author: RUARK, Presiding Judge.

text:
    STATE of Missouri ex rel. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Relator, v. Hon. Marshall CRAIG, Judge of the Circuit Court of Scott County, Missouri, Respondent.
    No. 8172.
    Springfield Court of Appeals. Missouri.
    Jan. 24, 1963.
    Motion for Rehearing or for Transfer to Supreme Court Overruled Feb. 12, 1963.

      Jackson & Thomasson, Freeland L. Jackson, Cape Girardeau, for relator.
    Dempster & Edwards, Robert A. Demp-ster, Sikeston, for respondent.
   RUARK, Presiding Judge.

This is mandamus to require the trial judge to permit intervention.

Relator, State Farm Mutual Automobile Insurance Company (hereinafter referred to as “State Farm”), issued its policy of insurance to Arthur Allen (hereinafter referred to as “insured”), whereby (under Coverage III) State Farm agreed to pay all sums which insured “ * * * shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury sustained by the insured * * subject to the provision that “for the purposes of this coverage, determination as. to whether the insured * * * is legally entitled to recover such damages, and if so the amount thereof, shall be made-by agreement between the insured * * *- and the company or, if they fail to agree,. by arbitration.” Under “Exclusions” it was provided that such insurance should not apply to any injury with respect to which the insured should, without written consent of the company, make settlement with or prosecute to judgment any action against the person legally liable therefor. Under “Conditions” it was provided that, if before payment by insurer the insured should institute any action against the person legally responsible for the injury, a copy of summons and complaint would be forwarded immediately to the company.

On March 31, 1962, the insured, Allen, commenced suit in the circuit court against Hobert Crader, Aleen Crader and State Farm. The suit was in two counts. Count I alleged that on March 29, 1961, plaintiff while driving his car in the exercise of the highest degree of care was struck by a car driven by defendant Hobert Crader and that plaintiff suffered injury and damage in the sum of $5,000 for which he prayed judgment against “the defendant.” In Count II plaintiff realleged all the allegations of paragraphs one and two of Count I. He then stated: that plaintiff was insured by State Farm under a provision in the policy which covenanted that insurer would pay all sums which plaintiff should be legally entitled to recover as damages under the uninsured motorist coverage; that the automobile which Ho-bert Crader was driving was uninsured and that neither Hobert Crader nor Aleen Crader had insurance to cover bodily injuries of plaintiff; that plaintiff has made demand upon State Farm to pay for the bodily injuries which “he” has sustained and payment has been refused. “Wherefore, the plaintiff prays for judgment against the defendant in the amount of $5,000 * * *.”

The defendants Crader, although served, did not answer or contest but have remained in default. Within proper time, defendant State Farm filed, to Count II, motion to dismiss for failure to state a claim because the action was premature; and, to Count I, motion to intervene. This motion admits the execution of the policy. It alleges that the defendants have failed to file responsive pleadings; that petitioner has reason to believe that the defendants are uninsured motorists within its coverage; that it has a direct interest in the outcome of Count I and its interest is not being adequately represented; and that petitioner may be bound by a judgment entered on Count I, on both the issue of liability and the issue of amount of damages. Both motion to dismiss and motion to intervene were overruled. This action is to require the trial court to permit intervention in Count I. If State Farm is entitled to intervene as a matter of right, mandamus is a proper remedy. State ex rel. Duggan v. Kirkwood, 357 Mo. 325, 208 S.W.2d 257 (5), 2 A.L.R.2d 216.

We have then a suit composed of one count in tort against one party and another (Count II) based on contract against another party. The questions to be determined on the issues in Count I would, in the ordinary course, be: (a) whether the uninsured motorist was negligent; (b) whether plaintiff was in the exercise of the highest degree of care; (c) whether plaintiff was injured; and (d) the amount of damages which plaintiff is legally entitled to recover. The issues arising under the contract count (Count II), could involve: (a) whether plaintiff was insured; and (b) whether defendant was an uninsured motorist. Neither of these seems to be disputed; therefore, the only real issues in the lawsuit appear to be those involved in Count I.

We must first dispose of some preliminary questions. The arbitration provision did not prevent the bringing of the suit, RSMo., § 435.010, V.A.M.S. Regardless of statute, the general rule is that the contract cannot oust jurisdiction of the courts as to a determination in respect to liability, although it may provide a reasonable method of estimating or appraising the amount of damage. 29A Am.Jur., Insurance, § 1161; see Security Printing Co. v. Connecticut Fire Ins. Co. of Hartford, Conn., 209 Mo.App. 422, 240 S.W. 263. We think further that the'“consent” exclusion as a bar to suit must fall along with the arbitration clause. The exclusion would reasonably he applicable in situations where arbitration is required; but, where this is not the case, it would be against public policy to permit a prohibition against resort to the courts for remedy without the consent of the person ultimately liable.

Supreme Court Rule 52.11, V.A.M.R. provides for intervention as a matter of right “when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action.” Such provision is patterned after that in Federal Rule of Civil Procedure 24(a) (2).

We think the argument that relator’s interest will be “adequately represented” in respect to Count I because the court will require proof of plaintiff’s cause is specious. It is not the duty of the trial court to subpoena and interrogate witnesses who might contradict the testimony of plaintiffs or those who might testify to compelling facts which show' that plaintiff is not “legally entitled to recover” the damages he claims. The court cannot, and should not, act as attorney for the defaulting defendants. Every practicing lawyer knows that, in so far as the issues of fact are concerned, the defaulting defendants are not “adequately represented.”

The petitioner for intervention must have an “interest” in the subject matter of the action. Such interest does not include a mere, consequential, remote or conjectural possibility of being in some manner affected by the result of the original action. It must be such a direct claim upon the subject matter of the action that the intervenor will either gain or lose by direct operation of the judgment to be rendered. State ex rel. Farmers Mutuals Auto Ins. Co. v. Weber, 364 Mo. 1159, 273 S.W.2d 318(4) Laclede Gas Co. v. Abrahamson, Mo., 296 S.W.2d 100, 61 A.L.R.2d 1286; see City of Hannibal v. Winchester, Mo.App., 360 S.W.2d 371, 375. Respondent leans heavily upon the Weber case, supra, but we think the factual situation there involved distinguishes it from the case at hand. The question is: Does the petitioner have an “interest” contemplated by Rule 52.11? Will it gain or lose by the direct operation of the judgment? Is the situation such that it “may be bound” by a judgment against the uninsured motorist in Count I ?

In considering this question, we must endeavor to determine what kind of insurance is involved. The terms of the insurance contract bind State Farm to pay all sums-which the insured “shall be legally entitled to recover” from the uninsured motorist. The character of this coverage must be separated from the regular and customary liability insurance. The petitioner is not the insurer of the uninsured motorist. Neither, on the facts in this case, is it called upon to defend the insured against the claim made by the opposing party. The defendants-Crader are in default. They assert nothing upon which the insurer is called upon to discharge its “liability” contract with insured. We see no conflict of interest or position. The only insurance here involved is that which has been likened to limited accident insurance.

“The undertaking of the insurer more closely resembles the undertaking contained in other provisions of the standard policy to pay to the insured medical expenses suffered by him as a result of injury by automobile, although the undertaking now in question is limited to payment of damages for bodily injuries occasioned by a limited category of tort feasors, namely uninsured operators against whom the insured is ‘legally entitled to recover.’ See 24 Insurance Counsel Journal 134, 136-137. Thus uninsured motorist insurance more closely resembles accident insurance restricted to a limited class of accident, than it does the type of insurance commonly regarded as indemnity insurance. See 44 C.J.S. supra Insurance § 2, p. 474.” Kirouac v. Healey, supra (1962), N.H., 181 A.2d 634, 1. c. 636.

The “interest” of intervenor is inextricably tied to the question of whether it “may be bound” by the direct operation of the determination of the issues raised in Count I. Let it be assumed that it will not be “bound” in the ordinary sense of res adjudicata so that a judgment against the uninsured motorist can be enforced against an insurer who is not made a party by means of execution or other process. But the question is: Will the insurer, or may it, be “bound” in the sense that the insurer will not be permitted to dispute or deny that the insured is “legally entitled to recover” a certain sum since that fact will have been determined in Count I. If this be true, the insurer, although having been made a party to the suit, will be denied its day in court for the determination of these issues which directly affect its liability.

Some analogy perhaps may be drawn from the rule that “ ‘ * * * where a person is responsible over to another, either by operation of law or express contract, and he is duly notified of the pend-ency of the suit against the person to whom lie is liable over and full opportunity is afforded him to defend the action, the judgment, if obtained without fraud or collusion, will be conclusive against him, whether he appeared or not.’ * * * ” London Guarantee & Accident Co., Limited, of London, England, v. Strait Scale Co., 322 Mo. 502, 15 S.W.2d 766, 770, 64 A.L.R. 936; United Pacific Insurance Company v. Meyer (9th Cir.), 305 F.2d 107. Such is regarded as an extension of the doctrine that all who are parties or privies to a judicial record are bound by the judgment, because the person to be bound has a right to appear and defend. See 30A Am.Jur., Judgments, § 422, p. 476; City of St. Louis v. Silk, 239 Mo.App. 757, 199 S.W.2d 23, 27. The insured should have the right to dispute the questions which make it liable on its contract. To say in this case that the action is premature because the insured has not yet established the legal liability of the uninsured motorist would in effect convert the “legally liable” policy to an unsatisfied judgment policy and would promote the multiplicity of suits.

Statutes which govern intervention should receive a liberal construction. State ex rel. Duggan v. Kirkwood, supra, 357 Mo. 325, 208 S.W.2d 257(4), 2 A.L.R.2d 216; National Sur. Corp. v. Fisher, Century Indem. Co., Intervenor-Respondent, Mo., 317 S.W.2d 334(6); Kozak v. Wells (8th Cir.), 278 F.2d 104, 111, 112; United States v. C. M. Lane Lifeboat Co., Inc. (D.C.,E.D.,N.Y.), 25 F.Supp. 410(1); Twentieth Century-Fox Film Corporation v. Jenkins (D.C.,S.D.,N.Y.), 7 F.R.D. 197(2). In Kozak v. Wells, supra (8th Cir.), 278 F.2d 1. c. 110, the court, in interpreting Federal Rule 24 in respect to intervention as a matter of right, stated:

“The question whether the respective applicant interveners are ‘or may be bound by a judgment’ in the action. These interveners are not indispensable parties and it could be said, if they were denied intervention, that technically they would not be bound by a judgment against the plaintiffs. On the other hand, as this court also said in the Ford case, at page 28 of 249 F.2d, we ‘think that in a very real sense (the applicants-interveners) would be bound, since obviously such a judgment’ would determine the legal effectiveness of .the attacks against the state court order and judgment * * * and the existence and propriety of defendants’ acts * * *, and the result would certainly establish an adverse precedent for the interveners. Damage would have been done and undue prejudice may result, Clark v. Sandusky, supra, at page 918 of 205 F.2d, and the applicants would be ‘ “bound” by the determinations therein in a very practical sense’, Textile Workers Union v. Allendale Co., supra, at page 767 of 226 F.2d, and would ‘gain or lose by the direct legal operation of the judgment’, Kelley v. Summers, 10 Cir., 210 F.2d 665, 673; Pure Oil Co. v. Ross, 7 Cir., 170 F.2d 651, 653. We prefer to give the word ‘bound’ this utilitarian and realistic interpretation and not the narrow one * * * "

And at 1. c. 112, 278 F.2d:

“ * * * And if the case is close and there are any doubts, the ‘may be’ language twice repeated in Rule 24(a) (2) convinces us that they are to be resolved in favor of the interveners.”

In United States v. C. M. Lane Lifeboat Co., Inc., supra (D.C.,E.D.,N.Y.), 25 F.Supp., 1. c. 411, the court stated:

“It is clear that any judgment rendered against the insurance company would enable the insurance company to proceed against its indemnitors. It is difficult to see what the defense to such an action would be except collusion or fraud or failure to exercise due diligence in the trial of the action in which the insurance company suffers a judgment to be obtained against it. The petitioner certainly has a vital interest in the outcome of this case even though he is not a party to it. It is no answer to assert that he could not have been made a party defendant by the plaintiff. Concededly the plaintiff has no right of action against the petitioner. On the other hand the rule in question, like all of the rules of civil procedure, should be liberally interpreted. The provision quoted would seem to apply in. this case, for a judgment against the insurance company, though it would, not directly bind the petitioner, would,, in the last analysis, do so indirectly. Then too, there is something to be said as to the adequacy of the representation of his interest. He says that he not on friendly terms with the attorney who in effect is representing his interest.”

In the very recent case of City of Independence v. Hare, Mo.App., 359 S.W.2d 33, the city was permitted to intervene in a. suit by an assignee from a contractor against the property owner. Involved was-the validity of the ordinance levying the-assessment. The trial court denied the city’s motion to intervene. The court reversed the trial court with directions to permit the city to intervene because the validity of the ordinance was questioned,, many tax bills had been issued, and it was a. matter of public interest.

An examination of the few cases involving the uninsured motorist coverage indicates that the answer to the question is yet unsolidified, but such opinions as are available indicate that the insurer “may be bound” by a judgment rendered against the-uninsured motorist in the sense it may not dispute the liability of the uninsured motorist or the amount of damages. Boughton v. Farmers Insurance Exchange, supra, Okl., 354 P.2d 1085; Matthews v. Allstate Insurance Co., supra (E.D.Va.), 194 F.Supp. 459; Levy v. American Automobile Insurance Co., supra, 31 Ill.App.2d 157, 175 N.E. 2d 697, 612. In Matthews v. Allstate Insurance Co., supra, 194 F.Supp., 1. c. 466, the court said:

“It is inconceivable to this Court that an insurance company, desirous of affording protection required by the terms of the policy, would not be granted leave by the state court to intervene as a party defendant, or to otherwise have had its own counsel appointed to defend the servicemen. Undoubtedly, the insurance company would like to avoid being named as a party defendant but, if all other avenues of appearance and defense are closed, the right to intervene would apparently exist. The least that can be said is that an effort would be in order.”

In Kirouac v. Healey,, supra, N.H., 181 A.2d, 1. c. 638, it was said that the question of whether insurer would be hound by the suit might he subj ect to considerations unknown, including whether the insurer participated in the pending action.

Some attention must be paid to the provisions of the policy. Under “Conditions,” if the insured brings suit against the uninsured motorist, he is required to furnish a copy of complaint and summons to the company. Of what value and to what purpose is this provision if the insurer is required to sit idly without power or right to intervene to protect its interest in event of default? Insurance policies should receive reasonable interpretations in order to accomplish the intention of the parties. Consumers Money Order Corporation v. Pettit, Mo.App., 358 S.W.2d 422(1, 2); Perkins v. Perkins, Mo.App., 284 S.W.2d 603(1). We think such provision is indicative of the intention that the “accident” insurer should have some right to take some action in a case which determines whether there are facts which make it effectively “bound.”

For the reasons assigned, we believe that, under the facts peculiar to this case, the relator should be permitted to intervene as a matter of right.

We do, however, agree with respondent that relator’s intervention into Count I as a party should be permitted only to the extent of contesting the issues raised by Count I. It is clear that no new or foreign issues can he interjected into such count by the intervenor. Ratermann v. Ratermann Realty & Inv. Co., Mo.App., 341 S.W.2d 280, 287; Pine Lawn Bank & Trust Co. v. City of Pine Lawn, 365 Mo. 666, 285 S.W.2d 679, 685; Davis v. Austin, 348 Mo. 1094, 156 S.W.2d 903, 906; State ex rel. State Highway Commission v. Hudspeth, Mo.App., 303 S.W.2d 703(5). Hence, in Count I, the insurer could not raise any question concerning coverage in its policy.

The subject of the “uninsured motorist” coverage is a new one. Only a few states have statutes which govern (and require) its inclusion in liability policies. The courts have not yet had time or opportunity to work out the mechanics of procedure applicable to this innovation. Probably the most extended discussion will be found in the proceedings of the American Bar Association, Insurance, Negligence and Compensation Law Section, 1960, Procedure, p. 287, et seq. What we have said and held is of course applicable only to this case; and in consideration of circumstances which involve a situation where the insurer has been dragged into the lawsuit by its heels and the trial court has refused to let it out; and that it is an unwilling party to a suit in which (unless by some special order or arrangement) there will be but one final judgment. Counsel for respondent stated in his arguement that it was the intention to try both counts at the same time. As to the various and sundry questions which may or might arise concerning the procedure to be involved in this character of insurance, we express no opinion and intend no holding except as applied to the specific situation before us.

The alternative writ is made permanent.

STONE, J., concurs.

      . See Levy v. American Automobile Insurance Co., 81 Ill.App.2d 157, 175 N.E.2d 607; Childs v. Allstate Insurance Co., 237 S.C. 455, 117 S.E.2d 867; Kirouae v. Healey, N.H., 181 A.2d 634; Boughton v. Farmers Insurance Exchange, Okl., 354 P.2d 1085, 70 A.L.R.2d 1245; Matthews v. Allstate Insurance Co., (E.D.Va.), 194 F.Supp. 459; Allstate Insurance Co. v. Charneski, 16 Wis.2d 325, 114 N.W.2d 489 at 493. See, also, Motor Vehicle Accident Indem. Corp. v. Stein, 35 Misc.2d 1007, 231 N.Y.S.2d 727.

      . See, also. Buffalo Law Review, Vol. 9, p. 283 (1960) ; The Georgetown Law Journal, Vol. 47, p. 724 (1959); Texas Law Review, Yol. 38, p. 163 (1959).


source: Caselaw Access Project

author: CALVERT, Chief Justice.

license: Public Domain

text:
    Dr. Bernard SCHNITZER et al., Petitioners, v. SOUTHWEST SHOE CORPORATION, Respondent.
    No. A-8982.
    Supreme Court of Texas.
    Jan. 30, 1963.
    Rehearing Denied Feb. 20, 1963.
    Saner, Jack, Sallinger & Nichols, Robert F. Ashley, Dallas, for petitioners.
    Rosenfield, Berwald & Mittenthal, Dallas, for respondent.
   CALVERT, Chief Justice.

This appeal is from an order granting a temporary injunction.

Southwest Shoe Corporation sued Dr. Bernard Schnitzer and Sol Alpard for damages for an alleged breach of a lease agreement and sought a temporary injunction during pendency of the suit to prevent a forfeiture of the lease for non-payment of rent. The trial court directed deposit of the rent payments in the registry of the Court and granted the temporary injunction. The Court of Civil Appeals affirmed. 355 S.W.2d 559. We reverse the judgments of the courts below and dissolve the injunction.

Schnitzer and his father-in-law, Alpard, who separately own adjoining buildings located on Garland Road, Dallas, Texas, agreed to operate the properties as an integral unit and were interested in developing the properties into a shopping center. With this business purpose in mind, Schnit-zer negotiated a five-year lease of his premises to Southwest Shoe Corporation for an agreed rental of $39,000.00, payable $650.00 monthly, and providing for a right of forfeiture for non-payment of rent. The lease contains a provision which gives Southwest an exclusive right to sell shoes in the building located on the premises and in buildings of other owners who joined Schnitzer in ratifying the exclusive occupancy provision. Alpard ratified the exclusive occupancy restriction by signing the lease, but, subsequently, leased his adjoining premises to a lessee without informing the lessee of the restrictive covenant. Alpard’s lessee leased to a sub-tenant who sold shoes as a.part of his business operation. Thereupon, Southwest refused to make further rental payments and filed its suit for damages and sought and obtained a temporary injunction against forfeiture of his lease.

The principal question presented in the courts below and in this Court is whether, as a matter of law, the lease violates the anti-trust laws of this State. If it does, the trial court abused its discretion in granting the injunction. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517; Southland Life Ins. Co. v. Egan, 126 Tex. 160, 86 S.W.2d 722, 723; General Telephone Co. of Southwest v. City of Wellington, 156 Tex. 238, 294 S.W.2d 385, 394; Dallas General Drivers, Warehousemen and Helpers et al. v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 874. In so far as Nelms v. Electro-Ball Co., Tex.Civ.App., 157 S.W.2d 681, writ refused, W.O.M., holds to the contrary, it is expressly disapproved.

Texas statutes expressly prohibit trusts; monopolies and conspiracies in restraint of trade. Art. 7426, as applicable here, defines a “trust” as “a combination of capital, skill or acts by two or more persons * * * for * * * ally or ajj -¡-he following purposes:

“1. * * * to create or carry out restrictions in the free pursuit of any business authorized or permitted by laws of this State.
* * * * * *
“3. To prevent or lessen competition in the * * * sale or purchase of merchandise, produce or commodities * *

Art. 7429 prohibits all trusts, monopolies and conspiracies as defined in Art. 7426 and other statutes and declares them to be illegal. Art. 7437 provides that any contract or agreement in violation of the pertinent statutes is “absolutely void and not enforceible either in law or equity.”

The clear purpose of the contract between Schnitzer, Alpard and Southwest was to create and carry out restrictions in the free pursuit of the business of selling shoes on the premises owned by Schnitzer and Alpard, and, to that extent, to prevent or lessen competition with Southwest in the sale of that merchandise. Unless the contract of the parties comes within some recognized exception to the statutory prohibition, it is in violation of the statute as a matter of law.

The rigidity of our anti-trust, monopoly and restraint of trade statutes has undoubtedly been softened in certain exceptional situations. See State v. Gulf Refining Co., Tex.Civ.App., 279 S.W. 526, 530, writ refused, and cases there cited. One of the exceptional situations is that in which an owner, lessor or one in control of premises agrees with another person that the . other person shall have an exclusive right or privilege in or on the premises.. or that the other person will sell on the premises only the products or merchandise of the owner or lessor. Fort Worth & D. C. Ry. Co. v. State, 99 Tex. 34, 87 S.W. 336, 70 L.R.A. 950; Celli & Del Papa v. Galveston Brewing Co., Tex.Com.App., 227 S.W. 941; Edwards v. Old Settlers’ Ass’n., Tex.Civ.App., 166 S.W. 423, writ refused; Redland Fruit Co. v. Sargent, 51 Tex.Civ.App. 619, 113 S.W. 330, no writ history; Cox v. Humble Oil & Refining Co., Tex. Com.App., 16 S.W.2d 285. For discussions of cases of this type, see 3 T.L.R. 349-362; 6A Corbin on Contracts 62, § 1389; 90 A.L. R. 1449. Contracts or agreements of this character are upheld when they are collateral or incidental to a lawful lease or grant of premises in which the lessor or grantor has a property interest.

Southwest asserts that validity of the agreement before us is governed by the decisions just cited. It reasons that any agreement for an exclusive right or privilege on premises is valid if the covenantor “has an interest” to be protected by the covenant. It then argues that inasmuch as Alpard was interested with Schnitzer in the joint development of a shopping center, it is only a reasonable relaxation of the antitrust statutes to hold the agreement valid. None of the cases on which Southwest relies has gone so far. The studied and .carefully selected language used by the Commission of Appeals in Celli & Del Papa v. Galveston Brewing Co., supra, indicates that there has been no intention of going that far. The court placed its decision that the agreement in that case was valid on “the circumstance that defendant was engaged in the manufacture and sale of beer, and was the owner, lessor, or otherwise had control of the premises to which alone the agreement or combination complained of had reference.” (Emphasis ours). 227 S.W. 942.

Outside of the exceptional situations heretofore mentioned, we have rejected appeals for a “reasonable” relaxation of the anti-trust statutes. Anheuser-Busch Brewing Ass’n. v. Houck, 88 Tex. 184, 30 S.W. 869; Grand Prize Distributing Co. of San Antonio v. Gulf Brewing Co., Tex.Civ.App., 267 S.W.2d 906, writ refused; Climatic Air Distributors of South Texas v. Climatic Air Sales, Inc., 162 Tex. 237, 345 S.W.2d 702. The better policy is for the courts to enforce the statutes as written by the Legislature. Moreover, that is our duty.

If the agreement before us related only to the premises owned and leased by Schnit-zer the exclusive right given Southwest would be valid as collateral and incidental to the lease of Schnitzer’s premises. But if two landowners may validly enter into this type of agreement with a lessee of premises of one only, so could a dozen or all in a given area. We are unwilling thus to extend this exception to the anti-trust laws. An agreement similar to the one before us was declared invalid in Smith v. Kousiakis, Tex.Civ.App., 172 S.W. 586, no writ history.

The judgments of the Court-of Civil Appeals and trial court are reversed and the temporary injunction is dissolved.

      . All Article references are to Vernon’s Annotated Texas Civil Statutes.


author: MORRISON, Judge.

text:
    Stanley O’CLAIR, Appellant, v. The STATE of Texas, Appellee.
    No. 35321.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.

      Rex Emerson, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is statutory rape; the punishment, life.

In view of our disposition of this appeal, a recitation of the facts will not be deemed necessary other than to recite that prose-cutrix testified that appellant had been having intercourse with her constantly since she was 9½ years old and until the date charged in the indictment some three years later. She stated that she had lived with him in the State of Massachusetts until some five months later prior to the date charged, when they came to Texas.

Appellant, testifying in his own behalf, denied any of the acts of which he was accused had occurred.

Appellant objected to the court’s charge-because the State had not been required to elect as to which act of intercourse it would rely for a conviction.

The State concedes that they are unable to distinguish this case from Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366, nor are we. In Bates, the rules are fully set forth and have application here, especially in view of the fact that many of the acts proven by the State occurred outside the jurisdiction of this State. Other questions as to the court’s charge will probably not arise upon another trial.

Upon the authority of Bates v. State, supra, and the authorities there cited, the judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Odis Odell PENNINGTON, Appellant, v. The STATE of Texas, Appellee.
    No. 35110.
    Court of Criminal Appeals of Texas.
    Dec. 12, 1962.
    Rehearing Denied Jan. 23, 1963.

      William Lawrence Scarborough, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for robbery by assault; the punishment, confinement in the penitentiary for thirty years.

The case has been three times before this court on appeal from Nueces County, the judgment in each appeal having been reversed by opinions reported in Tex.Cr.App., 332 S.W.2d 569; Tex.Cr.App., 345 S.W.2d 527, and Tex.Cr.App., 353 S.W.2d 451.

The present appeal is from San Patricio County, trial being in the 36th Judicial District Court of that county upon a change of venue.

The state’s testimony shows that on the day in question the prosecuting witness, Robert Doyle Cline, after cashing his pay check at a bank in San Juan, drove to Edin-burg in his 1949 Dodge automobile. Later, he left Edinburg and as he drove out about as far as the city limits he picked up the appellant, Odis Odell Pennington, and two companions, George Huffman and Lester Atkins. The prosecuting witness then proceeded to drive north on Highway 281, making three stops for beer. After the last stop, as he was driving on the highway near Clarkwood in Nueces County and had turned off on a paved road, appellant and his companion, Huffman, who were seated in the rear of the automobile, grabbed the prosecuting witness by the hair, pulled his head back, and then hit him in the face with two beer bottles. They then shoved the prosecuting witness out from under the steering wheel and Atkins started driving the automobile. Appellant then proceeded to get in the front seat and strike the injured party. While Atkins was driving, the prosecuting witness was kicked in the kidney, and after Atkins stopped the automobile the injured party fell out of the vehicle and was left lying on the ground beside his billfold, which contained no money. Appellant was seen by the injured party in his automobile as it was being driven away. The prosecuting witness testified that in the assault a hundred dollar bill was taken from his pocketbook, a Case pocket knife from his pants pocket, and a Scripto pencil from his shirt pocket, and that such property was taken by force and without his-consent.

The state’s proof further shows that appellant and his two companions, Huffman and Atkins, were arrested several days later in Corpus Christi by Officer Fontaine, upon information received by the officer that the robbery had been committed and a warrant had been issued for their arrest. At the time of the arrest, appellant had in his possession the Case pocket knife which the injured party testified had been taken from his person, and appellant’s companion, Huffman, had in his possession the Scripto pencil which had been taken from the injured party in the robbery. In the investigation, •the injured party’s automobile was found abandoned on a road five miles west of Clarkwood, minus the four tires and wheels. Some two days after the robbery appellant sold the tires from the automobile at a service station. It was shown by testimony •of a fingerprint expert that a fingerprint found on a Wm. Penn cigar box in the automobile was that of appellant.

Appellant did not testify.

Appellant predicates his appeal upon ten formal bills of exception. Bill No. One presents appellant’s complaint to the court’s action in overruling his motion to quash the indictment, which motion was filed and presented in the District Court of San Patricio County after venue had been changed to that court. The motion to quash, made after the venue had been changed, came too late. Art. 564, Vernon’s Ann. C.C.P.; Fitzgerald v. State, 87 Tex.Cr.R. 34, 219 S.W. 199. We have, however, examined the indictment and find the aver-ments sufficient to charge an offense.

Bill No. Two presents appellant’s complaint to the court’s refusal to permit his co-principal, George Huffman, to testify upon being called as a witness by him. The bill certifies that the co-principal had been tried, convicted, and was then serving a twenty-five year term for the same offense for which appellant was on trial. The co-principal, having been tried and convicted for the same offense, was incompetent to testify as a witness in appellant’s behalf. Art. 711, V.A.C.C.P.; Sommers v. State, 165 Tex.Cr.R. 575, 310 S.W.2d 106. No error is presented by the bill.

By Bill No-. Three, appellant complains of the court’s action in refusing his motion to examine the members of the jury panel on their voir dire, separately and individually, as in capital cases. No error may be predicated upon the court’s action in the absence of some injury being shown. Barefield v. State, Tex.Cr.App., 331 S.W.2d 754. None is shown by the bill.

By Bills of Exception Nos. Four, Five, Six, and Seven, appellant complains of the court’s refusal to give certain requested instructions to the jury.

The first request was for an instructed verdict of not guilty, because of the insufficiency of the evidence. Under the record, there was clearly no error in refusing this request.

The next request would have instructed the jury that as a matter of law any reference to theft of the automobile or tires should not be considered by them for any purpose. While it was not alleged in the indictment that appellant took the automobile and tires from the injured party, the evidence of such theft by appellant was properly admitted as a part of the res gestae of the robbery. The evidence being admissible, the court properly refused to instruct the jury not to consider the same for any purpose. Qualls v. State, 73 Tex.Cr.R. 212, 165 S.W. 202.

The remaining two requested instructions related to the legality of appellant’s arrest without a warrant. One was an instruction to the jury to acquit appellant unless they believed that at the time he was arrested by Officer Fontaine he was committing a breach of the peace in the presence of the officer. The bill of exception and record show that prior to arresting appellant, Officer Fontaine had received reliable information that the robbery had been committed, that appellant and his companions were wanted for the robbery and a warrant had been issued for their arrest, that he did not have time to secure the warrant which had been issued, and that he believed they were about to escape. With such information and belief, Officer Fontaine was authorized by the provisions of Art. 215, V.A.C.C.P., to arrest appellant and his companions without a warrant. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133. In refusing the requested instruction, no error is shown.

The other request would have charged the jury that as a matter of law any information received by the officer over the radio was in the nature of hearsay and inadmissible. While Officer Fon-taine testified that he did have a conversation over the radio, he was not permitted to testify before the jury as to the contents of the conversation. No hearsay testimony was admitted before the jury; hence the court did not err in refusing to give the instruction requested.

Bill of Exception No. Eight presents appellant’s objection to a supplementary charge given by the court to the jury after they had retired to consider their verdict. It is shown by the bill that after the jury had retired they sent word to the court that they wanted to ask a question. They were then brought into open court and, in the presence of appellant and his counsel, submitted to the court a question in writing which inquired, in substance, as to how long one would have to serve on a sentence to be eligible for parole. In response to such inquiry, the trial judge, over appellant’s objection, instructed the jury in open court by the following written charge:

“ ‘Ladies and Gentlemen of the Jury:
“ ‘In response to your question you are instructed that you must assume that the defendant will serve whatever term of confinement, if any, assessed by the jury and you will not consider the matter of parole in arriving at your verdict.’
[Signed] “‘JOHN H. MILLER JUDGE.’ ”

We find no error in the bill, as the careful trial judge, in communicating with the jury, followed the procedure prescribed by Arts. 676, 677, and 679, V.A.C. C.P., and gave a correct instruction to the-jury.

We find no reversible error in Bill No. Nine, which complains of a certain question propounded to the injured party on direct examination and his answer thereto, which brought out before the jury that he had been told that because-of his cancerous condition he had only from eighteen months to two and a half years to live. The bill of exception certifies that appellant’s objection to the question and answer was by the court sustained, and the jury were instructed not to consider the matter of the injured party’s present and future health for any purpose whatsoever. Appellant made no request for a mistrial.

Appellant’s remaining contention presented by Bill of Exception No. Ten is that there is a fatal variance between the verdict and the judgment and sentence as to the description of the offense for which he was convicted. We find no merit in such contention. The verdict of the jury found appellant guilty “as charged in the first count of the indictment,” which-count charged appellant with commission of the primary offense of robbery by assault. The judgment rendered by the court adjudged appellant guilty of the offense qf “robbery by assault as found by the jury,”’ and the sentence pronounced by the court recited that appellant had been adjudged guilty of “the offense of robbery by assault.” The verdict finding appellant guilty as charged in the first count of the indictment was sufficient when read in connection with the indictment and court’s charge, although it did not specifically name the offense. Caballero v. State, Tex.Cr.App., 346 S.W.2d 343.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    F. Lewis HILL, Appellant, v. The STATE of Texas, Appellee.
    No. 34692.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 16, 1963.
    Second Rehearing Denied Feb. 20, 1963.
    Paul Donald, Joe H. Cleveland, Bowie, for appellant.
    Earl Fitts, County Atty., Montague, Renne Allred, Jr., Sp. Prosecutor, Bowie, and Leon B. Douglas, State’s A tty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, 3 years.

Appellant stands convicted for the theft of $200 in money, which he obtained on February 16, 1959, from the People’s National Bank upon executing a note for that amount.

Prosecution was upon an indictment in the ordinary form for felony theft, but the state relied upon Art. 1413, P.C.

The state contends that appellant obtained possession of the money and Mr. Janeway, Vice President of the bank, was induced to surrender possession of it by false pretext theretofore made in the execution of a chattel mortgage on cattle he did not own, appellant having the fraudulent intent, at the time he came into possession of the money, to appropriate it to his own use, and did so appropriate it.

The evidence is such as to sustain a finding by the jury that appellant, who owned no cattle after 1949, borrowed money from the bank at various times upon notes secured by chattel mortgages on cattle. On January 29, 1959, appellant executed a chattel mortgage on the non-existing cattle to secure a note for $1,131.84 and to secure “all indebtedness hereafter to become owing said bank * * * whether evidenced by note, overdraft or otherwise.11

On February 16, 1959, appellant signed a note for that amount and $200 was credited to his account. Mr. Janeway testified that he relied upon and would not have made the $200 loan on February 16, 1959, but for appellant’s representation that he owned the cattle described in the mortgage.

The court in his charge authorized a conviction upon a finding that appellant obtained and came into possession of the money from Joe L. Janeway “by means of a false pretext then or theretofore made to the said Joe L. Janeway by F. Lewis Hill to acquire possession of said corporeal personal property fraudulently and by means of such false pretext, if any, and that at the time of so acquiring said corporeal personal property, if he did, the defendant F. Lewis Hill then intended to deprive the said Joe L. Janeway of the value thereof, and to appropriate the same to the use and benefit of him, the said F. Lewis Hill, and he did so appropriate the same * *

It was appellant’s contention in the trial court, and he here contends, that proof of a false pretext theretofore made is insufficient where, as here, the evidence shows nothing said or doné at the time possession of the money was obtained.

We are cited to no authority and know of none which requires the false pretext, pretense or representation to be made at the same time possession of the property is obtained.

The court’s charge properly required the jury to find in order to convict that at the time of acquiring the property by means of a false pretext then or theretofore made, appellant then intende-d to deprive the owner of the value thereof and appropriate the property to his own use, and that he did appropriate it.

Art. 1413, P.C., does not provide that the false pretext be made at the time the property is obtained. In fact, a false pretext is not required in all cases, and conviction may be had for theft of property the taking of which, though lawful, was obtained with intent to deprive the owner of the value thereof and appropriate the property to the use and benefit of the person taking, and the same is so appropriated.

The court’s charge required the jury to find that the property was obtained with such intent at the time, and also required the jury to find that it was obtained by false pretext then oY theretofore made.

We find the evidence sufficient to sustain the conviction.

Appellant’s complaint as to the court’s charge is not before us. No exception' to any ruling of the court upon objections to the charge or requested charges is found in the transcript. See Medlock v. State, Tex.Cr.App., 356 S.W.2d 312.

Appellant complains of the introduction of evidence by the state showing loans by the bank to appellant and mortgages and renewal of mortgages on cattle by appellant to the bank prior to the 1959 mortgage. By this means the state was able to show that cattle were mortgaged to the bank, and after they had been sold non-existing cattle and their increase were' mortgaged and additional loans secured from the bank. This evidence appears to have been admissible to show intent of appellant at the time he obtained the $200 for theft of which he was on trial. Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125; Crutchfield v. State, 144 Tex.Cr.R. 291, 162 S.W.2d 699; Lawson v. State, 148 Tex.Cr.R. 140, 185 S.W.2d 439; West v. State, 140 Tex.Cr.R. 493, 145 S.W.2d 580; Hennessey v. State, 23 Tex.Cr.R. 340, 5 S.W. 215; Vaughn v. State, 138 Tex.Cr.R. 62, 134 S.W.2d 290; 1 Branch’s Ann.P.C. 2d 200 et seq., Sec. 188.

The judgment is affirmed.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant takes this Court to task for failure to discuss his complaints as to the charge. Notice of appeal in this case was given on March 7, 1962. It became incumbent upon appellant, under the terms of Article 760d, V.A.C.C.P., to perfect his bills of exception within 90 days thereafter. No bills of exception relating to the court’s charge appear in the record.

On October 5, 1962, long after this case had been set for submission in this Court and long after the 90 days allowed for the preparation of bills of exception had elapsed, we were presented with a certificate from the trial court in which he stated that “The objections and exceptions of the defendant to the court’s charge in this case, and the request for the special charge may be made and put in proper form at a later date at any time within the legal requirements of the law, and the permission of the court is given.” It further recites that “It was the intention of the court at the time of the preparation of this charge for the record to reflect that every special charge requested, and every exception and objection made to the charge, were respectively overruled, except as given in the court’s main charge.”

There is no escape from the conclusion that if this Court considered the above we would in effect be permitting the court to perfect bills of exception relating to the charge for the appellant long after the time provided by statute, contrary to the holdings of this Court in Ortiz v. State, 121 Tex.Cr.R. 438, 53 S.W.2d 58; Tindol v. State, 156 Tex.Cr.R. 187, 239 S.W.2d 396; Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144; Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; and Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291.

Even if we did, we would not be authorized to consider these bills of exception because nowhere do we find that an exception was reserved to the action of the court in overruling the objection and in refusing the .requested charges, as is required to preserve the error by Driver v. State, 105 Tex.Cr.R. 29, 285 S.W. 312, and Sims v. State, 156 Tex.Cr.R. 608, 245 S.W.2d 260.

Appellant urges that we consider his bills of exception even though not filed in time and says that we did so on rehearing in the recent case of Roberts v. State, Tex.Cr.App., 360 S.W.2d 883. A careful reading of the opinion in that case will reveal that we declined to consider such bill and observed, in passing, that if we could it would avail the accused nothing.

Under the peculiar facts of thia case, it became necessary far the State to track the entire history of the financial dealings between appellant and the injured bank in order for the jury to know why the bank would relinquish to appellant the sum of money charged in this indictment in the manner in which the same was done and the means used by appellant in order to build up the bank’s confidence in him as a legitimate businessman, together with the fact that appellant’s representations made to the bank were in fact untrue.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


text:
    Paul MARLAR, Appellant, v. The STATE of Texas, Appellee.
    No. 35353.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    Blanchard & Clifford, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 20 days in jail and a fine of $250.00.

The State confesses error, and we agree. The information in the case was filed July 7, 1962, while the complaint was not sworn to until July 9.

Motions to quash and in arrest of judgment were overruled.

It has long been the rule that a complaint sworn to after the information has been presented will not support a conviction. Womack v. State, 162 Tex.Cr.R. 435, 286 S.W.2d 140, and cases there cited.

The judgment is reversed and the prosecution ordered dismissed.


author: WOODLEY, Presiding Judge. McDONALD, Judge

text:
    Robert WRIGHT, Appellant, v. The STATE of Texas, Appellee.
    No. 35051.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    Rehearing Denied Feb. 13, 1963.

      Allan J. Showers, W. B. Robertson, II, John L. Hill and W. James Kronzer, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Neil McKay and J. R. Musslewhite, Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is rape; the punishment, enhanced under Art. 64 Vernon’s Annotated Penal Code, life.

Art. 64 V.A.P.C. provides that a person convicted a second time of any offense to which the penalty of death is affixed as an alternate punishment shall not receive on such second conviction a less punishment than imprisonment for life in the penitentiary.

The state’s evidence adduced from the prosecutrix shows the following: She was a twenty-six-year-old colored maid. She had three children and was separated from her husband. She was walking from her parents’ home, where she lived, to the bus stop on her way to work, about 6 A.M. A short distance from the bus stop she was approached by a man she identified as the appellant. Although they were not acquainted, as he followed her across the street he attempted to engage her in conversation. Shortly after reaching the corner to wait for the bus, as she was looking for its approach, the appellant grabbed her “from behind,” placed his arm around her neck, thrust a knife close to her side, and kept repeating: “Don’t holler and you won’t get hurt”; and “Don’t holler or I will kill you.” She testified that she was frightened and pleaded with him; that she was forced to walk down the side street about half a block and into an alley to an old “raggedy” garage which contained junk and an old sofa. Appellant took her into the garage and pushed her down upon the sofa, demanding that she “Pull (her) panties off.” Still threatening her with the knife, he took her panties off. She was afraid and did not resist because of the knife. As she was in a half-sitting position lying back against the armrest of the sofa, appellant still holding the knife on her and without her consent, had an act of intercourse with her. Appellant then got up and pulled the witness’ plastic raincap over her eyes, nose and mouth, at which time the witness, fearing she was going to suffocate, raised up and struck appellant a blow and knocked him down. The prosecutrix knocked appellant down a second time after he got up from the first blow. She then ran from the scene to a cabstand, leaving her shoes and panties in the garage. She told the cab driver to call the police. He asked her what happened and the complainant said “A man pulled a knife on me and forced me down the street.” Another man came to the door, showed her the phone and asked her if she wanted to call the police and she said “No, wait, I want to call me mother.” She called her father and mother from the cabstand and told them what had happened and they called the police. She further testified that she was' crying when her parents arrived at the cabstand, and that she and her father went back to the garage and recovered her panties and shoes.

At a line-up in which appellant was present, almost two months after the assault, she identified him by sight and by his voice as the man who raped her.

The investigating officer who went to the scene testified that the garage was an old run-down building with a dirt floor. There was “an old beat up couch and the dirt floor was scuffed up as though someone had been scuffling around and stirring up the dirt and there was a large damp spot on the couch.”

The prior conviction alleged for enhancement purposes was shown by properly authenticated records from the State of Louisiana and expert testimony that the fingerprints on such records were identical to those of the appellant. Appellant also made a judicial confession and admitted that he was the same person who had been convicted of the prior alleged offense.

The appellant’s defense was that of alibi. He and another witness, a married woman whose husband was away temporarily working-in Galveston, both testified that at the time in question, and on the night preceding, appellant had slept with her at her house. This witness testified that she was positive of the date, as her birthday was the next day. The state later impeached her by showing that she had been convicted of a felony and that she had told her probation officer, for the purposes of his records, that her birthday was on a different day than that to which she testified here. Appellant testified that he had never seen the complaining witness before the day of the trial.

The jury rejected appellant’s defense of alibi.

The record contains no formal bills of exception and there are a few informal bills, all of which have been carefully examined and none of which reflect error.

Appellant’s very able court-appointed counsel advances four points, by brief and oral argument, which he contends constitute reversible error.

Appellant’s first contention is that the motion to quash the indictment should have been sustained on the grounds that the nature of the previous conviction should not have been stated in the indictment. We find no merit in this contention. The form of indictment used in the case at bar is almost identical to that suggested in Will-son’s Texas Criminal Forms, 6th Ed., Sec. 2333. The allegations in this particular indictment are of the same nature as allegations made in many indictments drawn under the enhanced penalty statutes, Arts. 61, 62, 63 and 64, V.A.P.C. This Court held in Jenkins v. State, 118 Tex.Cr.R. 556, 40 S.W.2d 109, that allegations in an indictment for rape showing defendant had been previously convicted of a similar offense were not improper. In alleging the former conviction it is not error to allege the nature of the offense. 1 Branch’s P.C.2d 679, Sec. 697; Palmer v. State, 128 Tex.Cr.R. 293, 81 S.W.2d 76; Whittle v. State, 147 Tex.Cr.R. 227, 179 S.W.2d 569.

The appellant next complains that reversible error was committed when the state refused to' accept his judicial confession and stipulate as to his former conviction instead of offering proof of the prior conviction. The appellant could not, hy stipulation, prevent the state from making proof of the prior alleged conviction. Thompson v. State, 170 Tex.Cr.App. 258, 339 S.W.2d 209; Beard v. State, 146 Tex.Cr.R. 96, 171 S.W.2d 869; Stokes v. State, 162 Tex.Cr.R. 401, 286 S.W.2d 141; Parkman v. State, 149 Tex.Cr.R. 101, 191 S.W.2d 743.

Appellant’s third contention is that the evidence is insufficient to support the conviction on the “uncorroborated and impeached testimony” of the prosecuting witness as to the identity of the appellant. Appellant’s counsel argues that he had been unable to find any cases in which this court has sustained a conviction without there being some supporting corroborating facts or circumstances.

In this connection able counsel point out in their brief the absence of any evidence other than the testimony of the prosecutrix that a rape was committed upon her or that the appellant was in the vicinity where the rape occurred. He points out various inconsistencies between the statements of the prosecutrix to the police which were placed in evidence and her testimony at the trial, such as her testimony that appellant took her panties off, and her statement that appellant made her take them off; her testimony that appellant was 5 feet 10 or 11 inches tall, and her statement describing her assailant as about 5 feet 6 inches tall.

The discrepancies were before the jury who saw fit to believe the testimony of the prosecutrix despite the impeachment evidence. We are not at liberty to substitute our findings for those of the jury.

The jury was the trier of facts. It was the jury’s prerogative to determine the credibility of the witnesses and the weight to be given their testimony. Corroboration is only required in those rape cases where a belated outcry was made. The facts adduced from tire record indicate that the prosecutrix reported the offense shortly after its commission. There is no merit in this contention. See Hughes v. State, 136 Tex.Cr.R. 210, 124 S.W.2d 349; Gray v. State, 130 Tex.Cr.R. 289, 93 S.W.2d 1146.

The court submitted to the jury the law of rape by threats as well as rape by force and in this connection instructed the jury: “ * * * to constitute rape hy threats the Defendant must have ravished * * *, the alleged injured female, by having carnal knowledge of her against her will and without her consent by the use of threats, and the threats used, if any, must have been such as might reasonably have created in the mind of the said * * * a just fear of death or great bodily harm to her, in view of the relative condition of the parties, as to health, strength and other circumstances of the case; and the penetration of the sexual organ of the said * * * by the male organ of the defendant must be proved beyond a reasonable doubt.”

There are no exceptions relating to the charge.

The jury having returned a general verdict finding appellant guilty as charged, the verdict must be applied to the phase of the offense charged in the indictment which is supported by the evidence. Adair v. State, 155 Tex.Cr.R. 377, 235 S.W.2d 170.

There being sufficient evidence to support a finding by the jury that appellant obtained carnal knowledge of the prose-cutrix without her consent by threats to kill her, while holding a knife at her side, we need not pass upon the question of whether the prosecutrix offered the resistance required where the state relies upon rape by force or by a combination of force and threats.

The last contention made is that appellant’s constitutional and statutory rights were violated because he was required to make oral statements and utterances to assist the complaining witness in identifying him as her assailant. This contention is now raised for the first time by appellant’s brief. No objection was taken to this testimony in the trial of the case. We also observe that the identity of the appellant was positively shown by the prosecutrix’ testimony two different times prior to this complained-of evidence, without objection. The contention is without merit.

Finding the evidence sufficient to sustain the jury’s verdict and no reversible error appearing, the judgment is affirmed.

McDONALD, Judge

(dissenting).

I respectfully dissent because I am constrained in this case to believe that the testimony of the State is such as does not comport with human experience and with reason.

The prosecutrix vividly demonstrated her physical prowess by twice “flooring” her assailant — not for raping her and not through fear of the knife but on account of the raincap being placed over her mouth and nose. She possessed this same ability and strength at the time of the intercourse a very few minutes earlier. Had she utilized her strength and approximate forty to fifty-pound weight advantage of her two hundred ten pounds over the appellant’s one hundred sixty or one hundred seventy-five pounds, she could and would have no doubt repelled his advances and put an end to his lustful desire to have intercourse with her. This, I think, was incumbent upon her to do. I feel that this case is controlled by our holding in Perez v. State, 50 Tex.Cr.R. 34, 94 S.W. 1036.

The evidence in Perez’s case, supra, is a great deal more cogent than in this case, for the reason that Perez, from the State’s testimony, had a pistol in his hand and laid it down by the head of the prosecutrix at the time of the commission of the offense. The material question in Perez was the sufficiency of the evidence to sustain the conviction. In a very able opinion, Judge Henderson, speaking for this Court, said:

“Threats apart, every exertion in her power under the circumstances must be made to prevent the crime, or consent will be presumed. Mooney v. State, 29 Tex.App. 257, 15 S.W. 724; Rhea v. State, 30 Tex.App. 483, 17 S.W. 931. In determining the sufficiency of the force, or the effect of the threat, when both are in proof, it is proper to consider the cogency which the threats may have contributed to the force to intensify the influence which the force may have imparted to the threat. Sharp v. State, 15 Tex.App. 171. Bass v. State, 16 Tex. [App.] 62. The mere formal statement of the prosecutrix that she did not consent will not be the criterion. Although some force be used, yet if she does not put forth all the power of resistance which she was capable of exerting under the circumstances, it will not be rape.”

It is evident from reading the opinion that the prosecutrix in Perez’s case, supra, was afraid; that she made or threatened to-make some smothered cry, and appellant threatened her.

It is my view that the State made a stronger case in Perez, supra, than they did in the case at bar. Perez reflects no attack upon the appellant by the prosecutrix, as we have in this case. The prosecutrix,, here, testified that she knocked the appellant down twice. While it is true, from her testimony, that she struck appellant and knocked him down twice after the attack had been made upon her by him, it does vividly portray her size, strength, and the resistance that she was capable of making. These pertinent evidentiary facts lead me to the inescapable conclusion that had the prosecutrix resisted commensurate with her strength and ability, there would have been no rape.

I believe in the proper enforcement of the law, and I am loathe to disturb the verdict of juries. The writer is also aware that in this character of case, where the minds of jurors are easily excited and inflamed, how prone they are to return verdicts of guilty and visit upon the defendant in such cases, under the laws of this State, confinement in the penitentiary for life. While this Court might not have adhered rigidly to the holding in Perez, supra, in many years, I still find the opinion followed by this Court. I can find no basis to distinguish the case at bar from the Perez case. The writer feels that Perez, supra, should be overruled if this case is affirmed.

I have carefully considered every facet and all of the facts, and I am unwilling to lend the sanction of my approval to what I regard as insufficient evidence.

I think the judgment of the trial court should be reversed and the cause remanded.


text:
    Warren Lee MOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 35211.
    Court of Criminal Appeals of Texas.
    Feb. 6, 1963.
    John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Theodore P. Busch and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Assault with intent to murder with malice is the offense; the punishment, seven years in the penitentiary.

The state’s proof shows that appellant and the injured party, Frances Marie Mc-Elwee, had lived together as common law husband and wife in the city of Houston. During the month of December, 1961, a disagreement arose between them and they ceased living together. On December 12, which was a few days after their separation, appellant went to where the injured party was employed to talk with her about a reconciliation. The injured party got off from work around 12:30 o’clock p. m., and appellant left the place with her. Later in the evening as the two were walking toward her house in the 3100 block of Lyons Avenue, appellant shot the injured party five times with a .22 calibre pistol, the bullets striking various portions of her body from the buttocks to the neck. It was shown by the testimony of the injured party and other witnesses to the shooting that the shots were fired by appellant as the injured party was running away from him, the last shot being fired after she had fallen.

It was further shown that, after firing the shots, appellant fled from the scene and some two hours later surrendered to the officers and told them he was involved in the shooting. After being duly warned, appellant made and signed a written statement, which was introduced in evidence by the state, in which he admitted firing the shots at the injured party.

Testifying as a witness in his own behalf, appellant admitted shooting the injured party, and in support of his application for suspended sentence stated that he had never been convicted of a felony in this or any other state.

Several character witnesses were called by appellant and testified that his general reputation for being a peaceable and law-abiding citizen was good. Upon cross-examination, the state asked some of the witnesses if they had heard that in April, 1955, appellant was arrested for carrying a pistol and also if they had heard that he had shot the injured party in the month of August, 1961. None of the witnesses testified that they had heard of the arrest in 1955, hut two of the witnesses testified that they had heard of appellant shooting the injured party in August, 1961.

While testifying as a witness in his own behalf, appellant explained fully the occasion of his arrest in 1955, and testified that at such time he was arrested for carrying a pistol, placed in jail overnight, and released the next day without any charges being filed. Appellant also explained the matter of his shooting the injured party in August, 1961, stating that he did shoot her as the result of an argument but that no charges were filed against him.

Appellant’s sole contention on appeal is that the court erred in failing to limit in his charge the jury’s consideration of the testimony relative to his arrest in 1955 and his shooting the injured party in 1961.

As heretofore shown, the testimony regarding appellant’s arrest in 1955 for carrying a pistol was introduced by appellant on his direct examination. The questions propounded by the state on the cross-examination of his character witnesses and answered in the negative were as to whether they had heard that appellant was arrested for carrying a pistol. In Hogan v. State, 147 Tex.Cr.R. 75, 178 S.W.2d 525, it was held that where the accused brought out in his testimony a prior theft conviction, a charge limiting the jury’s consideration of such testimony to the matter of his credibility as a witness was not required. The accused could not impeach himself as a witness.

Wiley v. State, 153 Tex.Cr.R. 370, 220 S.W.2d 172, relied upon by appellant, is not here applicable, because in that case the testimony relative to certain prior acts of misconduct and charges against the accused was introduced by the state on cross-examination of his character witnesses. The testimony was not introduced by the accused, as was done by appellant in the present case.

Under the record presented, the court did not err in refusing to restrict the jury’s consideration of the testimony regarding appellant’s arrest in 1955.

Nor did the court err in refusing to restrict the jury’s consideration of the testimony relative to appellant having shot the injured party in 1961.

Appellant having, himself, testified fully as to the shooting rendered unnecessary an instruction by the court limiting the jury’s consideration of such testimony. Johnson v. State, Tex.Cr.App., 332 S.W.2d 709.

Furthermore, the testimony relative to appellant shooting the injured party in 1961 was admissible as original evidence to show malice, intent, and motive on the part of appellant. Such testimony being admissible to prove a main issue in the case, a charge limiting the jury’s consideration thereof was not required. Whiteside v. State, 115 Tex.Cr.R. 274, 29 S.W.2d 399; Hamilton v. State, 41 Tex.Cr.R. 644, 56 S.W. 926.

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

Opinion approved by the Court.


text:
    Mark Conner MANSELL, Appellant, v. The STATE of Texas, Appellee.
    No. 35066.
    Court of Criminal Appeals of Texas.
    Jan. 2, 1963.
    Rehearing Denied Feb. 20, 1963.

      James S. McGrath, Alfred S. Gerson, Beaumont, for appellant on appeal only.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for assault with intent to murder with malice; the punishment, confinement in the penitentiary for twenty-five years.

At the outset, appellant urges his motion to reverse and remand the cause without consideration of the record, on the ground that he has been denied the right to perfect his bills of exception through no fault of his own.

The record reflects that on August 23, 1962, appellant filed six bills of exception with the clerk of the court, which date was the 90th day after the date notice of appeal was given. The following day, August 24, the court, upon his attention being called to the bills by the clerk, proceeded to examine them and by orders duly entered thereon refused to approve two of the bills, stating his reasons therefor, and approved four of the bills — one without amendment or correction and three with certain qualifications and corrections.

In his motion to remand, which was duly verified, appellant states that at no time was he notified by the clerk of the court that the bills had been refused, qualified, or in any way changed or amended by the court and that it was not until September 12, 1962, when he went to the clerk’s office, that he learned of the court’s action.

Appellant insists that since he was not immediately notified by the clerk of the court’s action in refusing the bills, as required by Art. 760d, Vernon’s Ann.C.C.P., and did not receive notice of the court’s action in time to file bystanders bills within the fifteen-day period provided for by Art. 760d, supra, that he was deprived of the right to perfect his bills and that the cause should be reversed and remanded.

While it is the clerk’s duty under Art. 760d, supra, to immediately notify the defendant or his counsel that the trial judge has refused the bills of exception, it does not necessarily follow that where the clerk fails to give such notice the cause will be reversed and remanded. In passing upon bills of exception filed under Art. 760d, supra, and refused by the court after the time allowed by statute had expired, we have consistently declined to consider the failure of the clerk to notify the judge of the filing of such bills, and have considered the bills as filed and approved. We conclude that the same rule must be applied where the clerk fails to notify the defendant or his counsel that the court has refused his bills. Under the decisions of this court prior to the enactment of Art. 760d, supra, where an accused was entitled to have a bill of exception considered or the cause reversed because it was denied him, it has been the practice to consider the bill. Rosa v. State, 86 Tex.Cr.R. 646, 218 S.W. 1056; Blackshear v. State, 123 Tex.Cr.R. 111, 58 S.W.2d 105; and Stewart v. State, 137 Tex.Cr.R. 39, 127 S.W.2d 903.

The state’s proof shows that on the night in question the injured party and his brother were traveling west on Highway 90 toward Dayton, in Liberty County, when the injured party drove his automobile around an automobile being driven by appellant. A companion was riding with appellant. Appellant then proceeded to overtake and pass the injured party’s vehicle and the injured party again drove around the appellant’s automobile. Appellant then passed the injured party’s vehicle a second time and the injured party, in turn, drove around and passed appellant’s vehicle for the third time. As the two vehicles were traveling down the road in the city of Liberty, appellant bumped the injured party’s vehicle from the rear. Thereupon, both vehicles were stopped and the occupants got out. The injured party testified that as he was standing by his vehicle with his elbow on the door, appellant walked up to him and he asked appellant: “ ‘What's wrong with you ?’ ”; that appellant then mumbled something and struck him on the side of the face with a broken beer bottle, which cut the left side of his neck in the region of the jugular vein. The proof shows that after he was struck, the injured party ran and was pursued by appellant. After the injured party ran around a building, two men drove up in an automobile and carried him to a hospital, where he was treated for his injuries and for shock.

It was shown by the hospital records that when admitted to the hospital the injured party was in a state of shock from loss of blood and had certain facial lacerations. A temporal artery had been severed, such being “one of the largest arteries running outside of the head supplying the entire scalp and this entire area of this side of the face, the left side,” as testified to by Dr. Donald Paul Schulz, one of the attending physicians. At the time of his admission to the hospital, blood was spurting ten or twelve inches from the injured party’s wound, his pulse was dangerously low, and he was given a large quantity of glucose and dextrane and transfusion of whole blood. The injured party was confined in the hospital for five days. Dr. Schulz testified that the injured party’s wound was of a serious nature and that he would have died if he had not received adequate medical attention.

Testifying as a witness in his own behalf, appellant stated that after both automobiles stopped, the injured party and his brother got out of their automobile and advanced toward him; that he observed something flash in the injured party’s hand and after the injured party struck him he grabbed a beer bottle which had fallen out of the automobile and struck the injured party with it. Appellant stated that the bottle was not broken until it struck the injured party, and further testified that he had no intention of taking the injured party’s life and that he acted in self-defense.

The court submitted to the jury in his charge the issues of appellant’s guilt of assault with intent to murder with and without malice, aggravated assault, simple assault, and his plea of self-defense.

We will discuss appellant’s Bills of Exception Nos. 1, 2, and 4, which present his contention that the verdict returned by the jury was invalid.

The record shows that after the jury had deliberated for approximately thirty or forty minutes they returned into court with the following verdict:

“We, the jury, find the defendant guilty as charged, attempted murder with malice aforethought; and ocess the maximum penalty of twenty-five years imprisonment.
“Mrs. Helen Tillman
Foreman of the Jury”

The court, upon receiving the verdict from the clerk, inserted between the words “charged” and “attempted,” in his own handwriting, the words “in the indictment” and then read the verdict to the jury, who stated that it was their verdict.

Appellant insists that the verdict returned by the jury was insufficient to support the judgment and sentence because it was not responsive to the crime charged; that it did not specify the grade of offense for which appellant was convicted; and that the court’s attempt to correct the verdict without first securing the jury’s consent and approval was improper.

We are unable to agree that the verdict returned by the jury was not responsive to the crime charged.

The indictment charged in a single count the offense of assault with intent to murder with malice aforethought. The jury, in their verdict, found appellant guilty “as charged.” When construed in connection with the charge laid in the indictment, the verdict shows the jury’s intention to find appellant guilty of assault with intent to murder with malice, and is sufficient. McGee, et al., v. State, 39 Tex.Cr.R. 190, 45 S.W. 709; Figueroa v. State, 71 Tex.Cr.R. 371, 159 S.W. 1188; Barnes v. State, 116 Tex.Cr.R. 222, 34 S.W.2d 605. Such intention being shown, the words “attempted murder” contained in the verdict may be treated as surplusage.

While the jury did not specify the grade of offense, the punishment assessed could only be applicable to the offense of assault with intent to murder with malice and therefore the verdict was sufficient. Scott v. State, 60 Tex.Cr.R. 318, 131 S.W. 1072; Lewis v. State, 86 Tex.Cr.R. 135, 217 S.W. 695.

The court’s action in inserting the words “in the indictment” in the verdict without first securing the jury’s consent would not vitiate the verdict, as it was sufficient without the words inserted by the court. Furthermore, the jury later ratified the verdict after the words were inserted. Scott v. State, 97 Tex.Cr.R. 105, 260 S.W. 864.

We have reviewed the authorities cited by appellant and find that in the cases cited, the jury in their verdict found the accused guilty of an offense not charged in the indictment. Such is not the case at bar.

We are unable to agree with appellant’s other contention that because the jury only deliberated between thirty and forty minutes before returning their verdict, the judgment should be set aside. In 42 Tex.Jur, Sec. 334, at page 425, it is stated:

“There is no rule of practice or law fixing any specified time for the jury to deliberate, and so the return of a verdict shortly after their retirement cannot be successfully objected to.”

See, also: Curry v. State, 96 Tex.Cr.R. 267, 257 S.W. 269.

By Bill of Exception No. 3 and informal Bill of Exception No. 1, appellant complains of the court’s action in failing to require the court reporter to prepare a statement of facts in time for filing within ninety days after notice of appeal was given, upon affidavit being made by appellant of his inability to pay court costs. The record reflects that the court did order the court reporter to prepare a statement of facts in narrative form, which was prepared and filed in the cause after the ninety-day period. The court did not err in authorizing the statement of facts to be prepared and filed more than ninety days after the date notice of appeal was given, as the court was authorized under Sec. 4 of Art. 759a, V.A.C. C.P., to extend the time, upon good cause shown, for filing the statement of facts after such period of time. Nor may the appellant complain of the court’s action in ordering the preparation of a statement of facts in narrative form. Sec. 5 of Art. 759a, supra, provides as follows:

“When a defendant in a felony case appeals and is not able to pay for a transcript of the evidence, he shall make an affidavit of such fact and upon the making of such affidavit the court shall order the official court reporter to make a Statement of Facts in narrative or question and answer form, as the defendant in said affidavit shall request. * * * ”

Appellant made no request for a statement of facts in question and answer form.

Bill of Exception No. 5 presents appellant’s complaint to the court’s action in refusing his request for permission to file a trial amendment to his amended motion for new trial setting forth as additional grounds for new trial that the jury in their deliberations discussed the parole law. Such request was made at the time of hearing of appellant’s amended motion for new trial. While Art. 755, V.A.C.C.P., provides that a motion for new trial may be amended by leave of the court, the bill does not contain the affidavit of any juror as to the alleged misconduct and there is no showing as to what any juror would have testified. In the absence of such an affidavit or showing, we are unable to say that the trial court abused his discretion in refusing to grant appellant leave to file the trial amendment.

By Bill of Exception No. 6, appellant complains of the court’s action in overruling his application for change of venue. The bill of exception and record reflect that appellant filed his application for change of venue, supported by the affidavit of two compurgators, in which he alleged the existence of so great prejudice against him in Liberty County that he could not obtain a fair and impartial trial. The application was controverted by the state upon the affidavit of W. G. Woods, Jr., County Attorney of Liberty County, in which he swore that he was cognizant of the means of knowledge of the compur-gators and that:

“ * * * their said means of knowledge are not sufficient to support and justify the statements contained in their said affidavits; that the said Philip Benestante and C. Holder, had not sufficient acquaintance and knowledge of the people throughout Liberty County with reference to the matters contained in said statement and affidavits, and had not sufficient information with reference to the matters in said motion contained as to justify their statement that prejudice existed in Liberty County against defendant, that they were wholly unacquainted with the feelings and condition of the sentiment in Liberty County in relation to the case, and that they had not been over the County sufficiently to form a correct idea with reference thereto and are mistaken as to the extent of prejudice.”

Art. 567, V.A.C.C.P., provides as follows:

“The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the application granted or refused, as the law and the facts shall warrant.”

The controverting affidavit was sufficient to attack the means of knowledge of appellant’s compurgators and to raise an issue requiring the introduction of evidence, the burden being upon the applicant to show the existence of prejudice. Lemons v. State, 59 Tex.Cr.R. 299, 128 S.W. 416; Carlile v. State, 96 Tex.Cr.R. 37, 255 S.W. 990. The record presents no evidence introduced on the issue.

We are unable to agree that because it was stated in the controverting affidavit that the compurgators were “mistaken as to the extent of prejudice” it was insufficient to join issue on the question. See: Lemons v. State, supra. With the record before us, we are not bound by the court’s certification in the bill that the controverting affidavit was insufficient as a matter of law. Sublett v. State, 158 Tex.Cr.R. 627, 258 S.W.2d 336; Free v. State, 165 Tex.Cr.R. 374, 307 S.W.2d 808. We find no error in the bill.

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

Opinion approved by the court


author: McDonald, judge.

text:
    Joe JIMINEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 35150.
    Court of Criminal Appeals of Texas.
    Jan. 9, 1963.
    Rehearing Denied Feb. 20, 1963.
    John J. Herrera (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Howell E. Stone, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the offense of rape upon a female under the age of fifteen years. He entered a plea of guilty, and his punishment was assessed at the minimum penalty, five years’ confinement in the State penitentiary.

The appellant, by his brief, challenges the sufficiency of the evidence to sustain the conviction. He specifically contends that the State failed to establish by legally competent evidence that the prose-cutrix was not the wife of the appellant. The stipulated evidence introduced before the jury shows that the complaining witness said, “I went to a Rock and Roll show with my step-sister, Mary Jesus Jiminez, and her husband, Joe Jiminez.” The evidence also shows the prosecutrix was thirteen years of age. The rule applicable has been stated as follows:

“If the female is shown to have been under fourteen years of age when defendant obtained carnal knowledge of her, she could not have been the wife of the defendant, and such proof is sufficient to show that she was not the wife •of the defendant.” 4 Branch’s Ann. P.C., 2d Ed., Sec. 1947, and the cases there cited.

The appellant, being married to the stepsister of the prosecutrix, could not have been the husband of the prosecutrix.

The evidence is amply sufficient, upon the appellant’s plea of guilty, to sustain the jury’s verdict.

The appellant also contends that the prosecutrix’s name as charged in the indictment was Gloria Carrillo and that the proof established that the true name of the prosecutrix was Gloria Rodriguez Carrillo, and, therefore, a variance resulted. Article 401, Vernon’s Ann.C.C.P., provides that in alleging the name of any person necessary in the indictment other than the •defendant, it shall be sufficient to state one •or more of the initials of the Christian name and the surname. It is a well known principle of law that the middle name or middle initial is not considered and is of no consequence. Delphino v. State, 11 Tex. App. 30.

The appellant further contends that he entered his plea of guilty out of a sense of fear and representations made to him by his counsel. Counsel representing him on his plea of guilty appears to have been counsel of his own choice.

The record contains a statement of facts of the evidence adduced on the motion for a new trial. Suffice it to say, there was ample evidence before the trial court to find against the appellant upon his contentions.

Finding the evidence sufficient to sustain the verdict, and no reversible error appearing, the judgment is affirmed.


text:
    William James PADGETT, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 35143.
    Court of Criminal Appeals of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 20, 1963.

      Charles W. Tessmer (on appeal only), Dallas, for appellant.
    Henry Wade, Dist. Atty., John Rogers, Mark Troy, Jr., and Emmett Colvin, Jr., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving while intoxicated, subsequent offense, á felony; the punish- ’ ment, confinement for two years' in. jail.

The previous conviction of appellant for the misdemeanor offense of driving while intoxicated was stipulated by agreed testimony.

D. L. Burgess, a police officer of the city of Dallas, testified that he and his partner arrested appellant near Fair Park and that appellant was speeding, changing lanes, and had his car lights off. The officer testified that in'his opinion the appellant was intoxicated. He further testified that he took a .38 calibre pistol from appellant; that he was handcuffed and forcibly placed in the squad car; that the radio in the squad car was used to summon Detectives Leavelle- and Boyce; and that thereafter they carried appellant to the “Homicide office.”

Paul T. McWhorter, a police officer, testified that he was working with D. L. Burgess-on the night in question. His testimony as-to the main facts and as to the manner in. which appellant was driving and his physical condition was substantially the same as-Officer Burgess’s testimony. The witness-further testified that when he approached, appellant’s car to make the arrest he saw three billfolds lying in the front seat of the-car and that they belonged to three different people, according to identification in the billfolds, the name “Butler” being on one of the billfolds. The witness also testified that on arrival at the police station he and his partner took appellant to Leavelle and Boyce, homicide officers, and that after detectives at the police department talked to-appellant the homicide detectives told him. and his partner to place appellant in jail.

James R. Leavelle, detective of the homicide and robbery bureau, testified that he-saw appellant on the night of the arrest at Second Avenue, that he recognized him at that time and instructed the arresting officers to take him to the homicide and robbery-office, where he met them later. He further testified that appellant smelled of alcohol,, was unsteady on his feet and in his opinion, was intoxicated.

George Butler testified that he was working as a bar tender at .the Fair Park bar on the night of appellant’s arrest. He identified him as a man who came into the bar on the night in question with a fifth of whisky. According to the witness’s testimony, he saw appellant drinking the whisky at the bar after serving him a setup and he observed that appellant had a gun. Butler testified that he (Butler) had with him that night a billfold with the name “Butler” thereon in red letters. He further testified that appellant “made [us] go in the back” when he (appellant) left; that he and Bobby Bull, who had charge of the bar, went down to the city hall the next day and identified the appellant; that appellant was not drunk when he came into the bar hut that he might have had enough liquor to be drunk ■when he left.

Mrs. Joyce Padgett testified that appellant ■was her husband and that he was a union boiler maker and building contractor; that •on the night in question, December 29, 1960, which was on Thursday, he was at home ■until approximately 10:30 o’clock; that he was ill and had been taking “Dristan” •throughout the day; and that after watching television he decided, around 10:30 ■o’clock, to go see a colored man named Wesley about employing him on a job. 'The witness further testified that appellant had no intoxicating beverages to drink that day at home and that she was with him .all day.

Appellant has brought forward no formal bills of exception. He makes complaint, by informal bills of exception, of two propositions which he contends constitute reversible error.

Appellant first contends that the trial court fell into error in admitting evidence of an -extraneous felony offense, armed robbery. We observe that appellant filed a motion to suppress, in limine, requesting the court to instruct the district attorney and any and .all witnesses who might testify not to mention or refer or allude to in any manner the fact that he (appellant) was charged with -the offense of robbery, for the reason that Re was not indicted nor convicted for that offense. The trial court granted appellant’s motion.

This motion to suppress does not constitute a bill. While used extensively in the federal courts of this country, a motion to suppress evidence in advance of proffer does not obtain in this state. Johnson v. State, 111 Tex.Cr.R. 395, 13 S.W.2d 114; Bailey v. State, 157 Tex.Cr.R. 315, 248 S.W.2d 144; Spencer v. State, 157 Tex.Cr.R. 496, 250 S.W.2d 199; Dominguez v. State, 161 Tex.Cr.R. 124, 275 S.W.2d 677; Gonzales v. State, Tex.Cr.App., 361 S.W.2d 393. The motion does not qualify as an informal bill under Art. 760e, Vernon’s Ann. C.C.P. We find no authority to suggest a change, and we still follow the rule in this state that timely objection is to be made at the time the evidence is offered. Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715, and cases there cited.

The complained-of testimony was adduced by an assistant district attorney when he inquired of state’s witness McWhorter if he had booked appellant on some charge when he placed him in jail and the officer replied: “Yes, sir, I placed him in jail for investigation of Armed Robbery.” . We note that objection was taken and sustained but that subsequent to this ruling the court made an additional ruling, stating: "I’ll overrule that.”

While it is not entirely clear to us what the trial judge was referring toj wé assume that it was evidently a change in his previous ruling.

A general objection was then taken by appellant’s counsel and state’s counsel-inquired: “What did you place him in jail for, Officer?,” after which appellant’s co-counsel stated: “Note our exception.” The witness then replied: “We placed him in jail for investigation of Armed .Robbery.”

Appellant’s counsel did not move the court to exclude this testimony, nor did he move the court to instruct the jury to disregard it, nor did he make a motion for a mistrial. Appellant’s counsel then took the witness on recross examination and fully developed from him that the appellant had been placed in jail for investigation of armed robbery but that he had not been filed on for armed robbery; that he had not been down to court to testify against the appellant for armed robbery but that the grand jury had in fact refused to indict him for armed robbery. State’s counsel then further examined this witness on redirect examination and at the conclusion of such examination counsel moved the court for a mistrial, reciting as his reason the officer’s testimony that appellant had been placed in jail for “ ‘investigation ' of .Robbery with Firearms.’ ” The court overruled the motion, and exception was taken.

We think that it was incumbent upon appellant’s counsel to initially move the court to exclude the objectionable testimony and instruct the jury to disregard it and not consider it for any purpose and then to move the court for a mistrial. We are of the opinion that appellant’s counsel, by adducing evidence showing that appellant had been no-billed by the grand jury for armed robbery, rendered harmless any error that might have been created by the admission of evidence showing that appellant was filed on or booked for armed robbery. Bedford v. State, 75 Tex.Cr.R. 309, 170 S.W.2d 727; McIntosh v. State, 148 Tex.Cr.R. 468, 188 S.W.2d 165. See, also: Hopkins v. State, 162 Tex.Cr.R. 103, 282 S.W.2d 232. Just prior to the state resting its case, the court instructed the jury as follows:

“Ladies and Gentlemen, when the last officer was on the witness stand, the State asked him a question, ‘What did you book the Defendant for?’ And the officer said, ‘Robbery’; I instruct you not to consider that remark or that statement to the question, nor the answer for any purpose.”

Appellant’s counsel made no complaint to this gratuitous ruling of the court and did not move for a mistrial.

From what we have said, we do not think that any harmful error is reflected by appellant’s first proposition. This contention is without merit.

Appellant’s second contention is that the trial court erred in permitting the assistant district attorney to inject new and harmful facts into the case in his closing argument to the jury. We have carefully read the entire argument made to the jury. We think that the complained-of argument was a reasonable deduction from the facts in evidence and was not improper. Also, the statements made were in response to the argument of appellant’s counsel and were proper retaliatory remarks, to which the appellant can have no complaint.

The second proposition or contention advanced by appellant is overruled.

We find the evidence sufficient to sustain the verdict. Finding no reversible error, the judgment is affirmed.