author: GRIFFIN, Justice. CULVER, Justice

text:
    Mrs. Fred J. ASHLEY et al., Petitioners, v. Kate Howard USHER, Respondent.
    No. A-10069.
    Supreme Court of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 31, 1964.

      Lola Bonner, Rockport, for petitioners.
    Hicks, Dollahon & Wohlt and Frank G. White, Houston, for respondent.
   GRIFFIN, Justice.

The holographic will of Howard S. Cunningham dated August 7,1961, was admitted to probate by the Aransas County Court. On appeal to the district court by contestant, Kate Howard Usher, the jury found that the testator possessed testamentary capacity; that in executing the will he was not acting under undue influence; that he signed the will offered for probate with the intent that the same should be his last will and testament. The following issue was also submitted and answered:

“Do you find from a preponderance of the evidence that Exhibit P-1 (the will in question) had not been revoked by Howard S. Cunningham at the time of his death?” (Issue No. 3).

The jury was instructed to answer this issue “yes” or “no” and gave the answer “no.” It is this issue and answer thereto which lie at the root of the problem here. We notice that the issue is cast in the negative form in order to place the burden of proof properly on the proponent.

In our case there were no objections by either party to the submission of Special Issue No. 3, or any request for the submission of additional issues.

On motion of the proponents, the trial judge disregarded the jury’s finding to this issue, holding that there was no evidence that the will had been revoked by the testator and accordingly entered judgment that it be admitted to probate as his last will and testament.

The Court of Civil Appeals properly takes the position that according to the finding of the jury, the proponents failed to carry their burden to show that the will offered for probate had not been revoked. That court further being of the opinion that there is evidence to support that jury finding, reversed the trial court and rendered judgment denying the will to probate. Usher v. Gwynn, 375 S.W.2d 564.

The issues of testamentary capacity and undue influence are not before us. The sole question presented here, in view of the jury’s finding, is whether proponents discharged their burden to show as a matter of law that the will offered for probate had not been revoked.

The will offered for probate distributes the testator’s property as follows: to St. Peter’s Episcopal Church, 10 shares of corporate stock; to Mary and Fred Ashley, IS shares; to Mr. and Mrs. L. V. McLester, S shares; to Mr. and Mrs. Cloberdant, 5 shares; and the remainder to Mrs. Ruth Lawton Gwynn. The will offered for probate consisted of three pages and was witnessed by Loma Sontag and Edgar Jacobson. It was contained in an envelope on the back of which was written by the testator, “my will, Howard S. Cunningham.”

The testator’s next of kin are Dr. Francis C. Usher and his sister, Miss Kate Howard Usher, niece and nephew. Dr. Usher disclaimed any right, title or interest in the estate in favor of his sister.

Section 88 of the Probate Code, V.C. S. in so far as relevant to this case, provides :

* * *
“(b) Additional Proof for Probate of Will. To obtain probate of a will, the applicant must also prove to the satisfaction of the court:
“ * * *
“(3) That such will was not revoked by the testator.”

Thus, the burden of establishing that a will has not been revoked is placed by this statute on the proponent of the will sought to be probated. Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001 (1925); May v. Brown, 144 Tex. 350, 190 S.W.2d 715(5), 165 A.L.R. 1180 (1945); McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025 (1903); Crane v. Pierce, 257 S.W.2d 510(2) (Tex.Civ.App., 1953, writ refused).

The rule enumerated in the above cases is that where testator’s will produced in court comes from the custody of those to whom it has been delivered by the testator, or is found among testator’s papers in a place he usually keeps his valuable papers, and there is no suspicion cast upon the genuineness of the will, there exists a presumption that the will has not been revoked. Under such circumstances, a proponent has satisfied the statutory requirement to prove no revocation.

Now, let us examine the facts as shown in this record.

The witness, Dr. Francis C. Usher, who-was not a party to this suit, and who was a nephew of the deceased testator, testified that upon hearing of his uncle’s death, he and his wife immediately went to Rockport, Texas, the home of his uncle.

Dr. Usher and wife arrived in Rockport November 8, 1961, the day following his uncle’s death. Upon contacting his uncle’s-local physician, and at the direction of this physician, the doctor and his wife went to-the office of an attorney in Rockport, who-had the keys to testator’s apartment, and, so-the Ushers were informed, had testator’swill.

The doctor swore that when he and his-wife reached the attorney’s office and had visited a few minutes, the attorney showed to the doctor and his wife what the attorney said was Howard C. Cunningham’s (the testator) last will and testament; that the will consisted of only two pages, to the best of the doctor’s recollection, and was wholly in the handwriting of testator; that the will shown him was witnessed by a Mrs-Ashley and a Mrs. Gwynn, who were the beneficiaries named in the will; that the will shown him did not have named therein two other beneficiaries whose names appeared in the will offered for probate.

The doctor positively testified that the will offered for probate and which contained three pages was not the will shown him by the attorney on the visit to the attorney’s office November 8, 1961.

Mrs. Virginia Usher testified that she accompanied her husband, Dr. Usher, to the-attorney’s office on November 8, 1961; that •only the attorney and she and her husband were in the office when the attorney showed them what the attorney said was the last will of testator Cunningham. Witness testified that she read and examined this will; that it had only two pages; that it was wholly in the handwriting of Cunningham; that it was witnessed by Mrs. Ashley and Mrs. Gwynn and these two were named as beneficiaries therein; that the beneficiaries McLester and Cloberdant, who were named as beneficiaries in the will offered for probate, were not named in the will shown to witness in the attorney’s office; that the will shown to witness named only Mrs. Gwynn “as executor and administrator” and that Mrs. Ashley was not named as an •executor and administrator. The will offered for probate named both Mrs. Gwynn and Mrs. Ashley as administratrices; that in the will shown the witness in the attorney’s office, witness distinctly remembers “that Mrs. Gwynn and Mrs. Ashley were both (each) left 15 shares of stock”; that witness was impressed by the fact that the figures “15” designating the shares left to each Mrs. Gwynn and Mrs. Ashley “came right under each other.” The will offered for probate left stock to Mrs. Gwynn and Mrs. Ashley at different figures, as well as leaving stock to others. Witness positively stated the will shown to her was dated August 7, 1961- — -the date shown on the will offered for probate — but that the will shown her by the attorney was not the will offered for probate. Her testimony in this regard is clear, positive and emphatic and without any qualification.

The will offered for probate was dated August 7, 1961, and the will testified to by Dr. and Mrs. Usher as the one exhibited to them by the attorney was also dated August 7, 1961.

In Page: On Wills, Bowe-Parker Revision (1960), Vol. 2, p. 395, § 21.34 it is stated: “If two or more inconsistent wills are shown to exist and it is impossible to show by evidence which of them was executed last, no effect can be given to any of such wills.” Cited as sustaining this proposition are cases from North Carolina, Utah, Virginia and the English case of Phipps v. Anglesey, 7 Brown’s Cas. in Par. 443.

This last case is the first recorded authority on this point. Lord Chief Baron was called upon to answer the following question in the case: “Whether two inconsistent wills of the same date, neither of which can be proved to be the last executed, are or are not void for uncertainty?” He answered as follows: “As to the second question, two inconsistent wills of the same date, neither of which can be proved to be last executed, are by the common law of England void for uncertainty so far as they are inconsistent. * * * ”

The evidence set out above demonstrates the inconsistencies between the will offered for probate and the will Dr. and Mrs. Usher testified was shown them by the attorney as the last will and testament of Howard S. Cunningham. There is. no evidence in the record as to which of the two wills dated August 7, 1961, was executed last.

The above evidence raises an issue as to whether or not the will offered for probate was the last will and testament of Howard S. Cunningham, and therefore it became the duty of the proponents of the will offered to show their will had not been revoked. This they did not do, and having failed in this burden, the will offered for probate cannot be probated.

The judgment of the Court of Civil Appeals is affirmed.

CULVER, Justice

(dissenting).

The principal fact issue in this case was whether or not the testator, Howard Cunningham, executed his will as a result of undue influence practiced upon him. The jury determined that question in the negative. The jury also found that Howard Cunningham was possessed of testamentary capacity and that he executed the will which was offered for probate with the intent that the same should be his last will and testament.

The following issue was cast in the negative form in order to place the burden of proof upon the proponent. By the submission of this issue the court was endeavoring to ascertain whether or not the will for probate had been revoked, but grammatically the negative answer “no” is tantamount to the finding that “We the jury do not find that the will had not been revoked”. In my opinion the form of the issue and the requirement of a “yes” or “no” answer led the jury into a state of confusion.

Now this court has held that since there is testimony that this testator executed two wills, though remarkably similar and neither making any bequest to Miss Usher or Dr. Usher, niece and nephew, and since it is not shown by the evidence as to which of them was executed later, no effect can be given to either and the Ushers will take all of the decedent’s property.

The sole question presented here is whether there is any evidence to support the jury finding on the revocation issue.

In a will contest the burden of proof to show that the will offered for probate had not been revoked is upon the proponents. Probate Code, § 88(b) (3), V.A.T.S. But where a written will is produced and its proper execution shown, there arises a presumption of continuity and the requirement of the statute in that respect had been met. McElroy v. Phink, 97 Tex. 147, 76 S.W. 753, 77 S.W. 1025; Womack v. Woodson, Tex.Civ.App., 169 S.W.2d 786; Wilson v. Paulus, Tex.Com.App., 15 S.W.2d 571; Redmond v. Redmond, Tex.Civ.App., 127 S.W.2d 309; Sien v. Beitel, Tex.Civ.App., 289 S.W. 1057. Any other rule would greatly hamper the probating of wills in this state.

From the proponent’s standpoint there was not only the presumption of continuity but there was evidence of non-revocation, including the testimony of both Mrs. Ashley and Mrs. Gwynn that they had never subscribed as witnesses to any will of Mr-Cunningham.

Dr. Usher disclaimed any right, title or interest in the estate in favor of his sister. Dr. Usher testified that he and his wife went to Rockport on the day following Mr.. Cunningham’s death and were referred to-proponent’s attorney who exhibited to them, a document described as Mr. Cunningham’s last will. He further testified that this document was not the will offered for probate,, because to the best of his memory it consisted of only two pages and was witnessed' by the beneficiaries, Mrs. Ashley and Mrs.. Gwynn.

Mrs. Usher testified that the witnesses-shown on the document were Mrs. Ashley and Mrs. Gwynn; that Mrs. Gwynn and' Mrs. Ashley were both left 15 shares of stock; that the Cloberdants and the McLes-ters were not mentioned in this document;, that it did include the provision for St. Peters Episcopal Church; that the document consisted of only two pages and. showed to have been executed on August 7, 1961, which was also the date of the will' offered for probate.

In my opinion the testimony of Dr. and Mrs. Usher is too vague and uncertain to-be accepted as having any probative effect. The well-known rule as to “no evidence” does not require us to disregard matters of common knowledge or those facts which are obvious or established beyond contradiction. Dr. and Mrs. Usher were in Miss-Bonner’s office for only a few minutes ; neither copied or took any notes of the contents of the document so that this testimony, given more than a year later, was. entirely a product of their recollection.. They both testified that in looking over the-will they were surprised, but it is quite evident that this surprise was occasioned by the fact that Mr. Cunningham had made-no provision for either Dr. Usher or Miss Usher in his will. The contents of the will' were important to Dr. Usher only as they affected him and his sister. Otherwise, it would be of little interest to him how his uncle might distribute the property among his friends and what proportion should be given to each. Actually Dr. Usher testified to no material inconsistencies in the two documents and the only ones related by Mrs. Usher were that Mrs. Gwynn was bequeathed 15 shares of stock instead of the residue of the estate, and that the Clober-dants and the McLesters were not named in the document she saw. While Mrs. Usher was very positive in her testimony as to her recollection of the contents, it is somewhat noteworthy that she either did not read the entire instrument or did not recollect to whom the will devised the greater part of the estate. Out of the 104 shares of corporate stock owned by Mr. Cunningham at the time of his death she accounted for the disposition of only 40 shares and also failed to account for the disposition of the cash in 'the bank. So that all of the testimony in this case shows that the will was written on two pages in the handwriting of the testator and signed by him; that St. Peters Episcopal Church was to receive 10 shares of the corporate stock, Mrs. Ashley was to receive 15 shares, and a substantial bequest was made to Mrs. Gwynn.

For there to be competent evidence supporting the jury’s finding it must have warranted a belief that Mr. Cunningham on the same day executed two wills of the same general purport without attempting to revoke either expressly or by mutilation or destruction but on the other hand preserving both so that they would eventually come into the hands of those whom he had appointed executrices and from them into the hands of their attorney. It must also warrant the belief that they selected which of the two wills would be offered for probate and that their attorney from some unexplained motive or from no motive at all exhibited to Dr. and Mrs. Usher the one which they decided not to probate. There could have been no motive to deceive Dr. Usher since if there had been two wills neither made any provision for him or his sister and it mattered not at all to them, which was probated.

The statute covering the matter of revocation contains the following provision:

“No will in writing, and no clause thereof or devise therein, shall be revoked, except by a subsequent will, codicil, or declaration in writing, executed with like formalities, or by the testator destroying or canceling the same, or causing it to be done in his presence.” § 63, Probate Code.

There is no proof here of any subsequent, will or declaration in writing executed with like formalities.

The import of Dr. Usher’s testimony is-that Miss Bonner showed him a document , which she said was the last will of Mr. Cunningham and which was in the handwriting of Mr. Cunningham, but neither he-nor Mrs. Usher testified from their own knowledge or observation that the document purported to be the last will and testament of Mr. Cunningham or that the document appeared to be executed by Mr. Cunningham as such.

The test as laid down in the often-cited landmark case of Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059, 1063, is “not whether-there is literally no evidence, or a mere scintilla, but whether there is any that, ought reasonably to satisfy the jury that the fact sought to be proved is established,” and “that it is the duty of the court to instruct a verdict, though there be slight testimony, if its probative force be so weak that it only raises a mere surmise or suspicion of the existence of the fact sought to • be established, such testimony, in legal contemplation, falling short of being ‘any evidence’.” In our opinion the testimony here merely raises a “surmise” or “suspicion”' that Mr. Cunningham executed two wills, on the 7th day of August in due form or that the attorney for the proponents exhibited a will to Dr. and Mrs. Usher-which was not the one offered in evidence - in this case.

The cases relied on by the Court of Civil Appeals, namely, May v. Brown, 144 Tex. 350, 190 S.W.2d 715, 165 A.L.R. 1180 (1945) and Brackenridge v. Roberts, 114 Tex. 418, 267 S.W. 244, 270 S.W. 1001, are not controlling on the facts. In May v. Brown the testimony was clear and emphatic that the testator had executed a new will, wholly in his own handwriting, and also had asked two young women to sign as witnesses. The provisions of this will were not shown, but from all the evidence the conclusion was fairly warranted that this will was changed to make provision for ¡his wife and children. In the second case the controlling issue was said to be whether or not Mr. Brackenridge executed a will subsequent to the 1913 will with the present intention that it be his will and to revoke all former wills.

For the foregoing reasons I would reverse the judgment of the Court of Civil Appeals and affirm the judgment of the ■trial court admitting the will to probate.

SMITH, HAMILTON and STEAK-ÍLEY, TJ., join in this dissent.


source: Caselaw Access Project

author: BELCHER, Commissioner. MORRISON, Judge

license: Public Domain

text:
    Earnest Manuel EDMONSON, Appellant, v. The STATE of Texas, Appellee.
    No. 37181.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.

      Malcolm Sanders, Beaumont, for appellant.
    W. C. Lindsey, Dist. Atty., Kenneth L. Parker, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder without malice; the punishment, five years.

The testimony of the state reveals that the appellant was visiting his niece, Dorothy, and her sister, Gloria, in Dorothy’s side of a duplex; that Ruthie, a sister of Dorothy and Gloria, lived in the other side of the duplex with the deceased. Shortly after the deceased and Ruthie came home around midnight, they heard them talking loudly but not arguing. At this time Dorothy went next door to visit, knocked on the door and called, and the deceased answered “I am coming.” While the deceased was coming to the door, the appellant came from the other side, told Dorothy to move aside, kicked the front door open, breaking the latch. When the deceased, with a knife in his hand as appellant approached, asked what he meant by kicking the door open, the appellant said, “Don’t hit her anymore, Bug.” (Bug was the nickname of deceased). Then the deceased told appellant to get out of his house, and the appellant again said, “Don’t hit her anymore, Bug.” and the deceased kicked at the appellant as he turned and left the house.

About ten minutes later, the appellant returned with a shotgun in one hand and shells in the other and pushed the door open into deceased’s apartment. Gloria grabbed the appellant saying, “Don’t do that. You in this * * * in this man’s house,” and the appellant pushed Gloria and told her not to tell him anything. At this time the deceased, who was standing, walked to the bed, got his pistol and went to the dresser and began loading the gun. When deceased got to the door, between the bedroom and the living room, Ruthie jumped in front of him, and he pushed her aside, and then the appellant shot the deceased with the shotgun. The deceased sat down in a chair, shot the pistol one time, and appellant, still in the front door, had “broken down” the shotgun as if he were trying to “unload it or something.” At this time the deceased arose from the chair, shot again, and fell, and the appellant turned around and walked out the door.

The evidence shows that the shot from the gun severed the large iliac artery and' vein in deceased’s groin thereby causing-loss of blood which resulted in deceased’s death.

The appellant testifying in his own behalf, stated that while asleep at Dorothy’s duplex, she awakened him saying “Get up and try to help me stop Bugeye (deceased) before he kills Bouncey (Ruthie)”. At this time he helped Dorothy to break in the door and he told the deceased not to hit her (Ruthie) anymore. Then the deceased got something from his pocket and said “I will kill both of you”, and deceased hit him, and as he turned the deceased kicked him, and he left the house and went home. As appellant arrived home, he heard Ruthie screaming, and decided to get his shotgun to scare the deceased and stop him from whipping Ruthie, but said he did not intend to shoot him. Further, he testified that after returning to deceased’s house with the •shotgun, that he had to shoot the deceased in self defense as the deceased shot at him with a pistol twice, hitting him in the leg •once. Two witnesses testified they were in the neighborhood on the night of the shooting and in their opinion they heard two rifle shots before they heard a shotgun.

In his brief appellant complains of the •court’s charge on the grounds that it failed to place the necessary burden of proof on "the state in charging the presumption on the use of a deadly weapon by the deceased; -that such presumption is imperative to both juries and courts; that the court failed to include the provisions of the statute on the -presumption on the use of a deadly weapon; and the court also erred in using the words "“as you find the facts to be” for the reason it had the effect of relieving the state of its burden of proof in this instruction.

The court’s charge reveals that it in substance fairly and adequately in•cludes the provisions of Art. 1223, Vernon’s Ann.P.C., on the presumption on the use of -a deadly weapon. Further, an examination •of the charge in the light of the objections that it failed to place the necessary burden •of proof on the state, and that it had the effect of relieving the state of its burden of proof on the presumption on the use of a deadly weapon reveals no error.

It is contended that the trial court erred in failing to charge on the defense of another. In the absence of such an objection at the time, to the charge as submitted to the jury, no error is presented.

Appellant contends that the trial court erred in charging the jury upon the law of provoking the difficulty.

It is undisputed that appellant intentionally returned to deceased’s apartment, and without invitation of the deceased pushed his apartment door open while carrying a loaded shotgun, and when advised by Gloria that he was entering another man’s house he told her not to tell him anything. These facts in addition to the prior difficulty and the other evidence as shown by the summary herein of the evidence were sufficient to authorize the court to charge on the law of provoking the difficulty. Tew v. State, Tex.Cr.App., 379 S.W.2d 893.

It is insisted that the trial court erred in submitting a charge upon the rights of the deceased to protect his home from the appellant, and unduly restricted his rights of self defense.

In connection with a charge upon the law of self defense, the court further charged that, “Every person has the right to protect his home from unlawful attack by the use of whatever force as may be reasonably required in order so to do. If a person has placed himself in the wrong in the home of another then such wrongdoer is, under the law, bound to yield to and retreat in favor of the lawful rights of the owner of the home present therein at the time of the commission of the wrong.”

After properly applying the law to the facts the court also charged: “If you do not find from the evidence beyond a reasonable doubt that defendant was wrongfully in the home of deceased on the occasion in question, or if you have a reasona-hie doubt thereof, the rights of defendant shall not be lessened hereby and he shall be entitled to his full rights of self-defense as outlined herein.”

Under the facts, the complaint made of the foregoing instruction does not reveal error. 29 Tex.Jur.2nd 28, Sec. 46.

It is also contended that the trial court erred in refusing to charge the jury on appellant’s right to arm himself and seek an explanation from the deceased as to his conduct.

There appears to have been no written objection to the court’s charge at the time it was given distinctly specifying the failure of the court to submit a charge on appellant’s right to arm himself and seek an •explanation from deceased. Such an objection is statutory. Art. 658, Vernon’s Ann.C.C.P. No special requested instruction on this matter was presented. Art. 659 •C.C.P. This contention reflects no error.

Error is urged in the admission of two photographs showing blood on the floor and one of blood on the steps of the apartment where the deceased was killed. The ■objection was on the ground that there was no issue as to cause of death and that the photographs were inflammatory and prejudicial.

After objection to the qualifications of an experienced officer, who had described the wound, to express his opinion that death was caused by gunshot wound and loss of blood, the state offered the photographs for the purpose of showing the cause of death. At the time appellant stated he would stipulate that death was caused as a result of a gunshot wound but later stated it was withdrawn. Afterwards, a mortician, called by the state, testified that deceased suffered a large wound in the groin, and expressed the opinion that he would lose all of his blood in a short time.

The deceased shot the appellant in the leg in the apartment. The photographs do not show the body. From an examination of the photographs in the light of all the evidence, no reversible error is shown.

The evidence is sufficient to sustain the conviction.

The judgment is affirmed.

Opinion approved by the Court

MORRISON, Judge

(dissenting).

I cannot bring myself to agree to an affirmance of this conviction. State’s exhibits 8 and 10 show literally acres of blood. Prior to their introduction Officer Lawhon had already testified that he saw the body of deceased in the funeral home, saw the wound and observed the mortician try to extract a sample of blood from the corpse and fail, and had expressed the opinion which was later confirmed by the mortician that cause of death was a gunshot and loss of blood. The pictures therefore helped solve no disputed issue and were highly inflammatory.

I respectfully dissent.


author: McDonald, judge.

text:
    Ernest YARBROUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 37368.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.

      Walter B. Conway, Houston, for appellant.
    . Frank Briscoe, Dist. Atty., Carl E. F.Dally, James C. Brough and Donald M. Keith, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is driving while intoxicated, the punishment, a fine of $75.00 and three days confinement in the County Jail.

It is shown by uncontroverted testimony that on January 4, 1964, a car driven by appellant collided with the rear of a car driven by Billy Joe Helmer, on a public street in Houston, Harris County, Texas. Uncontroverted testimony further shows that police were called by Mr. Helmer’s wife and, when they arrived at the scene of the collision, they arrested appellant and charged him with driving while intoxicated.

Mr. Helmer testified that he had stopped his car for a red light on the feeder lane coming off Highway 137, otherwise known as the North Loop, at its intersection with Homestead Road. Other cars started up, going across in front of him. He heard a squealing of tires and looked around and saw appellant’s car coming behind, before he was hit by appellant’s car.

Four witnesses for the State, Mr. Hel-mer, his wife, Beatrice, Police Officer J. F. Loofs, and his partner, Police Officer C. H. Lenz, testified that from their observation of him at the scene, they reached the conclusion that appellant was intoxicated. They gave as reasons the manner in which he spoke, the smell of alcohol on his breath and person, and the manner in which he staggered and weaved as he walked or stood.

Mrs. Helmer identified appellant as the driver of the car which collided with their car, and her husband testified that when he got out of his car, he saw appellant getting out from beneath the wheel of his vehicle.

Appellant testified in his own behalf, and his wife testified for him, his wife having been a passenger in the vehicle which he was driving. Appellant and his wife placed him behind the wheel of the vehicle which collided with the Helmer’s car, and which was being driven on a public street immediately before the collision.

It was their testimony that the light in front of the Helmer’s car was green, and not red, and that Helmer started up and then suddenly stopped in the middle of the intersection, and they skidded on a slick street and hit him.

It was further the testimony of appellant and his wife that he had drunk only two bottles of beer, and his wife had drunk one bottle.

Police Officer Loofs testified appellant consented to have a blood test taken; that the test was taken; that he marked the vial containing the sample of blood taken from appellant, and properly deposited it in a locked box. Police Chemist Floyd E. McDonald testified he took the vial from the locked box and that the sample of blood taken from appellant showed a content of .24 percent alcohol which he testified, in his opinion, showed intoxication.

The jury decided the fact issue of intoxication against appellant, there being no controversy as to whether he was driving a vehicle on a public street in Harris County at the time alleged.

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

There are no formal bills of exception, no requests for special charges to the jury or exceptions to the charge of the Court to the jury are preserved, and the appellant noted no exception to action of the Court in overruling his amended motion for new trial.

Further, there is no evidence supporting appellant’s amended motion for new trial. A motion for new trial must be supported by proof. Polk v. State, 172 Tex.Cr.R. 211, 355 S.W.2d 712.

In the statement of facts, counsel for appellant dictated the following incorrect assertion:

“NOW COMES THE DEFENDANT, ERNEST YARBROUGH, and through his Attorney, respectfully excepts to the Court’s ruling preventing him from asking the question of the witness Mary Yarbrough as to the disposition of a ticket for being drunk alleged to have been given on the scene.
“The defense requested permission to offer such evidence in order to refute evidence brought on by the State that such a ticket had been given at the scene, and the Court overruled the request of the Defendant, to which the Defendant respectfully would perfect its Bill by the witness Marv Yarbrough, as follows

Following this unsworn assertion by his attorney, appellant brought out by question and answer from said Mary Yarbrough, in the absence of the jury, that she was given a ticket for being drunk at “the scene”, without stating at what scene, and that “they” dismissed said ticket.

Nowhere in the record did the appellant make any effort before the jury to bring out from Mary Yarbrough any evidence as to disposition of any “ticket” for being drunk, or of any charges against her. Thus, the Court never prevented him from asking such question of this witness. Her testimony is found in approximately 10 pages of the statement of facts. No informal bill on this matter was made, as authorized under the provisions of Article 759a, Vernon’s Ann.C.C.P.

Evidence of the “ticket” for being drunk which Mary Yarbrough, wife of appellant, received at the scene of the collision resulting in appellant’s arrest, was first introduced during examination of Police Officer J. F. Loofs, without objection by appellant. He testified that in his opinion she was intoxicated, and that he charged her with being drunk in Corporation Court. Appellant cannot complain about evidence introduced without objection. Scanlin v. State, 165 Tex.Cr.R. 183, 305 S.W.2d 357.

Subsequently, appellant, in his own testimony given in his own behalf, under questioning by his own lawyer, elected not to bring out evidence of the result of some charge against his wife, as follows:

“Q. (By Mr. Conway) All right, were you present in Court when the City Judge threw your wife’s ticket out?
“A. Yes, sir.
“MR. KEITH: Object. It’s immaterial.
“THE COURT: Sustain the objection. Don’t answer the question until the Court has had an opportunity to rule. Sustain the objection. The jury will not consider it for any purpose. Now, Counsel, ask the proper question.
“MR. CONWAY: Pass the witness.”

The question as asked was clearly immaterial, with no identification of the charge, the alleged offense, the court, or the connection with the case at bar.

Here the Court clearly did not prevent inquiry into any matter properly brought out, and even prompted appellant’s counsel to “ask the proper question”, which appellant’s counsel elected not to do.

Testimony that the passenger in appellant’s car was drunk is not error. Long v. State, Tex.Cr.App., 375 S.W.2d 913.

Appellant objected to admission of testimony relating to his blood test, because the sample of blood had not been introduced in evidence. This objection is without merit. Lyles v. State, 171 Tex.Cr. R. 468, 351 S.W.2d 886; Waite v. State, 169 Tex.Cr.R. 484, 334 S.W.2d 816 and Kilrain v. State, 166 Tex.Cr.R. 265, 313 S.W.2d 299.

Finding no reversible error, the judgment is affirmed.


text:
    Arthur J. BRUMMETT, Appellant, v. The STATE of Texas, Appellee.
    No. 37260.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.

      Bryan Wingo, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of the misdemeanor offense of driving a motor vehicle on a public highway while intoxicated. After a trial by jury his punishment was assessed at a fine of $150.00 and 15 days in jail.

The State’s testimony reflects that the appellant was driving an automobile on Ocean Drive in Corpus Christi; that he had a collision; that he left the scene; that a short time later he had another collision on Pasadena Street; that in the opinion of those who saw him at the collision, the arresting officers, and the officers at the jail appellant was intoxicated.

It was also shown that he was in a bar; that he insisted that a man play shuffleboard with him; that as they were playing shuffleboard without provocation he hit the man with a shuffle alley puck; that while he was there he took a glass of whiskey and drank it real fast; that in the opinion of the witness in the bar he was intoxicated then.

Warren C. Wood, a witness called by the appellant, testified that appellant stayed in his bar three or four hours; that he did not drink over three beers; that he did not drink any whiskey; that in his opinion appellant was not intoxicated.

Mrs. Arthur J. Brummett, Jr. testified that she was the daughter-in-law of the appellant ; that the appellant took some Achromycin tablets that morning; that the next day when he was sick a doctor was called.

Appellant testified that he was 61 years of age and a maintenance man for the schools in Dallas; that he was sick at the time;that he went fishing that morning and went to the bar and drank two or three beers; that he did not drink any whiskey; that he was there from 11:30 until approximately ten minutes after two; that there was an argument in the bar; that the man with whom he was playing accused him of cheating. He admitted the collision and also that he drove off from the first collision. He testified further that he had a blackout spell, but that he was not drunk.

Appellant presents several informal bills of exception concerning the argument of the assistant county attorney. None of these bills reflect reversible error. The first one is leveled at argument complained of as bolstering a witness’ credibility. We think the argument was reasonable deduction from the evidence adduced. The complained of argument dealt with the testimony of FBI agent Denton. The evidence showed that he had been an agent for some 25 years and that in the normal course of his duties he did not apprehend “drunks”. The prosecutor had stated that this witness had no interest in the case and that he does have a responsible position. We think that it is common knowledge that one who has been an FBI agent for 25 years would have a responsible position.

The second informal bill complaining of improper jury argument is of no consequence and does not reflect error.

The third and last bill complains of the prosecutor stating that “he had never seen a better case of DWI than this one since he has been prosecuting”, which appellant’s counsel contends was inflammatory and prejudicial. A similar argument was made by the prosecutor in Johns v. State, 157 Tex.Cr.R. 401, 249 S.W.2d 61, in which the state’s attorney said: “This is as clear a case of negligent homicide as you will ever have in this county, or in any other county in the State of Texas.” We held that the argument did not constitute un-sworn testimony but that it was the county Attorney's opinion of the evidence. We said in Roberts v. State, 48 Tex.Cr.R. 210, 87 S.W. 147: “We do not believe that the remarks of the county attorney were unauthorized. The mere suggestion that he had tried many cases, but had never tried one where the evidence was as strong as in this, was not' of that character as injuriously affected appellant.”

We find the evidence sufficient to sustain the jury’s verdict No reversible errors appearing, the judgment is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Donald Ray YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 37314.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.

      Curry & Curry by Tim C. Curry, Fort Worth (on appeal only), for. appellant.
    Doug Crouch, Dist. Atty., Grady Hight and R. J. Adcock, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is assault with intent to murder with malice; the punishment, confinement in the state penitentiary for 5 years.

On the night of the 15th of July, 1962, the injured party, Burton Glenn Howard, and a friend Perry Stacey were at the Meadow-brook Drive-In Theater in Fort Worth, Tarrant County, Texas. Attending the same theater was the appellant, Donald Ray Young, and his friend Drury Pierce. At some time during the evening in question the four men exchanged words, threats, etc., until the situation developed into a heated argument. At this point, Drury Pierce made contact with "B. G.” Howard and a fight started. The appellant and Howard became involved and the appellant’s companion, Pierce, commenced fighting Perry Stacey.

After the altercation the injured party was slumped against a bench bleeding from several lacerations, and a knife was observed on the ground. Howard was subsequently taken to the Carswell Air Force Base Hospital where surgery was performed, removing one of his kidneys. A further convalescence of three months was required before Howard was able to perform limited work. A medical doctor testified that the kidney had been punctured and, unless properly cared for, the wound received by Howard could likely have caused death.

Direct identification of the appellant as the individual attacking Howard was established by Howard’s companion Perry Stacey.

Appellant contends that the evidence is insufficient to sustain the conviction because the weapon, which was not introduced into evidence, was not shown to have been used in a manner calculated to produce death or serious bodily injury, nor were the injuries received shown to be such as to justify the inference that such a weapon was used.

The wounds were caused by some sharp instrument. The kidney was punctured, and had to be removed.

Specific intent to kill is an essential element of the offense of assault with intent to murder. Art. 1160 Vernon’s Ann.P.C. Such intent may be inferred. “If the weapon used is not deadly, the intent to kill * * * may be ascertained from and shown by the surrounding facts and circumstances.” Ammann v. State, 145 Tex.Cr.R. 34, 165 S.W.2d 744. In the case at bar the wound was so serious that in the absence of proper care the wound probably would have produced death. The jury was warranted in concluding from the seriousness of the wound that the instrument used to inflict the lacerations and puncture was, from the manner of its use, a deadly weapon, and that the appellant intended to kill Burton Glenn Howard. Butler v. State, 131 Tex.Cr.R. 543, 100 S.W.2d 707; Rose v. State, 123 Tex.Cr.R. 261, 58 S.W.2d 526.

No motion for new trial was filed. No affidavit of either absent witness, as to what his testimony would have been, is found in the record and there is no showing why such had not been secured. In the absence of such, the failure of the trial court to grant appellant’s motion for continuance does not call for reversal. Bradshaw v. State, 167 Tex.Cr.R. 469, 320 S.W. 2d 833.

The court instructed the jury on the law of aggravated assault and self-defense. The conflicting evidence was resolved by the verdict of the jury against the appellant. We find the evidence sufficient to support the conviction.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    Ex parte Varreece BERRY.
    No. 37296.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Underwood & Holcombe, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

'This is a companion case to Ex parte Smith, Tex.Cr.App., 383 S.W.2d 401 (October 28, 1964) wherein relator was held in contempt and ordered confined until he purged himself by testifying before a court of inquiry. No fine was assessed.

Relator now makes it known that he has been indicted by the Grand Jury of Harris County for an offense about which he was interrogated at the court of inquiry. This being true, relator may not now be required to purge himself by testifying be-; fore the court of inquiry for which reason he is entitled to release.

Relator is ordered discharged.


text:
    Charles Arthur PARKER, Appellant, v. The STATE of Texas, Appellee.
    No. 37366.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.

      John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Ruben W. Hope, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is possession of a dangerous drug, to wit, barbiturates; the punishment, thirty days in jail.

Appellant, a delivery man for a drug store, was driving in Houston when his truck was observed by a Houston radio patrol officer. The officer testified that the vehicle was speeding. Appellant was “waived down” and asked to display his driver’s license. As appellant searched his billfold for his license, the officer noticed something red inside appellant’s closed hand. Upon being questioned as to what was in his hand, appellant replied by displaying two red capsules. The capsules were later analyzed and found to contain a derivative of barbituric acid.

Appellant testified that he had the capsules in his hand when he was stopped by the officer. It was his contention that he had noticed the capsules on the floor of his truck; had picked them up just prior to being stopped, and did not know what they contained. In view of his testimony, the appellant is in no position to complain of the introduction of the capsules in evidence. McCain v. State, Tex.Cr.App., 363 S.W.2d 257; Hudson v. State, 172 Tex.Cr.R. 565, 361 S.W.2d 388.

Appellant complains that the trial court should not have permitted counsel for the state to question him on cross-examination concerning a conviction in 1957 for burglary, wherein he was granted probation of his 5 year sentence which had expired and the conviction had been set aside.

Under the terms of the Adult Probation and Parole Law (Art. 781d Vernon’s Ann. C.C.P.) the result of the court’s order released the appellant “from all penalties and! disabilities” resulting from the crime of which he had been convicted, “except that proof of his said conviction * * * shall be made known to the court should the-defendant again be convicted of any criminal offense.”

Art. 732a V.A.C.C.P. provides:

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

We are in accord with the view that evidence as to the burglary conviction which had been set aside after the term of probation had expired’ was not admissible to impeach the appellant. This is especially so where, as here, the court has granted a new trial, set aside the conviction and dismissed the case pursuant to the provisions of Art. 781d V.A.C.C.P., Sec. 7.

The record shows, however, that on his direct examination appellant testified that he had never been convicted of a felony or of a misdemeanor involving moral turpitude, and on his redirect examination he testified fully regarding the 1957 conviction, giving his explanation that he pleaded guilty though he was not.

The only reference to the prior conviction by the state was on cross-examination ' when appellant was asked and answered:

“Q. You are the same Charles Arthur Parker that was convicted in 1957 for burglary and felony theft?
“A. No, sir. I don’t know nothing about that.”

Appellant moved for mistrial without stating any reason therefor, which motion was denied.

In view of the evidence adduced by the defense, the question propounded to the appellant on cross-examination, answered in the negative, would not warrant reversal. Ramirez v. State, 169 Tex.Cr.R. 494, 335 S.W.2d 228.

A different question would be raised had thé appellant directed the trial court’s attention to his motion praying that the district attorney be instructed not to bring before the jury the fact that he had been previously convicted in the cause in which he was granted probation, the term of which had expired and the conviction set aside.

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

The judgment is affirmed.


text:
    Emilio Leo RIVERA, Appellant, v. The STATE of Texas, Appellee.
    No. 37251.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.
    Guinn & Guinn, Ben A. Endlich, El Paso, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is failure to stop for a flashing red light at a railroad crossing; the punishment, a fine of $101.00.

The purported statement of facts found in the record is in narrative form. It does not contain a certificate showing that it contained all of the facts adduced at the trial. In the absence of such a certificate the sufficiency of the evidence cannot be appraised. Stockman v. State, 164 Tex.Cr.R. 469, 303 S.W.2d 410. We find no recitation in the record such as we had in Hall v. State, 171 Tex.Cr.R. 227, 347 S.W.2d 262.

No reversible error appearing, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Foster L. NEAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37244.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.
    Teague & Carlisle, by Marvin O. Teague, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F-Dally, Cletus A. Davis and Ripley Woodard, Asst. Dist. Attys., Houston, and Leon: B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault upon a child; the punishment, one hundred eighty days in jail.

The purported statement of facts found in the record contains the testimony of one witness, called by the state, but the agreement of counsel reflects that it does not include all the testimony adduced at the trial.

In the absence of a complete statement of facts containing all the evidence adduced upon the trial, we cannot pass upon appellant’s complaint to the court’s charge. Bailey v. State, 170 Tex.Cr.R. 448, 342 S.W.2d 338; Booker v. State, 171 Tex.Cr.R, 667, 352 S.W.2d 752.

We overrule appellant’s contention that the information is fatally defective because it does not allege sufficient facts to constitute an offense under Art. 1147, Vernon’s Ann.P.C., which defines aggravated assault by an adult male upon the person of a child, in the following language:

“(9) When committed by an adult male upon the person of a female or child or by an adult female upon the person of a child.”

The information, omitting the formal parts, charges that:

“ * * * on or about the 24th day of October, A.D. 1963, FOSTER L. NEAL then and there an adult male, did make an aggravated assault upon Karen Neal, a child.”

Such allegation, being in the language of the statute, Art. 1147, supra, is sufficient to charge an offense. Turner v. State, Tex.Cr.App., 217 S.W.2d 413.

The judgment is affirmed.

Opinion- approved by the Court.


text:
    Charles Lee STAFFORD, Appellant, v. The STATE of Texas, Appellee.
    No. 37359.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    No attorney for appellant on appeal.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Mark A. Troy, Jr., Louis Francis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is Driving While Intoxicated; the punishment a fine of $50.00 and 3 days.

The state’s testimony adduced from witnesses Don W. Vickery, R. L. Boggs, and H. R. McCandless, Jr. reflects that they were parked at a 7-11 Store when appellant’s car struck their vehicles and knocked one of the cars up on the apron of the store. Witness Vickery testified that he saw an open can of beer in appellant’s car and smelled a very strong odor of alcohol. The witness related that he was standing right by the door when appellant got out of the car. Mr. Vickery further related that he sustained a fractured skull by being thrown from his car when it was struck by appellant’s- car. He gave his opinion that appellant was intoxicated. Witness Boggs testified that his car was struck by a car that had been hit by appellant’s car. It was his opinion that appellant was drunk. Mr. Mc-Candless testified that he was at the ice house portion of the store when his car was struck. It was his opinion that appellant was intoxicated. Dallas Police Officers, William R. Patterson, Ivan R. Stephens, and R. D. Wilson all testified that they smelled a strong alcoholic odor; appellant’s eyes were bloodshot and respectively stated, “I would say that he was intoxicated”; “I noticed he was intoxicated”; “He was drunk”. Officer Wilson testified that the offense took place in Dallas, Dallas County, Texas.

Appellant adduced testimony which reflected that he had gone to the Veteran’s Hospital and subsequently talked to a Dr. Patterson after the accident or offense in question. The medical records reflected a history of “blackouts”. Appellant testified in his own behalf and denied he was intoxicated but admitted having had six beers. It was appellant’s contention that he had a blackout at the time he crashed into the cars; that he was injured in the accident and could not speak well because his mouth was filled with blood. The jury resolved the issues in favor of the state, rej ecting appellant’s version of the transaction.

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

There are no formal bills of exception, nor has a brief been filed in appellant’s behalf.

Finding no reversible error, the judgment is affirmed.


text:
    Everett Oscar RIPPEE, Appellant, v. The STATE of Texas, Appellee.
    No. 37141.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    Rehearing Denied Dec. 2, 1964.

      Bryan Wingo, Corpus Christi, for appellant.
    R. L. Lattimore, Dist. Atty., Joe I. Cardenas, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Amended Opinion

The offense is the misdemeanor charge of driving while intoxicated; the punishment, three (3) days in jail and a fine of $50.00.

The state’s evidence reflects that on Friday, September 20, 1963, Highway Patrolmen Donald L. Lee and Dennis Vickery were on routine patrol when at approximately 4:30 P.M. they received a call by state radio that one C. L. Bray had called in by telephone from Rangerville, Texas; the patrolmen then drove south on farm road 1015 until they reached Progresso, Texas, where they turned east on U. S. 281. After proceeding about one and one-half miles east, the patrolmen saw a blue and white Cadillac moving toward them on their side of the highway, then going off the roadway and back on again. The patrolmen gave pursuit and clocked the said vehicle at a speed of 75 miles per hour and further observed it weaving on the road. They pulled the Cadillac off the road and asked the appellant to step out of the vehicle. Patrolman Lee observed that the appellant was very unsteady on his feet, talked in a very slurred and thick-tongued manner, and had a very strong alcoholic odor emitting from his breath. Appellant admitted drinking two or three beers. After observing the appellant’s actions and after conversing with him at length it was the opinion of the patrolmen that appellant was intoxicated. Appellant was taken to the Weslaco Police Department where he consented to a urine test. He remained in the Weslaco jail overnight and the following day was transferred to the Hidalgo County jail in Edinburg, Texas. The appellant was subsequently charged with the offense of driving while intoxicated.

Appellant testified in his own behalf and related that he had only had two beers that day; that he was not intoxicated; that he had not driven at an excessive rate of speed; that the officers were mean to him ; that the state’s witnesses did not relate the facts as they were; that he did not urinate in the bottle; that the specimen of urine contained in the bottle introduced by the state was not his and that the bottle was not the same one given him by the officer.

The jury resolved the disputed fact issues contrary to appellant’s version, and we find the evidence sufficient to sustain their finding.

Appellant contends among other things that venue was not shown to have been in Hidalgo County. It is his contention that the testimony was disputed as to the location of the Hidalgo County line. Venue need not be proved beyond a reasonable doubt and may be proved by circumstantial as well as direct evidence. It is sufficient if from the evidence the jury may reasonably conclude that the offense was committed in the county alleged. Curtis v. State, 167 Tex.Cr.R. 536, 321 S.W.2d 587; Art. 847 Vernon’s Ann.C.C.P.

Appellant also contends that the results of the urine test were not admissible in the absence of his consent. We overrule this contention. Sartain v. State, 171 Tex.Cr.R. 192, 346 S.W.2d 337.

Appellant next contends that there was jury misconduct because the jury submitted some questions to the court relative to evidence appellant contends was not presented in the trial. Appellant took no objection at the time these questions were submitted, nor did he take a formal bill of exceptions. He merely voiced his complaint by raising it by his own affidavit and in his Motion for New Trial. This procedure is not in accord with Art. 760e, V.A.C.C.P. and presents nothing for us to review.

Appellant’s last complaint is to jury-argument of the prosecutor. We have carefully reviewed this contention. While the argument made is not to he commended, yet we do not feel that it is prejudicial enough to constitute reversible error.

Finding the evidence sufficient and no reversible errors appearing, the judgment is affirmed.


text:
    Edward Atwell FITCH, Appellant, v. The STATE of Texas, Appellee.
    No. 37399.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    Wm. J. Kershner, Houston, for appellant
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst Dist Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of unlawfully carrying a pistol and his punishment assessed at a fine of $175.

On appeal to this court the judgment of conviction was affirmed in an opinion delivered March 25, 1964, and reported in Fitch v. State, Tex.Cr.App., 378 S.W.2d 313.

The judgment recited that appellant . pleaded guilty to the charge contained in the information. In his motion for rehearing, appellant made application for a writ of certiorari directed to the trial court, requiring him to forward to this court a corrected judgment showing that, in fact, appellant entered a plea of not guilty to the information.

In our opinion on motion for rehearing it was pointed out that the trial court was powerless to enter such an order while the case was on appeal and the motion for rehearing was overruled without prejudice to appellant’s right to secure, if he could, the entry of a judgment nunc pro tunc by the trial court, from which he might again appeal to this court.

After delivery of the opinion, a judgment nunc pro tunc was entered in the cause by the trial court, on May 21, 1964, which recites that appellant in open court pleaded not guilty to the charge contained in the information, and further recites that “The Court having- heard the Information read and evidence submitted, finds the defendant guilty of Unlawfully carrying a Pistol, a misdemeanor, and assesses the punishment at a fine of $175.00.”

From the entry of such nunc pro tunc judgment, appellant presents this appeal.

The record is again before us without a statement of facts and there is nothing in the record to support appellant’s claim that the trial court did not have a court reporter present and available at the trial to report the testimony adduced or to support the claim that the court refused to approve the appellant’s statement of facts. Further, there is nothing in the record to support appellant’s claim that the trial court abused his discretion in finding him guilty.

There are no formal bills of exception, but the record does contain the same purported bystanders’ bill of exception that was before us on the first appeal, which purports to show the evidence adduced at the trial by both the state and the appellant.

An examination of the bill reflects that it is signed and attested by appellant’s counsel and two others.

The Code of Criminal Procedure makes applicable Rule 372(j) of the Texas Rules of Civil Procedure, which requires that a bystanders’ bill be attested by three bystanders. A “bystander” is defined as one who stands near and one who has no concern with the business transacted. Chance v. State, 125 Tex.Cr.R. 318, 68 S.W.2d 212. Such definition excludes an attorney for the accused. Walker v. State, Tex.Cr.App., 227 S.W. 308; Avant v. State, 161 Tex.Cr.App. 577, 279 S.W.2d 863.

The bill, not being attested by the required number of bystanders, cannot be considered.

The judgment is affirmed.

Opinion approved by the court.


author: BELCHER, Commissioner.

text:
    J. L. HUDGEONS, Appellant, v. The STATE of Texas, Appellee.
    No. 37316.
    Court of Criminal Appeals of Texas.
    Dec. 9, 1964.
    No attorney of record on appeal for appellant.
    Doug Crouch, Dist. Atty., Truman Power and Roland H. Hill, Jr., Asst. Dist. Attys.,, Fort Worth, and Leon B. Douglas, State’s, Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for indecent exposure-to a child; the punishment, three years.

The prosecuting witness, a girl, age ten, lived with her father and. mother near the-dam on a lake. There was a road from their home to a fishing place which was, among some trees and brush about one-fourth mile away. About 5 :30 P.M., while the girl was riding her bicycle and turning around the trees near the fishing place to go back home, the appellant called to her and she went to the place among the trees where he was. When she got there the appellant “had his person out,” and she saw his private parts, which he exposed to her; and he then took some money from his pocket and asked if she wanted to make thirty cents. At this time, telling appellant she had to go, the girl left, riding her bicycle directly to her home. When she got home she told her father, who was in the yard, that a man “down there fishing” had offered her thirty cents. Her father then left for the fishing place and she went into the house.

The mother testified that when the girl came into the house “ * * * she was terribly frightened and white and her eyes were so big and she said, * * * ‘Mother, he showed himself to me and offered me thirty cents/ and said, T was so embarrassed I couldn’t tell my father the bad part of it/ and she was so upset.” The mother further testified that the place to which the girl rode her bicycle, among the trees, was about one-fourth mile from home and that she was nine years of age at that time.

Except that the girl did not tell him of appellant’s exposure of his privates, the father’s testimony was substantially the same as that of the mother.

Testifying in his own behalf, the appellant admitted being present at the scene at the time in question. He stated that he suffered a kidney ailment and was answering a call of nature in some brush beside the road, when a small girl suddenly appeared and saw him; that he asked the girl to excuse him and turned his back; that the girl said she was going home to get her fishing pole and return to fish; that nothing was said about money; that in his opinion the prosecuting witness was not the girl he saw at the lake while answering a call of nature.

Appellant objected to the admission im evidence of the statements made by the girl, to her mother.

The evidence reveals that the girl' went directly home on her bicycle from the-fishing place, that on entering the house she was upset, “terribly frightened and white and her eyes were so big” when she-told her mother what had occurred. The-statements were admissible as res gestae. Kyle v. State, Tex.Cr.App., 365 S.W.2d 168.

There are no formal bills of exception or objections to the court’s charge.

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

Opinion approved by the Court.


text:
    Ray Spencer PERRY, Appellant, v. The STATE of Texas, Appellee.
    No. 37432.
    Court of Criminal Appeals of Texas
    Dec. 9, 1964.

      No attorney of record on appeal
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Cletus A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, four days in jail and a fine of $250.

The state’s witness Hardy testified that while he was driving his automobile in a northerly direction upon a public highway, the appellant, who was also driving an automobile, passed him going in the same direction on said highway; that he saw appellant’s automobile veer to the left off the north-bound lane of the highway, strike down three guard-posts, go through the barrier and across 'the three south-bound traffic lanes, and come to rest between the highway and the local community road.

The witness Hardy testified that, while at the scene, he observed the appellant walk, heard him talk, and smelled the odor of alcohol on his breath. While testifying, Hardy expressed the opinion that appellant was intoxicated.

Texas Highway Patrolman Nicholson testified that he investigated the collision, observed the appellant at the scene, and smelled the odor of alcohol on his breath. He expressed the opinion that appellant was intoxicated. He also testified that under the seat of appellant’s automobile he found four bottles of liquor, two of which were only partially full.

The appellant did not testify or offer any evidence in his behalf.

The statement of facts is in narrative form. There are no formal bills and no objections to the court’s charge.

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

Opinion approved by the Court.


text:
    John Edward HASEK, Appellant, v. The STATE of Texas, Appellee.
    No. 37187.
    Court of Criminal Appeals of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.
    Bryan Wingo, Corpus Christi, for appellant

      Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

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

The state’s proof was undisputed that, on the date alleged, the appellant drove and operated his motor vehicle upon a public street and highway in- the city of Corpus Christi.

Officer W. L. Fuller testified that on the occasion in question he first observed the appellant driving his automobile when he passed the witness in the 3400 block of Mc-Ardle Road. He stated that he proceeded to follow appellant for several blocks and stopped him for speeding and following too close behind a car he was attempting to pass. When the officer asked appellant for his driver’s license he produced his wallet but could not find it. However, the officer did find the license. The officer further testified that when appellant got out of his automobile he could not walk or stand unattended; that he had a strong odor of alcohol about his person and on his breath; that his speech was slurred;- and that in his opinion appellant was drunk,-

Officer Manuel B. Cuellar, who came to the scene and took appellant to the police station, testified that appellant had an alcoholic odor about him; that he staggered and could not walk unattended; and expressed his opinion that at such time he was “very intoxicated.”

Testifying as a witness in his own behalf, appellant admitted having consumed at least four “beers” prior to his arrest but, in effect, denied that he was intoxicated. He also called as witnesses his father, Anton Hasek and one Willie Vesely, who testified that they had observed appellant at his father’s place of business shortly before his arrest and stated that in their opinion he was not intoxicated.

The jury resolved the disputed issue of intoxication against appellant, and we overrule his contention that the evidence is insufficient to support their verdict.

Complaint is made to certain jury argument of state’s counsel with reference to the two officers who testified in the case.

Appellant insists that counsel was permitted to bolster their testimony when in his opening argument he stated :

“The two officers you have heard have nothing to gain in this thing. They are not interested in getting a conviction or acquittal. They are in your service. You pay them to go out and do what they are doing. * * * Well, you can draw your own inference from the testimony. They are on the payroll of the City Police Department. You can do what you want to about who pays them,”

and in his closing argument, he stated:

“You had a chance to look at them. You are the judges of their believability. If you think both of them are lying, I’m asking you to turn him loose, but I submit to you that they were not lying. They sat there and looked you in the eye. * * * He was riding a motorcycle, so he called for a paddy wagon. Who comes in it but Officer Castillo ? He’s a fine officer if I ever saw one, from the demeanor in which he conducted himself on the stand. He had to hold him up, took charge of him for his own safety. What’s wrong with that? Nothing is wrong with that. And it happened just that way, ladies and gentlemen.”

The record reflects that appellant’s objection to the argument in each instance was sustained. No request was made by appellant for an instruction to the jury to disregard the argument, nor was any request made for a mistrial.

The argument was not so obviously prejudicial that an instruction to the jury to disregard would not have cured any error.

Under the record, no reversible error is presented. Hampton v. State, 157 Tex.Cr.R. 244, 248 S.W.2d 488; Cannon v. State, 163 Tex.Cr.R. 174, 289 S.W.2d 591.

In his closing argument state’s counsel further stated:

“ * * * the first thing an officer is supposed to do is ask for your driver’s license. This man has not been mishandled in any way. These officers did their job and the procedures they are supposed to do.”

Appellant’s objection on the ground that counsel was bolstering “his witness’ testimony and credibility” was by the court overruled.

We find no error in the court’s ruling, as the argument appears to have been based upon the evidence and a reasonable deduction therefrom.

Appellant’s complaint to other portions of the argument is not before us for review, as the record reflects that he made no objection thereto. Young v. State, 163 Tex.Cr.R. 30, 288 S.W.2d 116.

The judgment is affirmed.

Opinion approved by the Court.


author: PER CURIAM.

text:
    CITY OF DALLAS et al., Petitioners, v. Daniel C. BROWN et al. and James P. Donovan, Atty., Respondents.
    No. 16193.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 13, 1964.
    H. P. Kucera, City Atty., and N. Alex Bickley, Asst. City Atty., Dallas, for petitioners.
    James P. Donovan, Dallas, for respondents.
   PER CURIAM.

This cause is before us on remand from the Supreme Court of the United States. Donovan et al. v. City of Dallas et al., 377 U.S. 408, 84 S.Ct. 1579, 12 L.Ed.2d 409 (1964), rehearing denied October 12, 1964. Our previous decision in this contempt action is found in City of Dallas v. Brown, Civ.App., (1964), 368 S.W.2d 240. Antecedent facts and history may be found in Atkinson v. City of Dallas, Civ.App., 353 S.W.2d 275, certiorari denied, 370 U.S. 939, 82 S.Ct. 1587, 8 L.Ed.2d 808; City of Dallas v. Brown, Civ.App., 362 S.W.2d 372; and City of Dallas v. Dixon et al., S. Ct. 365 S.W.2d 919.

The Supreme Court of the United States has now said that we were correct in our decision in City of Dallas v. Brown, 362 S.W.2d 372, wherein we declined to prohibit respondents from prosecuting their federal court action. Accordingly, the -court says that the judgment of the Supreme Court of Texas in City of Dallas v. Dixon et al., S.Ct., 365 S.W.2d 919 upsetting our judgment was incorrect. The Supreme Court of the United States reversed the judgment of the Supreme Court of Texas and vacated our judgment in City of Dallas v. Brown, Civ.App., 368 S.W.2d 240, in which we held respondents guilty of contempt. The highest court of the land says that our action rested on the mistaken belief that the writ prohibiting litigation by the federal plaintiffs was “valid”. That court, in remanding the cause to us, said:

“Whether the Texas court would have punished petitioners [respondents here] for contempt had it known that the restraining order petitioners violated was invalid, we do not know. However, since that question was neither considered nor decided by the Texas court, we leave it for consideration by that court on remand. We express no opinion on that question at this time.”

Thus, on this remand we are confronted with the primary question of whether we would have punished respondents for contempt had we known our restraining order was invalid. Should this question be answered in the negative then we are called upon to pass upon respondents’ motion for the return to them of all fines and costs previously paid. Such motion poses the question as to our right under the law to order such fines and costs returned once they have been paid into court.

The answer to the first question is found in the opinion of the United States Supreme Court wherein we are advised that respondents had the legal right to prosecute their federal cause of action and that “the Texas courts were without power to take away this federal right by contempt proceedings or otherwise.” At the time we issued the Writ of Prohibition and found respondents guilty of contempt for violating the provisions thereof we did not know that we did not possess this power. We had in effect been ordered by the Supreme Court of Texas to issue the writ and could not have disobeyed such order. It was a valid and legal order as to us until reversed or vacated by a higher court. At the time we acted no effort had been made to stay the judgment of the Supreme Court of Texas directing us to issue the Writ of Prohibition. So, in issuing the Writ of Prohibition and in holding respondents in contempt for violation thereof, we acted perforce what we considered to be a valid order. Accordingly, we now vacate our previous order issuing the Writ of Prohibition. The motion of the City of Dallas to hold respondents in contempt of court for violating the Writ of Prohibition is denied.

The answer to the second question posed presents a problem of ownership and accounting of the funds involved. Of the total number of respondents involved, fifty-nine paid their fines and costs of court. Another (Donovan) served his jail sentence and paid his pro rata share of the court costs. The total amount of fines paid by the fifty-nine respondents was $10,750. The total amount of court costs paid by all respondents was $136.80, making a total of $10,886.80 fines and costs collected from respondents. On May 30, 1963, following our order of contempt against respondents, we entered the following order:

“It appearing to the Court that certain Respondents in the above entitled and numbered cause have paid, and likely will hereafter pay to the Clerk of this Court certain sums of money for fines and costs assessed against them for contempt of Court rendered and entered against them on May 22nd and 29th, 1963; and,
“It further appearing to the Court that there is yet some uncertainty as to the finality of the assessment of said fines and costs, and that it is advisable that said fines and costs already paid and hereafter paid be withheld from payment by the Clerk into the State Treasury until further orders of the Court:
“It is, therefore, ordered by the Court that the Clerk of this Court withhold payment into the State Treasury of all of said fines and costs already paid and hereafter paid until further orders of this Court.”

Since this court, a constitutional court and a part of the judicial system of the State of Texas, may be considered to be an agency of the State of Texas the question was presented as to whether these funds may be released by us to the various respondents, or whether the money became the property of the State of Texas and may be returned only by action of the Legislature.

We invited the Attorney General of Texas to enter the case and, as the State’s attorney, assist us in arriving at a proper answer to this question. The Attorney General of Texas has responded by both brief and oral argument. This chief legal officer of our state takes the position that there is no legal impediment to prevent us from remitting the fines and costs previously imposed. He further argues that a contempt proceeding is an extraordinary remedy peculiar to the court against which the offense has been committed, and one in which the offended court must necessarily retain a wide range of discretion and control until there is a final determination by such court. Until such time as this court shall have deposited the funds into the State Treasury to the credit of the General Revenue Fund the Attorney General reasons-that such money has not become “state-money”. He compares such funds held by us to the status of funds held by the Treasurer in a “suspense account” until every essential fact necessary to a proper disposition has been determined. 12 Tex.Jur.2d 518, § 42, Contempt, and cases there cited; 17 C.J.S. Contempt § 107, p. 291 and cases there cited; Daniel v. Richcreek, Civ.App. (1938), 118 S.W.2d 935.

In the state of this record we have concluded that we have the right and power to control these funds. Accordingly, we here and now order such fines and costs to be remitted to the respective respondents who have paid the same.

It is so ordered.


author: NORTHCUTT, Justice.

text:
    AMARILLO COCA-COLA BOTTLING CO., Inc., Appellant, v. Meredith Lynn HALL, a minor, by next friend, Jim Lynn Hall, and Martha Hall and Jim Lynn Hall, Appellees.
    No. 7412.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 16, 1964.

      Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for appellant.
    No brief filed on behalf of appellees.
   NORTHCUTT, Justice.

This is a venue case. The parties will be referred to as in the trial court. Since Amarillo Coca-Cola Bottling Company is the only one presenting this appeal, it will be referred to hereafter as defendant. Plaintiffs brought suit in the District Court of Hutchinson County against Amarillo Coca-Cola Bottling Company and Allied Supermarkets, Inc. for injuries allegedly sustained when four bottles of Coca-Cola purchased from Allied’s Ideal Food Store No. 1 in Borger, Hutchinson County, Texas, broke and injured their daughter on June 27, 1963, in Stinnett, Hutchinson County, Texas. Plaintiffs in this suit relied upon a breach of warranty and the doctrine of res ipsa loquitur to establish a cause of action. The defendant filed its plea of privilege to be sued in Potter County, Texas, the county of its residence. Plaintiffs controverted the plea of privilege asserting venue in Hutchinson County, Texas, under Subdivisions 23 and 29a of Article 1995, Vernon’s Ann.Civ.St. The plea of privilege was duly heard and overruled. From that order the defendant perfected this appeal.

Defendant presents this appeal upon three assignments of error contending the court erred in overruling its plea of privilege because plaintiffs failed to prove the necessary facts to invoke the doctrine of res ipsa loquitur and had not established a cause of action against defendant; that plaintiffs had not established a cause of action against the defendant under breach of warranty theory and had failed to prove the facts necessary to sustain venue in Hutchinson County, Texas, under any subdivision of Article 1995, V.A.C.S.

The plaintiffs did not contest defendant’s áppeal and did not appear in person or file any reply brief herein. That portion of Subdivision 23 of Article 1995 here involved reads as follows:

“Corporations and associations. — Suits against a private corporation, association or joint stock company may be brought in the county in which its principal office is situated; or in the county in which the cause of action or part thereof arose; or in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation, association or company has an agency or representative in such county * *

In order to hold venue in Hutchinson County under Subdivision 23 it was necessary for the plaintiffs to show they had a cause of action against this defendant. It is undisputed the defendant’s principal office and place of business is situated in Amarillo, Potter County, Texas. The undisputed evidence shows that from the time the defendant’s deliveryman delivers the cases of Coca-Cola to the Ideal Food Store, being the Coca-Cola bottles here in question, he never touches them again. Mr. Scott, the Ideal Food Store Manager, testified in his eighteen years of experience in grocery business he had never seen a Coke explode without having been dropped, kicked or mishandled in some way. The store sells about sixty cases of Coke per week. The store operates a self-service business in which seven to eight thousand customers are served weekly. Customers frequently split cartons of various beverages and will put them on the floor or somewhere on the counters. Several thousand customers might have handled the Cokes from the time the deliveryman delivered them to the store and when purchased by the plaintiff. We realize the burden placed upon the plaintiffs in proving a cause of action against the defendant in this kind of a suit but think under this record they have failed to do so.

We are of the opinion, and so hold, that the plaintiffs have failed to bring this case within the principle stated by the Supreme-Court in the case of Hankins v. Coca Cola Bottling Co., 151 Tex. 303, 249 S.W.2d 1008, where it is stated:

“A person injured by a resultant explosion of a coca cola bottle is entitled to-rely on the res ipsa loquitur doctrine-even though the bottle has left the bottler’s control, but, in such cases, it is. necessary for the plaintiff to establish, by a preponderance of the evidence that the instrumentality (in this case a bottle) was not damaged by some intervening force between the time of its last: handling by the defendant and the final, occurrence which causes the damage.. Alagood v. Coca Cola Bottling Co.,. Tex.Civ.App., 135 S.W.2d 1056, error dismissed, judgment correct; Henning v. Thompson, Fla.1950, 45 So.2d 755; Monroe v. H. G. Hill Stores, Inc., La.App.1951, 51 So.2d 645; Hughs v. Miami Coca Cola Bottling Co., 155 Fla. 299, 19 So.2d 862; Dunn v. Hoffman Beverage Co., 1941, 126 N.J.L. 556, 20 A.2d 352; Ann. 4 A.L.R.2d 466, 478.”

Since the plaintiffs failed to prove they were entitled to hold venue in Hutchinson County as against this defendant under this record as provided under Subdivision 23 of Article 1995, Subdivision 29a would not apply. It is stated in Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900 as follows:

“Subdivision 29a, supra, is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there against one defendant under some other exception of that article. Pioneer Bldg. & Loan Ass’n v. Gray, supra [132 Tex. 509, 125 S.W.2d 284] ; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S. W.2d 347.”

The judgment of the trial court is reversed and the cause of action as to this defendant is ordered transferred to the 108th Judicial District Court in and for Potter ■County, Texas.

CHAPMAN, J., not participating.


author: MASSEY, Chief Justice.

text:
    FORT WORTH & DENVER RAILWAY COMPANY, Appellant, v. RED BALL MOTOR FREIGHT, INC., et al., Appellees.
    No. 16558.
    Court of Civil Appeals of Texas. Fort Worth.
    Nov. 13, 1964.
    Rehearing Denied Dec. 11, 1964.
    Tilley, Hyder & Law and Thomas H. Law, Fort Worth, Friberg & Parish and J. Walter Friberg, Wichita Falls, for appellant.
    Nelson & Sherrod and Eugene Sherrod, Jr., Wichita Falls, for appellees.
   MASSEY, Chief Justice.

A truck collided with the boxcar of a switching train as the latter was backed across a highway in Wichita County in the early morning hours of August 10, 1961. The train was moving slowly. The truck was struck when it was about one-half way across the tracks. Force of the collision “flopped” the truck over on its side; $4,143.25 in damages resulted.

From a judgment for the plaintiff Red Ball Motor Freight, Inc., the defendant Fort Worth & Denver Railway Company appealed. The latter concern will be hereinafter termed as the Railroad.

Judgment is affirmed.

We have no doubt but that the evidence raised the issues upon the defendant Railroad’s negligence amounting to proximate cause of the collision which resulted. The jury found it to have been guilty of negligence which was a proximate cause of the collision and the damages thereby occasioned to the plaintiff, and such findings were not against the great weight and preponderance of the evidence. Since we do not consider that any substantial question is presented thereon we will not lengthen this opinion by a discussion.

What is a substantial question is the matter of contributory negligence on the part of the driver of plaintiff’s truck and trailer. Of importance to raise the question and invoke our responsibility of determination are the Railroad’s third and fourth points of error. Therein is asserted that the trial court should have sustained its motion for judgment non obstante veredicto, and that the plaintiff’s driver was guilty of contributory negligence as a matter of law in failing to stop and avoid driving onto the crossing, particularly in that he failed to heed the flagman standing in the street and waving a lantern at a place where said driver knew there was a railroad crossing.

Article 6701d of Vernon’s Ann.Tex.Civ. St., “Uniform Act Regulating Traffic on Highways”, Art. XI, “Special Stops and Restricted Speed Required”, at § 86 contains provisions relative to a motorist’s duty to observe signals indicating approach of trains. In compliance with § 86 the driver of any motor vehicle is required to bring his vehicle to a stop when, “(a) * * *; (b) * * * when a human flagman gives or continues to give a signal of the approach or passage of a train; (c) A railroad engine approaching within approximately fifteen hundred (1500) feet of the highway crossing emits a signal audible from such distance and such engine by reason of its speed or nearness to such crossing is an immediate hazard; (d) An approaching train is plainly visible and is in hazardous proximity to such crossing.”

It has been held in Missouri-Kansas-Texas Railroad Co. v. McFerrin, 156 Tex. 69, 291 S.W.2d 931 (1956), that before there comes into existence a duty to stop in compliance with pertinent provisions of the statute the train approaching the crossing must be plainly visible and in hazardous proximity thereto; — and that before the duty becomes absolute in a particular case so as to form the basis for an instructed verdict (because the motorist is to be deemed contributorily negligent as a matter of law), all the conditions applicable under the section, as applied to the pertinent subsection, must be conclusively established.

The subsection (s) directly treated in the McFerrin case involved the motorist’s actual or imputed knowledge of the approach of the train because it was plainly visible and/, or because of notice of its presence was given by the requisite signal. In either event, of course, would be involved the element of the approach of the train upon the crossing in hazardous proximity thereto. Here the important subsection is 86(b) in that immediately prior to the collision there actually was a human flagman giving a signal of the approach of the train upon the crossing to plaintiff’s driver. Other subsections were involved but are readily disposed of against the contention of the Railroad in that the circumstances disclose that any timely, actual, or imputed knowledge of plaintiff’s driver would have initially become existent, if at all, as the result of the presence and activity of the flagman.

We believe that there would be no material difference in the law and its applicability as applied to a question arisen under subsection 86(b) than under subsection 86 (d). If signals imparted by a flagman are both observed and understood by an approaching motorist to signify that a train is approaching in hazardous proximity to' the crossing, then from and after they are so observed and understood by the motorist there would be no difference from the condition existent had he originally observed the train approaching upon and in hazardous proximity to the crossing.

In this case there is evidence of the in•sufficiency of the means whereby the flagman endeavored to signal plaintiff’s driver. What was used was the lantern a brakeman uses to signal the engineer. The evidence raised as an issue of fact and the jury found that the device was not of sufficient type and strength to adequately flag traffic and that this was negligence and a proximate ■cause of the collision.

There was evidence that from the point ■on the highway where the plaintiff’s vehicle was situated when the activity of the flagman did in fact cause plaintiff’s driver to know and realize that a train was approaching and was in hazardous proximity to the crossing he could not have stopped plaintiff’s truck in time to prevent its going upon the crossing in front of the train. Findings of the jury acquitted the driver of any negligence with respect to speed and lookout and we are of the opinion that these findings were not against the greater preponderance of the evidence.

In view thereof much that is said in the case of Texas & New Orleans R. Co. v. Dairyland Transp. Corp., 266 F.2d 283 (5th Cir., 1959), is appropriate and would have application in the instant case. See also Texas & New Orleans Railroad Co. v. Day, 159 Tex. 101, 316 S.W.2d 402 (1958); Calvert, “Special Issues Under Article 6701d, Section 86(d), of the Texas Civil Statutes”, 34 Tex.Law Review 971 (1956).

Our holding is that contributory negligence was for the jury. It was not resolved as a matter of law.

The Railroad’s final three points of error relate to the matter of the “safety history” of the crossing where the collision occurred. Fred Smith was a witness for the Railroad. It is contended that the trial court erred in denying leave to introduce his testimony that he had never heard of any prior collisions at the crossing, and his testimony that the Railroad records do not reflect that any prior collisions had occurred there. Further, it is contended that the trial court erred in refusing to permit the Railroad to argue to the jury that there was no evidence of any prior accidents at the crossing.

The record does not reflect the substance of the testimony which the Railroad contends was erroneously excluded. The point of error on the argument is not substantiated-by any bill of exceptions. Argument in the case was not brought forward. The points are overruled.

Judgment is affirmed.