text:
    Elizabeth GILL, Appellant, v. Virginia COOK, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.

      Allen Prewitt, Jr., Frankfort, for appellant.
    Marion Rider, Edward F. Prichard, Jr., Frankfort, for appellee.
   THOMAS A. BALLANTINE, Jr., Special Commissioner.

Appellee, plaintiff below, recovered judgment of defendant-appellant in the amount of $9,281.12 for injuries sustained in an automobile accident. In seeking reversal, appellant urges that the court erred in refusing to direct a verdict for her on the ground that there was no competent evidence of injury and in overruling a motion for summary judgment on the ground that plaintiff’s claim had been settled. We discuss there arguments in the reverse order stated above.

Briefly, it is uncontradicted that appellant struck appellee’s car from the rear while appellee was double parked on Broadway Street in Frankfort. No explanation is offered by appellant for the accident, nor does shé refute testimony concerning her actions after the accident. In fact, appellant did not testify at the trial.

After the accident appellee received a draft from appellant’s insurance carrier in the amount of $6.45, which recited that it was to be in full settlement of her claim. On advice of her attorney, appellee did not present the draft for payment. Appellant urges that a statement by counsel at the pre-trial deposition of appellee to the effect that he had advised her not to cash the draft amounts to a stipulation that there had been a settlement, thus obviating the necessity of a plea of accord and satisfaction or release as an affirmative defense. CR 8.03.

The record discloses that appellant’s original answer contained only a formal denial of negligence and a plea of contributory negligence. Subsequently a plea setting forth payment of $15.00 to appellee by appellant was filed. It appears that at a hearing of criminal charges against appellant, appellee demanded certain “witness expenses”. Whether the $15.00 ever was paid is immaterial, since appellant has abandoned this ground on appeal. The trial court quite correctly held this payment, if made, not to be in full satisfaction of the claim.

The tender of $6.45 presents another problem. It is undisputed that the tender was made. Conceding arguendo that the statement of counsel for appellee amounts to a stipulation that the tender was made and thus no affirmative defense under CR 8.03 need be asserted, can it be said that mere inaction on the part of the payee is acceptance? We hold that it cannot. Cases supporting the proposition that one must tender a return of the consideration for a release before he can attack the validity of the release are legion. McGregor v. Mills, Ky., 280 S.W.2d 161, 53 A.L.R.2d 753. But in such cases there has invariably been an actual receipt of the consideration. To extend the rule announced in the McGregor case to situations in which the tort-feasor tenders a release, accompanied by a tender of consideration, requires tortured reasoning which we are unwilling to follow. Were we willing to adopt appellant’s reasoning that a tender of consideration for a release, unless rejected by the injured party, is binding upon him, we would open the flood gates to a tide of litigation in which tort-feasors would plead as a bar the fact that a tender was made and there was no specific rejection by the injured party. The possibilities of irregularity are numberless. We are unwilling to place the burden of affirmative action upon the injured party to protect himself from possible overreaching. We adhere to the rule that there must be actual rather than constructive receipt of the consideration. Tendering a draft which may be dishonored by the payor upon presentment does not ipso facto result in actual receipt of the consideration recited in the draft.

Appellant next urges that there is no substantive proof of injury justifying an award to appellee. Although the award was liberal, appellant does not complain that it is excessive, but insists instead that she was entitled to a directed verdict upon the ground that there was a failure of proof of injury. A cursory glance at the record shows the fallacy of this position. Appel-lee testified that she first began to experience pain shortly after the accident, and that the pain became progressively worse until October after the accident in September. In October she consulted her family physician after an episode which occurred when she tried to get out of bed. On that occasion she had taken four or five steps and found she could go no farther. She was taken to a hospital where she received medication. Except to point out that her medical expenses amounted to $1,701.12 and her lost earnings to $2,580.00, it would serve no useful purpose to detail the medical treatment and expenses of such treatment, since no claim of excessiveness is asserted. It is manifest that there was probative evidence of pain immediately after the accident. Appellee testified that prior to the accident she had been employed by the State Department of Conservation and that she had also been a housewife. She testified that she had no difficulty in performing the customary tasks of housekeeping and that her work was not impaired by her condition.

Appellee was treated by her family physician and by an orthopedist, Dr. Gumbert. The latter testified:

“On the basis of the history given, one with regard to this lady’s condition prior to the accident, and on the basis of the description given me of this accident, it is my opinion that since this lady apparently had no pain prior to the injury and got along well, and since she has had trouble following the accident, that her present condition * * * that her present pain and other symptoms are the result of the accident which was described.”

Clearly, the doctor’s testimony furnished sufficient probative evidence to justify a finding by a jury that the accident aggravated a pre-existing condition in ap-pellee’s back. Appellant, on the other hand, contends that all of appellee’s troubles may be traced to the pre-existing spondylolis-thesis, admittedly a congenital defect. The trial court properly instructed the jury on the question of aggravation of the preexisting condition, and the jury apparently resolved this issue adversely to appellant. It is well settled that a wrongdoer is responsible for the consequences flowing from his wrongful act. Hazelwood v. Hodge, Ky., 357 S.W.2d 711. Prior to the accident plaintiff, by her uncontroverted evidence, was healthy and able to perform her duties as an employee of the Department of Conservation, as well as to perform the rigorous duties of a housewife. After the accident her pre-existing condition was lighted up to a disabling degree, and the medical evidence amply supports the jury’s finding that the accident was the causal incident.

We find no error and recommend that the judgment of the trial court be affirmed.

The opinion is approved and the judgment affirmed.


source: Caselaw Access Project

author: CLAY, Commissioner.

license: Public Domain

text:
    William Allen WRIGHT, Petitioner, v. Hon. J. Miles POUND, Judge, and Elmer N. Carrell, Clerk, Jefferson Circuit Court, Respondents.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    William Allen Wright pro se.
   CLAY, Commissioner.

Petitioner seeks an order of mandamus against the respondent Judge to appoint counsel for him, and against the respondent circuit clerk to furnish without cost a transcript of evidence for the purpose of an appeal from a judgment of conviction. The conviction was for unlawfully transporting another across the state line, and petitioner was sentenced to a 10-year term in the penitentiary.

The petition alleges that petitioner exhausted his financial resources in furnishing bail and attempting to secure legal services to defend the charges against him. He asserts that his motion to be permitted to proceed in forma pauperis in the respondent Judge’s court was rejected (and other motions were summarily overruled), and that the court failed to appoint counsel to represent him.

The response in substance is that the petitioner had not applied to the respondent Judge to proceed on appeal in forma pauperis; that he is not a pauper; and that he refused to be represented by court-appointed counsel.

The petition recounts what appear to be very unusual proceedings. The response is insufficient to enable us to determine whether petitioner has been deprived of any rights. Under the unusual circumstances we believe justice requires that petitioner be granted some relief.

It is ordered that respondent, Hon. J. Miles Pound, Judge, be and hereby is directed to appoint counsel to represent petitioner in making an application for permission to proceed on appeal in forma pauperis; to conduct a hearing on such application; and if petitioner is found to be a pauper, to take such further steps as are necessary and proper to protect petitioner’s right of appeal.

The request for relief against respondent Elmer N. Carrell, clerk, is denied.


text:
    Ralph Louis BARNES, Petitioner, v. Daniel T. TAYLOR, III, Attorney at Law, Respondent.
    Court of Appeals of Kentucky.
    Dec. 10, 1965.
    Ralph Louis Barnes, pro se.
    Neville M. Tucker, Louisville, for respondent.
   CLAY, Commissioner.

The petitioner, proceeding in forma pau-peris, requests this Court to issue a writ of mandamus against respondent, an attorney at law, to require him to return to petitioner certain “personal property (legal documents)” which are allegedly in respondent’s possession.

This relief must be denied for two reasons: (1) this Court does not have original jurisdiction to grant petitioner’s request (see Pruitt v. Davidson, Ky., 334 S.W.2d 899), and (2) the personal property sought is not sufficiently identified to justify granting any relief.

The order of mandamus is denied.


author: DAVIS, Commissioner.

text:
    BSY COMPANY, Inc., Appellant, v. FUEL ECONOMY ENGINEERING COMPANY, Inc., and Superior Risk Insurance Company, Inc., Appellees.
    Court of Appeals of Kentucky.
    Nov. 19, 1965.
    Rehearing Denied March 11, 1966.

      Charles C. Adams, Norma B. Adams, Adams & Adams, C. Homer Neikirk, Fritz Krueger, Somerset, for appellant.
    John G. Prather, Don E. Cooper, Somerset, Linn J. Firestone, St. Paul, Minn., for appellees.
   DAVIS, Commissioner.

BSY Company, Inc., appellant, (hereinafter BSY) seeks to reverse a judgment obtained against it by Fuel Economy Engineering Company, Inc., appellee, (hereinafter Fuel) in a sum slightly in excess of $16,000 for claimed breach of contract. Superior Risk Insurance Company is named as an appellee because it is the corporate surety on Fuel’s general contract bond. Before noting the questions raised we shall outline the facts.

Fuel had the prime contract for construction of the substructure and underground foundation of a portion of Cooper Power Station near Burnside. In February, 1962, Fuel entered into a subcontract with BSY, by the terms of which BSY undertook to perform the excavation portion of the prime contract. In May, 1962, Fuel gave BSY the subcontract for the supply and delivery of concrete for the substructure construction. We shall refer to these contracts as the excavation contract and the materials contract, respectively.

When the excavation contract was executed BSY made known to Fuel that BSY was unable to provide a performance bond as required by the contract. (No bond was made for the materials contract either.) BSY also explained to executives of Fuel that the capital of BSY was limited, but representatives of BSY assured Fuel’s people that BSY would be able to handle the work. The stated price to be paid BSY for performance of the original excavation contract was $67,000 — based on the average depths for excavations shown on the bid drawings; certain modifications of the original excavation contract were made when excavations disclosed theretofore unknown conditions. Payments under the excavation contract were to be paid upon submitted estimates of work performed at thirty-day intervals, with a provision for 10% retention on each payment.

BSY began work under the excavation contract in April, 1962, and quite shortly thereafter BSY called on Fuel for money. No estimate was submitted. Fuel’s employee, Cain, made a trip to the job site to inspect the work, at which time he was advised by Sparks, one of BSY’s principals, that BSY was “rapidly running short of money.” Cain visited BSY’s home office in West Virginia, where he and Sparks went over the fiscal affairs of BSY. Fuel then advanced $5,000 to BSY, on April 24, 1962, although no contract payment could have accrued prior to May 15. BSY continued to make requests of Fuel for money as the work progressed, but before payments were due by the contractual terms. Fuel complied with these requests by paying substantial sums to BSY, so that by late July, 1962, Fuel had already paid $43,645 to BSY, all payments being applicable to the excavation contract.

For BSY, Sparks visited the home office of Fuel in St. Paul, Minnesota, about August l, 1962. Several conferences were held between Sparks and Fuel’s representatives. Sparks estimated that BSY had already performed excavation work sufficient to earn $70,000, but Fuel’s estimates indicated that only about $43,000 was due— or slightly less than had been paid already. (The wide variance between their estimates resulted from their different approaches in computing the value of yards excavated, some of which were compensable and some were not.) Sparks advised Fuel’s men that BSY’s bank account was virtually depleted, and that bills of more than $12,500 were outstanding against BSY on accounts incurred by BSY incident to the work performed. Sparks expressed doubt that BSY could obtain any additional financing to enable it to carry forward the contract work.

For Fuel it was explained to Sparks that Fuel could not and would not advance payments in excess of the sums earned by performance, but a “way out” was suggested whereby Fuel would “take over” the work and complete it for BSY. This proposal envisioned that Fuel would use BSY’s equipment, and retain Sparks to look after the work. Other BSY employees were to leave the job site. Fuel was to make the installment payments on BSY’s equipment as they accrued, and after the project was completed Fuel was to restore the equipment to BSY. Sparks indicated his assent to this arrangement, but expressed the need to discuss it with his co-owners before final execution of the agreement. A draft of the proposal was prepared at St. Paul and taken by Sparks to the other principals in BSY, but it was never signed. Sparks requested Fuel to advance $2,828.15 to meet the currently due BSY payroll; Fuel advanced the sum, believing that the proposed “take over” by Fuel would ensue in course.

Work was not started on the materials contract until late July, 1962. Concrete had been delivered by BSY in an amount sufficient to entitle BSY to $5,022, although no estimate for payment of this had been submitted at the time of the St. Paul meeting. Fuel had already had inquiries about BSY’s delinquencies in payments due on a “travel batcher” cement plant required for completion of the materials contract. Threats of repossession were being made by the vendor of the equipment, and this was brought to the attention of Sparks by Fuel before the St. Paul meeting.

After the St. Paul talks, BSY’s employees did not leave the site; upon telephone inquiry from St. Paul Fuel learned from Sparks that BSY had decided against the “take over” agreement. Then Fuel stopped payment on the $2,828.15 check it had given BSY to meet payroll payments due. (Later Fuel “made good” the payroll checks which BSY had drawn against that uncollected item.) Fuel notified BSY by telegraph and letter that the contracts were terminated. Fuel then filed suit in Pulaski Circuit Court asking that BSY be required to vacate the job site. The suit was ended by an agreed order by which BSY agreed to leave the premises, but without prejudice to its claims under the contracts with Fuel.

Fuel then proceeded with the work under both contracts. After completion of the work, Fuel instituted this suit asserting that BSY owed Fuel more than $100,000 because of Fuel’s outlay in performing the remainder of BSY’s contracts.

By answer and counterclaim BSY denied any breach of either contract and asserted damages aggregating $148,328.21 because of Fuel’s breach of the contracts, plus $100,000 punitive damages. BSY also sought nearly $6,500 as claimed loss on account of an alleged improper sale of the concrete “travel batcher” under a conditional sales agreement. Other collateral matters were presented and resolved, but are not involved in this appeal. The respective claims of Fuel and BSY were tried before a jury; BSY did not introduce any proof, nor did it cross examine any witness, although its counsel repeatedly “reserved” the right to cross examine. At the conclusion of Fuel’s proof BSY made a motion for a directed verdict which was overruled. Upon the failure of BSY to offer proof the trial court directed a verdict for Fuel in the sum of $16,184.91; judgment went accordingly and this appeal followed.

Appellant asserts reversible error was committed by denying its motion for a peremptory ; by granting a peremptory for Fuel; by refusal to permit BSY to introduce proof, and by failure to permit the jury to determine factual issues in respect to the performance of the contracts.

Each of the contracts contained a provision requiring BSY to pay for all materials, skill, labor and instrumentalities used in performance of the contract, “ * * when and as bills or claims therefor become due, and to save and protect the premises, the Owner and the Contractor from all claims and mechanics’ liens on account thereof * * It is clear that BSY had not complied with that provision in either contract, although no lien claim had been filed by any creditor of ■ BSY when Fuel ousted BSY from the job. It is our view that the evidence of BSY’s failure to comply with its obligation to keep current its bills, coupled with the several statements by Sparks of BSY to Fuel that BSY’s financial situation was dark, warranted Fuel’s action in pulling BSY off the job. Clearly, Fuel could not be expected to stand by and permit BSY to incur even greater indebtedness, for all of which Fuel bore a potential responsibility under its prime contract. We hold, therefore, that BSY was not entitled to a peremptory instruction. There was sufficient evidence to show a breach of both contracts by BSY, and these breaches were of such significance as to warrant Fuel’s action. Cf., Tri-State Developers, Inc. v. Moore, Ky., 343 S.W.2d 812.

Appellant points to the doctrine requiring construction of a contract most strongly against the drafter of the document. We can perceive no basis for comfort to appellant in that doctrine, since there is nothing in the agreement authorizing BSY’s failure to keep current its obligations.

Appellant contends that Fuel waived strict performance by BSY so far as the “bill-paying” clause was concerned. The thrust of this argument is that Fuel lulled BSY into believing that this portion of the contract would not be enforced because Fuel waived the performance bond and advanced monies to BSY ahead of the contractual payment schedule. Supporting that theory appellant cites Green River Steel Corp. v. Globe Erection Co., Ky., 294 S.W.2d 507, and Stamper v. Ford’s Adm’x., Ky., 260 S.W.2d 942. We have no quarrel with those authorities, but find them inapplicable here. From the outset Fuel traveled the “extra mile” for BSY, but it was made plain to BSY at the St. Paul meeting that the worsening situation could not be extended. We find no merit in this contention.

BSY asserts that Fuel failed to comply with KRS 355.9-504 when Fuel bought the repossessed travel batcher without notice to BSY of the time and place of the proposed sale. The difficulty of this is that Fuel showed that it had bought the lien paper on the batcher from BSY’s vendor, and had “bought” the batcher by giving BSY credit for the entire purchase price of the batcher. In other words, BSY obtained credit as if the used batcher had sold for the exact amount BSY had paid for it. BSY made no offer of proof that the batcher had a value greater than paid by Fuel. Under these conditions the acquisition by Fuel was commercially reasonable. KRS 355.9-504(3).

Complaint is made that the trial court granted a peremptory instruction for Fuel. We are at a loss to understand what else the trial court could have done in light of the failure of BSY to offer any evidence. Further complaint is made that the trial court refused to permit BSY to offer evidence but this assertion is not supported by the record before us. There is no showing that BSY sought to present testimony, and the judgment of the trial court recites that BSY offered no proof. Certainly BSY cannot complain that the trial court limited Fuel’s recovery to $16,184.91 since the evidence for Fuel would have warranted a greater sum. Fuel may have had some ground of complaint in that regard, but not BSY.

Finally, BSY argues that it was a jury question whether BSY had performed according to the terms of the contract. In support of this BSY relies on Thoroughbred Motor Court v. Allen Company, Ky., 296 S.W.2d 690; Hartford Accident & Indemnity Co. v. Middlesboro-LaFollette Bus Line, Inc., Ky., 357 S.W.2d 671; Meem-Haskins Coal Corp. v. Pratt, 299 Ky. 767, 187 S.W.2d 435. But the cited cases do not stand for the proposition urged here. In Thoroughbred Motor Court the jury questions related to whether the contractor had performed in a workmanlike manner; no such question appears here. In the latter two cases just cited the litigation arose from oral agreements, and the parties presented conflicting evidence as to the terms of the agreements. Manifestly a jury issue arose in those cases as to what the terms of the agreements were, but that is not so here.

The judgment is affirmed.


text:
    Ben HALL, Jr., Petitioner, v. Hon. B. Robert STIVERS, Judge, Laurel Circuit Court, London, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Ben Hall, Jr., pro se.
   CLAY, Commissioner.

This is a proceeding by petitioner, in forma pauperis, to compel the respondent to furnish a transcript of record for the purpose of an appeal from an order of the Laurel Circuit Court overruling petitioner’s motion to vacate a judgment under RCr 11.42. Respondent’s response sets forth reasons why the motion to vacate was overruled but does not set forth sufficient grounds to deny petitioner the record necessary to perfect an appeal.

It is ordered that respondent, Hon. B. Robert Stivers, Judge, be and hereby is directed to require the clerk of the Laurel Circuit Court to prepare and transmit to this Court a transcript of the record of proceedings on petitioner’s motion to vacate the judgment under RCr 11.42. The request of petitioner for other records is denied.


author: MONTGOMERY, Judge.

text:
    Ruby RYBURN, etc., Appellant, v. The FIRST NATIONAL BANK OF MAYFIELD, etc., et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Charles I. Dawson, Richard W. Her, Louisville, Louis Cox, Frankfort, L. M. Tipton Reed, Mayfield, David R. Reed, Paducah, for appellant.
    James W. Stites, S. Russell Smith, Louisville, Malcolm R. Boaz, Mayfield, for First Nat. Bank of Mayfield as executor and trustee under the Will of Ed Gardner, its directors and Evelyn Fuller Williams.
    Farland Robbins, Mayfield, for The Annie Gardner Foundation, its trustees, and John Emerson.
   MONTGOMERY, Judge.

Ruby Ryburn, as guardian, appeals from a judgment in which it is held that she as guardian for Bunk Stephen Gardner and Anne Gardner, infants and grandchildren of Bunk Gardner, Sr., deceased, cannot contest the probate of the will of Ed Gardner, deceased. A full statement of pertinent facts appears in Annie Gardner Foundation v. Gardner, Ky., 375 S.W.2d 705. Reference is also made therein to related litigation.

The question presented arises from the will contest mentioned therein. Ruby Ry-burn has succeeded Emily Gardner as guardian. The question is whether Bunk Stephen Gardner and Anne Gardner, the children of Bunk Gardner, Jr., and grandchildren of Bunk Gardner, Sr., deceased, are heirs at law of Ed Gardner, their great-uncle who died leaving surviving him no descendants, no father or mother, and only the one brother, Bunk Gardner, Sr., who has since died.

It is contended by appellant that the release executed in January 1959 by Bunk Gardner, Sr., and Bunk Gardner, Jr., operated as a waiver, surrender, and disclaimer of any interest which either then had or subsequently might have in the Ed Gardner estate and that such relinquishment operated to make Bunk Stephen Gardner and Anne Gardner the next in line of succession as heirs at law of Ed Gardner, deceased, under KRS 391.010 and 391.030, and as such they are entitled to contest the validity of the probated documents. The principal domestic authority relied on by appellant is Bates v. Wilson, 313 Ky. 572, 232 S.W.2d 837.

Appellees contend, inter alia, that the title to real and personal property descends by operation of law immediately upon the death of the intestate and that the determination of heirship takes place at the moment of death in accordance with the statute of descent and distribution.

The dominion of an owner over his property ends at his death. If the owner has chosen to dispose of it by will the property passes according to the terms of the will. Otherwise, the property devolves as provided by law in order that there may be an orderly devolution of property. Ordinarily this is accomplished by a statute of descent and distribution in which the persons to take the estate are designated. KRS 391.010 and 391.030; 23 Am.Jur. 2d, Descent and Distribution, Section 1, pages 749 and 750; 26A C.J.S. Descent and Distribution § 2, Note, page 517.

The devolvement of property by law is accomplished by other statutes that prohibit or provide for a taking as the case may be. The statute prohibiting a potential heir and distributee from taking who feloniously brings about the death of his intestate is an instance of the first kind. KRS 381.280; Wilson v. Bates, 313 Ky. 333, 231 S.W.2d 39. Adoption statutes that govern the inheritance by an adopted child may do both; that is, prohibit inheritance from the natural parent and provide for inheritance from the adoptive parent. KRS 199.520; Arciero v. Hager, Ky., 397 S.W.2d 50 (decided December 10, 1965); Bedinger v. Graybill’s Executor and Trustee, Ky., 302 S.W.2d 594. The statute in each instance is supplementary to the statute of descent and distribution and determines who shall take as an heir at law from a deceased owner of property.

KRS 391.010 is the controlling statute here. It provides:

“When a person having right or title to any real estate of inheritance dies intestate as to such estate, it shall descend in common to his kindred, male and female, in the following order, except as otherwise provided in this chapter:
(1) To his children and their descendants ; if there are none, then
(2) To his father and mother, if both are living, one moiety each; but if the father is dead, the mother, if living, shall take the whole estate; if the mother is dead, the whole estate shall pass to the father; if there is no father or mother, then
(3) To his brothers and sisters and their descendants; if there are none, * * if ”

Only the pertinent portion of the statute is quoted.

It should be noted that the statute fixes the time of taking and the persons to take. The time of taking is when a person dies and the persons to take are designated by successive classes, with priority given to children and their descendants, parents, and then brothers and sisters in that order and so on. Under KRS 391.010 the real estate of a person who dies intestate descends immediately to and vests in those who are his heirs at law. Noland v. Noland, 314 Ky. 316, 235 S.W.2d 763; Rose v. Rose, 296 Ky. 18, 176 S.W.2d 122; Farmers’ Exchange Bank of Millersburg v. Moffett, 256 Ky. 160, 75 S.W.2d 1063. Personal property passes as provided in KRS 391.-010, subject to certain provisions not pertinent here. KRS 391.030. Accordingly, if Ed Gardner died intestate, under the factual situation here, Bunk Gardner, Sr., as his brother and being the only living person in that class of priority, became the sole heir at law of Ed Gardner and the person in whom the entire estate vested immediately upon the death of Ed Gardner. Heir at law was so defined in Hafner’s Ex’r v. Hafner, 306 Ky. 93, 206 S.W.2d 196.

A reading of KRS 391.010 discloses that before any succeeding class of heirs may take all those in the preceding classes must be dead, and so long as there is a living member of a class no member of a succeeding class can take in his stead. Bunk Gardner, Sr.’s taking was conditioned on Ed Gardner’s having left no children or descendants and no father or mother. If Ed Gardner had left a child living, Bunk Gardner, Sr., would never have taken as an heir at law of Ed Gardner because the living child would have taken the estate at the instant of death, and it would thereafter have been the child’s estate. Thus, in order for Bunk Stephen Gardner and Anne Gardner, as descendants of a brother to the intestate, to become heirs at law of Ed Gardner, both Bunk Gardner, Sr., and Bunk Gardner, Jr., in this instance would have had to be dead at Ed’s death. Neither was then dead. All possible prior takers under the statute must be dead at the time of the intestate’s death in order for a succeeding taker to become an heir at law of the intestate. The person claiming as an heir must show that those standing in an intervening relationship to the intestate are dead. Cole v. Ohio Fuel Oil Co., 229 Ky. 771, 17 S.W.2d 1029; 3 Page on Wills, Bowe-Parker Revision, Section 26.52, page 120, and Section 26.57, page 130. Thus, it is concluded that Bunk Stephen Gardner and Anne Gardner are not heirs at law of Ed Gardner because Bunk Gardner, Sr., an intervening taker, became the sole heir at law of Ed Gardner. Upon the death of Bunk Gardner, Sr., subsequently, Bunk Gardner, Jr., became his heir at law. The fact that Bunk Gardner, Jr., was living at the time of Ed Gardner’s death also precluded his children from becoming heirs at law of Ed Gardner since Bunk Gardner, Jr., was an intervening taker. Hence, appellant has no right to contest the probate of the Ed Gardner will. Rogers v. Leahy, 296 Ky. 44, 176 S.W.2d 93, 149 A.L.R. 1267; Eckert v. Givan, 298 Ky. 621, 183 S.W.2d 809; Murphy v. Henry, 311 Ky. 799, 225 S.W.2d 662.

In this view of the matter it is unnecessary to discuss the effect of the so-called release except to say that it had no force and effect in so far as creating heirs at law of Ed Gardner, deceased, for the reason stated above; that is, succession to intestate property is by force and operation of statute and not by contract. 23 Am.Jur. 2d, Descent and Distribution, Section 11, pages 758-759. “The right to take property, either real or personal, by inheritance, is one created by law, and the Legislature, in the absence of constitutional limitations, has absolute power to say who shall inherit.” Richardson’s Adm’r v. Borders, 246 Ky. 303, 54 S.W.2d 676, 87 A.L.R. 196. The lower court relied on Hudnall v. Ham, 183 Ill. 486, 56 N.E. 172, 48 L.R.A. 557, which is in harmony with the reasoning herein.

Bates v. Wilson, 313 Ky. 572, 232 S.W.2d 837, relied on by appellant, is in accord herewith. This is a companion case to Wilson v. Bates, 313 Ky. 333, 231 S.W.2d 39, previously referred to, in which the constitutionality of the statute prohibiting inheritance by reason of felonious homicide was upheld. In Bates v. Wilson, under the statute, it was held that where a son killed his parents and was convicted therefor of a felony for the purpose of inheritance the son must be considered as though he had preceded in death his parents, and the interest which the son would have taken in their property descended under the statute to his only child. In such case the property descended by operation of law under KRS 381.280 and 391.010. The case is not authority for the proposition for which it is cited.

Judgment affirmed.


author: MOREMEN, Chief Justice.

text:
    Henry JOHNSON, Petitioner, v. Hon. Ervine TURNER, Judge, Breathitt Circuit Court, Jackson, Kentucky, Respondent.
    Court of Appeals of Kentucky.
    Dec. 17, 1965.
    Henry Johnson, pro se.
    No appearance for respondent.
   MOREMEN, Chief Justice.

Petitioner states that he is imprisoned under a conviction for willful murder. He moved in the Breathitt Circuit Court to vacate judgment under RCr 11.42. Since petitioner was a pauper, an attorney was appointed for him and a hearing was held. An order overruling his motion was affirmed on appeal to this Court and a petition for rehearing was overruled July 2, 1965.

Petitioner now seeks an order of this Court compelling the Breathitt Circuit Court to furnish him a copy of the record of the trial and of the hearing. The reason given is that he “desires to pursue his action to the U. S. Supreme Court” and the trial court has not honored his request.

The petition is fatally defective in that it does not allege that any proceedings in the U. S. Supreme Court have been commenced, a prerequisite to the relief asked. Moore v. Ropke, Ky., 385 S.W.2d 161; Jones v. Breslin, Ky., 385 S.W.2d 71.

If that court had taken jurisdiction of petitioner’s case his request would not properly be in this Court. We will not order preparation of a transcript for an indigent who applies to this Court unless he alleges some ground that might entitle him to relief. Oakes v. Gentry, Ky., 380 S.W. 2d 237. In the instant case we have already held that the alleged grounds for granting the motion to vacate have no merit. Johnson v. Commonwealth, Ky., 391 S.W.2d 365. Accordingly it would be inconsistent for this Court now to hold that these grounds are meritorious for the purpose of an appeal to another court.

The petition is denied.


author: POPE, Justice.

text:
    James H. O'BRIEN, Petitioner, v. LANPAR COMPANY, Respondent.
    No. A-10947.
    Supreme Court of Texas.
    Feb. 2, 1966.
    Rehearing Denied March 9, 1966.
    Akin, Vial, Hamilton, Koch & Tubb, James A. Knox, with above firm, Dallas, for petitioner.
    James H. Martin, Dallas, for respondent.
   POPE, Justice.

The question is whether an Illinois court had jurisdiction over a defaulting Texas corporation when it rendered an in per-sonam judgment against the nonresident Texas corporation. Plaintiff James H. O’Brien, an Illinois attorney, sued defendant Lanpar Company in Illinois and obtained a judgment for $2,848.25 and costs. Lanpar is a Texas corporation and was served with process in Texas. Plaintiff then brought suit in Texas upon that judgment and the trial court sustained defendant’s motion for summary judgment, holding that the Illinois judgment was not entitled to full faith and credit in Texas. The Court of Civil Appeals affirmed the judgment of the trial court. 391 S.W.2d 483. We reverse the judgments below.

On June 24, 1960, Lanpar’s president, Mr. W. W. Parmeter, went to Chicago and, after a conference, employed O’Brien as the corporation’s attorney to prosecute an action on its behalf in the Federal Court in Illinois. Lanpar agreed to compensate O’Brien on an hourly basis for his services. O’Brien successfully prosecuted the case in Illinois, and Lanpar paid a part of his fee but refused to pay the balance. O’Brien then filed suit. Process was served upon Lanpar at its place of business in Dallas by the Dallas County Sheriff. Defendant did not appear in answer to O’Brien’s action, and the Illinois court granted default judgment for O’Brien. It is our opinion that the Illinois court had jurisdiction to render the in personam judgment and it is entitled to full faith and credit.

The validity of the Illinois judgment is controlled by the law of Illinois but must satisfy the due process clause. Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216 (1942), cert. den., 320 U.S. 210, 63 S.Ct. 1447, 87 L.Ed. 1848, reh. den., 320 U.S. 811, 64 S.Ct. 31, 88 L.Ed. 490; United States Fidelity & Guaranty Co. v. Richey, 18 S.W.2d 231 (Tex. Civ. App.1929, writ ref.). O’Brien asserted jurisdiction over the nonresident Texas corporation under Sections 16 and 17, Illinois Civil Practice Act. Ill.Rev.Stat. 1960, ch. 110. The relevant portions are:

“16. (Personal service outside State). (1) Personal service of summons may be made upon any party outside the State. If upon a citizen or resident of this State, or upon a person who has submitted to the jurisdiction of the courts of this State, it shall have the force and effect of personal service of summons within this State; otherwise it shall have the force and effect of service by publication.
“(2) The service of summons shall be made in like manner as service within this State, by any person over twenty-one years of age not a party to the action. No order of court is required. An affidavit of the server shall be filed stating the time, manner and place of service. The court may consider the affidavit or any other competent proofs, in determining whether service has been properly made.
« * * *
“17. (Act submitting to jurisdiction —Process). (1) Any person, whether or not a citizen or resident of this State, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and if an individual, his personal representative, to the jurisdiction of the courts of this State as to any cause of action arising from the doing of any of said acts;
“(a) The transaction of any business within this State;
« tfi # 2*5
“(2) Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State, as provided in this Act, with the same force and effect as though summons had been personally served within this State.”

Essentially the problem is whether Lan-par’s president’s act in going to Illinois and in making the contract to employ an attorney to act on the corporation’s behalf in prosecuting the Illinois action, was “[t]he transaction of any business” in Illinois under Section 17(a), Illinois has repeatedly held that the quoted sections reflect a purpose to assert jurisdiction over nonresident defendants to the extent permitted by the due process clause. People, State of California v. Western Tire Auto Stores, Inc., 32 Ill.2d 527, 207 N.E.2d 474 (1965); Gray v. American Radiator and Standard Sanitary Corp., 22 Ill.2d 432, 176 N.E.2d 761 (1961); Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673 (1957); Kropp Forge Co. v. Jawitz, 37 Ill.App.2d 475, 186 N.E.2d 76 (1962); See Haas v. Fancher Furniture Co., 156 F.Supp. 564 (N.D. Ill.1957).

The Supreme Court of the United States in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) ushered in the concept that a state could assert in personam jurisdiction over a foreign corporation, assuming proper notice is given, if the foreign corporation has had certain minimum contacts with the state, saying:

“ * * * [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”
« * ‡ ‡
“But to the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or are connected with the activities within the state, a procedure which requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue.”

The Supreme Court reasserted its minimum contacts test in McGee v. International-Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). It there held that a Texas court should have given full faith and credit to a California judgment against a nonresident Texas corporation. Sufficient contacts with the forum existed because the defendant Texas corporation mailed a reinsurance certificate to a California resident in that state. The California resident accepted the offer and thereafter paid his premiums by mail from California. The Court wrote:

“ * * * In a continuing process of evolution this Court accepted and then abandoned ‘consent,’ ‘doing business,’ and ‘presence’ as the standard for measuring the extent of state judicial power over such corporations. See Henderson, The Position of Foreign Corporations in American Constitutional Law, c. V. More recently in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the Court decided that ‘due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” ’ Id., 326 U.S. at 316, 66 S.Ct. at page 158.”

The Supreme Court of Washington in Tyee Construction Co. v. Dulien Steel Products Inc., 62 Wash.2d 106, 381 P.2d 245, 251 (1963) reviewed the concept and stated three basic factors which should coincide if jurisdiction over a nonresident corporation is to be entertained:

“ * * * Such would appear to be: (1) The nonresident defendant or foreign corporation must purposefully do some act or consummate some transaction in the forum state; (2) the cause of action must arise from, or be connected with, such act or transaction; and (3) the assumption of jurisdiction by the. forum state must not offend traditional notions of fair play and substantial justice, consideration being given to the quality, nature, and extent of the activity in the forum state, the relative convenience of the parties, the benefits and protection of the laws of the forum state afforded the respective parties, and the basic equities of the situation.”

The Illinois judgment is entitled to full faith and credit. No one questions the fact that notice was given and that due process was satisfied on that matter. The action was one which arose out of and was a part of the very contact for which Lan-par’s agent visited Illinois. Lanpar’s president purposefully went to Illinois to make contractual arrangements for an attorney. That contact was substantial rather than casual or fortuitous. Kaye-Martin v. Brooks, 267 F.2d 394 (7th Cir. 1959), cert. den., 361 U.S. 832, 80 S.Ct. 84, 4 L.Ed.2d 75. The contact and contract were made in Illinois. Cf. Grobark v. Addo Machine Company, 16 Ill.2d 426, 158 N.E.2d 73 (1959). Plaintiff O’Brien did not depend upon his own unilateral activity with respect to one who was outside and remained outside of Illinois, but upon the fact that Lanpar’s agent contacted him in Illinois. Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958); 72 Harv.L.Rev. 695 (1959); See Thode In Personam Jurisdiction, 42 Tex.L.Rev. 279 (1964); Wilson, In Personam Jurisdiction Over Nonresidents: An Invitation and a Proposal, 9 Baylor L.Rev. 363 (1957); Stimson, 48 Am.Bar. Ass’n Jr. 725, 729 (1962); Annot., 49 A.L.R.2d 668 (1956).

Some confusion exists between the term “doing any business” used in the Illinois so-called Long-Arm statute and the phrase “transacting business” found in Article 8.01 of the Texas Business Corporation Act, V.A.T.C.S. The Texas Act specifically states that maintaining or defending any action or suit may not constitute transacting business in this State. It should be remembered, however, that it is the Illinois law and not the Texas law that is in point. Moreover, whether Illinois had in per-sonam jurisdiction with respect to the matters arising out of the very contacts between Lanpar and O’Brien in Illinois is a different matter from the question whether Lanpar or any other nonresident corporation does or does not subject itself to actions generally. See Thode, 42 Texas L.Rev. 279, 298. Section 8.01 relates to the general intrastate regulation of corporations. This is a different problem from that of a state’s power to assert jurisdiction over a nonresident corporation arising out of and limited to its contacts in the forum state.

Both O’Brien and Lanpar filed and urged motions for summary judgment. The trial court overruled O’Brien’s motion, sustained defendant Lanpar’s motion and rendered judgment that O’Brien take nothing. The intermediate court affirmed. We reverse the judgments of both courts and render judgment for plaintiff, James H. O’Brien, for the sum of $2,848.25 and costs in the sum of $25.35, that being the amount of the Illinois judgment. Rules 501, 505, Texas Rules of Civil Procedure; Tobin v. Garcia. 159 Tex. 58, 316 S.W.2d 396 (1958).


author: WALKER, Justice.

text:
    ROYAL INDEMNITY COMPANY, Petitioner, v. H. E. ABBOTT & SONS, INC., Respondent.
    No. A-11001.
    Supreme Court of Texas.
    Feb. 9, 1966.

      Upton, Upton, Griffis, Shannon & Porter, James D. Johnson, San Angelo, with above firm, for petitioner.
    Blanks, Thigpin, Logan, Steib & Lewis, S. Ancial Middlebrook, San Angelo, with above firm, for respondent.
   WALKER, Justice.

A 1961 pickup truck owned by Jack Herring and driven by George K. Landers ran into and damaged a building owned by plaintiff, H. E. Abbott & Sons, Inc. The truck was covered by a liability insurance policy issued by Royal Indemnity Company to Herring, and the policy contains an omnibus clause extending the coverage to anyone using the vehicle with the permission of the named insured. After recovering judgment against Landers for the damage to the building, plaintiff instituted the present suit against Royal Indemnity Company, defendant, to enforce its alleged liability under the policy.

The case turns upon whether Landers was using the truck with the permission of Herring so as to be an omnibus insured. There is no contention that he had express permission, but the jury found that Lan-ders was operating the vehicle with Herring’s implied permission. Judgment was rendered on the verdict in plaintiff’s favor, and the Court of Civil Appeals affirmed. 392 S.W.2d 359. In our opinion there is no evidence to support the jury’s finding.

On April 18, 1963, Herring employed Landers to work on the former’s ranch located some 14 miles northwest of Ballinger. Herring inquired at the time whether Lan-ders had a driver’s license, and he did. Landers was paid a monthly salary plus his room and board, and lived in a small house on the ranch. The original arrangement contemplated that he would prepare his meals in the house where he lived, but he soon began taking his meals with the Herring family in the main ranch house. He often prepared his meals there when the Herrings were not at home.

Herring owned three vehicles: a 1955 pickup truck, which was unlicensed and intended for use only on the ranch premises, the 1961 pickup truck, and a passenger car. Landers had permission to drive the 1955 pickup on the ranch. He customarily used it in connection with his work there, and the 1961 pickup was ordinarily driven by Herring. Landers was authorized to use the 1961 truck to perform his duties on the ranch, however, if Herring was not using it and the 1955 pickup was out of repair. When the trucks were not in use, the 1961 pickup was parked behind the Herring house, the 1955 pickup was usually left near the barn, and the keys were customarily left in both vehicles.

On Saturday afternoon, July 27, 1963, Herring and Landers attended the horse races in Bronte. They made the trip together in one of Herring’s vehicles, and Herring did all the driving. Each had two bottles of beer while they were in Bronte, and they returned to the ranch about 3:00 or 4:00 in the afternoon. Later in the afternoon Herring and his family left the ranch and went to Big Spring to spend the night with friends.

Landers had told Herring that he expected a friend, who lived in Abilene and had an automobile, to pick him up at the ranch that evening and drive him to San Angelo, but these plans evidently did not materialize. At about 7:30 o’clock and during the absence of Herring and his family, Landers left the ranch in the 1961 pickup and drove to San Angelo on a personal errand. It was on this trip that he lost control of the vehicle and ran into plaintiff’s building. He stopped and drank more beer on the way to San Angelo, and immediately after the accident was arrested and placed in jail but was released upon posting a cash bond, which was forfeited.

Upon learning of the accident the following day, Herring went to see Landers and “threatened to beat the stuffing out of him,” but Landers talked him out of it. He also told Landers that he might file charges, that “I believe you know better than that,” and that Landers had “better not do it again.” Although plaintiff argues to the contrary, we think it is clear from the evidence that these statements had reference to Landers’ use of the truck on the previous day. The damage to the pickup was about $400.00, and Landers begged Herring to allow him to stay on the ranch and work it out. Herring later agreed for Landers to remain on those terms, and Landers continued to work on the ranch for about nine months. His relations with Herring were cordial during that period.

.On three or four occasions prior to the accident, Landers had driven one of the vehicles off the ranch to pick up the Herring children at a school bus stop some five miles from the ranch house. Part of this distance was over a private road and part over a public highway. These are the only times Landers had driven a vehicle off the ranch, and on each occasion he was expressly instructed by Herring to pick up the children. Herring had never told him not to use the vehicles off the ranch. The subject had not come up. Landers had no car of his own, and Herring always took him to town whenever Landers wanted to go.

Under the standard omnibus clause of an automobile liability policy, an operator is entitled to protection as an additional insured if his use of the vehicle is with either the express or the implied permission of the named insured. While express permission must be affirmatively stated, implied permission may be inferred from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection signifying consent. It is usually shown by usage and practice of the parties over a period of time preceding the occasion on which the automobile was being used. 7 Appleman, Insurance Law and Practice, § 4365.

The following definition was given as a part of the charge in the present case:

“ ‘Implied permission,’ as used in this charge, means permission that is not expressly given or stated in words, and the word ‘implied’ means inferential or tacitly conceded and involves an inference arising from a course of conduct or relationship between the parties in which there is mutual acquiescence or lack of objection under the circumstances, signifying assent, and ‘implied permission’ is not confined alone to affirmative action.”

Plaintiff argues that implied permission can be inferred here in view of the relationship between Herring and Landers, which was more than that of a mere employer and employee, the express permission given Landers to use the trucks on the ranch, the availability of the vehicles, the distance of the ranch from town, Landers’ obvious need for a means of transportation to go there for entertainment or other purposes, Herring’s inquiry as to whether Lan-ders had a driver’s license, and his failure to instruct Landers not to use the vehicles off the ranch. Defendant cites two decisions involving somewhat analogous facts.

In Kitchenmaster v. Mutual Automobile Ins. Co., 248 Wis. 554, 22 N.W.2d 479, the driver was Funk, who worked for Bishop as a farm laborer. Funk had no driver’s license and had never received specific permission to use Bishop’s truck, although he had done so on the farm without objection from Bishop. On one occasion Bishop had requested Funk to drive Mrs. Bishop to town, and on several other occasions Funk drove Mrs. Bishop to the country store with Bishop’s knowledge. At no other time had Funk driven the truck on the highway. While Bishop and his wife were away from the farm, Funk used the truck for a personal errand and had an accident. In upholding a directed verdict for the insurer the Supreme Court of Wisconsin said:

“The mere tacit consent to drive the truck about the farm, without using the public highway, would certainly not operate as a consent to the use of the truck by Funk upon the public highway. On the few occasions when Funk was permitted to drive the truck he was accompanied by Mrs. Bishop and was operating under specific directions applicable to a particular trip. He never had any specific general permission to drive the truck upon the highway for his own purposes, or, indeed, for purposes connected with the farm. Since Funk had never driven the truck on the highway except as above indicated, there is no basis for inferring a tacit permission, based upon Bishop’s knowledge of Funk’s practices.”

Plaintiff insists that Kitchenmaster is not in point because Funk had no driver’s license. It argues that an owner could not be expected to permit an unlicensed operator to drive on the public highway, but the case cannot be distinguished on that basis. The fact that Funk had no license would not negate consent as a matter of law when Bishop had even entrusted his wife’s safety on the public highway to such unlicensed driver.

In United States Fidelity & Guaranty Co. v. Brann, 297 Ky. 381, 180 S.W.2d 102, the relationship between the insured owner of the truck, Hopper, and the operator of the vehicle, Gaylor, was similar in some respects to that existing between Herring and Landers. Hopper operated a grocery store and employed Gaylor as a delivery boy. Gaylor occasionally slept and took his meals in the Hopper home, which was an apartment above the grocery. The truck was kept in a garage on the premises, and the keys were kept in the store where they were obtained by Gaylor for use of the truck in the business. On Sunday morning Hopper sent Gaylor out in the truck to pick up some young men for a Sunday School class taught by Hopper. Gaylor kept the keys in his pocket when he returned from this errand. After eating the noon meal with the Hopper family and during Hopper’s absence, he went for a drive in the truck and had an accident. Hopper did not reprimand Gaylor, but visited him in the hospital, allowed him to stay in the apartment for a few days following his dismissal, and became surety on a note for his hospital and doctors bills. Gaylor had not previously used the vehicle for his own purposes, and had never requested permission to do so. It was held that the evidence did not raise an issue of implied permission, and the court observed that Gaylor could not be regarded as a member of Hopper’s household. We note that both Hopper and Gaylor testified the latter had no permission to use the truck on the occasion in question, but their testimony in this respect would not be controlling if implied permission could reasonably be inferred from the other facts and circumstances.

Plaintiff relies on cases such as Truck Insurance Exchange v. Ballard, Tex.Civ. App., 343 S.W.2d 953 (wr. ref. n. r. e.), Employers Mutual Casualty Co. of Des Moines v. Mosqueda, 5th Cir., 317 F.2d 609, and General Casualty Co. of America v. Woodby, 6th Cir., 238 F.2d 452, in each of which the insurance carrier was held liable under its policy. None of these decisions is persuasive here. In Ballard there was proof of a business custom tending to establish implied permission, and in Mosqueda the court found support for the jury’s ver-„ diet in the driver’s log covering the particular trip and in evidence of a prior course of dealing between the named insured and the driver. The basic issue in Woodby was whether an employee of the insured was authorized to permit the operator to use the vehicle.

In the present ease the evidence shows neither a relationship nor a prior course of conduct from which implied permission might fairly be inferred. Landers was employed as a ranch hand. He had never driven one of the vehicles off the ranch except when specifically instructed to do so, and had never used any of them for a personal errand. His employer had always driven him to town whenever he wanted to go, and had no reason to believe that he intended or might need to use one of the vehicles on the evening of the accident. In view of these undisputed facts, the limited privileges Landers was allowed in the Herring house, his occasional pleasure trips with Herring, the availability of the vehicles, his use of the same on the ranch, Herring’s inquiry about his driver’s license, and the absence of any prior instruction not to take the vehicles off the ranch, afford no basis for concluding that Landers had implied permission to use the truck for a trip to San Angelo on a personal mission. We hold that there is no evidence to support a finding that the vehicle was being operated with the implied permission of the named insured.

The judgments of the courts below are reversed, and judgment is here rendered that plaintiff take nothing.


author: WOODLEY, Judge.

text:
    William Henry MILLER, Appellant, v. The STATE of Texas, Appellee.
    No. 39257.
    Court of Criminal Appeals of Texas.
    Feb. 23, 1966.

      Mike Barclay (On appeal only), Dallas, lor appellant.
    Henry Wade, Dist. Atty., James B. Zim-mermann, James H. Miller and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the breaking and entry of a coin operated machine with intent to commit the crime of theft (Art. 1402a Vernon’s Ann.P.C.); the punishment, 3 years.

The statement of facts reveals the following.

Police officers McWhorter and Ford, assigned to foot patrol duties, checked the building housing Rex’s Ranch House, a cafe and beer tavern in which Sidney Julius, the prosecuting witness, had a music machine, a coin operated pool table and a coin operated pinball machine which belonged to him.

Between 2:30 and 3 A.M. they saw nothing of an unusual nature. The front door was locked; the curtains or drapes over the plate glass window were open and the lights were on.

When they next checked, about 4 A.M., the curtains were closed and when they went to the door, which was still locked, they saw three men in the room.

Appellant was standing behind the pool table. His brother Charles was beside him. The third man was Haywood, the manager of the business, who was standing to one side.

As Officer McWhorter was calling to the men inside the building to open the door, appellant and his brother were crawling on their stomachs out of the room toward the kitchen. Haywood walked in the same direction but then came to the door and opened it so that Officer McWhorter could enter.

Officer Ford intercepted appellant and his brother as they came out the back door.

Having returned the two men to the room, the officers noticed that the locking part of the pool table had been pried open and torn from its hinges and the lock guard on the front of the coin box to the juke box, or music machine, had been pried off and was lying on the floor.

In the room where appellant was seen to crawl there was a screwdriver and some silver money underneath a counter. A pasteboard box containing quite a bit of change, a pistol and some keys, was found in the same room.

In a plastic litter bag found in the glove compartment of an automobile belonging to appellant’s brother, which was parked some 100 feet from the cafe, some silver money was found.

It was shown that Julius owned the coin operated machines and the money in them and that neither appellant, his brother nor Haywood had authority or permission to break the boxes or take money therefrom.

Appellant contends that the trial court erred in admitting the evidence obtained as the result of the search of the automobile.

The evidence is deemed sufficient to show probable cause for the arrest of appellant and of his brother, and for the incident search of the automobile.

Appellant complains that the court failed to charge on circumstantial evidence.

In the absence of an exception, over the signature of the trial judge, the error was not preserved for our review under the law applicable at the time notice of appeal was given. Washington v. State, Tex.Cr.App., 400 S.W.2d 756, and cases cited; Smith v. State, 172 Tex.Cr.R. 78, 353 S.W.2d 854; Lemuel v. State, 155 Tex.Cr.R. 614, 237 S.W.2d 982.

The evidence is sufficient to sustain the jury’s finding and we find no reversible error.

The judgment is affirmed.


text:
    Samuel Lewis SYKES, Appellant, v. The STATE of Texas, Appellee.
    No. 38932.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.

      John W. O’Dowd, John M. Ille, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Gene D. Miles, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Tried upon an indictment alleging murder with malice of Joyce Jones by shooting her with a gun, appellant was found guilty of the lesser included offense of negligent homicide of the second degree (Art. 1243 P.C.) and his punishment was assessed by the jury at 3 years in jail.

The killing occurred in “The Celebrity Room,” a cafe. All of the evidence shows that Joyce Jones, an 18 year old Negro girl, died as the result of a gunshot wound inflicted by a bullet from a .25 caliber automatic pistol in the hand of appellant.

Dr. Bucklln, Associate Medical Examiner for Harris County, testified that the bullet entered the left side of the chest; went through the fourth rib and into the left lung; perforated the heart; entered the right lung and was recovered in the right pleural cavity. He expressed the opinion that the gun was not touching the skin, but was some six inches away when fired, and that a person after being shot in such manner would live only 2 or 3 minutes.

Appellant’s version was that, after he had been called back and told that he owed an additional two cents for his chili, he pulled out everything in his right trousers pocket, including the pistol, a key chain with a rabbit’s foot on it and several nickels, and that after he put a nickel on the counter and was waiting for his change the gun “went off”. He testified that he did not intend to shoot anyone; that he did not know how the gun fired and that he had not pulled the trigger.

He denied having earlier approached another girl in the cafe, also named Joyce, or that he threw his arm around her shoulder, displayed a gun or told her that if she did not let him feel her breasts he was going to shoot her, or that he exhibited a gun in the recreation room after talking to a girl named Daisy, as the state’s witnesses testified.

The court did not err in submitting to the jury an instruction on negligent homicide of the second degree. Abell v. State, 109 Tex.Cr.R. 380, 5 S.W.2d 139, 61 A.L.R. 318; Chant v. State, 73 Tex.Cr.R. 345, 166 S.W. 513; Taylor v. State, 145 Tex.Cr.R. 158, 166 S.W.2d 713.

The charge given was substantially the same as that approved in Brown v. State, Tex.Cr.App., 376 S.W.2d 577.

The claims of error presented as ground for reversal all relate to the portion of the charge which followed the submission of murder with malice aforethought which (omitting the full definition of negligent homicide of the second degree and the punishment provided for such offense in Art. 1243 P.C.) reads:

“You are further charged, however, that if you believe from the evidence beyond a reasonable doubt that the defendant, on or about the 20th day of October, 1964, unlawfully shot and killed Joyce Jones by then and there shooting her with a gun, as charged by the indictment herein, but you have a reasonable doubt as to whether he did so (if he did) with malice aforethought, then you will resolve such doubt, if any, in favor of the defendant and next consider whether this defendant be guilty of negligent homicide in the second degree.”
(Here follows the definition.)
“Now, therefore, if you believe from the evidence beyond a reasonable doubt that the defendant, Samuel Lewis Sykes, heretofore on or about the 20th day of October, A.D. 1964, in Harris County, Texas, was then and there engaged in the performance of an unlawful act, to-wit, carrying a pistol on or about his person in the County and State aforesaid, and did then and there while so engaged, by negligence and carelessness cause the death of Joyce Jones, by then and there negligently causing and permitting said pistol (gun) to discharge a bullet, which then and there struck the body of the said Joyce Jones, and from which injuries from said pistol the said Joyce Jones then and there died; and that at the time said pistol was discharged, the defendant had no apparent intention to kill the said Joyce Jones, and you further find from the evidence beyond a reasonable doubt, that at the time said pistol was discharged, there was an apparent danger of causing the death of said Joyce Jones, which the defendant knew or should have known, in the exercise of due care and caution, such as a reasonably prudent person would or should have used under the same or similar circumstances, then you will find the defendant guilty of the offense of negligent homicide in the second degree, and assess his punishment at imprisonment in the County Jail for a period of time not to exceed three years or by a fine not to exceed three thousand dollars ($3,000.00).
“But if you do not so find and believe from the evidence or if you have a reasonable doubt thereof then you will acquit the defendant and say by your verdict ‘not guilty’.”
“You are instructed that no act done by accident is an offense, except where there has been a degree of carelessness or negligence which the law regards as criminal.
“Therefore, if you believe from the evidence beyond a reasonable doubt that the said Joyce Jones was killed by the defendant as charged in the indictment, but if you believe or have a reasonable doubt thereof that the pistol was not intentionally discharged and if you believe or have a reasonable doubt thereof that the pistol was accidentally discharged for any reason other than the negligence and carelessness of the defendant, then you will acquit the defendant and say by your verdict ‘not guilty’.”

We find no merit in appellant’s contention that the court erred “in stating that the appellant was then and there engaged in the performance of an unlawful act, to-wit: carrying a pistol, without first setting out and defining the law concerning carrying a pistol.” It is clear that in the charge above quoted the jury was required to find that appellant was so engaged before convicting him for negligent homicide of the second degree.

Further, all of the elements of the offense of unlawfully carrying a pistol were contained in the court’s submission of negligent homicide of the second degree.

Also, the evidence, including the testimony of appellant, shows without dispute that appellant was unlawfully carrying-the pistol which discharged the fatal bullet.

Appellant’s contention in the alternative that the trial court erred in failing to give an instruction as to the law of negligent homicide of the first degree is predicated upon the theory that the evidence showed or raised the defense that the carrying of the pistol was not unlawful because appellant was carrying it hack to his employer’s place of business, and that whether or not he deviated from his route in doing so would be a question for the jury to decide.

We find no merit in this contention.

The record shows that appellant told the officer who arrested him that “he accidentally shot the woman in the case”; that the gun did not belong to him and that “he was in the process of returning it to the owner.” He testified at the trial that the pistol belonged to Willie Stewart for whom he worked part time at night; that when Stewart put him out at his home about 12:30 A.M. he said he wasn’t going straight home; that he was going out to drink some more and told appellant to bring the gun by his house the next day. “Q. And was it your intention—at the time that you went into this place, were you on your way to take the gun back to him? Is that true or not? A. Yes, sir.”

On cross-examination appellant testified that he got up about 10 o’clock; that he put on the same britches he had on the night before and the gun was still in his pocket; that he went “on Holman and Sampson” where he ran into Edwin Nixon and went with him and waited about 30 or 40 minutes while he got a haircut “on Mcllhenny and Live Oak”; that he and Nixon then went to two cafes before they went to the Celebrity Room where the pistol was discharged; that when they arrived at the Celebrity Room he and Nixon went through the cafe part to the back room and shot a game of pool, and later came to the bar and ate the bowl of chili they had ordered.

Under appellant’s version the carrying of the pistol was unlawful. His testimony did not raise a defensive issue.

Appellant’s remaining contention is that the trial court erred in applying the law of accident to the facts of this case because he did not present the appellant’s defense in an untrammeled and “unmingled” manner, and by doing so deprived appellant of an affirmative defensive charge.

This contention relates to the last two paragraphs of the portion of the charge above quoted which appellant says unduly restricted his defense of accident and suggests, implies “and in fact in effect tells the jury that the Defendant was guilty of negligence and carelessness at the time of the alleged offense” and was a comment upon the weight of the evidence.

Appellant cites and relies upon McPeak v. State, 80 Tex.Cr.R. 50, 187 S.W. 754; Harris v. State, 101 Tex.Cr.R. 33, 274 S.W. 568; Buchanan v. State, 127 Tex. Cr.R. 100, 74 S.W.2d 1022, and Burt v. State, 138 Tex.Cr.R. 540, 137 S.W.2d 1045, 140 Tex.Cr.R. 410, 145 S.W.2d 886.

This appeal being from a conviction for negligent homicide, and appellant standing acquitted of the offense of murder is in no position to complain that his defense to the charge of murder was unduly limited by the court’s charge.

Accident is not of course a defense to negligent homicide. As applied to negligent homicide, we find no reversible error in the court’s charge on accident. Biggerstaff v. State, 59 Tex.Cr.R. 575, 129 S.W. 840.

Harris v. State and Burt v. State, supra, were cases where the conviction was for murder. In Buchanan v. State, supra, the conviction was for assault with intent to murder. Neither of these cases cited by appellant is deemed authority for reversal of this conviction for negligent homicide of the second degree.

We do not find in the instruction complained of where the trial judge suggested, implied or told the jury that appellant was guilty of negligence.

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

The judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Jessie Louise CLIFTON, Appellant, v. The STATE of Texas, Appellee.
    No. 38970.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.

      Robert B. Billings, Dallas, for appellant.
    Henry Wade, Dist. Atty., Dallas, Texas, Robert H. Stinson, William F. Alexander and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is unlawful possession of a narcotic drug, heroin; the punishment, ninety-nine years.

At about 9:10 p. m. on November 23, 1964, Detective C. H. Cavander of the Dallas Police Department had a telephone conversation with a reliable informant who had given him accurate information on several prior occasions. The informant disclosed that appellant and a male companion, Freddie Lee Hall, were at a certain record shop and were about to leave town; that they had loaded their clothing into Hall’s black and white Buick automobile; and that appellant possessed a large quantity of heroin. The detective testified that he knew Hall and appellant to be users or dealers of narcotics, and knew that they had a car matching the description furnished by the informant.

Within ten to twelve minutes after receiving this information, Detective Cavan-der and two other officers arrived at a vantage point from which they could observe the record shop and an adjacent parking lot. Shortly thereafter they observed Hall drive into the parking lot in the described automobile. Appellant, a passenger, remained in the car while Hall got out, looked around, walked over to the record shop, looked around again, and went into the building. Upon reappearing, Hall again looked around, then got into the car, the back seat of which was loaded with clothing and suitcases, and drove off.

The policemen followed appellant and her companion in an unmarked squad car for approximately seven blocks until the Buick stopped for a red light, at which time the officers jumped from the squad car with drawn pistols and ordered appellant and Hall out of their car. Officer E. E. Taylor testified that he observed, as appellant complied with this order, that there was an unusual bulge under the sweater she was wearing, and that he told her to give him whatever she had concealed in her brassiere. She handed the officer a hypodermic needle, a syringe, and a box. Despite appellant’s denials, it appeared to the officer that she still had something concealed under the sweater, and she was taken to the city jail where a search of appellant’s person by a jail matron produced IS packets of a substance later identified as heroin.

We find the evidence sufficient to sustain the verdict.

Appellant contends that the admission of this heroin into evidence constituted error because the evidence was the fruit of an illegal search incident to an unlawful arrest.

Prior to admitting the narcotic drug into evidence, the trial judge conducted a hearing out of the presence of the jury at which, in addition to the facts set out above, it was shown that the time required to obtain an arrest and search warrant would have been about one and a half hours. The state also introduced into evidence Section 37 — 5 of Vol. 2, Revised Code of Criminal Ordinances of the City of Dallas, Texas, which authorized the arrest without a warrant of any person found under circumstances reasonably tending to show that such person has been guilty of some felony. At the conclusion of the hearing the trial judge admitted the evidence.

In Jones v. State, Tex.Cr.App., 264 S.W.2d 722, police officers were informed that a person answering a certain description could be found at a specified time and place with marijuana in his possession, and there was no time to obtain a warrant. The officers proceeded to the designated place and observed a person answering the precise description they had been given. Twenty marijuana cigarettes were found in this person’s pocket and, over objection that this evidence was unlawfully obtained, were admitted into evidence at his trial. This Court held that the officers, being informed that the described person was in possession of marijuana, were authorized to search his person, the information constituting probable cause for the search and there not being sufficient time to secure a warrant.

In Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, a federal narcotics agent was informed by a reliable paid informer that the defendant in that case was peddling narcotics to several addicts in Denver and that he would return from Chicago to Denver, bringing back a quantity of heroin, on the morning of either September 8 or September 9, 1956. The informer gave the agent a detailed physical description of the defendant and the agent arrested him without a warrant upon his arrival by train. Holding that heroin obtained from a search incident to that arrest was competently received in evidence, the U. S. Supreme Court said:

“The information given to narcotic agent Marsh by ‘special employee’ Hereford may have been hearsay to Marsh, but coming from one employed for that purpose and whose information had always been found accurate and reliable, it is clear that Marsh would have been derelict in his duties had'he not pursued it. And when, .in pursuing that information, he saw a man, having the exact physical attributes and wearing the precise clothing and carrying the tan zipper bag that Hereford had described, alight from one of the very trains from the very place stated by Hereford and start to walk at a ‘fast’ pace toward the station exit, Marsh had personally verified every facet of the information given him by Hereford except whether petitioner had accomplished his mission and had the three ounces of heroin on his person or in his bag. And surely, with every other bit of Hereford’s information being thus personally verified, Marsh had ‘reasonable grounds’ to believe that the remaining unverified bit of Hereford’s information — that Draper would have the heroin with him — was likewise true.” 358 U.S. 313, 79 S.Ct. 333.

In Beck v. State of Ohio, 379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142, where the U. S. Supreme Court reversed appellant’s conviction because a lack of probable cause to arrest appellant rendered unlawful his subsequent search, the Court contrasted the facts in Draper, supra. After describing the verified information of the informer in Draper, the Court stated:

“In complete contrast, the record in this case does not contain a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.
if? ‡ sjí ífc %
“When the constitutional validity of an arrest is challenged, it is the function of a court to determine whether the facts available to the officers at the moment of the arrest would ‘warrant a man of reasonable caution in the belief’ that an offense has been committed.” 379 U.S. 95, 96, 85 S.Ct. 228.

In the present case, the officer’s information came from an informer of proven reliability. Prior to appellant’s arrest, the officers had personally verified every part of the informer’s story except whether or not appellant was in possession of heroin and they were aware of appellant’s prior association with narcotic drugs. We find that the trial court committed no error by admitting into evidence the heroin seized when appellant was searched incident to her arrest, for the facts available to the officers at the moment of appellant’s arrest reasonably tended to show that appellant was guilty of a felony. Her arrest, and her search incident to that arrest, were lawful.

Appellant further contends that the substance introduced into evidence had not been properly proved to be heroin because the chemist who so testified was not the same person who performed the analysis. We do not agree. The record reflects that the witness, Doctor Morton F. Mason, was Director of the Dallas City Criminal Investigation Laboratory; that he was present in the laboratory when the tests were conducted; that he personally supervised the employees who performed the actual mechanical manipulations involved in conducting the tests; that he personally worked on each of the specimens; and that he personally examined the results of each analysis. We further observe that the witness was testifying from the official records of his laboratory. This contention is without merit. Dagley v. State, Tex.Cr.App., 394 S.W.2d 179.

Appellant also makes complaint of the state’s argument, alleging that counsel commented upon appellant’s failure to testify in her own behalf when he said:

“We do not know how this woman makes here livelihood, all we know about her is that she had this quantity of heroin, the thing which no one can possess.”

Upon appellant’s objection, the punctilious trial judge sustained this objection and instructed the jury to disregard this remark.

In Alford v. State, 158 Tex.Cr.R. 311, 255 S.W.2d 519, state’s counsel argued:

“The defendant did not introduce any evidence as to his job and what he did for a living and as far as you gentlemen are concerned, you don’t know what the defendant does for a living.”

This was held not to be a reference to the failure of appellant to testify. See also Webb v. State, 119 Tex.Cr.R. 94, 45 S.W.2d 609.

Other informal hills of exception pertaining to the state’s argument disclose no reversible error.

On the morning of February 9, appellant made a motion to dismiss the jury panel and for continuance because of alleged discrepancies in the jury selection procedure. It appears from the statement of facts adduced at a hearing on that motion that the panel was examined by both appellant and the state on February 8, the day before this hearing, and that the court recessed that evening prior to either party exercising his peremptory challenges. The following morning appellant submitted his jury list to the court clerk with his challenges struck, and shortly thereafter he was informed that the second juror on the jury list had been excused because of an emergency trip to the hospital, whereupon appellant’s counsel retrieved his list from the clerk. At the conclusion of the docket call, and after announcing that juror number two was excused, the court tendered the jury panel to both parties for further examination. Appellant’s motion was then presented. At this point of the proceedings, appellant could have examined the panel had he desired. The court had not called for the list of challenges from either party. It is possible that juror number two would have been challenged by the state anyway (indeed, the state in its answer to appellant’s motion for new trial on this ground, alleges that they did so). There is no showing that a jury was not selected from the regular panel, or that the members of the jury were not jurors acceptable to appellant. At the conclusion of the hearing, the trial court overruled appellant’s motion and again advised appellant that he could examine the jury panel further before turning in his list of challenges. We fail to see any transgression of the statutory provisions pertaining to jury selection, nor do we see that appellant was prejudiced.

We have considered appellant’s other informal bills of exception with care and find that no reversible error is reflected by any of them.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Charles Wallace BROOKS, Appellant, v. The STATE of Texas, Appellee.
    No. 38890.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.
    Adelfa B. Callejo, Dallas (on appeal only), for appellant.
    Henry Wade, Dist. Atty., John Vance, Tom Reese and W. John Allison, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was convicted for assault with intent to rape, and his punishment was assessed at thirty-five years.

The prosecutrix testified that while she was asleep about 12:30 A.M., in her bedroom with the door locked, she was awakened by a noise at the door of her bedroom which she, at the time, thought was caused by the suction fan in the apartment house; that shortly thereafter the appellant broke the door lock and entered her room; and by the light from the hall she recognized the man entering her room as being the appellant who was known to her as Jack Scholl or Jack Scholts and who had two or three days previously rented a room in the same building. When the appellant came through the door the prosecutrix began screaming, and appellant leaped upon her body, grabbed her by the throat with one hand and put the other over her mouth. The prosecutrix heard another roomer come out into the hall but she was unable to say anything before the roomer returned to her room. Appellant told the prosecu-trix not to make a sound or he would kill her, and when he told her he wanted to have intercourse, she would not consent, and begged him not to bother her, but he continued the pressure on her throat with one hand as he undressed himself with the other, and he then made her pull off her panties, and while between her legs he grabbed her left breast, telling her to “put it in,” and she said she couldn’t because she was too small. Under the ruse of getting a lubricant from the dresser, he held her as she went to the dresser where he slackened his grip and she jerked the door open and ran into the hall screaming. The appellant, nude, overtook her, knocked her down and beat her on the head, and when a nearby roomer began opening her door, the appellant returned to the prosecutrix’s room. From the roomer’s window the prosecutrix screamed for help, and shortly another roomer came. In a brief time they saw the appellant leaving prosecutrix’s room. The police soon arrived and were given a description of the appellant and the prose-cutrix was taken to the hospital.

One of the roomers testified that she was awakened by a woman screaming, and when she opened the door she saw the prosecutrix in the hall and the prosecutrix was screaming; and in a short time the witness saw the appellant leave the prosecu-trix’s room, and while testifying she identified the appellant as the man who had rented a room two or three days before; that there was blood on the sheets in prose-cutrix’s room, and also blood on the door and walls of the other apartment.

The investigating officer, who saw the prosecutrix at the scene, testified that she was distraught and nervous, had blood on her, and had been injured on the head.

The appellant was apprehended about 3:30 A.M., July 14, while asleep in another person’s automobile after the owner of the car had called the police. This occurred July 14, following the offense allegedly committed in this case on July 10.

The written statement of the appellant which was made in accordance with the statutory provisions applicable thereto was introduced in evidence and it reads in part as follows:

“I ran into the apartment. I saw a woman laying on the bed, and I jumped on the bed on top of the woman. * * * I did not know the woman that I jumped on.”

The appellant did not testify but called the state’s attorney trying the case as a witness and then appellant’s counsel testified. He sought to prove by the state’s attorney that he had information in his file showing that the appellant had twice been confined in a mental institution but this was denied. The state’s attorney exhibited Dr. Holbrook’s report in which he stated, “I feel that he (appellant) does have some recognition of right from wrong, right and wrong,” and that appellant would not discuss the instant case with him. Appellant’s attorney testified that he felt personally that the appellant was not sane at the time of the commission of the crime, and was not at that time sane. The court charged the jury upon the law applicable to insanity at the time of the commission of the alleged offense and at the time of the trial.

The appellant contends that the testimony of the prosecutrix is incredible and renders the evidence insufficient to support the conviction.

From the facts and the law applicable thereto, there appears no exception to the express provision of the statute that the jury is the exclusive judge of the facts proved, and of the weight to be given to the testimony. It is concluded that the evidence is sufficient to support the jury’s finding that the appellant is guilty as charged and sustains the conviction. 56 Tex.Jur. (2) 535, Sec. 193.

It is contended that it was fundamental error to admit the written statement of the appellant in evidence; and that it was error for the trial judge to fail to determine the issue of the voluntary nature of said written statement.

The testimony of the officer to whom the written statement was made fairly and adequately reveals that it was made in compliance with applicable provisions of the statute before it was admitted in evidence. Further, no evidence was offered raising an issue as to the voluntary nature of the confession prior to the time it was admitted in evidence, and none was thereafter offered raising such issue; No objection was made to the admission of the statement on the ground it was not voluntarily made. No request was made that an issue as to the voluntary nature of the written statement be submitted to the jury, and none was submitted. No error is presented. Hintz v. State, Tex.Cr.App., 396 S.W.2d 411.

Fundamental error is urged on the ground that the trial court refused appellant’s motion for continuance to obtain medical testimony as to the defense of insanity because such evidence was kept from him by the state.

No written motions were made for a continuance as required by statute.

According to the record the first mention of continuance is found in the statement of facts immediately after the state had rested its case in chief. At this time, as reflected by the statement of facts, the appellant orally asked for a continuance to give him time to get medical testimony on the question of insanity because the witness was out of town.

To support a plea of insanity the appellant applied for and a subpoena was issued for Dr. John T. Holbrook, a psychiatrist, but he was out of town.

The state’s attorney, called by the appellant, testified that he did not recall knowing that appellant had been in a mental hospital, and took Dr. Holbrook’s report of his examination of the appellant from his file. While testifying, the state’s attorney examined the report at the request of appellant’s attorney and stated that it did not reveal anything about any mental institution; and that Dr. Holbrook further stated in the report that, “I feel that he does have some recognition of right from wrong, right and wrong”, that appellant would not discuss this case with him, and that he was the type of person who would try to escape from custody. The appellant did not offer Dr. Holbrook’s report in evidence; it is not in the record, and there is no showing what his testimony would be.

The indictment was returned August 14, 1964, and an attorney was appointed for him September IS, 1964, and the case was reset for October 5, to permit said attorney to prepare for trial. It was again reset for October 26, 1964, and tried on that date. Motion for new trial was filed November 5, 1964, but withdrawn on December 4, and sentence was pronounced and notice of appeal given on that date. According to the record this case was tried on the fourth setting.

The regular judge of the court in which this case was tried suffered a heart attack in August, 1964, and was incapacitated until January 4, 1965.

The contention urging fundamental error is overruled.

The other contentions urged as error have been considered and they do not reveal error.

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

The judgment is affirmed.

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    Ramiro F. GONZALES, Appellant, v. The STATE of Texas, Appellee.
    No. 38997.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 9, 1966.
    Theo Pat Henley (on appeal only), San Antonio, for appellant.
    James F. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced by reason of a prior conviction for an offense of like character, twelve years.

The indictment charged that the appellant did unlawfully, by force, break and enter a house occupied and controlled by Robert D. Perkins.

Robert D. Perkins, the prosecuting witness, lived at 1503 West Brady, in the city of San Antonio, with his wife and two teenage children. On the day in question, Mrs. Perkins was the first to leave the house, around 7:30 a. m. Fifteen minutes later, the son and daughter left for school. At 10:30 a. m., Mr. Perkins left to go to his work. At such time, all windows and doors to the house were locked. At 3 p. m., the daughter, Lillian Louise, returned home from school and observed that a side door leading to the carport was open and the casing to the door had been broken. She then went inside and observed that certain items were missing from the house.

In the investigation which followed it was discovered that items of property of a value in excess of $600 had been taken from the house. Included in the missing property was a television set four feet long, three feet high, and two feet wide. Two Chinese figurines and a television lamp which had been kept on top of the television set were found on the floor.

Fingerprints were taken from the television lamp and the two figurines.

Outside the house was found a long tire mark leading from an oil slick in the carport, which mark was not present when Mr. Perkins left the house that morning.

Appellant was arrested a week later on a warrant for burglary and, following his arrest, fingerprints were obtained from him by Officer Hartman, of the San Antonio police department.

Officer Hartman, whose qualification as a fingerprint expert was shown, testified that he had compared appellant’s fingerprints with the fingerprints taken from the two figurines and television lamp and found that two of the prints on one of the figurines were identical to prints from two of appellant’s fingers. The officer stated that one of the prints was of appellant’s left thumb and the other print was of his right middle finger. He further stated that he was unable to identify a third print taken from the figurines or the prints taken from the television lamp.

It was shown by the testimony of the prosecuting witness that he did not give the appellant or anyone else permission to break into the house and take anything therefrom. It was further shown that the property stolen from the house was never recovered and that appellant had never been seen on the premises or in the house burglarized.

A prior conviction for felony theft alleged in the indictment for enhancement of the penalty was stipulated by the parties.

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

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals and circumstantial evidence.

We first overrule appellant’s contention that the evidence is insufficient to sustain the conviction.

The proof shows that fingerprints were left in the house by the person or persons who committed the burglary on the day in question. Two of the prints were shown to be identical with fingerprints of the appellant.

Such proof has been held sufficient to sustain a conviction for burglary. Grice v. State, 142 Tex.Cr.R. 4, 151 S.W.2d 211; Briones v. State, Tex.Cr.App., 363 S.W.2d 466.

Appellant’s complaint to the court’s charge is not properly presented for review, no objection having been made in writing to the same prior to the time it was read to the jury, as required by Art. 658, V.A.C. C.P., at the time the case was tried and the judgment of conviction was entered by the court. Howell v. State, 171 Tex.Cr.R. 545, 352 S.W.2d 110.

Appellant’s complaint to certain alleged improper jury argument which was urged as a ground for new trial is, also, not properly presented for review, there being no formal bill of exception presenting such complaint, or informal bill of exception as was authorized by Art. 759a, Vernon’s Ann. C.C.P., which was in force at the time of appellant’s trial and conviction. Spigner v. State, 169 Tex.Cr.R. 528, 335 S.W.2d 605.

The judgment is affirmed.

Opinion approved by the Court.