author: DAVIS, Commissioner.

text:
    The FIRST NATIONAL BANK OF MAYFIELD, Executor of the Will of Ed Gardner, Deceased, Appellant, v. Bunk GARDNER, Jr., Appellee.
    Court of Appeals of Kentucky.
    Feb. 28, 1964.

      James W. Stites, S. Russell Smith, Edwin H. Perry, Louisville, Malcolm R. Boaz, Mayfield, for appellant.
    Charles I. Dawson, Edwin F. Schaeffer, Jr., Louisville, David R. Reed, Paducah, L. M. Tipton Reed, Mayfield, for appellee.
   DAVIS, Commissioner.

This appeal presents another facet of the litigation which has arisen incident to the will and codicils of the late Ed Gardner. Some of the pertinent background may be had by reference to four previous decisions of this court relating to other phases of the matter: Commonwealth ex rel. Ferguson v. Gardner, Ky., 327 S.W.2d 947; First National Bank of Mayfield v. Stahr, Ky., 329 S.W.2d 582; First National Bank of Mayfield v. Gardner, Ky., 330 S.W.2d 409; and First National Bank of Mayfield v. Lisanby, Ky., 354 S.W.2d 32.

Appellant instituted this action in the Graves Circuit Court seeking recovery of $38,928.01 alleged to have been spent by it in order to ascertain and demonstrate to the satisfaction of the Graves County Court that a purported codicil to the will of Ed Gardner was a forgery. Appellee’s motion to dismiss the complaint on the ground that it failed to state a claim upon which relief could be granted was sustained by the trial court. CR 12.02. The sole question is whether the complaint does allege facts which would entitle the appellant to relief.

The allegations of the challenged complaint are embraced in thirteen numbered paragraphs which we summarize as follows :

Appellant is the qualified executor of Ed Gardner, and a nine-page will and a one-page codicil were admitted to probate June 12, 1958, by the Graves County Court as the last will of Ed Gardner. On January 4, 1959 (about seven months after the probate of the Gardner will) an unstamped letter was found in the mailbox of C. C. Wyatt, Jr., dated May 18, 1958, and purportedly signed by the ■decedent, Ed Gardner. This letter is referred to as the “Dear Charles” letter. The text of the “Dear Charles” letter informed Wyatt that Ed Gardner had on January 8, 1952, written a codicil to his will and secreted it between bricks of an' ■open-air wishing well at his home. The letter directed Wyatt to go to the well, in the company of three other persons, where he would find the codicil unless it had been found earlier or carried away by animals.
Wyatt followed the letter’s instructions ■on January 4, 1959, and did find an instrument purporting to be a codicil to the will of Ed Gardner. The paper was dated January 8, 1952, and is referred to as the “wishing well” codicil. The two persons whose names appeared as subscribing witnesses on the “wishing well” codicil had died before May 18, 1958, the date of the “Dear Charles” letter. The provisions of the “wishing well” codicil substantially increased the benefits to appellee, Bunk Gardner, Jr., in the Ed Gardner estate. Wyatt delivered the “wishing well” codicil to appellant on January 4, 1959.
Bunk Gardner, Jr., either forged or conspired and confederated with others to forge both the “Dear Charles” letter and the “wishing well” codicil, and he uttered, caused the same to be uttered or knowingly permitted them to be uttered, for the purpose of defrauding the estate of Ed Gardner and the beneficiaries named by Ed Gardner in his will.
Appellee “knowingly permitted his father, Bunk Gardner, Sr., to apply to the Graves County Court and obtain an order on January 21, 1959, directing the plaintiff and its Trust Officer to show cause, if any they have or can, why the purported (‘wishing well’) codicil should not be admitted to record.” Bunk Gardner, Jr. “further permitted” his father to issue a statement to the press in May-field in which he proclaimed his belief in the authenticity of the “Dear Charles” letter and the “wishing well” codicil.
Appellee also asserted that the “wishing well” codicil was genuine, and he instituted legal proceedings based on that assertion. The legal proceedings so instituted consisted of the filing by appel-lee, on January 22, 1959, of a verified pleading in the Graves County Court in which “he complained about the plaintiff’s refusal to produce the ‘wishing well’ codicil in court for probation as well as the alleged refusal of the plaintiff to permit his [appellee’s] attorney * * * to see that forged codicil * * * ” Ap-pellee demanded an order of the Graves County Court requiring appellant to produce and file with the court the “wishing' well” codicil as well as the “Dear Charles” letter so that the documents could be taken to Chicago for laboratory examination. On January 22, 1959, ap-pellee filed a verified pleading in the county court in which he said that he believed the letter and codicil to be genuine, and that he was bolstered in the belief by expert advice obtained by him from document witnesses of national reputation. At no time between January 4, 1959, and March 30, 1959, did the appellee, or his attorneys, advise or inform appellant that both the letter and codicil were forgeries.
On March 20, 1959, the appellant obtained from the Graves County Court an order requiring appellee to show cause why the “wishing well” codicil should be admitted to probate. In retort to the show cause order appellee asked time in which to file a response, but did not disclose that he believed the letter and codicil to be spurious. However, on March 30, 1959, appellee “confessed” that the “Dear Charles” letter and the “wishing well” codicil were forged instruments. Then the Graves County Court adjudged that the “wishing well” codicil was “absolutely spurious, a forgery, not a genuine instrument and is null and void and of no effect.”
Next, the complaint declares that “as a direct and proximate result of the facts set forth * * * the plaintiff was required to employ counsel to defend the proceedings instituted in the Graves County Court by Bunk Gardner, Sr. and * * * Bunk Gardner, Jr., and to conduct an exhaustive and expensive investigation with respect to the genuineness and validity * * * ” of the questioned letter and codicil. Further details of the nature of the expenses entailed for these purposes are set out in the complaint, and the claim for damages is laid in the sum of $38,298.01, the amount claimed to have been expended to defend the proceedings and establish the invalidity of the documents.
The final paragraph of the complaint is:
“13. The defendant, Bunk Gardner, Jr., is liable in fraud and deceit to the plaintiff in the amount of $38,298.01, that being the amount of damages sustained by the plaintiff as set forth in paragraph 12 next above.”

The just quoted paragraph has particular significance in that the parties argued the case to the trial judge on the concept of a cause of action in fraud and deceit. They recognized the six elements of that common law action as set forth in Crescent Grocery Co. v. Vick, 194 Ky. 727, 240 S.W. 388. The trial judge was of the view that all elements of the cause were alleged except the vital element of “reliance.” On appeal the appellants continue to rely on the common law action for fraud and deceit, but urge an additional ground:

It is contended that the alleged activities of appellee constitute a charged violation of KRS 434.130(1). Then attention is directed to KRS 446.070, which provides a person injured by violation of a statute may recover from the offender damages sustained by the violation.

Appellee vigorously contests the right of appellant to present any new argument in this court. We are invited to examine Tipton v. Brown, 273 Ky. 496, 117 S.W.2d 217, and Holloway v. Brown, 181 Ky., 716, 205 S.W. 925, along with other cited cases, as sustaining the appellee’s point of view that nothing may be argued here that was not argued below. Our examination of those authorities does not impel us to that conclusion.

In 5 Am.Jur.2d, Appeal and Error, §§ 545 and 546, pp. 29-31, is found a general text recognizing that appellate courts normally consider only the questions which: were raised and reserved in the lower court. It is there noted that the reviewing-court will consider the case only upon the: theory upon which it was tried in the lower-court. The same authority points out,, however, that adherence to the theory relied on in the trial court does not mean: that the parties are limited to the same reasons or arguments advanced below. This-court may accept and consider reasons and' arguments which were not presented to the trial court.

The sole issue before the trial court was: whether the complaint did state facts upon which relief could be granted. As noted, by paragraph 13 of the complaint, the pleader sought to fix a label to the cause of action, and entitled it “fraud and deceit.” But the name or title ascribed to the cause of action is not controlling.

In the celebrated case of Prewitt v. Clayton, 21 Ky. (5 T.B.Mon.) 4, this court, through Chief Justice Bibb, observed:

“A bear well painted and drawn to-the life is yet the picture of a bear, although the painter may omit to write over it, ‘this is the bear.’ ”

By parity of reasoning, the bear does not lose its basic characteristics if the artist, dubs it a horse. The complaint sought recovery; it alleged facts upon which that recovery was predicated; the motion to-dismiss was for failure to state a claim upon which relief can be granted. The issue is-whether the facts stated warrant relief— not whether the relief demanded happens to bear the name of “trespass” or “fraud” or “malicious prosecution.”

It is our conclusion that the complaint does state facts upon which relief may be granted. We do not decide whether it falls within the framework of “fraud .and deceit” as delineated in Crescent Grocery Co. v. Vick, supra; neither do we rest our decision upon the theory of statutory redress arising from the forgery statute and KRS 446.070, discussed earlier. We hold that the complaint is adequate to warrant recovery upon the common law principles applicable to civil malicious prosecution.

In Restatement of the Law, Torts, § 674, It is said:

“One who initiates or procures the initiation of civil proceedings against another is liable to him for the harm done thereby, if
■(a) the proceedings are initiated
•(i) without probable cause, and
<(ii) primarily for a purpose other than that of securing the adjudication of the claim on which the proceedings are based, and
'(b) except where they are ex parte, the proceedings have terminated in favor of the person against whom they are brought.”

We have adhered to the principles thus stated in earlier cases. Cf. Woods v. Finnell, 76 Ky. (13 Bush) 628. In that well-considered opinion Judge Pryor succinctly premised the rationale of the court’s ruling when he wrote:

“The fact that a plaintiff has been subjected to the payment of costs per falso clamore, is no recompense to the defendant when the latter has, by reason of the malicious proceedings on the part of the plaintiff, sustained damage.”

In Woods, supra, we recognized that the narrow bases which had developed in civil malicious prosecution cases stemmed from the enactment of the statute of Marlbridge, giving the defendant his costs if the plaintiff’s case failed. Since the Marlbridge statute allowing litigation costs and expenses (including counsel fees) does not obtain, the reasons for constricting the common law view have vanished. As observed by Judge Pryor in the Woods opinion:

“ * * * for at common law, prior to that enactment, [Marlbridge statute] such actions could be maintained whether the property of the defendant was seized or not, or whether he had incurred expenses in defending it * * Op cit. p. 632 of 76 Ky. (13 Bush).

As recently as Smith v. Smith, 296 Ky. 785, 178 S.W.2d 613, we reaffirmed allegiance to the principles as proclaimed in the Restatement of the Law and in Woods v. Finnell, supra.

Examination of the complaint discloses that its allegations fall within the framework prescribed by the just quoted authorities. According to the complaint, appellee either forged the “Dear Charles” letter and the “wishing well” codicil, or he conspired with others to forge them. Moreover, the complaint says that he “uttered, caused the same to be uttered or knowingly permitted them to be uttered, for the purpose of defrauding the estate of Ed Gardner * * * ” and the beneficiaries of the Gardner estate.

We accept the allegations of the complaint as true for the present purpose of testing the sufficiency of the complaint. In so doing we find that appellee “forged” the instruments, or alternatively, that he conspired with others to do so. He “uttered” them, or caused their utterance, knowing them to be forged, and for the express purpose of defrauding the Gardner estate and its beneficiaries. According to the complaint, appellee instituted legal- pro • ceedings looking toward the judicial acceptance of these spurious documents.

May these activities of appellee be said to come within the elements laid down in Woods v. Finnell, supra? There we said that it must appear that the action was founded in malice, instituted without probable cause, and that the plaintiff was damaged.

If appellee knew, as the complaint charges, that the documents were forged, and deliberately sought to cause them to be authenticated to defraud the Gardner estate for his own benefit, it was done with malice. Malice is said to be the intentional doing of a wrongful act without legal justification or excuse. Cf. Wright v. Commonwealth, Ky., 335 S.W.2d 930, and Words and Phrases “Malice”, 1963 Supplement.

Was the legal proceeding instituted without probable cause? Certainly no probable cause could be legally anchored on a knowingly forged codicil. Appellee may have thought he had a probability of success — but not probable cause; he knew, according to the complaint, that the entire case was founded on the quicksand of forgery. It would mock the law to say that a litigant may ascribe probable cause to a proceeding based upon a known forgery.

But was there a legal action instituted? We hold that there was. In the Restatement of the Law, Torts, § 674, it is written:

“The person who initiates civil proceedings, is the person who sets the machinery of the law in motion whether he acts in his own name, or in that of a third person, or whether the proceedings are brought to enforce a claim of his own, or that of a third person.”

Appellee set the machinery of the law in motion here. KRS 434.280 denounces as felonious the fraudulent destruction or concealment of a will or codicil with intent to prevent probate. The actions of appel-lee, according to the complaint, put the “wishing well” codicil in appellant’s hands as an authentic document. Appellant was. then in the position to probate the codicil or show why it refused. Appellee filed verified pleadings in the Graves County Court with a view to compelling action by the appellant. Under the particular circumstances of this case, these activities, may be equated with the institution of legal action.

The final element required is damage to. the appellant proximately flowing from the-appellee’s alleged activity. It is manifest that the complaint properly alleges damage. There is no policy of law which would preclude recovery of reasonable expenditures required to thwart the malicious action taken without probable cause.

The judgment is reversed for proceedings consistent with this opinion.

MONTGOMERY, J., dissenting.

       The propriety of the failure of the trial judge to vacate the bench was raised, but it is not necessary to advert to it since another judge will preside over further proceedings.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    ASSOCIATED CONTRACTORS STONE CO., Inc., et al., Appellants, v. PEWEE VALLEY SANITARIUM AND HOSPITAL etc., et al., Appellees.
    Court of Appeals of Kentucky.
    March 15, 1963.
    Rehearing Denied March 20, 1964.

      Frank J. Dougherty, Jr., R. D. McAfee, Louisville, for appellants.
    J. Donald Dinning, McElwain, Dinning, Clarke & Winstead, Louisville, for appel-lees.
   PALMORE, Judge.

The question before us in this injunction case is whether the chancellor’s finding (in substance and effect) that a rock quarry would necessarily result in unreasonable interference with the use and enjoyment of other property in its vicinity, and thereby constitute a nuisance, was “clearly erroneous.” CR 52.01; Curry v. Farmers Livestock Market, Ky.1961, 343 S.W.2d 134, 138.

To sustain an anticipatory injunction against a threatened nuisance there must be sufficient evidence “that a nuisance necessarily would result from the activity.” Harman v. Allen, Ky.1956, 297 S.W.2d 59, 60; City of Somerset v. Sears (1950), 313 Ky. 784, 233 S.W.2d 530, 532. A rock quarry is not a nuisance as such but maybe so conducted as to be a nuisance in fact, as “where blasting and dust in its operation substantially interfere with the comfort of residents in the neighborhood.” Cf. 38 Am.Jur. 367 (Nuisances, § 107) ; Annotation, “Quarries, gravel pits and the like •as nuisances,” 47 A.L.R.2d 496; 66 C.J.S. Nuisances § 61, p. 810.

The proposed quarry site is located in the •edge of Oldham County a short distance •southeast of the City of Pewee Valley. It is a rustic neighborhood with no industry and no public water supply. The need for water is satisfied .by wells, cisterns,, private reservoirs and ponds. This suit was "brought by over 50 parties who reside or •conduct institutions (including a hospital) in the area. Their proof (some of it irrelevant) clustered around three competent salients, (1) lowering of the “water table” likely to result from drainage of underground waters, by force of gravitation, to and out of the face of the quarry when the rock formations are cut open, (2) damage to the natural water supply through disturbance, by the use of explosives at the quarry, •of underground barriers that now serve to impound the water, and (3) disruption of the peace and quiet by vibrations from blasting.

With respect to the possible depletion of neighboring water wells merely by the process of excavating, or cutting openings through which percolating waters might escape and thus “bleed” the supply from surrounding lands, it is doubtful that there could be a cause of action in view of the rule that the owner of land, when putting it to a legitimate and not otherwise unreasonable use, “is not liable to the owner of adjoining land for injuries to wells or springs fed by hidden underground streams: flowing in unknown channels or percolating waters.” Cf. United Fuel Gas Co. v. Sawyers, Ky.1953, 259 S.W.2d 466, 468, 38 A.L.R.2d 1261, 1264. If, on the other hand, wells are polluted or depleted (or any other damage done) by a shaking of the ground, the law heretofore has been that there is no cause of action in, the absence of negli gence in the performance of the blasting operation. Marlowe Construction Company v. Jacobs, Ky.1957, 302 S.W.2d 612. If that rule is applied to this case there can be no injunction, because no one can say in advance that there .will be negligence, and without it the thing that is threatened (even if it will cause damage) would not be a wrong.

We have concluded, however, that the rule of nonliability for damage by concussion or vibration without negligence is inconsistent with the principles set forth in Louisville Refining Company v. Mudd, Ky. 1960, 339 S.W.2d 181, for the determination of what is a nuisance. In that case we abandoned the theory that a “reasonable” (in the sense of non-negligent) use of property cannot be a nuisance, in favor of the principle that in the light of all the circumstances of a case a use that is otherwise “reasonable” may be rendered unreasonable by the gravity of its effect upon the use and enjoyment of other property.

The testimony of plaintiffs’ geologist on the probable underground effects of blasting was not related to size of charge, method of shooting, or distances. Closely analyzed, his opinions in this respect were hardly more than speculative generalizations. The destructive possibilities thus indicated were a circumstance the chancellor was entitled to consider in weighing the necessity for injunctive relief, but this testimony alone would not support a finding that material damage “necessarily would result.”

Apart, however, from the water phase of the case, there is other and more positive proof that the operation of the quarry will materially affect the peace and quiet of the neighbors in the enjoyment of their homes. It so. happens that before the institution of this proceeding the defendants set off at the quarry site a 2,000-lb. test charge of dynamite, a quantity they admit to have been substantially smaller than they expect to use routinely. This blast was heard and the tremor felt by several of the plaintiffs in their homes nearby. One said that his television set, the chimney, and “every window in the house” shook. Another ’ said the noise caused his wife to jump up and scream and the concussion “actually blew the curtains out.” Some of the plaintiffs live directly across the road from the quarry property. If their homes were shaken by the test shot, it is certain that they would be repeatedly shaken by the larger shots expected to be used in the regular course of business. We think this is an interference they should not be forced to suffer.

In Louisville Refining Company v. Mudd, Ky.1960, 339 S.W.2d 181, we scanned some of the historical developments in the law of nuisance. There was a time when a man’s right to the unmolested enjoyment of his property was nearly absolute, but the industrial revolution changed all this, and there came a time when industry could do no wrong so long as its activities were lawful and it committed no direct trespass. Today the policy of the law is to achieve a reasonable balance between the peace and dignity of the individual, especially in the enjoyment of his home and community, and the needs of commerce.

The evidence established with reasonable certainty that the dwellings of at least some of the plaintiffs would be subjected for an unlimited period in the future to the process of being shaken to such a degree as to constitute a material and continuing annoyance. This is no less real, no less unreasonable, and no less wrongful an invasion than a direct trespass. The distinction between a nuisance and a trespass in this respect is without substance or justifiable effect. Cf. Bartman v. Shobe, Ky. 1962, 353 S.W.2d 550, 555. The chancellor’s finding that a nuisance necessarily would result was not clearly erroneous.

It is suggested that in no event should the judgment have entirely enjoined the operation of a quarry, and that it was improper for it to reach beyond the specific things (for example, the use of explosives in such quantities as to cause the premises of the plaintiffs to be shaken or damaged) likely to be harmful. There would be much force in this argument except that by their own stipulations and admissions during the course of trial the defendants left no room to suppose that they could or would conduct their operations in any manner or on any scale that would not involve a shaking of the environs occupied by the plaintiffs. Their case was honest and forthright. They made no pretense that this particular result would not be a necessary incident of their business as they intended to operate it.

The judgment is affirmed.

MONTGOMERY, J., not sitting.

      . This opinion was modified in Louisville Refining Company v. Mudd, Ky.1960, 339 S.W.2d 181, only to the extent of its subscription to the theory that a lawful use of property in a careful and prudent manner can never be actionable, regardless of an unreasonable amount of barm to others.


author: PIAMILTON, Justice.

text:
    PORT ARTHUR INDEPENDENT SCHOOL DISTRICT, Petitioner, v. CITY OF GROVES et al., Respondents.
    No. A-9570.
    Supreme Court of Texas.
    Feb. 19, 1964.
    Rehearing Denied March 25, 1964.
    Fuller & Fuller, Port Arthur, for petitioner.
    Black & Provost, Port Arthur, for respondents.
   PIAMILTON, Justice.

Petitioner, Port Arthur Independent School District, is a duly organized district under and by virtue of the constitution and laws of the State of Texas. Respondent, the City of Groves, is a home rule municipality located in Jefferson County, Texas. Petitioner owns certain real property located within the geographical confines of the respondent city, and in accordance with the constitution and statutes of the State of Texas ascertained the necessity for the construction of an elementary school on such property. When such construction project began, the respondent asserted that the petitioner must abide by and conform to certain building ordinances passed by the respondent city making provision for the standards of construction, the obtaining of building permits, and the inspection of the construction work while in progress by officials of the respondent city. Petitioner took the position that as an independent governmental subdivision, such ordinances of respondent were not applicable to it, and ■when respondent notified petitioner that the penal provisions of such ordinances would he enforced, which said penal provisions provided in part that each day of construction without a permit constituted a separate violation and that all officials, agents, servants and employees of petitioner would be guilty of a violation, petitioner filed suit in the trial court seeking a declaratory judgment to the effect that such ordinances were invalid and inapplicable as to petitioner and those acting under its authority and for ancillary and injunctive relief against the enforcement of such ordinances. Upon trial in the 60th District Court all relief sought by petitioner was granted, and judgment was entered to the effect that said ordinances were invalid, void and of no force and effect whatsoever as against petitioner and those acting under its authority and permanently enjoining respondent from enforcing or attempting to enforce same.

The City of Groves appealed to the Court of Civil Appeals for the Ninth Supreme Judicial District, which court reversed the judgment of the trial court and rendered judgment in favor of respondent herein. 366 S.W.2d 849. We affirm the judgment of the Court of Civil Appeals.

As stated by the Court of Civil Appeals, the sole question presented by this lawsuit is the applicability of building regulations established by ordinances of a home rule city to building and construction by an independent school district. To narrow the question, it should be stated that there is no question here as to validity of the ordinances as being a proper exercise of the police powers of the city. It is not contended that they are unreasonable or arbitrary. The school’s contention is simply that they do not apply to it because the operation of public schools is a function of the State, against which the police power of a municipality cannot be exercised unless the statutes clearly show that such was the intention of the Legislature and that the Legislature has, in fact, given school districts exclusive control of schools.

The authority vested in the Legislature to provide for public free schools is provided by Article VII, Section 1 of our constitution, Vernon’s Ann.St., to wit:1

“A general diffusion of knowledge being essential to preservation of the liberties and rights of the people, it shall be the duty of the Legislature of this State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”

Article 2763a, Vernon’s Ann.Civ.St., which refers to independent school districts created by special laws and under which the Port Arthur Independent School District was created, provides in part as follows :

“Sec. 2. The Board of Trustees * * * shall thereafter maintain and control the public free schools within said district to the exclusion of every other authority, except in so far as the State Superintendent of Public Instruction and the State Board of Education may be vested with supervisory authority to instruct said Board * * *.”

Article 2752, Tex.Rev.Civ.Stat., provides as follows:

“The trustees of a school district shall contract for the erection of the buildings and superintend the construction of the same * *

It is the city’s position that Article 1175, Section 34, V.A.C.S., empowers it in the exercise of its police powers to enforce its ordinances against the school district. Section 34 of this article reads:

“To enforce all ordinances necessary to protect health, life and property, and to prevent and summarily abate and remove all nuisances and to preserve and enforce the good government, order and security of the city and its inhabitants.”

There appears to be no case in this state which has passed on the question before us. There are some out of state cases which have been cited that deal with the question. It appears from an analysis of these cases that the police powers of a municipality are not applicable to the state itself, or its property. Hall v. City of Taft, 47 Cal.2d 177, 302 P.2d 574; Salt Lake City v. Board of Education of Salt Lake City, 52 Utah 540, 175 P. 654; Kentucky Institution for Education of Blind v. City of Louisville, 123 Ky. 767, 97 S.W. 402, 8 L.R.A.,N.S., 553; City of Milwaukee v. McGregor, 140 Wis. 35, 121 N.W. 642. Neither are police powers applicable to any political subdivision where the Legislature of the state has legislated with reference to the particular matter covered by the ordinance sought to be enforced. Hall v. City of Taft, supra; Board of Education of City of St. Louis v. City of St. Louis, 267 Mo. 356, 184 S.W. 975. The police power of a municipality is applicable to the buildings of a political subdivision unless the Legislature has by statute occupied the particular field covered by the ordinance under attack. Kansas City v. School District of Kansas City, 356 Mo. 364, 201 S.W.2d 930; Cook County v. City of Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442; Pasadena School District v. City of Pasadena, 166 Cal. 7, 134 P. 985, 47 L.R.A.,N.S., 892, Anno.Cas.1915B, 1039.

One of the first courts to write on the question was the Supreme Court of California in Pasadena School District v. City of Pasadena, 166 Cal. 7, 134 P. 985, 47 L. R.A.,N.S., 892. There, by general law the school property within a school district was committed to the control of the governing body of the independent school district and it was argued that for that reason it was not subject to the city’s building regulations. It was there held that the constitution gave the municipality the authority to make and enforce within its limits police, sanitary and other regulations not in conflict with the general law. The court held, however, that this was not such a general law as would deprive the municipality of enforcing its police regulations. In summarizing the holding in the Pasadena case, the Illinois Supreme Court, in Cook County v. City of Chicago, 142 N.E. 512, 515, 31 A.L.R. 442, properly explained it as follows:

“In answer to the argument that if the power of the city authorities be sustained the effect would be to deprive the state of its power to regulate the building of schools, it was held that while the state, in the exercise of its police power, undoubtedly might provide a complete system of regulation for the protection of public health, safety, and comfort in the erection of the school buildings of the state, such had not been done, and that it was not intended by the Legislature to empower the trustees of school districts to exercise such police power; that a school district which embraces territory included in a densely populated city, or whose territory, as such, is exclusively within the city, should be made subject to reasonable regulations for the benefit of the entire city concerning fire protection; that the Legislature recognized that in the matter of public safety school districts should be subject to the same building regulations as governed others erecting structures in the city, and that the only way it could be relieved from such control would be by general law.”

The California Supreme Court has subsequently written on the subject in the case of Hall v. City of Taft, 47 Cal.2d 177, 302 P.2d 574. However, the facts in that case were quite different from the facts of the Pasadena case. By general statute there had been set up an elaborate system whereby the state itself controlled all building of schools in the state. It provided that the state department of education should establish standards for school buildings, review and approve all plans and specifications for buildings and disapprove those not meeting the standards, furnish plans, specifications and building codes, and make rules and regulations to carry out those activities. Another provision of the general law, which we quote from the court’s opinion, was:

“The Division of Architecture of the Department of Public Works under the police power of the State shall supervise the construction of any school building or, if the estimated cost exceed four thousand dollars ($4,000), the reconstruction or alteration of or addition to any school building, for the protection of life and property.”

It was further provided that the State Division of Architecture was to make such inspection of school buildings and the work of construction or alteration as in its judgment was necessary or proper for the enforcement of the law and the protection of the safety of the pupils, the teachers and the public. The State of California itself preempted the field covered by the ordinance of the City of Taft. This case differed from the Pasadena case because in Pasadena the state had not provided for standards and regulations of school buildings by general law. However, the court in City of Taft also held that under the Legislature’s method of providing for public education, the public local boards of trustees of school districts were holding school property in trust for the state; that since police powers of a city are not applicable to the state itself that the ordinance regulating buildings was not applicable to the school district; and that the Pasadena case was overruled in so far as it was inconsistent with their holding in the City of Taft case.

We do not agree with the reasoning of the ■California court in Hall v. City of Taft as applied to the organization of public schools in Texas.

The two grounds upon which the ■California court based its opinion in the ■City of Taft case (i. e., that the ordinance regulating buildings does not apply to the ■state itself and that the state has pre-empted the field of regulation of the construction of school buildings) are not applicable to the ■case before this court. Although our independent school districts are creatures of the ■state and receive substantial funds for their •operation from the state, they are independent political entities and we will not classify -.their property as state property. The Legislature in its wisdom has vested the local school board with broad powers and we know of no state which allows more control of its local schools to the local people than does the State of Texas. The Legislature, in providing that local school boards shall contract for the erection of school buildings and superintend the construction of same, made no provision whatsoever that they should regulate, supervise or control in any manner the building of school buildings and provided for no safety regulations for the protection of the occupants or the property of others in the vicinity of the school buildings.

The Supreme Court of Missouri has written twice on this subject in the cases of Board of Education of City of St. Louis v. City of St. Louis, 184 S.W. 975, and Kansas City v. School District of Kansas City, 201 S.W.2d 930. We believe that the reasoning and holdings of that court are persuasive because of the similarity between the constitutional and statutory provisions of Missouri and Texas.

Board of Education of City of St. Louis v. City of St. Louis, supra, involved the applicability of the city building ordinances to a system of vents from the water closets in a school building. The contract for the building provided for a certain type of venting while the city ordinances required another. By statute, school officials were charged with the responsibility for ventilation, warming, sanitary conditions and proper repair thereof and were authorized to appoint assistants, one who was to be an engineer, to design and construct such apparatus for the public school buildings. The court merely held that the general charter powers of the city must yield to the provisions of a law having special application to particular matters.

In the later case of Kansas City v. School District of Kansas City, supra, the question was whether the city could collect inspection fees for the school district for inspection of boilers, smokestacks, fuel-burning facilities and elevators pursuant to city ordinances passed under the police power. In passing on collection of such fees, the court found it necessary to pass on the applicability of the ordinance itself as applied to a school district and held that the school district was subject to the regulations in question. The Missouri court recognized that the state could have delegated to the school district the full responsibility of taking particular measures in' relation to school buildings which would otherwise be within the scope of the city’s police power, but stated:

“ * * * Since the State itself has taken no precautionary measures, and City has been vested with the regulatory and supervisory responsibilities of the exercise of the police power, and School District (having no police power) has not been expressly and specifically given full duty to attend to these responsibilities, we think the Legislature is content in the thought the measures to be taken are within the police power vested in City.” 201 S.W.2d at 934.

The Kansas City case is not inconsistent with the earlier St. Louis case, that decision only holding that the Legislature had in fact placed responsibility in the School District as to the building requirements in question.

In Cook County v. City of Chicago, 311 Ill. 234, 142 N.E. 512, 31 A.L.R. 442, the Illinois Supreme Court held that the fire regulations of a municipal corporation are applicable to county buildings within the corporate limits of the municipality; that the general police power was given to municipalities and not to the counties.

In Salt Lake City v. Board of Education of Salt Lake City, 175 P. 654, the Supreme Court of Utah held the ordinances of the city requiring construction with fireproof materials not applicable to school buildings. The holding appears to be based partially on peculiar statutory provisions of Utah and partially on the lack of necessity of such provisions as applied to school buildings. It should be noted, however, that the court did uphold the city ordinance requiring the school buildings to be connected by telephone or otherwise to the fire department.

The Legislature has provided that the board of trustees shall maintain and control the public schools to the exclusion of every other authority, Art. 2763a, and that the trustees shall contract for the erection of buildings and superintend the construction of same. Art. 2752. These statutes are part of the statutory scheme for making the board of trustees and local school districts independently responsible for the education of the children of Texas. The building of school buildings is but a necessary incident to the fulfillment of the primary duty of educating the young. We believe the better rule to be that the school buildings of an independent school district are subject to the reasonable ordinances of the city. The state has the responsibilities of educating the children of Texas and of protecting the health and safety of its citizens. The state chose to fulfill its duties of providing education through the local school districts and to discharge its duties of protecting the health, safety and property of the people by delegating such to the municipalities. The city, in performing its duties as delegated to it by the state, does not usurp the authority and responsibility of the school district in the realm of education by requiring the school buildings to meet certain minimum standards of construction any more than it usurps the control and management of individuals and private corporations over their property and affairs by making them meet those same standards.

To hold otherwise would be to leave a hiatus in regulation necessary to the health and safety of the community. The state has not provided a system of regulation and inspection of school buildings under construction by local school districts as has the State of California. If the city cannot require certain standards, there could be only the school district itself to determine such standards. The schools could be built so as to be inconsistent with the city’s scheme of regulation and inconsiderate of the city’s peculiar problems of health and safety. We adopt the language of the Supreme Court of Missouri in Kansas City v. School District of Kansas City, quoted above:

“ * * * we think the Legislature is content in the thought the measures to be taken are within the police power vested in City.” 201 S.W.2d at 934.

The judgment of the Court of Civil Appeals is affirmed.

GRIFFIN, J., dissenting.


author: PER CURIAM.

text:
    SMITH PERRY ELECTRIC COMPANY, Petitioner, v. STANDARD ACCIDENT INSURANCE COMPANY and W. C. Henger, Respondents.
    No. A-9941.
    Supreme Court of Texas.
    Feb. 12, 1964.
    Matthews & Matthews, Dallas, for petitioner.
    Turner, Rodgers, Winn, Scurlock & Terry and James W. Leftwich, Dallas, for respondents.
   PER CURIAM.

The opinion of the Court of Civil Appeals is reported in 373 S.W.2d 97.

The action of the trial court in granting summary judgment in favor of the respondent, Smith Perry Electric Company, was reversed and the cause remanded by the Court of Civil Appeals on the ground that a fact issue was raised as to whether or not the promissory note given by Southwest Electric Company to Smith Perry Electric Company was accepted by the latter in full payment of the materials sold and delivered to Southwest Electric Company.

The Court of Civil Appeals also overruled Smith Perry Electric Company’s cross point that the trial court erred in sustaining the special exception to its pleadings for attorneys’ fees. Our action in refusing this application no reversible error is not to be taken as approving or disapproving the latter ruling.

Application refused n. r. e.


author: SMITH, Justice.

text:
    John C. LUCCOUS, Sr., and John C. Luccous, Jr., Petitioners, v. J. C. KINLEY COMPANY, Respondent.
    No. A-9744.
    Supreme Court of Texas.
    March 4, 1964.

      Lynch & Chappell, Vann Culp and John Scott, Midland, with above firm, for petitioners.
    Stubbeman, McRae, Sealy & Laughlin, W. B. Browder, Jr., and Charles Tighe, Midland, with above firm, for respondent.
   SMITH, Justice.

This suit was instituted by respondent, J. C. Kinley, an individual doing business as J. C. Kinley Company, hereafter referred to as plaintiff or Kinley Company, in the District Court of Midland County against John C. Luccous, Sr., and John C. Luccous, Jr., hereafter referred to as defendants or the Luccouses; Luccous Service and Equipment Company, a Texas corporation, and J. D. Whiteside, president and owner of Luccous Company.

In his first amended original petition, plaintiff alleged a breach of contract, and prayed for judgment against the above parties, jointly and severally. Plaintiff further alleged the Luccouses had breached a confidential relationship, and prayed that said defendants be enjoined from using certain tools. On July 20, 1962, after a hearing, the trial court granted a temporary injunction, in accordance with plaintiff’s prayer, enjoining the Luccouses, their agents, servants, representatives and employees from using, renting or leasing any sand-line cutter tools (a) “secured from the J. C. Kinley Co.,” or (b) “tools copied or made substantially in accordance with such tools.” John C. Luccous, Sr., and John C. Luccous, Jr., duly perfected separate appeals, each alleging errors in the judgment of the trial court, to the Court of Civil Appeals for the Eighth Supreme Judicial District at El Paso, Texas. The judgment of the trial court was affirmed. 368 S.W.2d 827. Thereafter both defendants applied to this court for writ of error, and both writs were granted. For the purposes of this opinion, both defendants’ contentions shall be considered together unless otherwise designated.

Most of the facts relevant to a determination of this case are undisputed. On January 2, 1940, a U. S. Patent was issued to M. M. Kinley on his invention of certain tools. The tools are sometimes referred to as sand-line cutters, wire-line cutters, cutters, cutting guns and cutting tools. We shall hereafter refer to them as sand-line cutters. On or about January 12, 1956, M. M. Kinley, doing business as M. M. Kinley Company, and Luccous Service and Equipment Company entered into a written license agreement whereby the Kinley Company granted to the Luc-cous Company a license to use the patented sand-line cutters. The essence of this agreement was as follows: Kinley agreed to supply the sand-line cutters and equipment and parts thereof necessary to perform sand-line cutting operations. In turn, Luccous Company agreed to keep and maintain proper books of account as to all charges made to customers for the operation of the sand-line cutters, and to pay over to Kinley Company, on the 15th day of each month, a tool rental including royalty of 60% of the service charges to the customers for each sand-line cutting operation run by Luccous Company. At the time of this contract, M. M. Kinley owned the M. M. Kinley Company, and defendant, John C. Luccous, Sr., owned most of the stock in Luccous Service & Equipment Company. It is undisputed that certain sand-line cutters were secured by Luccous Company from Kinley Company under and by virtue of this license agreement.

On January 2, 1957, the patent on the sand-line cutters expired. Thereafter on January 1, 1960, some of the assets of M. M. Kinley Company were sold to plaintiff, J. C. Kinley, which assets included the sand-line cutters. Under the terms of sale, plaintiff was assigned the rights and interests in the license agreement noted above. Finally, on April 27, 1961, defendant John C. Luccous, Sr., and his wife, sold and conveyed all of the shares of stock of Luccous Service and Equipment Company -to J. D. Whiteside, who then became and is now its owner and president.

Plaintiff alleged that, subsequent to the above sale to Whiteside, the Luccouses •continued to use sand-line cutters which they had secured from the plaintiff under the license agreement. Plaintiff further alleged that defendants were using and renting sand-line cutters which they had personally made from the information and knowledge secured from plaintiff under the licensing agreement. Both courts below have temporarily enjoined defendants from using, renting or leasing the “secured” tools, and the sand-line cutters which they personally made from copies of plaintiff’s tools. The trial court judgment, which the Court of Civil Appeals has affirmed, is reversed, and the temporary injunction is •dissolved. We shall discuss the two groups •of tools separately.

The "Copied” Tools

Plaintiff contends that the Luccouses ■should be enjoined from using any sand-line cutters which they have personally made as a result of the knowledge they ■gained about such tools by virtue of the licensing agreement. Plaintiff argues that -the tools constituted a “trade secret,” and that defendants gained their knowledge of this “secret” while the confidential relationship created by the licensing agreement ■existed between plaintiff and defendants. Therefore, plaintiff concludes the lower ■court’s action in enjoining defendants’ use of these “copied” tools is supported by the •decisions of this court wherein it was held that the equitable remedy of injunction -will lie to prevent one person from damaging another through an abuse of confidence in wrongfully appropriating trade secrets. See Hyde Corporation v. Huffines, 158 Tex. 566, 314 S.W.2d 763; K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, 158 Tex. 594, 314 S.W.2d 782. On the other hand, defendants argue that these cases lend no support to the lower court’s holdings because “the evidence shows as a matter of law that if [plaintiff’s] tool had ever constituted a ‘trade secret,’ its secrecy terminated many years prior to the time when defendants obtained knowledge of it.”

The generally accepted definition of a “trade secret” is that contained in the Restatement of Torts, § 757, p. 5, as follows:

“b. Definition of trade secret. A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers * * *. A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article.”

It is self-evident that the subject matter of a trade secret must be secret. See Wissman v. Boucher, 150 Tex. 326, 240 S.W.2d 278. It is defendant’s position that when plaintiff patented the sand-line cutters in 1940, the issuance of the patent constituted such a public disclosure of the tools as to destroy their trade secrecy. This being so, defendants conclude that the in-junctive relief granted plaintiff is punitive and also futile in that it enjoins defendants from making use of knowledge that is common to all the world. However, plaintiff contends that it is of no consequence that defendants could have gained their knowledge of the sand-line cutters from a study of the patent. Plaintiff argues that since defendants did not so gain their information, but instead gained it as a result of the licensing agreement, plaintiff did not lose the protection the tools might have as a “trade secret,” and an injunction will lie even though the tools in question were the subject' of a' patent, expired or otherwise. The cases relied upon by the Court of Civil Appeals as supporting plaintiff’s position are distinguishable from the present case.

First, in Hyde Corporation v. Huffines, supra, this court held the defendant, a licensee of the plaintiff, should be perpetually enjoined from manufacturing or selling any device made substantially in accordance with any feature of an invention patented by plaintiff. The defendant, as a result of a confidential relationship, had gained knowledge of the plaintiff’s invention prior to its being patented, while it was still a trade secret. The defendant abused this confidential relationship, and improperly used the information gained. Under these circumstances, this court held the plaintiff’s right to inj'unctive relief for the defendants’ wrongful appropriation of trade secrets survived the disclosure of the secret in a subsequent patent. It was not held that the trade secret itself survived the complete disclosure in the patent grant. Inasmuch as the defendant had learned the secrets of the plaintiff’s invention in confidence, and improperly disclosed and used them before the patent issued, it was held that the defendant should be enjoined from using that knowledge to prevent his obtaining “a marketing advantage or head start as compared to the patentee or any manufacturer or processor licensed by him after the issuance of the patent.” In the present case, the defendants have not obtained any “marketing advantages” from having prematurely gained information about the sand-line cutters, since defendants received knowledge of the tools some sixteen years after they were patented, and used that knowledge after the patent expired.

The case of K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, supra, is also distinguishable from the present case. First, as in the Hyde' case, supra, the defendant had gained knowledge of the plaintiff’s invention prior to its being patented, while it was still a trade secret. Second, under the terms of a licensing, agreement, the defendant specifically contracted that during the time it handled the tool in question, no one would disassemble-said tool. It was mutually understood that the purpose of such agreement was to-guard against anyone determining the internal construction of the tool involved-Notwithstanding this agreement, defendant did disassemble the tool, examined its interior construction and, using the information thus acquired, began making tools substantially - in accordance with those of plaintiff. This court held that plaintiff was not deprived of his cause of action for defendant’s breach of confidence simply because some of plaintiff’s secrets were later disclosed by the issuance of a patent. The question as to whether plaintiff would have been entitled to injunctive relief if defendant had gained knowledge of the invention subsequent to its being patented was not before us in the K & G case.

The Court of Civil Appeals cites the case of Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856, Tex.Civ.App., wr. ref., n. r. e., as authority for the proposition that the issuance of a patent is not a public disclosure which destroys a “trade secret.” That case presented a situation where the subject matter of the trade secret protected by the Court was not the same as the invention covered by the patent, as the following language discloses:

“* * * [Ajppellant is the originator and primary developer of the ‘Jet Process’; in addition to its patent rights, appellant through experimentation has developed many trade secrets which it and its licensees use in the process; * * * during their employment by appellant, Owen and Gearhart, in confidence and while in fiduciary relationships, acquired knowledge of such trade secrets and have used and disclosed them for purposes other than for appellant’s benefit; * *
(Emphasis added.)

Thus, unlike the present case, the trade secrets involved were not the inventions already protected by patent grants. The Court did not hold that a “trade secret” may simultaneously exist with a patent grant when both cover the sarnie subject matter.

Finally, the case of Franke v. Wiltschek, 2 Cir., 209 F.2d 493, is not authority for the position taken by the plaintiff. The defendants in that case contended that an expired patent on a process not involved in the suit was so similar to the process that was involved that the old patent had indirectly revealed the alleged “trade secret” with which the case was concerned. The Court held that one could have a “trade secret” over the same general subject matter disclosed in an expired patent. The subject matter claimed to be a “trade secret” was not and had not been patented at the time the defendants appropriated the information about it.

In the present case, M. M. Kinley had an election as to the means of “protecting” his invention of the sand-line cutters. First, by the patent laws, Congress gave him an opportunity to secure the material rewards for his invention for a limited time, on condition “that he make full disclosure for the benefit of the public of the manner of making and using the invention. . . . ” See Scott Paper Co. v. Marcalus Mfg. Co., 326 U.S. 249, 66 S.Ct. 101, 90 L.Ed. 47. Second, he could make no public disclosure of his invention and thereby protect his “trade secret” under the equitable jurisdiction of the state courts. See Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 73 L.Ed. 752. Kinley elected to protect his invention by patent. When the patent was granted, the entire patent file and its contents became public property. See Grant v. Raymond, 6 Pet. 218, 8 L.Ed. 376; Sandlin v. Johnson, 8th Cir., 141 F.2d 660; Callman, The Law of Unfair Competition and Trademarks (2nd Ed.) § 533, Patents. Notwithstanding this choice, plaintiff claims the equitable powers of this court are available to protect his “trade secret,” a claim that is totally incompatible with the election to surrender the protection of secrecy in return for a patent. See Hyde Corporation v. Huffines, supra; Wissman v. Boucher, supra.

The effect of the present injunction is to deprive the defendants of the right to do that which the public generally may do (e. g., copy plaintiff’s sand-line cutters with impunity). While it is true that this court has enjoined persons from the right to avail themselves of the patentee’s dedication, we point out that such holdings have been based on the theory that a person’s wrongful acts may deprive him of the right which he would otherwise have had as a member of the public. See Hyde Corporation v. Huffines, supra; K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, supra. In the present case, the defendants have committed no original wrong which would give justification for our denying them resort to the patent. We hold that the plaintiff has no “trade secret” for this court to protect, and the equitable remedy of injunction should not be employed to prevent defendants from using the information and knowledge they gained under the licensing agreement to build sand-line cutters, such information having been available to all the world sixteen years prior to the parties’ contract.

The “Secured” Tools

As heretofore noted, defendants have been temporarily enjoined from using, renting or leasing sand-line cutters “secured” from plaintiff under the terms of the licensing agreement. Defendants contend there is no evidence to support the trial court’s finding that they are using, renting or leasing tools which were “secured” from plaintiff.

It was plaintiff’s burden to prove that defendants were in possession of such tools. In regard to defendant, John Luc-cous, Jr., this burden has not been met since there is not one scintilla of evidence that he is renting', leasing or using tools “secured” from plaintiff. In regard to defendant, John Luccous, Sr., it is undisputed that at one time he did have sand-line cutters which he had acquired under the terms of the license agreement. However, plaintiff testified that he had no personal knowledge of any sand-line cutters owned by him which were still in the defendants’ possession. Furthermore, the testimony of J. D. Whiteside, which was introduced by plaintiff, was that he had acquired all of the plaintiff’s tools from defendant and had returned them to plaintiff. Since there is no evidence that defendants failed to return any sand-line cutters to plaintiff, the temporary injunction is futile. If the evidence shows no intention on the part of a defendant to do the thing sought to be enjoined, then an injunction should be denied. See Davis v. Upshur County, 191 S.W.2d 524, Tex.Civ.App., no wr. hist.

Plaintiff argues this is a breach of contract as well as a trade secret case, and in his petition he sets forth several alleged violations by defendants of the license agreement. The only issue necessary for decision by this court is whether or not the lower courts have erroneously enjoined defendants from using sand-line cutters allegedly “copied” or “secured” from plaintiff and from personally manufacturing such tools now and in the future. It is undisputed by the testimony of the plaintiff himself that the license agreement has been terminated by written agreement since February 21, 1962. This being so, it has no relevancy as to the propriety of the injunction. If defendants have breached the terms of the agreement, plaintiff’s remedy is damages, and not injunction.

An applicant for a temporary injunction seeks extraordinary equitable relief in that he seeks to immobilize a person from a course of conduct which that person may have a legal right to pursue. See Camp v. Shannon, 162 Tex. 515, 348 S.W. 2d 517. In the present case, the trial court and Court of Civil Appeals have enjoined defendants on the basis of the well-settled rule that injunctive relief may be employed when one breaches his confidential relationship in order to unfairly use a trade secret. As heretofore noted, the above rule is not presently applicable.

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


author: CALVERT, Chief Justice.

text:
    The STATE of Texas, Petitioner, v. John B. JACKSON et al., Respondents.
    No. A-9849.
    Supreme Court of Texas.
    March 4, 1964.

      Waggoner Carr, Atty. Gen. of Texas,. Austin, Fred D. Ward and James P. Bris-coe, Asst. Attys. Gen., for petitioner.
    Jackson & Jackson, Joe F. Sandlin, Ana-huac, for respondents.
   CALVERT, Chief Justice.

Suit was by the State of Texas, actingr by and through the Game and Fish Commission, successor state agency to Game,. Fish & Oyster Commissioner and predecessor to the present Parks and Wildlife-Department, to enjoin violation by respondents of a regulation promulgated in a proclamation of the Commission. The trial court denied the relief sought, and the Court of Civil Appeals has affirmed. 370 S.W.2d 797.

We affirm the judgment of the Court of Civil Appeals.

Respondents were using nets of a certain type in the taking of fish from Galveston: Bay in Chambers County pursuant to a claim of right authorized by Acts Regular Session, 55th Leg., 1957, ch. 480, p. 1394r noted under Article 978j in Vernon’s Penal 'Code. The Act will be referred to hereafter as House Bill 835. The Commission’s regulation, promulgated in a proclamation dated May 27, 1959, prohibited the use of the type of net being used by respondents in the waters where the same was being used. Legislative authority of the Commission for adoption of the regulation was first authorized in Art. 39 of an act of the Legislature passed in 1919. See Acts First Called Session, 36th Leg., ch. 73, p. 191, 204, now partially codified as Article 4045, Revised Civil Statutes of Texas, also shown as Art. 4045, Vernon’s Texas Civil Statutes.

The trial court’s judgment denying in-junctive relief is predicated on its conclusion that “Article 4045 * * * is in direct ■conflict with * * * Article 978j of Vernon’s Annotated Penal Code, said Article 978j being enacted at a date subsequent to the enactment of Article 4045 * * The conclusion indicates a belief by the trial judge that House Bill 835 repealed Art. 4045, Vernon’s Texas Civil Statutes, .at least to the extent of any conflict between the two. The Court of Civil Appeals expressly so held.

The parties to the litigation and Sports■men’s Clubs of Texas, author of an amicus ■curiae brief, also treat the problem as one ■of repeal, or at least partial repeal, of Art. 4045 by House Bill 835. We do not so re■gard the problem. We regard the problem, rather, as one of suspension of the power ■ of an administrative agency to act with respect to a matter which, although within the agency’s general field of regulation, ’has been preempted by action of the Legis- ' lature itself.

The Act of 1919 was a comprehensive Act ■ creating the Office of Game, Fish & Oyster 'Commissioner, and prescribing the terms . and conditions upon which all forms of marine life might be taken from the waters of the State. Art. 39 of the Act made use of ■nets and seines, except minnow and shrimp ■seines, unlawful in all tidal and coastal ■•waters during the months of June, July and August, and the use of nets and seines, except minnow seines, unlawful in specified coastal waters at any time. Galveston Bay was not specified. The Article then authorized the Game, Fish & Oyster Commissioner, whenever he deemed best for protection of fish life, to close, upon notice, tidal waters and bays to all forms of netting and seining, except with minnow seines of not more than twenty feet in length. The Article then provided a misdemeanor penalty for taking fish with prohibited nets and seines in “such closed waters,” and authorized seizure and destruction of prohibited fishing devices. Art. 39 and certain other Articles of the Act of 1919 were amended by Acts Regular Session, 38th Leg., ch. 139, p. 294, 297, but the amendment is not material to this decision.

When the Laws of Texas were codified in 1925, the entire substantive content of Art. 39 of the 1919 Act, as amended in 1923, was carried forward as Art. 941 of the Penal Code. In addition, the portion of Art. 39 conferring regulatory authority upon the Game, Fish & Oyster Commissioner was carried forward into Art. 4045 of the Revised Civil Statutes. The penal provisions of Art. 39 were carried into Art. 941 of the Penal Code, but were not carried into Art. 4045 of the Revised Civil Statutes. Art. 941 of the Penal Code was amended and re-enacted in 1929. See Acts Regular Session, 41st Leg., 1929, ch. 119, p. 269. By the amendment Galveston Bay was listed as one of the water areas in which use of nets and seines was declared to be unlawful, and the provisions conferring regulatory authority on the administrative agency were entirely omitted from the Article. Between 1929 and 1957 many local and special laws were enacted making unlawful or lawful the use of nets for the taking of fish from designated coastal waters. It was in this statutory context that House Bill 835 was enacted by the Legislature in 1957.

Section 1 of House Bill 835 provides:

“It shall be unlawful for any person to place or set, or have in his use or possession, in or on any of the waters of that portion of Galveston Bay and Trinity Bay lying within Chambers and Harris Counties, Texas, north of a line extending from Eagle Point to Smith Point, any set net, or gill net, trap or similar device for the purpose of catching fish. Provided it shall be lawful to use trammel nets which shall not exceed a length of twelve hundred (1200) feet and shall have at least a three and one-half (3Yz) inch stretch mesh.”

The proclamation of the Game and Fish Commission declares:

“ * * * it is hereby proclaimed and decreed by the Game and Fish Commission of the State of Texas that it shall be unlawful for any person to use any seines or nets or to drag same for the purpose of taking or attempting to take any of the fish or other edible marine life, with the exception of shrimp and oysters, in the waters of Galveston Bay, Trinity Bay, East Bay and West Bay in the counties of Galveston, Chambers and Harris.”

In the petition filed by the State of Texas it was alleged that defendants were violating the prohibition contained in the proclamation by fishing with nets in the waters of Galveston Bay in Chambers County. It was not alleged and it is not contended by the State that the nets used by the defendants exceeded 1200 feet in length or had a stretch mesh of less than 3^ inches. Neither was it alleged that defendants were using nets outside of the area in which their use is made lawful by H. B. 835. The position of the State is that the Game and Fish Commission could, under authority of Article 4045, close the whole of Galveston Bay to the use of the type and size of nets made lawful for use in a part of the Bay by House Bill 835.

Aside from their argument that the repealing clause of H.B. 835 (“All other laws and parts of laws in conflict herewith are hereby expressly repealed, to the extent of such conflict only.”) did not repeal Article 4045 in whole or in part, an argument with which we need not deal, the State and amicus curiae seem to present two primary reasons for contending that the action of the Game and Fish Commission should be held effective and operative in the area defined in spite of the last sentence of Section 1 of H.B. 835. The reasons are: (1). That if the Legislature had never acted, fishing in the defined waters with the type of nets described would have been lawful, but the Commission would have had authority under Article 4045 to close the waters to fishing with such nets; and that the legislative declaration that fishing with such nets shall be lawful does not diminish the Commission’s power in that respect. (2). That by placing the sentence in a penal statute the Legislature intended the word lawful to mean only that no criminal penalties would be imposed if nets as there described were used, and not that the Commission was shorn of power to prohibit their use. We do not regard either of the suggested reasons to be a sound basis for holding that effect may be given to the Commission’s action.

The first reason ignores the concept of legislative preemption. The Game and Fish Commission (now State Parks and Wildlife Department) is a creature of the Legislature, possessing only such powers as are delegated to it, expressly and impliedly, by the Legislature. Stauffer v. City of San Antonio, 162 Tex. 13, 344 S.W. 2d 158, 160; Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393. It is elementary that the Legislature may withdraw from an administrative agency it has created any or all of the powers delegated, for authority to give includes authority to take away. Moreover, delegated powers may be withdrawn by preemption as well as by express declaration. When the Legislature acts with respect to a particular matter, the administrative agency may not so act with respect to the matter as to nullify the Legislature’s action even though the matter be within the agency’s general regulatory field.

There is little case law announcing the rule last stated, no doubt because it is self-evident. The rule is thus stated in 1 Am.Jur., 2d, 946, Administrative Law, § 133: “The rulemaking power of administrative agencies does not permit the enactment of regulations which are inconsistent with the expression of the lawmakers’ intent in statutes other than those under which the regulations are issued.” Among the cases cited in support of the statement, and somewhat analogous, is Louisville & Jefferson County Planning & Zoning Commission v. Ogden, 307 Ky. 362, 210 S.W.2d 771. In Ogden a statute provided that “Words giving authority to three or more public officers” should be construed “as giving such authority to a majority of such officers.” The Planning & Zoning Commission, consisting of ten members, including four ex-officio members two of whom seldom attended meetings, adopted a bylaw declaring that five members of the Commission should constitute a quorum for the transaction of business. Authority for adoption of the by-law was asserted under the zoning statute which empowered the Commission to adopt rules and regulations for transaction of its business. The bylaw was held to be in conflict with the general statute and was ruled invalid.

The first reason also looks at only one side of the coin. The State asserts in its brief — and we may accept as a fact— that the authority conferred on the Commission by Art. 4045 lay dormant from 1919 until 1959. But let us suppose that the Commission had issued a proclamation before 1957, as it did in 1959, declaring the use of nets in Galveston Bay in Chambers County to be unlawful; could we say that the legislative declaration in the last sentence of Section 1 of House Bill 835 that the use in such waters of nets as there described was lawful was meaningless? We think not. Surely, whether the Legislature has preempted the power to deal with the matter to the extent of its legislative enactments cannot turn on whether the Legislature or the Commission acted first.

The second reason given affords no better basis for the position of the State. Article 10, Vernon’s Texas Civil Statutes, directs, with certain exceptions not pertinent here, that “The ordinary signification shall be applied to words” in the construction of civil statutory enactments; and Article 8, Vernon’s Penal Code, directs that except where specially defined, words used in the Code “are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed.”

In the last sentence of Section 1 of H.B. 835 the Legislature has declared that it shall be lawful to use trammel nets not exceeding 1200 feet in length and having a stretch mesh of at least 3Y2 inches for the purpose of catching fish in a part of Galveston Bay in Chambers County. In Webster’s Third New International Dictionary we find the first meaning of the word “lawful” to be: . “conformable to law: allowed or permitted by law: enforceable in a court of law.” Black’s Law Dictionary, Third Edition, defines “lawful” as “Legal; warranted or authorized by the law; having the qualification prescribed by law; not contrary to nor forbidden by the law.” In the note under Black’s definition we find this statement: “To say of an act that it is ‘lawful’ implies that it is authorized, sanctioned, or at any rate not forbidden, by law.”

The Commission’s proclamation declares the use of nets, including the type described in H.B. 835, for catching fish in the waters of Galveston Bay to be unlawful. “Unlawful” means just the opposite of “lawful.” “Unlawful,” says Webster, means “not lawful : contrary to or prohibited by law: not authorized or justified by law: not permitted or warranted by Law.” According to Black, it means: “That which is contrary to law or unauthorized by law.”’

It thus appears that when an act is prohibited by law, it is “unlawful,” whether or not penalties are attached to the doing of the act. It is not authority for the assessment of penalties which makes a prohibited act “unlawful”; rather, it is the prohibition of the act by law. And when the Legislature declared in H.B. 835 that the use of the nets there described should be “lawful,” it did not merely remove the criminal penalties for engaging in the activity; it effectively removed all prohibitions of the activity which then may have been in the statutory law, and it preempted and suspended the power and authority theretofore conferred by Art. 4045 on the Game and Fish Commission to make the activity “unlawful” by prohibiting it. If the Legislature had said that the activity “shall not be unlawful,” no one would seriously contend that the Game and Fish Commission could thereafter prohibit the activity and declare it to be “unlawful”; and yet there is no distinction in meaning to be found in a legislative declaration that an activity “shall be lawful” and a declaration that an activity “shall not be unlawful.”

Much emphasis is placed by the State and amicus curiae on the need for Commission authority to close waters to fishing with nets when that activity is found by the Commission to have a detrimental effect on marine life. The State puts its position in these words: “The need for administrative closing of the bays increases when and as the Legislature increases the area of legal netting.” Let it be so; the problem is one for legislative, not judicial solution. We can think of no better rule to sum up our position in the matter than that quoted in the State’s brief from our opinion in State Board of Insurance v. Betts, 158 Tex. 612, 315 S.W.2d 279, 281:

“The problem of statutory construction is to ascertain the intent of the Legislature. When we abandon the plain meaning of words, statutory construction rests upon insecure and obscure foundations at best. It should perhaps be reiterated that Courts have no concern with the wisdom of legislative acts, but it is our plain duty to give effect to the stated purpose or plan of the Legislature, although to us. it may seem ill advised or impracticable.”

Our holding that the problem before us is one of suspension rather than repeal of Commission authority leaves the Commission with full power to act to the extent authorized by Art. 4045 if and when the-Legislature decides to withdraw from the: area of power preempted.

The judgment of the Court of Civil Appeals is affirmed.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    Bill LUMMUS, Appellant, v. The STATE of Texas, Appellee.
    No. 36379.
    Court of Criminal Appeals of Texas..
    Jan. 8, 1964.
    Rehearing Denied Feb. 19, 1964.
    Second Motion for Rehearing Denied March 25, 1964.

      A. L. Lowery, Marion G. Holt, Nacog-«doches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, fifteen days in jail .and a fine of $50.

The testimony of two officers introduced by the state reflects that the appellant was intoxicated while driving an automobile upon a public highway as alleged. They also testified that they found several cold cans of beer in the car, and that two other occupants of the car were intoxicated.

Testifying in his own behalf, the appellant denied that he had drunk any intoxicants or that he was intoxicated, but stated that his two companions were intoxicated and had some beer in the car. Appellant’s testimony was corroborated by his two companions.

The jury resolved the issue of intoxication against the appellant and the evidence is sufficient to support the conviction.

There are no formal bills and no objections to the charge of the court.

Appellant contends that the prosecuting attorney committed reversible error in his closing argument to the jury.

The prosecuting attorney told the jury that whenever sex offenses take place great public interest is aroused, and urged the jury to consider the seriousness of drunken driving because of the inherent danger arising therefrom, and the needless loss of life. He further urged them to inflict severe punishment for drunken drivers.

The court sustained appellant’s objection to the reference to sex offenses and instructed the jury not to consider it.

The argument reveals an appeal for a strict enforcement of the law and presents no error. Rodgers v. State, 168 Tex.Cr.R. 386, 328 S.W.2d 301; Strahan v. State, 172 Tex.Cr.R. 478, 358 S.W.2d 626.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The. appellant challenges the correctness of the holding in our original opinion that the complained of argument “reveals an appeal for a strict enforcement of the law and presents no error.”

While we do not care to place our stamp of approval upon the argument, we remain convinced that in view of the objection made and the court’s ruling, the complained of remarks are not ground for reversal.

The ground of objection was “He is trying to inject sex into this thing.” The objection was sustained.

The county attorney then stated: “I am making the argument about safety and how people get all rowZed up.”

The court then instructed the jury: “ * * you don’t consider anything about sex in this case at all.”

The appellant’s counsel made no request for such instruction or for further instruction, and did not make known to the court by exception or motion that he was dissatisfied with the court’s ruling.

Bridewell v. State, 134 Tex.Cr.R. 77, 114 S.W.2d 259, cited by appellant, was a prosecution for rape. The bill of exception certified that the arguments complained of were highly prejudicial. Part of the argument was “Why did he not let me prove that he tried to assault other little girls if he wanted to be fair?”

We do not agree that Bridewell v. State is authority for reversing this conviction.

Appellant’s motion for rehearing is overruled.


author: BELCHER, Judge. MORRISON, Judge.

text:
    Ex parte Paul SEFFENS.
    No. 36501.
    Court of Criminal Appeals of Texas.
    Feb. 5, 1964.
    Rehearing Denied March 11, 1964.
    No attorney of record on appeal, for appellant; George Rodriquez, El Paso, on rehearing.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Judge.

This is an appeal from an order remanding appellant to custody for extradition to the State of Nebraska.

No statement of facts approved by the trial court or counsel appears in the record.

The judgment recites that on the hearing of the writ of habeas corpus the state introduced in evidence the warrant of the Governor of the State of Texas for the arrest of the appellant; and the trial court found therein that the warrant was regular on its face.

The introduction in evidence of the Governor’s warrant made out a prima facie case authorizing appellant’s extradition. Ex parte Tangney, 165 Tex.Cr.R. 386, 307 S.W.2d 804.

In the one formal bill of exception, the appellant contends that the Nebraska authorities were trying to collect a civil debt. No facts in support of his contention are contained in the bill, hence it cannot be reviewed.

In the absence of a statement of facts showing the evidence heard by the court at the habeas corpus hearing nothing is presented for review.

The judgment is affirmed.

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Since the rendition of our original opinion herein on February 5, 1964, appellant has tendered a statement of facts approved by the Trial Judge on February 10, 1964.

Under the holdings of this Court in Hill v. State, No. 36,222, not yet reported; Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; and Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37, our consideration of the same is precluded.

Appellant’s motion for rehearing is overruled.

WOODLEY, P. J., dissents.


author: WOODLEY, Presiding Judge.

text:
    Catharyn M. COUNTRYMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 36478.
    Court of Criminal Appeals of Texas.
    Feb. 12, 1964.
    Rehearing Denied March I8, 1964.
    Chester A. Oehler, Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 10 days in jail and a fine of $100.

The evidence shows that the appellant drove an automobile upon a Dallas street into the rear of another automobile.

The driver of the car that was struck testified that she walked back to the car the appellant was driving and the appellant, who was alone in the car, said: “I have been ■drinking. Don’t call the police. Have you been drinking?” She expressed the opinion that the appellant was intoxicated.

Police Officers Remes and McDonald answered the call. Officer Remes testified that the appellant identified, herself as the driver ■of the ’59 Chevrolet; that she had a little .trouble getting out her license; that her speech was incoherent and confused, like she didn’t know what was going on; that there was the smell of alcohol on her breath and her walk was unsteady. He also testified that after she arrived at the City Hall she was swaying and staggering and her balance as she stood was unsteady.

Officer McDonald gave similar testimony ■and expressed the opinion that the appellant -was intoxicated.

Officer J. W. Foster, accident investigator, who arrived at the scene shortly after the first officers arrived, testified that the .appellant’s speech was slurred and confused; her walk was unsteady-; he smelled .alcoholic beverage on her breath and she told him she had been drinking whisky. He expressed the opinion that- she was intoxicated. He also testified that she was taken to the City Jail and turned over to the matron and that at the City Hall she still had a slurred speech and was still unsteady and was swaying.

Also the state called Edward N. Denby who testified that he saw the accident and that when the appellant got out of the car he noticed she couldn’t walk straight; that she was kind of leaning and rocking and -couldn’t stand still, and her face was red. This witness, an employee of Mobil Oil Company, who at the time was working at a parking lot, expressed the opinion that the appellant was intoxicated.

The appellant testified that she had consumed two highballs but that she was not intoxicated. She called other witnesses who gave similar testimony and expressed similar opinions.

The jury resolved the issue against the appellant and the evidence is sufficient to sustain their verdict.

The appellant’s brief directs attention to the fact that the jury’s verdict fixes his punishment, whereas the appellant is a female and the judgment orders that she remain in custody until the fine and costs are paid and her term of 10 days has expired.

There is no merit in the contention that the use of the masculine his, when the feminine her would have been proper, is fatal.

It is interesting to note that the appellant’s motion for new trial and amended motion for new trial pray the court to “grant him this motion for new trial.”

Other complaints found in the appellant’s brief present no error.

The judgment is affirmed.


author: DICE, Commissioner.

text:
    Ex parte Walter MACKERMAN, alias Frank F. Moore.
    No. 36583.
    Court of Criminal Appeals of Texas.
    Feb. 19, 1964.
    Rehearing Denied March 25, 1964.'

      Glenn Hausenfluck, Fort Worth, for appellant.
    Henry Wade, Dist. Atty., C. M. Turling-ton, Asst. Dist. Atty., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding, remanding appellant to custody for extradition to the State of Colorado.

At the hearing, the respondent introduced in evidence the executive warrant of the governor of this state, authorizing the arrest and return of appellant to the State of Colorado upon the demand of the governor of that state to answer a charge of aggravated robbery. The requisition of the governor of Colorado, together with the supporting papers, was also introduced in evidence.

Appellant objected to the introduction in evidence of the executive warrant on the ground that the fugitive was named therein as Frank Rensley Moore, with aliases, and that appellant’s name was Frank Frensley Moore.

In admitting the warrant in evidence, the court did not err, as the omission or mistake in a middle name is immaterial. 40 Tex.Jur.2d, Sec. 4, page 374; Gallaher v. State, 124 Tex.Cr.R. 398, 63 S.W.2d 382.

The introduction in evidence of the executive warrant, regular upon its face, made out a prima facie case authorizing the remand of appellant to custody for extradition. Ex parte Hoover, 164 Tex.Cr.R. 251, 298 S.W.2d 579.

In an effort to show that he was not in the State of Colorado on April 15, 1963, the date the offense was alleged to have been committed, appellant called as a witness one Gwyndolen Sue Moore, who testified that she was appellant’s wife and that appellant was with her in Fort Worth, Texas, from April 9, 1963, until April 19, 1963, except on April 11 and 12, when, he told her, he was in Dallas.

Appellant’s wife, clearly, was not a disinterested witness and the court was not bound to accept her testimony as proof that appellant was not in the State of Colorado on the date the offense was charged to have been committed. Lee v. State, 117 Tex.Cr.R. 231, 34 S.W.2d 890.

The court had before him in the annexed papers an affidavit of the complaining witness, together with a photograph marked Exhibit A, which the witness, in the affidavit, swore was a photograph of the individual who committed the crime charged. The complainant further swore in the affidavit that the individual who had been identified to him as the defendant “Frank Rens-ley Moore, aka Walter Mackerman, aka John Doe” was the same individual who committed the crime.

Under the record, we cannot say that the trial court erred in resolving the issue of appellant’s presence in the demanding state against him and in remanding him to custody for extradition. See Delgado v. State, 158 Tex.Cr.R. 52, 252 S.W.2d 935, and Ex parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152, in support of the conclusion reached here.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    Robert KNAPP, Appellant, v. The STATE of Texas, Appellee.
    No. 36567.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, forty years.

While the deceased was visiting a friend in Houston on August 13, he received a telephone call about 8 p. m., from a girl friend of the appellant. After the call the deceased became very nervous and said he had to leave to meet the appellant and his girl friend. In July the appellant had severely abused the deceased in his mother’s presence, saying at the time: “I hate to do this in front of your church going mother, * * * but I am going to relieve her of her son.”

The body of the deceased was discovered shortly after 6 p. m., August 14, in the grass near the fence on a rural private road in Harris County, and the officers were immediately notified. A deputy sheriff arrived at the scene at 6:50 p. m., and a medical examiner arrived at 8:30 p. m. The body was first identified by the driver’s license and registration card in the wallet found in a pocket of the deceased’s trousers.

From an examination of the body it was determined that death was caused by a stab wound in the left chest which penetrated the heart. The pathologist expressed the opinion that death occurred between midnight on August 13 and 4:30 p. m., August 14. No weapons were found on the body or at the scene.

Deputy Sheriff Middleton testified that on August 23, the appellant told him he killed the deceased by stabbing him with a knife and that the stabbing was suddenly precipitated by a violent argument between them about deceased’s having informed the officers of appellant’s connection and dealings with narcotics, and that appellant showed him the place where the stabbing occurred. Appellant also told Middleton that deceased had a pistol at the time, and that after he stabbed the deceased he took the pistol and hid it. Appellant then directed Middleton to the pistol, which contained three live shells. Middleton testified that there were no spent shells in the pistol or marks on the live shells showing they had misfired, and his testimony does not reflect that appellant told him that the deceased drew or threatened to use the pistol against him. He also directed Middleton to the trousers and shirt he was wearing when he stabbed the deceased and which he had hid after cutting out the blood spots and flushing the pieces down the commode.

Testifying in his own behalf, the appellant stated that he met the deceased while they were serving time in the penitentiary; that they had been good friends and frequently associated since their discharge ; that his (appellant’s) girl friend telephoned deceased on August 13, at which time he talked with the deceased and they agreed to meet later. When they met about 8 p. m., the deceased had a pistol which he wanted to use in a robbery he had planned, but the appellant did not want to use a pistol because he only wanted to burglarize. During this time they drove along in a car, observing prospective places to burglarize as both of them needed money. Because of heavy traffic they went to a rural road to talk over their plans. While out of the car, they argued about places to burglarize, and then began arguing about narcotics and whether it was the fault of the deceased that the federal narcotic officers were looking for appellant, and they became very angry. Deceased said he was in no physical condition to fight, pulled his pistol, and pointed it at the appellant. When appellant heard the click of the pistol, he ran onto the deceased to prevent him from pulling the trigger again and stabbed him with a switch blade knife thereby causing his death. After he stabbed the deceased, appellant picked up the pistol and hid it, as shown in the deputy sheriff’s testimony, and later threw the knife away. After his arrest he took the officers to the pistol, but they were unable to find the knife. While testifying, he identified the clothing he was wearing when he stabbed the deceased, and from which he had cut the blood spots, flushing the pieces through the commode and throwing the clothing over a fence into some grass.

By formal bill of exception the appellant complains of the trial court’s refusal to permit him to file his motion for new trial. The qualification of the bill recites that the court refused to permit the filing on the ground that it was presented more than thirty days after the verdict of the jury was returned. The appellant noted on the bill that he agreed with the qualification.

A motion for new trial is required to be filed within ten days after verdict of the jury, except when good cause is shown, the trial court may extend the time for filing. Art. 755 Vernon’s Ann.C.C.P. There is no showing in the bill of good cause for the failure to timely file the motion for new trial. The bill presents no error.

The record contains no objections to the court’s charge and no requested charges. The informal bills have been considered and they do not show error.

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

Opinion approved by the Court.


text:
    Eliasar ALVAREZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36811.
    Court of Criminal Appeals of Texas.
    March 11, 1964.
    M. N. Garcia, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of marihuana; the punishment, 23 years.

The appellant made affidavit before the Deputy District Clerk of the trial court on January 31, 1964, stating: “M. N. Garcia no longer is my attorney; no attorney now represents me,” and that he desired to withdraw his appeal and accept his sentence.

Mr. Garcia, counsel of record for the appellant, raised objection to the motion of his client to dismiss the appeal.

Thereafter, a second affidavit of the appellant made before the same Deputy District Clerk, in the presence of the trial judge, was forwarded to this Court “to confirm the fact that I do not wish to pursue said appeal and I hereby again request that the Court of Criminal Appeals dismiss the same and that M. N. Garcia is not my attorney.”

The motion of counsel of record, Garcia, subsequently filed, for continuance of hearing on the affidavit to dismiss the appeal and require the, official court reporter to furnish a complete statement of facts is overruled.

The appellant’s motion is granted and the appeal is dismissed.