moreover, even if there were grounds for a continuance, nobody appeared in court to urge them. The trial judge told defendants’ counsel that the case was set, and nobody did or said anything to lead him to believe otherwise. The judgment is affirmed.


author: COLEMAN, Justice.

text:
    PARK PLACE MASONIC LODGE NO. 1172, Appellant, v. E. C. DANIELS, Appellee.
    No. 13875.
    Court of Civil Appeals of Texas. Houston.
    Jan. 11, 1962.
    Rehearing Denied Feb. 1, 1962.

      Barrow, Bland & Rehmet, Vincent W. Rehmet, Houston, for appellant.
    Bierwirth & Rosenbaum, Leonard Z. Finger, Houston, for appellee.
   COLEMAN, Justice.

This was a suit for damages resulting from injuries suffered by E. C. Daniels, appellee, in an intersectional collision.

The .case was tried before a jury which found that appellant’s agent was negligent in failing to stop at a stop sign and in failing to make a proper application of brakes. Appellant contends that these findings are against the great weight and preponderance of the evidence because of the testimony of Lois Foshee, appellant’s agent, that she became slightly sick at her stomach, and faint, when she was about a block and a half from the intersection at which the collision took place and didn’t remember anything that happened after that point, and that it was her opinion that she had fainted. No witness could testify that she was, or was not, conscious at a time immediately preceding the accident.

There was testimony that the car driven by Miss Foshee was traveling at an average speed and did not slow down before entering the intersection and that nothing indicated that the brakes were ever applied. The evidence shows that the street on which the Foshee car was traveling was slightly elevated in the center, with a gradual slope to each side, and that a car would not maintain its course for a block and a half without guidance. The testimony shows that Miss Foshee was thrown from her automobile and suffered head injuries and that she appeared to be having convulsions as she lay on the ground. Opinion medical testimony to the effect that the loss of memory on the part of Miss Foshee was probably due to retrograde amnesia caused by the head injury was before the jury. In this nation of automobile operators, it is a matter of common knowledge that an automobile is not likely to travel in a straight path at an average city speed without a driver. Appellee was not precluded from relying on testimony contrary to that of Miss Foshee. Shinn v. Dillon, Tex.Civ.App., 306 S.W.2d 940; Texas Bus Lines v. Whatley, 210 S.W.2d 626, Tex.Civ.App., ref., n. r. e.; Pruett v. Mabry, 268 S.W.2d 532, Tex.Civ.App., ref., n. r. e.

Appellant further complains that the verdict of the jury awarding appellee $10,000.00 for lost earnings is so contrary to and against the greater weight and overwhelming preponderance of the evidence as to be manifestly wrong and unjust. We have carefully reviewed the entire statement of facts and are unable to agree with this contention.

The judgment of the trial court is affirmed.


author: ARCHER, Chief Justice.

text:
    Janie Lee ANDERSON et al., Appellants, v. Sophronia Ann KENNON et al., Appellees.
    No. 10894.
    Court of Civil Appeals of Texas. Austin.
    Nov. 15, 1961.
    Rehearing Denied Jan. 10, 1962.

      Skelton, Bowmer & Courtney, Temple, for appellants.
    Cox, Brown & Daniel, Temple, for appellees.
   ARCHER, Chief Justice.

This suit was filed by appellants as re-maindermen and residuary legatees of the will of B. B. Simmonds, deceased, against Alice Beatrice Simmonds, surviving widow and a life tenant under his will, to set aside various conveyances and gifts made by her out of the estate of B. B. Simmonds, deceased, to the other appellees herein and to recover from such life tenant and the other appellees the value of such conveyances and gifts in the total sum of $11,000,000.00, requesting the appointment of an auditor to adjust the accounts of the parties and seeking to impose a trust upon all of the property of the life tenant, Alice Beatrice Simmonds, and the grantee and donee appellees who were alleged to have been working in concert and collusion with her to cut off the interests of appellant remaindermen and residuary legatees under the will of B. B. Sim-monds, deceased.

During the pendency of this suit the life tenant, Alice Beatrice Simmonds, died and the First National Bank of Temple and the Temple National Bank were appointed Joint Administrators of the Estate of B. B. Simmonds, Deceased. The executors of the estate of the life tenant, Alice Beatrice Simmonds, have been made parties to this suit since her death and the suit has been maintained and prosecuted against her estate.

The appeal is from a judgment of the 146th Judicial District Court of Bell County, Texas, sustaining the appellees’ plea to the jurisdiction of the Court and ap-pellees’ Special Exceptions (a), (c), (m), and (n) to the appellants’ petition and granting appellees’ motion for a summary judgment, ordering and adjudging that the appellants take nothing by their suit and rendering and entering final judgment in favor of appellees.

It is admitted by all parties that the will in question vests in appellee, Alice Beatrice Simmonds, a life estate and vests in appellants a remainder in the estate of B. B. Simmonds, deceased.

The issues presented by this appeal concern the Trial Court’s judgment that a prior suit in the District Court of Nueces County resulted in a binding judgment not subject to collateral attack by appellants herein and which is res adjudicata upon all the matters stated therein and pertain to the Trial Court’s judgment sustaining appellees’ Special Exceptions to appellants’ petition on the same grounds, and the Trial Court’s judgment sustaining appellees’ Special Exception to appellants’ petition to the effect that the will of B. B. Simmonds, deceased, gave Alice Beatrice Simmonds as life tenant the full power of sale and distribution including the right to convey by sale, gift or otherwise for any consideration or no consideration, the property of B. B. Simmonds, deceased, and granting a summary judgment on the same ground.

The main issue involved in this appeal is the construction of the will of B. B. Simmonds, deceased, with reference to what power, if any, it gave appellee, Alice Beatrice Simmonds, as life tenant, to sell his property for an inadequate consideration or to give it away without receiving any consideration therefor.

This appeal is predicated on five points assigned as error of the Trial Court (1) in sustaining Special Exception (n) to appellants’ petition and (2) in granting ap-pellees’ motion for summary judgment, holding thereby in effect that the will of B. B. Simmonds bestowed on the life tenant the full power of sale and disposition of his estate and holding that the life tenant could make gifts of the estate of mineral interest to a corporation which in turn gave back to the life tenant %2nd of such mineral interest as her separate property; (3) in sustaining Special Exceptions (a) and (c) to appellants’ petition to the jurisdiction of the Trial Court, thereby holding in effect that the judgment in a prior suit in Nueces County construing the will of B. B. Simmonds is not subject to collateral attack and is res ad-judicata, because such judgment is void; (4) in sustaining Special Exception (m) to appellants’ petition, thereby holding in effect that the judgment gave the life tenant authority to execute mineral leases under the “open mine doctrine” and (5) in granting appellees’ motion for summary-judgment when there were many genuine issues as to material facts involved in the case to be resolved.

B. B. Simmonds died in Bell County on May 21, 1933, leaving a will which was admitted to probate, in which his wife Alice Beatrice Simmonds was named independent executrix and she qualified as such.

Paragraph 3 of the will is as follows:

“I will, devise and bequeath all the property, real, personal and mixed, wherever situate, of which I may die seized and possessed or to which I may be entitled at the time of my demise unto my wife, Alice Beatrice Sim-monds, for and during her natural life only, all or any part of which property, however, she may from time to time, in any manner or to any extent that she may deem best, mortgage, sell, convey and dispose of, conveying fee simple title thereto', for such consideration and on such terms as she may desire, without limitation or restriction whatever, and upon her death the same shall go to and descend and vest in the following persons, to wit:” (naming them).

Trial was had to the Court and several special exceptions were sustained. Ap-pellees filed their motion for summary judgment alleging that there is no genuine or material issue oí fact to be determined in the suit and that the entire proceeding should be disposed of upon an issue of law with reference to the construction of the will, and that under the law and the will of B. B. Simmonds, his surviving wife was given full, complete and absolute power, free and independent of the Probate Court, and without restriction or limitations, to sell, convey and dispose of any property belonging to the estate of B. B. Simmonds, by sale, gift or otherwise and including but not limited to any mineral interest or mineral estate, upon such terms and for such consideration as she might desire, and that the defendants (appellees herein) are entitled to a summary judgment.

In answer to defendants’ motion for summary judgment, the plaintiffs filed an answer alleging that there are many genuine and material issues of fact to be determined in the case, and that the proceeding should not be disposed of upon an issue of law with reference to the construction of the will of B. B. Simmonds; that the provisions of the will herein quoted did not confer upon Mrs. Simmonds any authority to sell or dispose of the corpus of the estate, except for a full and adequate consideration paid to the estate, and did not authorize her to give away, transfer or dispose of any of the corpus of said estate including land, mineral interests and mineral estates, without the estate being paid therefor a full and adequate consideration.

It was further alleged that an issue of fact existed as to whether or not the contents of the petition filed by Alice Beatrice Simmonds v. H. G. Simmonds et al., in 1937 in the 117th District Court of Nueces County, Texas, to construe the will of B. B. Simmonds, were true and correct and as to representations made to the plaintiffs herein that the waivers would not affect their legal rights, or whether or not such representations induced the plaintiffs herein not to contest the suit, or if such representations were false, or if the waivers were legally executed, or if the proceeds of any leases or sales would belong to Mrs. Simmonds, or if Mrs. Simmonds gave away and wasted a large part of the estate, and further, whether or not the purported sale of the %ths interest in the 5,665.7 acre tract was conveyed as an individual or as an independent executrix, or if the sale to the Puenticitas Oil Company was without consideration and was a grift.

The above allegations made by the plaintiffs in their answer to the motion are fairly representative of the entire reply and there is no necessity to recite them further. The plaintiffs prayed that the motion be in all things denied. The Court granted the motion for summary judgment on the first day of February, 1961 and sustained defendants’ plea to the jurisdiction of the Court, insofar as any modification, annulment or setting aside of the judgment entered on May 7, 1937 by the 117th District Court of Nueces County, Texas in Cause No. 16,783-B, styled Alice Beatrice Simmonds v. H. G. Simmonds et al, because the judgment is valid and binding upon the parties plaintiff and is res adjudicate, upon all parties in this cause and is not subject to collateral attack.

There were several special exceptions filed by defendants to the effect that the Nueces County judgment is a valid judgment not subject to collateral attack and is res adjudicata upon all of the parties to this proceeding. The judgment construed the will as giving Mrs. Alice Beatrice Simmonds the right and authority to execute oil, gas or mineral leases, division orders, etc. and as a life tenant under the “open mine doctrine” had full power to receive and was entitled to all royalty and income pursuant to the production of oil, etc. from the said land until her death as her separate property.

We believe that the pertinent paragraph in the will of B. B. Simmonds, as is here-inabove set out, conferred on Mrs. Alice Beatrice Simmonds a life estate “for and •during her natural life only” in the estate of decedent B. B. Simmonds, all or any part of which property she might from time to time in any manner or to any extent that •she might deem best, mortgage, sell, convey and dispose of conveying fee simple title thereto for such consideration and on such terms as she desired, without limitation or ■.restriction whatever.

This provision conferred full power and authority on Mrs. Simmonds to do all and everything she did, except the conveyance to herself of the %2nd of the %ths mineral interest in the 5,665.7 acres of land as her separate property.

We further construe the will to mean as is stated therein, that upon the death of Mrs. Simmonds, the life tenant, all of the property real, personal or mixed, should go to, descend and vest in the several named remaindermen. This would include the ]42nd mineral interest and any and all other property in the possession of the life tenant at her death which had been derived from the usage of the property and mineral estate income.

The sale and transfer of the mineral estate to the Puenticitas Oil Company by the life tenant and the conveyance from the Oil Company back to Mrs. Simmonds, the life tenant, did not have the effect of making the reconveyed property the separate property of the life tenant.

The life tenant cannot by fraudulent means defeat the rights of the re-maindermen by dealing with himself. Littler v. Dielmann, 48 Tex.Civ.App. 392, 106 S.W. 1137, error ref.; Nye v. Bradford, 144 Tex. 618, 193 S.W.2d 165, 169 A.L.R. 1.

During her lifetime the life tenant had full authority to dispose of the property by sale or otherwise dispose of the property as provided in the will, but could not dispose of the property by will of her own. Kilpatrick v. Cassel, Tex.Civ.App., 19 S.W.2d 805.

Appellees’ position is that the will conferred full power of sale and disposition including conveyances by sales, gifts or otherwise, and that the conveyance by the Puenticitas Oil Company back to the life tenant did not constitute a gift, and was not in "fraud of any rights of the remainder-men; that the judgment in a prior suit in Nueces County construing the will of B. B. Simmonds was not subject to collateral attack and was res ad judicata and that the special exceptions (a) and (c) were well taken and the Court did not err in sustaining special exception (m) to the effect that the life tenant had the authority to execute mineral leases under the “open mine doctrine” and that the life tenant was entitled to all royalty as her separate property; that the summary judgment was proper because there was no genuine issue as to any material fact.

As hereinabove ' stated, we believe that the will conferred on the life tenant the powers as there set out to sell and dispose of the property without limitation or restriction whatever during her natural life only. These powers do not confer on or authorize the life tenant to dispose of the property or any part thereof belonging to the estate of B. B. Simmonds by will.

We recognize and believe that insofar as the life tenant disposed of the property during her natural life only she was acting within her power and authority. Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668; Ellis v. First National Bank in Dallas, Tex.Civ.App., 311 S.W.2d 916, error ref., N. R.E.

There are many prior cases involving powers conveyed by a will to life tenants. Young v. Campbell, Tex.Civ.App., 175 S.W. 1100; Johnson v. Kirby, Tex.Civ.App., 193 S.W. 1074; Kilpatrick v. Cassel, supra.

In the case in the District Court of Nue-ces County the Trial Court construed the will of B. B. Simmonds to authorize the life tenant to execute mineral leases, sales, etc., and to receive and receipt for the consideration and appropriate the same to her sole use, but any balance that remained at the death of the life tenant should vest in the parties as provided in the will. The judgment further provided that all such considerations and proceeds received by the life tenant “shall belong to the said Alice Beatrice Simmonds, subject to her exclusive use,” etc.

Appellants take exception to the above part of the judgment that the considerations “shall belong” to the life tenant.

With the Trial Court’s judgment we find no objection except the Trial Court could only adjudicate powers and authority of the life tenant and not title, as was done in declaring the proceeds from sales and mineral leases to be the separate property of the life tenant and that such determination in the judgment may be attacked collaterally. 25 Tex.Jur. 686, 687, 695.

“A judgment may be void in part and valid in part provided the valid portion is not so dependent on the invalid as to fall with it.” Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175.

We do not believe that the “open mine doctrine” is applicable in this case. There had been no oil or gas wells drilled on the land belonging to B. B. Simmonds prior to his death and no oil, gas or other mineral leases had ever been executed by him or the life tenant prior to his death. The first production was had about ten years after the death of Mr. Simmonds and the beginning of the life estate.

In Youngman v. Shular Tex.Civ.App., 281 S.W.2d 373, affirmed in 155 Tex. 437, 288 S.W.2d 495, it was held:

“[2] Second: Where no oil is being produced and no lease has been executed upon the land prior to the inception of the life, estate. Under these circumstances we may consider the law as well settled in Texas that the life tenant is not entitled to the royalty, is impeachable for waste, and though entitled to the use of the royalty (ordinarily regarded as interest on the royalty), so long as the life estate lasts, but such life tenant must account to the remaindermen for the royalty at the termination of the life estate.” Citing cases.

The conveyances by the Puenticitas Oil Company, at the request of Alice Bea— trice Simmonds; to'herself and ten others whom she had selected of each receiving %2tid of the %ths mineral interest in the 5,665.7 acre tract was not illegal except that the life tenant could not acquire for herself ½2nd of the %ths mineral interest.

The judgment of the Trial Court is reversed and remanded with instruction to enter judgment in accordance with this opinion.

Reversed and remanded with instructions.

ON APPELLEES’ MOTION FOR REHEARING

On Motion for Rehearing appellees contend that our opinion be limited to a of the %2nd of the %ths mineral in the 5,665.7 acres of land because the ½ interest in the minerals constituted the community property as between the decedent, B. B. Simmonds and the life tenant, and that the conveyance by Mrs. Simmonds to the Puenticitas Oil Company conveyed the entire community interest and that this Court has treated the reconveyed %2nd of the %ths interest as coming entirely out of the estate of the decedent in which Mrs. Sim-monds has a life estate.

We are unable as a matter of law to determine the effect and extent of the reconveyance of the %2nd of the ^ths interest and such is a fact issue to be decided by the Trial Court in the first instance on evidence, the burden resting on the plaintiffs to show the source of such reconveyed interest, and we remand the case to the Trial Court for such purpose. To this extent the motion is granted and in other respects it is overruled

We direct the attention of the Trial Court and the parties hereto to Ford v. Anderson et al, Tex.Civ.App., 83 S.W.2d 443, where it is held that the presumption that grantees in deeds are conveyed equal interests does not apply to grantors. By analogy, we would hold that the presumption does not apply to a grantor conveying in dual capacities.

Motion granted in part and in part overruled.


text:
    John Calvin BRANCH, Appellant, v. Nell Vaun BRANCH, Appellee.
    No. 13871.
    Court of Civil Appeals of Texas. Houston.
    Jan. 11, 1962.

      Barker, Barker & Coltzer, Owen D. Barker, Galveston, for appellant.
    Phipps, Smith & Alexander, Chas. B. Smith, Galveston, Glusing & Sharpe, Kings-ville, for appellee.
   COLEMAN, Justice.

This is an appeal from a judgment granting a divorce on trial by the court sitting without a jury.

Appellant contends that the court erred in rendering a judgment granting the divorce because the undisputed evidence sustained his plea of condonation. Appellant testified positively to conduct on the part of appellee which would require a finding of condonation. When appellee was questioned about this conduct, she refused to confirm, but did not deny, the truth of appellant’s testimony. Under these circumstances the defensive issue of condonation could not have been disregarded by the trial court. Rippeteau v. Rippeteau, Tex.Civ.App., 287 S.W.2d 238.

There was evidence, introduced by appellant, of conduct on his part sufficient to revive the acts of cruelty relied on by ap-pellee as grounds for divorce. Nogees v. Nogees, 7 Tex. 538; Parker v. Parker, Tex.Civ.App., 204 S.W. 493. However, these subsequent acts were committed after the suit for divorce was filed. No amended or supplemental petition was filed alleging facts showing revival.

Acts of cruelty occurring after separation will revive condoned acts of cruelty occurring prior to separation. Redwine v. Redwine, Tex.Civ.App., 198 S.W.2d 472; Wauer v. Wauer, Tex.Civ.App., 299 S.W.2d 719. “Condonation is tentative and conditional. It is effective so long as the particular act is not repeated and if the particular act complained of is repeated condonation relative thereto is no longer effective.” Gomez v. Gomez, Tex.Civ.App., 234 S.W.2d 941. Sufficient evidence of cruel treatment prior to the institution of the suit is found in the record of this case to sustain the implied finding of the trial judge that the evidence establishing the acts of cruelty and their effect is full and satisfactory. The evidence of acts of cruelty after the institution of the suit, having been submitted without objection or limitation, was sufficient to revive the previous acts of cruelty and could properly have been considered by the trial court, and can be considered by this Court, as corroboration of appellee’s testimony in determining whether such testimony meets the “full and satisfactory” test.

The judgment of the trial court is affirmed.