text:
    Charles HICKS, Jr., Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Sept. 30, 1975.
    Certiorari Denied by Supreme Court Dec. 15, 1975.

      Dale M. Quillen, Nashville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., R. Jackson Rose, Asst. Atty. Gen., Nashville, W. B. Lockert, Jr., Dist. Atty. Gen., Ashland City, J. Kenneth Atkins, Asst. Dist. Atty. Gen., Erin, for defendant in error.
   DUNCAN, Judge.

OPINION

The plaintiff in error, Charles Hicks, Jr., hereinafter referred to as the defendant, brings this appeal contesting his conviction for murder in the first degree and resulting penitentiary sentence of twenty (20) years and one (1) day.

In his first assignment, the defendant contends that the court erred in failing to instruct the jury on voluntary intoxication as it pertains to the elements of premeditation and deliberation involved in murder in the first degree.

After a careful review of the record we do not find error in this regard. There was no evidence presented at the trial to raise the issue of voluntary intoxication. While there was some testimony that the defendant and his associates had participated in some drinking during the day of the homicide, it was not insisted by the defendant at the trial that he was intoxicated at the time of the incident.

The defendant testified that “quite a bit” of drinking had taken place. He stated that whiskey was there in the office and everybody was helping themselves to it. Additionally, he testified that he had had “something to drink.”

Cecil Breeden and Howard Largent, witnesses for the state, testified that during the hours preceding the homicide, the men at the office, including the defendant, had been drinking. The witness Largent testified that “nobody,” including the defendant, was “drunk.”

The fact that voluntary drunkenness was not being interposed as a defense in this case is graphically illustrated by the fact that the defendant’s counsel did not make any special request to the court for instructions on this issue. An accused is entitled to an affirmative instruction upon every issue raised by the evidence, but there is no requirement on the part of the court to instruct on matters not raised by the evidence. Simpson v. State, 1 Tenn.Cr.App. 256, 437 S.W.2d 538 (1968); Lester v. State, 212 Tenn. 338, 370 S.W.2d 405 (1963).

Nowhere in his testimony did the defendant take the position that he was intoxicated at the time of the killing involved herein, nor that any of his actions were motivated or influenced by his intake of intoxicants. Rather, his position was that he did not fire the fatal shot that killed the deceased. He testified in vivid and minute detail as to his version of the events that took place on this occasion. The mere fact that there was some evidence that the defendant had been drinking, without more, is not sufficient to raise the issue of voluntary intoxication. We conclude that the issue of voluntary intoxication was not raised by the proof, and therefore there was no duty on the part of the court to charge the jury on this question.

In his second assignment, the defendant alleges that the court erred in admitting expert testimony on powder burns, and in his third assignment the defendant complains that the court failed to instruct the jury regarding the weight to be given to expert testimony.

Neither of these grounds were presented to the trial court in the defendant’s motion for a new trial, and the defendant is thus precluded from raising these questions on this appeal. The law of this state is that, absent any patently invalidating error, the trial judge will not be put in error upon matters not brought to his attention for correction in the motion for a new trial, and assignments of error which were not incorporated in the new trial motion will not be considered on appeal. Jenkins v. State, Tenn.Cr.App., 509 S.W.2d 240 (1974); Pulley v. State, Tenn.Cr.App., 506 S.W.2d 164 (1973); Hancock v. State, 1 Tenn.Cr.App. 116, 430 S.W.2d 892 (1968); Rule 14(4) and (5) of the Tennessee Supreme Court Rules, adopted by this Court.

Further, as to the complaint regarding the failure of the trial court to charge on the weight to be given expert testimony, we add that no special request for such instruction was tendered to the court, and no objection to the charge was made at the trial. For these reasons, together with the fact that this complaint was not made in the motion for a new trial, as stated, the defendant is now precluded from raising the question here for the first time. Hancock v. State, supra.

With regard to the admission of the expert testimony, it should be noted that the. admission of such is within the discretion of the trial judge. Arterburn v. State, 216 Tenn. 240, 391 S.W.2d 648 (1965). We find no abuse of discretion here. We think the testimony was properly admitted.

For the reasons stated, the second and third assignments of error are overruled.

In his last assignment, the defendant contends that there was not sufficient evidence to sustain the verdict.

The proof, as accredited by the jury, showed that on December 21, 1973, the defendant, a shop foreman for the County Highway Department, was at the shop with some fellow workers. However, due to bad weather, the men were not working that day. During the day, the men drank some whiskey. Hicks had a .22 caliber pistol earlier in the afternoon or evening, which he claimed disappeared, and he had a dispute with some of the men over that incident. He called his ex-wife, Elsie (Lee) Hicks, and had her deliver to him a shotgun and a .38 caliber pistol. Hicks loaded the pistol and threatened two of the men, Cecil Breeden and Howard Largent. Around 8:00 p. m. the defendant called his girl friend, Margaret Welker, the victim herein, and a few minutes later she came to the shop in her car. As she stepped through the office door, the defendant shot her with a .38 caliber revolver, the bullet entering her neck and exiting from her back on the left side.

Included in the state’s proof was the testimony of Cecil Breeden, previously mentioned, who stated that he saw the defendant shoot the victim in the neck. Breeden testified that after the shooting, Hicks told Howard Lagent to destroy the gun, and told Breeden to call the Sheriff.

Howard Largent testified that he was around the shop most of the day and that the men, including the defendant, were drinking some but that he never saw “nobody drunk”; that the defendant was not drunk; that he overheard the defendant call someone about bringing some more guns and shells over to him; that the defendant’s “wife,” Elsie (Lee) Hicks, (the witness is obviously referring to the defendant’s ex-wife) brought a shotgun and pistol; that she handed the defendant the pistol, and when asked what the defendant did with the pistol, the witness said:

“Q Then what did he do with this pistol at that time?
A He took the pistol and loaded it, and she said don’t point that gun at me, she said, that gun’s dangerous and she left right about then, she left, and he kept on rolling it around and loading it and pointing it at me and Bree-den in that little office there.
Q Did he threaten you all with it at that time?
A He just said something about one of you alls got my gun, and he kept getting more and more riled up about it, and I told him he had to put that gun up or do something with it, and he put it up, anyway he got it out of sight, I don’t know what he done with it but he got it out of sight.”

Largent further testified that the defendant telephoned the victim, Mrs. Welker, and told her to come over; that she did and then the witness described the events as follows:

“Well, he went out there and raised the door up and let her in in the shop and when she drove in he let the door down while she got out and come in the office and when he come in the office to the desk he just walked around turned around, I don’t know where he got the gun, but he just had it pointed up, up, he just had it up there, and shot it, just as she entered the door.”

Further, when asked what happened after the shot was fired, the witness testified:

“She just fell and he went out to get her, I went out there, he kinda picked her up and laid the gun down there and raised her up and he said you take this gun to Lee, tell her that I shot her, and I left with the gun right then, he gave it to me voluntarily, he gave me the gun.”

Largent stated that he did take the pistol to the ex-wife, but that when she did not take the gun, he threw it under a lumber pile.

Dr. Franklin B. Sledd testified that he performed an autopsy on the body, and that the victim’s death was caused by the gun shot wound.

Robert Fortner, TBI Agent, testified as an expert in firearms identification and stated that he test-fired the murder weapon into a piece of paper from different distances. The witness stated that the results of one of the test firings at a distance of five (5) inches matched the pattern of powder burns found on the victim’s blouse.

The defendant testified and denied he shot the deceased. Instead, he claimed that the shot came from behind him. He stated that the victim was his girl friend, and admitted that he had called his ex-wife and requested her to bring the guns over to the shop. He said he wanted the pistol to carry for protection, as he and the victim were going to visit at a nearby town, and he wanted the shotgun for the purpose of going hunting the next morning.

The defendant’s version of the events, at the time of the shooting, was as follows:

“Well, she drove up and blowed the horn and I said some of you all let her in, I said that’s Margaret, and, well, about the time I said that the headlights just come right on me, the door must have already been up, so she just drove right on in and got out of the car and come right out around the back of the car and she was coming in kind of a little jiggedy trot and just about the time she entered the door well I just hung the phone up and just caught hold of the corner of the desk and just rolled the chair right up to the edge of the desk and reached up to catch her like that and just well I almost caught her by the hip when the gun went off and I didn’t think about her being shot, I thought maybe one of them had maybe knocked the gun off and it went off, they had been shooting firecrackers around there and I thought maybe a firecracker went off there, I really didn’t know just right then.”

It is noted that, contrary to the defendant’s statements above set forth, other proof was in the record that he had opened the garage door for the victim, prior to her entrance into the shop office.

The defendant admitted that he might have told the officers right after the shooting that the gun was not in the shop and that he never took the guns out of the car, explaining that he was “upset” and “didn’t know half the time what” he “was talking about.”

Further, the defendant testified that the deceased had telephoned him at 1:00 p. m. on that day, and that they discussed plans about them going on a trip that night. The defendant said the victim was at home when she called him. The victim’s daughter testified that at 1:00 p. m. on that day the victim was not at home, but to the contrary, the victim and the witness were in Clarksville at that time.

In considering and passing on assignments of error challenging the sufficiency of the evidence to warrant and sustain the verdict of the jury in criminal cases, we are bound by the law that a guilty verdict by the jury, approved by the trial judge, accredits the testimony of the witnesses for the state and resolves all conflicts in favor of the theory of the state. Such a verdict removes the presumption of the innocence of the accused which stands as a witness for him until he is convicted, and raises a presumption of his guilt upon appeal, and he has the burden upon appeal of showing that the evidence preponderates against the verdict and in favor of his innocence. Gulley v. State, 219 Tenn. 114, 407 S.W.2d 186 (1966); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967); Chadwick v. State, 1 Tenn.Cr.App. 72, 429 S.W.2d 135 (1968).

From our review of the record, we conclude that the evidence is more than sufficient to support the verdict. The evidence conclusively shows that the defendant fired the shot that killed the deceased. The state presented two eyewitnesses who testified that the defendant fired the fatal shot. The defendant relayed a message to his ex-wife that he had shot the deceased, and the jury was entitled to draw its own conclusions as to the defendant’s purpose and motive in this regard. Further, he attempted to dispose of the murder weapon, from which action the jury was entitled to draw an inference of guilt. Any attempt to suppress or destroy or conceal evidence is relevant as a circumstance from which guilt of an accused so acting may be inferred. Sotka v. State, Tenn.Cr.App., 503 S.W.2d 212 (1972).

There was no proof in the record to show that the defendant was laboring under any heat of passion or that the deceased did anything to provoke the defendant. The evidence is strong that the defendant had the guns delivered to him at the garage and arranged for the deceased to come there for the sole purpose of killing her, thus establishing premeditation.

As was stated in McGill v. State, 4 Tenn.Cr.App. 710, 720-21, 475 S.W.2d 223, 227 (1971):

“To support a verdict finding an accused guilty of first degree murder there must, therefore, be an evidentiary basis for a conclusion that the killing was willful, malicious, premeditated and deliberate, unless it was accomplished by poison or by lying in wait or in the perpetration of or attempt to perpetrate one of the felonies named in the defining statute (T.C.A. sec. 39-2402), . . .
“Whether premeditation is present in a given case is a question of fact to be determined by the jury from all the circumstances in evidence. Clarke v. State, [218 Tenn. 259, 402 S.W.2d 863] supra. The elements of premeditation and deliberation may be inferred from the circumstances of the killing. Edwards v. State, 221 Tenn. 60, 424 S.W.2d 783 (1968); Tooley v. State, 1 Tenn.Crim.App. 652, 448 S.W.2d 683 (1969).”

Under the facts of this case, the jury was well warranted in finding that the defendant killed the deceased and that such killing was willful, malicious, premeditated and deliberate.

The evidence does not preponderate against the verdict and the assignment complaining of the insufficiency of the evidence is overruled.

We find no reversible errors in this record and thus, we affirm the defendant’s conviction for murder in the first degree.

WALKER and RUSSELL, JJ., concur.


source: Caselaw Access Project

author: GALBREATH, Judge.

license: Public Domain

text:
    Garvin Tristina SHEPHERD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Oct. 15, 1975.
    Certiorari Denied by Supreme Court Dec. 5, 1975.

      Collier Goodlett, Jr., Clarksville, Larry D. Woods, Nashville, for plain tiff-in-error.
    John J. Hestle, Dist. Atty. Gen., Clarks-ville, R. A. Ashley, Jr., Atty. Gen., Wm. C. Koch, Jr., Asst. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

GALBREATH, Judge.

We are confronted in this appeal from the dismissal of action seeking post conviction relief with a voluminous brief setting out in essence that counsel appointed to represent the petitioner at trial and during the post conviction litigation were incompetent.

Most of the matters complained of were considered and ruled upon on the direct appeal to this Court in which the judgment was affirmed. They cannot now be relitigated. Arthur v. State, 483 S.W.2d 95 (Tenn.1972), and Shepherd v. State, Nashville, March, 1973 (Certiorari denied September 4, 1972). Another alleged ground for relief relating to the composition of the Grand Jury of Montgomery County during the period involved has been decided recently in Elliott v. State, Nashville, September, 1975, adversely to petitioner’s contention.

We sustain the trial judge who found following the evidentiary hearing that the petitioner had not sustained the allegations set out in the petition with the following observation.

Great stress is placed on the failure of petitioner’s counsel to develop two factual matters at either the trial or on the eviden-tiary hearing in this case. It is claimed that the failure to subpoena the petitioner’s brother-in-law to be a witness in his behalf, and the failure to introduce a liquor bottle as an exhibit, proves that the counsel involved did not adequately present the defense to the charge of rape based on consensual intercourse.

The defendant had claimed that the pros-ecutrix voluntarily accompanied him and his brother-in-law, the missing witness, John Davis, to Hopkinsville, Kentucky after getting in the car in which the two men were riding near Fort Campbell, Kentucky. The defendant testified they purchased a bottle of whiskey en route to Hopkinsville, and engaged in intercourse in his apartment after dropping off Davis. This state of facts was diametrically opposed, by the victim’s testimony, who denied that a third party was present, or that the defendant drove to Hopkinsville. She testified that the defendant did purchase a bottle of whiskey somewhere in the Clarksville area prior to her forcible rape and a subsequent accident in which the defendant wrecked the automobile.

Just what significance the whiskey bottle if examined by defense counsel and found to have been purchased in the State of Kentucky by virtue of that Commonwealth’s revenue stamps being affixed to it, would have had on the credibility of either the defendant’s testimony or that of the prosecuting witness, escapes us. The .defendant said the whiskey was purchased on the way to Hopkinsville, while the victim said it was purchased in Clarksville area. We take judicial notice that much of the journey from Montgomery County, Tennessee, to Hopkinsville, Kentucky, is in the area near Clarksville. Thus, the bottle could have been obtained from a liquor store in Kentucky and in the suburbs of Clarksville. The only real value of the bottle as an exhibit would be a negative one to the defense in the event it bore Tennessee revenue stamps. The attorney for the defendant could hardly be deemed incompetent because he did not insist on the production of evidence that could not have helped the defense, but might have been quite detrimental.

It has already been judicially determined that defense counsel had been assured by the defendant and his wife, that John Davis would voluntarily be in attendance as a witness. While perhaps it would have been the better course to have routinely issued a subpoena for this most vital witness, we cannot say that an attorney is incompetent because he relies on the defendant and his wife to persuade the witness to attend court. A voluntary witness is usually of much more assistance to a party than one who is compelled, perhaps unwillingly, to come forward. As Judge Mitchell noted in disposing of the related issue on direct appeal:

“Both the defendant and his wife testified that her brother knew the defendant was going to trial on this serious charge and he had assured the defendant he would be there but the defendant had not had a subpoena served on the witness.
⅜ ‡ sfc ⅜; ⅜: ⅜
We do not think the defendant should be allowed to put the trial court in error on this assignment until he has shown he did all he could do to compel the attendance of the witness by placing him under .subpoena, instead of relying on the witness’ statement that he would be there. Taylor v. State, 79 Tenn. (11 Lea.) 708 (1883). Shepherd v. State, supra

In retrospect, and after careful review and consideration of the manner in which appointed counsel conducted the defense and presentation of the evidence on the post conviction hearing, we find that the representation afforded Shepherd was within the range of competency discussed by our Supreme Court recently in Baxter v. State emphasizing that like standards are to be applied regardless of whether counsel is retained or appointed.

“We depart from the farce and mockery standard. All cases adhering to this standard are overruled, pro tanto. We believe a better standard, expressed in the generalities of McMann, supra, is simply whether the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases. We would measure that range of competence by the duties and criteria as set forth in DeCoster, supra, and by our own Sixth Circuit case of Beasley, supra. We do not consider it to be either necessary or proper, that we establish any precise nomenclature or that we lay down any specific standards of guidelines. We are content to leave the matter resting on a foundation of reasonable competence as tested by the authorities as herein set out. Trial courts and defense counsel should look to and be guided by the American Bar Association’s Standards relating to the Administration of Criminal Justices in general, and specifically to those portions of the Standards which relate to the Defense Function.”

We are somewhat puzzled as to why an affidavit was not at some point obtained from the alleged witness Davis. If he was present in the automobile during the alleged friendly social episode described by the defendant, and if he did accompany the defendant and the prosecutrix to Hopkins-ville, this would cast serious doubts on her entire accusation and testimony. It would appear from colloquy between present appointed counsel and the bench during oral argument, that even to that time the missing witness had not been contacted and a definitive statement obtained from him as to just what, if anything, he knows about the facts leading up to the admitted sexual intercourse between the defendant and the alleged victim.

However, even if Davis had been contacted after the judgement in this case had become final and corroborated in most credible fashion the defendant’s testimony that the prosecutrix had voluntarily accompanied them to Hopkinsville and conducted herself in such a manner that would have strongly indicated she was sexually attracted to the defendant, this would not resolve the issue before us, i. e., competency of counsel. Even if this witness could so strongly support the defendant’s version of the facts that strong doubt as to his guilt would be engendered, even if the prosecu-trix came forward and admitted that the defendant did not rape her, this would afford no basis for relief under our Post Conviction Procedure Act or habeas corpus. Guilt or innocence is not a proper inquiry in a post conviction proceeding. We do not weigh the sufficiency of the evidence in such cases, but are by law bound to determine only if the constitutional rights of the petitioner were abridged in such manner as to render the judgment void.

“(H)abeas corpus and post-conviction proceedings are not available to test the sufficiency of the evidence at the original trial, nor to inquire into or determine the question of guilt or innocence, nor to test the competency or incompetency of original trial witnesses. 39 C.J.S. Habeas Corpus § 29j, p. 518; State ex rel. Brown v. Newell, 216 Tenn. 284, 391 S.W.2d 667; State ex rel. Dickens v. Bomar, 214 Tenn. 493, 381 S.W.2d 287; Fernandez v. Klinger, 346 F.2d 210 (9 Cir. 1965), cert. den. 382 U.S. 895, 86 S.Ct. 191, 15 L.Ed.2d 152.” Shiflet v. Tollett, 448 S.W.2d 681 (Tenn.Cr.App.)

Of course, if by diligent efforts counsel for a petitioner obtains evidence strongly suggesting the innocence of a client in whose cause he strongly believes, so as to convince himself that an unjust conviction resulted from perjured testimony, it is entirely appropriate for him to petition the Executive department for the only available relief under such circumstances. Article 3, Section 6 of our Constitution reserves to the Governor the power to grant clemency in cases in which it appears that an innocent person has been convicted of crime in a procedure that satisfies constitutional due process.

The judgement is affirmed.

O’BRIEN, J., concurs.

RUSSELL, J., concurs in result.


author: DANIEL, Justice.

text:
    FIRST SOUTHERN PROPERTIES, INC., Petitioner, v. Vince VALLONE, Receiver, Respondent.
    No. B-5396.
    Supreme Court of Texas.
    Jan. 28, 1976.
    Lackshin, Nathan & Berg, Herbert N. Lackshin and B. K. Watson, III, Houston, for petitioner.
    Strickland & Gordon, Gerald S. Gordon, Houston, for respondent.
   DANIEL, Justice.

This suit was brought by a receiver in the court of his appointment to set aside a substitute trustee’s deed to certain real property executed after a foreclosure sale under a deed of trust. The receiver, Vince Vallone, alleged numerous irregularities in the foreclosure sale which was made to the defendant, First Southern Properties. Among these was an allegation that the substitute trustee’s deed was void because the property in question was in custodia legis at the time of the foreclosure sale and because that sale was not authorized by the court.

At a non-jury trial, judgment was rendered for the receiver setting aside the trustee’s deed and ordering a return of the purchase money to First Southern Properties. Upon appeal by First Southern, the court of civil appeals affirmed upon the grounds that the sale was void because the property was in custodia legis by reason of the prior receivership, and that the receiver was not estopped from setting aside the sale by reason of his failure to have on file a lis pendens notice under Article 6640 at the time of the sale. 523 S.W.2d 92. We affirm.

The receiver had been appointed on April 11, 1973, by a Court of Domestic Relations of Harris County in a divorce suit between Jerry Darnell and Jennye Darnell to “manage or sell” the community assets, which included numerous tracts of real property. Among these was the property in question. It had been purchased during the marriage in the name of the husband, Jerry Darnell, from Joe Oxford and wife on January 21, 1966. As a part of the consideration, Darnell executed a $21,000 note payable to the Oxfords. This note was secured by a vendor’s lien and a deed of trust. The deed of trust contained a power of sale from Darnell to the named trustee or a substitute trustee appointed by the Oxfords in accordance with the terms of the instrument.

After the appointment of the receiver, a monthly installment of $233.16 became due on the Oxford note on May 1, 1973, and it was not paid. All previous monthly payments since the execution of the note on January 21, 1966, had been paid when due. The outstanding balance at the time was $7,074.43. In less than ten days after the May 1 installment became delinquent, the Oxfords employed an attorney, Charles A. Brown, to foreclose on the property. There was evidence, and the trial court found, that the Oxfords did not request the named trustee, L. C. Owens, to act and that he was alive, capable of performing, and did not resign or fail or refuse to act. Nevertheless, on May 11,1973, the Oxfords appointed Charles A. Brown as substitute trustee, and on the same day he posted notices of a foreclosure sale to be held on June 5, 1973. Although Mrs. Oxford and the substitute trustee knew that a receiver had been appointed for the property, they did not demand payment of the delinquent installment or the accelerated balance by Darnell or the receiver. Neither did they notify either of them of the acceleration or the proposed foreclosure sale. On June 5, First Southern purchased the property as the highest of two bidders for $22,000 in cash. A deed was executed on the same day by the substitute trustee to First Southern Properties, and it is this deed which the trial court set aside.

Herbert Axelrad, President of First Southern Properties, testified that for three years his company had specialized in “distressed property sales.” Prior to the purchase of the Darnell property at the foreclosure sale, Axelrad conducted a title search in Harris County, where the property is located. This included a courthouse search of the grantor-grantee indices, deed of trust records, lis pendens records, abstract of judgment records, mechanic’s and material-man’s lien records, and the federal bankruptcy records, and a search of indices to the same records at American Title Company in Houston. He testified that this search did not reveal the trial court’s appointment of Vallone as receiver. There is no evidence in the record to show that First Southern Properties had actual notice of the appointment of Vallone as receiver until after its purchase of the property.

First Southern contends that it is entitled to the protection extended by lis pendens Articles 6640-6642 to bona fide purchasers for valuable consideration, with actual or constructive notice, because the receiver did not have a lis pendens notice on file at the time of the sale. For the same reason, First Southern contends that the receiver should be estopped to set aside the trustee’s deed. The receiver in reply asserts, as held by the court of civil appeals, that his appointment by the trial court as receiver placed the property in custodia legis and prohibited a foreclosure sale without approval of the trial court. The receiver’s counter-points relating to other alleged irregularities were notjreached by the court of civil appeals and were not brought forward in this appeal.

It has been held that a purchaser under a power at a foreclosure sale obtains only such title as the trustee had authority to convey. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671 (1942); Ford v. Emerich, 343 S.W.2d 527 (Tex.Civ.App.1961, dism. w. o. j.); Bowman v. Oakley, 212 S.W. 549 (Tex.Civ.App.1919, writ ref’d).

No one has the authority, even under a prior deed of trust or execution, to sell property held in custodia legis by a duly appointed receiver, unless the sale is authorized by the court in which the receivership is pending. Ellis v. Vernon Ice, Light & Water Co., 86 Tex. 109, 23 S.W. 858 (1893); Texas Trunk R. Co. v. Lewis, 81 Tex. 1, 16 S.W. 647 (1891); Kirby v. Dilworth & Marshall, 260 S.W. 152 (Tex.Comm’n App.1924, holding approved); King Land and Cattle Co. v. Fikes, 414 S.W.2d 521 (Tex.Civ.App. 1967, writ ref’d n. r. e.); Cline v. Cline, 323 S.W.2d 276 (Tex.Civ.App.1959, writ ref’d n. r. e.); Fielder v. Parker, 119 S.W.2d 1089, 1094 (Tex.Civ.App.1938, no writ); Scarborough v. Connell, 84 S.W.2d 734 (Tex.Civ.App.1935, no writ); Glenn v. Connell, 74 S.W.2d 451 (Tex.Civ.App.1934, no. writ); Hacker v. Hacker, 4 S.W.2d 218 (Tex.Civ.App.1928, no writ); Scott v. Crawford, 41 S.W. 697 (Tex.Civ.App.1897, writ ref’d). See also Wiswall v. Sampson, 14 How. (55 U.S.) 52, 59, 14 L.Ed. 322 (1852); 65 Am. Jur.2d 993, § 169; 43 A.L.R. 1357; and 49 Tex.Jur.2d 155, § 123. In Ellis, supra, this Court held void a constable’s sale of property which had been levied on prior to the appointment of a receiver and sold after such appointment. The Court said:

“. . . The receivership does not destroy any liens that may have been acquired before the appointment, but the remedy for their enforcement should be sought in the court in which the whole estate is being administered. We therefore conclude that the court did not err in holding that the applicant took no title to the lots by the execution sale.”

In Texas Trunk R. Co. v. Lewis, supra, this Court said:

“In the case before us it appears not only that the suit in Kaufman county was instituted before the attachment sued out by Thompson was levied, but that the court had appointed a receiver before that was done, who, however, did not qualify until after the levy was made. We understand the courts to hold, almost without dissent, that, after the appointment of a receiver, the property to which the receivership relates is to be deemed in the custody of the law, and this seems to us the correct rule.”

In Hacker v. Hacker, supra, which involved a receivership in a divorce case, the court said:

“We agree with appellant that the sale under the trust deed was unauthorized and did not pass appellant’s title to the defendant Schwiekart, because the property at the time of the sale was in custo-dia legis. The district court of Harris county having acquired jurisdiction over the property by the divorce proceeding, and having appointed a receiver to take charge of it and dispose of it in accordance with the decree of that court, no valid sale of the property could be made under process from any other court without the consent of the court in which the receivership was pending, and for a stronger reason a sale by a trustee foreclosing a lien would not affect the title held by the receiver.”

In Cline, supra, the court concluded “that the sale under the deed of trust was void because under the terms of said decree Tracts A and B were in custodia legis.” In King Land & Cattle Co., supra, the court said: “Under general principles according to good reason and sound public policy a sale of real estate over which a receiver has been appointed — by anyone other than the receiver or under his authority — is illegal and void.”

First Southern cites no cases to the contrary, and we have found none. Neither have we found any case holding that it is necessary for a court or its duly appointed receiver to file a lis pendens notice under Article 6640 in order to protect property in eustodia legis or to set aside an unauthorized sale thereof. In fact this seems to be the first reported case in which this contention has been made.

First Southern apparently assumes that the jurisdiction and custody of a trial court over property, exercised through a receiver, depended in some manner upon the common law doctrine of lis pendens, which was partially abrogated and limited in 1905 by the enactment of Articles 6640-6642. It is upon this basic but incorrect assumption that First Southern insists that it is an innocent and bona fide purchaser under Article 6642 because it had no actual notice of the receivership and no constructive notice by a lis pendens filed under Article 6640. It insists that these Articles apply to property held in custodia legis and that we should not follow the above cited cases because some of them were written prior to the 1905 statutes and the others contain some evidence or inference of actual notice of the pending receivership. We decline to change or depart from the long established rule of property law which has been continuously applied to lands in custodia legis without reliance upon actual or constructive notice. The doctrine of custodia legis is different from common law lis pendens. Ewin v. Lindsay, 58 S.W. 388, 394 (Tenn. Ch., 1900); Olds, Lis Pendens, 4 Houston L.Rev. 221, 222 n. 4 (1961). The rule prohibiting interference with property in cus-todia legis is derived from the exclusive jurisdiction which arises out of possession of the res. Nowhere is the doctrine enforced more stringently than when other courts attempt to interfere. See Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 53 L.Ed. 435 (1909); 65 Am.Jur.2d, Receivers 996, § 174. The reason for the rule as between courts of concurrent jurisdiction was stated by the Supreme Court of the United States in Farmer’s Loan & Trust Co. v. Lake Street Elevated Rwy. Co., 177 U.S. 51, 61, 20 S.Ct. 564, 568, 44 L.Ed. 667 (1900) as follows:

“The possession of the res vests the court which has first acquired jurisdiction with the power to hear and determine all controversies relating thereto, and for the time being disables other courts of co-ordinate jurisdiction from exercising a like power. This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdictions embrace the same subjects and persons. . . .”

In Palmer v. Texas, 212 U.S. 118, 29 S.Ct. 230, 53 L.Ed. 435 (1909), the Court upheld, under the custodia legis rule, a State court receivership growing out of Texas’ prosecution of the Waters-Pierce Oil Company. In that case the Court said:

“. . . If a court of competent jurisdiction, Federal or state, has taken possession of property, or by its procedure has obtained jurisdiction over the same, such property is withdrawn from the jurisdiction of the courts of the other authority as effectually as if the property had been entirely removed to the territory of another sovereignty.”

We do not believe that Articles 6640-6642 had the intent or effect of ousting courts of their exclusive custody and jurisdiction of receivership property, or of creating innocent purchasers of such property without court approval, when the receiver does not file an Article 6640 lis pen-dens notice. A receiver has been said to be an arm or instrumentality of the court, holding possession of property for the court which appointed him. Farm & Home Savings & Loan Assn. v. Breeding, 131 Tex. 518, 115 S.W.2d 615 (1938). There is nothing for a receiver to file under Article 6640 relating to his appointment or the custody of property which he holds, not as an adverse party seeking affirmative relief, but merely as an appointed officer and custodian of the court. Neither can a purchaser from a third party trustee, who is not a party to the suit, qualify under Article 6642 as an innocent purchaser of land held by a court in custodia legis. We hold that compliance with Articles 6640 and 6642 is not required to prevent lands in receivership from being acquired under attempted sales by third parties acting under powers not conferred or approved by the court having custody of the property.

The apparent harshness of the custo-dia legis rule is tempered somewhat by the fact that a purchaser without actual notice under an execution or deed of trust sale is entitled to recover his money as was ordered in the present case. Furthermore, a receivership destroys no prior vested right, nor does it determine any right as between the parties by reason of an existing contract. Ex parte Britton, 127 Tex. 85, 92 S.W.2d 224 (1936). The enforcement of a third party’s liens or other rights are merely suspended until their enforcement is approved by the court having custody of the property. Kirby v. Dilworth & Marshall, supra; Lynch Davidson & Co. v. Hinant, 93 S.W.2d 532 (Tex.Civ.App.1936, no writ). We agree, however, that less controversy and inconvenience would result in the future if, in receiverships involving land, the Legislature required a notice of the receivership and designation of the land and litigants to be filed in the deed records or lis pendens records of the county or counties wherein the land is located. This would assist in preserving the effectiveness of our recording statutes and the rights of bona fide lienholders and persons holding under them. Consideration of the subject is recommended to the Legislature.

The judgments of the courts below are affirmed.

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

      . The receiver filed a lis pendens with the County Clerk of Harris County on June 14, 1973, the same day he filed this suit to set aside the substitute trustee’s deed.

      . The common law doctrine of lis pendens charged third parties with constructive notice of all types of judicial proceedings relating to real property, whether or not they had actual notice, and the purpose of the 1905 statutes was to modify and limit the harshness of this rule. Hartel v. Dishman, 135 Tex. 600, 145 S.W.2d 865 (1940). The relevant statutes provide:
      Article 6640. Suit for land; notice to be filed
      Upon the filing of the plaintiffs statement or petition in any eminent domain proceeding, or during the pendency of any suit or action, involving the title to real estate, or seeking to establish any interest or right therein, or to enforce any lien, charge or encumbrance against the same, any party seeking affirmative relief therein, may file a notice of the pendency of such proceeding or suit with the county clerk of each county where such real estate, or- any part thereof, is situated. Such notice shall be signed by the party filing the same, his agent or attorney, setting forth the number if any, and style of the cause, the court in which pending, the names of the party [sic] thereto, the kind of proceeding or suit and description of the land affected.
      Article 6642. Transfers without notice, valid
      The pendency of such suit or action shall not prevent effective transfers or encumbrances of such real estate to a third party for a valuable consideration and without other notice, actual or constructive, by a party to the suit as against a subsequent decree for the adverse party unless such notice shall have been properly filed under the name of the party attempting to transfer or encumber in the county or counties in which said land is situated.


text:
    Rotha RAMSAY, Petitioner, v. MARYLAND AMERICAN GENERAL INSURANCE COMPANY, Respondent.
    No. B-5514.
    Supreme Court of Texas.
    Feb. 4, 1976.
    Rehearing Denied March 17, 1976.
    Morrill & Patton, William R. Pemberton, Beeville, for petitioner.

      Cullen, Carsner & Williams, Richard D. Cullen, Victoria, for respondent.
   DANIEL, Justice.

The question on this appeal is whether the term “commercial automobile” as used in an exclusionary clause of an insurance policy applies to a Navy-owned pickup truck being operated by a Navy civilian employee in the course of his employment on Navy housing units.

In a suit by Rotha Ramsay, widow of Scott Ramsay, against Maryland American General Insurance Company to recover death benefits under a policy which named her Navy-employed husband as the insured, the trial court rendered a summary judgment for the plaintiff. A divided court of civil appeals reversed and rendered for the insurance company defendant, holding that Ramsay’s accidental death occurred while he was engaged in duties incident to the operation of a “commercial automobile,” and that this excluded his death from coverage under the policy. Tex.Civ.App., 526 S.W.2d 138. The plaintiff insisted that the term “commercial automobile” in the policy exclusion did not apply to the Navy-owned vehicle being operated by her deceased husband solely for governmental and military purposes, or in the alternative that the term was so uncertain and ambiguous that she should recover under the rule of law which resolves such ambiguities in favor of the insured. We agree with plaintiff’s alternative argument and reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

The facts are undisputed. They are fully and accurately detailed in the majority and dissenting opinions of the court of civil appeals, from which we borrow freely, and sometimes verbatim, in our summary of the facts and nature of the case.

On June 26, 1973, Scott Ramsay, while driving a pickup truck which was owned by the United States Navy, collided with an automobile on a public highway in Bee County. He sustained serious injury in the accident and died the same day. At the time Ramsay was a civil service employee of the United States Navy at Chase Field Naval Air Station in Bee County. He was classified as an air-conditioning mechanic. On the day of the accident he and Rosendo Gonzales, a co-worker, left Chase Field in the pickup truck and proceeded to Cape-hart, a government-owned housing project for Navy personnel stationed at Chase Field. There they installed a compressor on an air-conditioning unit in one of the houses. When the accident occurred they were returning to Chase Field to pick up another compressor, which was also to be installed on an air-conditioning unit at Capehart.

The pickup was used solely for transporting Navy crews, tools, equipment and supplies (pertaining to air-conditioning and heating installation, repairs and maintenance) from Chase Field to Capehart, and for work at Capehart. It was a one-half ton vehicle, and had a utility bed with cabinets on each side which contained parts, tools, equipment and supplies used to service and work on refrigeration, air-conditioning and heating units. It was licensed by the United States Navy. Ramsay had a federal driver’s license, and his use of the truck at the time of the accident was solely in connection with his governmental employment.

The main policy in this case is a “Family Combination Automobile Policy” with liability coverages relating to damages arising out of the ownership and use of the Ram-says’ personal automobiles. Attached to the policy was an endorsement (157P), entitled “Automobile Death Indemnity, Total Disability and Specific Disability Benefits”, which, among other provisions, insured Ramsay for $10,000 in the event he was killed in an accident and his death occurred “directly and independently of all other causes from bodily injury caused by accident and sustained by the insured while in or upon, or while entering into or alighting from, or through being struck by, an automobile . . .” The endorsement contained the following exclusion:

“This insurance does not apply:
(a) to bodily injury or death sustained in the course of his occupation by any person while engaged (1) in duties incident to the operation, loading or unloading of, or as an assistant on, a public or livery conveyance or commercial automobile, or (2) in duties incident to the repair or servicing of automobiles . . . .”

The term “automobile” is defined in the endorsement as “a land motor vehicle, trailer, or semi-trailer not operated on rails or crawler-treads,” and thus clearly includes a pickup truck. The controlling term, “commercial automobile,” is not defined in the main policy or the endorsement. As heretofore indicated, the sole question presented in this appeal relates to whether the United States Navy-owned pickup is a “commercial automobile” within the meaning of the above quoted exclusion. With no definition in the policy, we must first determine whether the term has a readily ascertainable meaning in the plain, ordinary and popular sense of the words themselves. When terms of an insurance policy are unambiguous, they are to be given their plain, ordinary and generally accepted meaning unless the instrument itself shows that the terms have been used in a technical or different sense. Guardian Life Insurance Company of America v. Scott, 405 S.W.2d 64 (Tex.1966); Western Reserve Life Ins. Co. v. Meadows, 152 Tex. 559, 261 S.W.2d 554 (1953), cert. denied 347 U.S. 928, 74 S.Ct. 531, 98 L.Ed. 1081 (1954).

Both parties argue that the term “commercial automobile” has a plain and generally accepted meaning, but they are at opposite poles as to what that meaning is. Neither has presented a Texas case that bears directly on the question, and we have found none. Neither have we been cited to any cases from other jurisdictions which apply the term as used in this policy exclusion to military or federally owned and operated vehicles. Some cases from other states have analogies helpful to the contentions of both parties, but none are directly in point.

The plaintiff, Mrs. Ramsay, resorts to the aid of dictionaries, as courts often do in seeking plain, ordinary and generally accepted meanings of undefined terms in insurance policies. Guardian Life Ins. Co. of America v. Scott, supra. Plaintiff insists that dictionary definitions of commerce, commercial, and commercial vehicles, relate to private transactions and transportation, and none mention “government,” “military,” or enterprises and operations conducted by governmental or military agencies. Webster’s Third New International Dictionary (unabridged, 1971) is cited for the following definition of commercial: “of, in, or relating to commerce . . . from the point of view of profit; having profit as the primary aim . . . ” Most of the insurance cases from other states involving this same exclusionary provision apply this meaning of “commercial.” In Peterick v. Mutual of Enumclaw Ins. Co., 9 Wash.App. 721, 514 P.2d 188 (1973), the exclusion was applied to a pickup in which the deceased was killed because he was engaged in the scope of his employment for Explosives Corporation of America, a private company. In stating the meaning of the term “commercial automobile,” the court said:

“Although there is some authority that ‘commercial automobile’ means one utilized in the transporting of goods for sale or exchange, the more prevalent view is that an automobile is a ‘commercial automobile’ if it is a tool of commerce, used in a trade, business or enterprise that has financial profit as its primary aim.”

In Dilley v. State Farm Mutual Automobile Ins. Co., 249 Cal.App.2d 385, 57 Cal.Rptr. 195 (1967), the court said, “The word commercial usually describes commerce, trade, business, industry or enterprise having financial profit as a primary aim.” It applied the exclusion because “the truck upon which Dilley worked was an integral part of Southern California Edison’s commercial enterprise, a basic tool used in building, expanding and servicing the transit of power over power lines.”

Mrs. Ramsay argues, and all members of the court of civil appeals agreed, that the Navy was not engaged in business or commerce or operating for a profit. She contends that under the plain meaning of “commercial” the Navy pickup was not a vehicle owned or used at the time of the accident for any commercial enterprise or purpose; that it was Navy-owned, federally licensed, and driven by her husband as a full-time Navy civilian employee with a federal driver’s license; and that neither the deceased nor the vehicle could be considered functioning instrumentalities of commerce or working in the general stream of commerce, because Ramsay worked and the pickup was used exclusively for a nonprofit organization of the United States Government. She insists that the deceased could not and did not receive commercial calls from private persons to do similar repair work, and neither could he nor did he use the Navy vehicle for any commercial venture. So, Mrs. Ramsay’s plain meaning of the words “commercial automobile” would exclude the government-owned Navy vehicle while used solely for Navy work. She argues that an average person would not consider the Navy pickup as a “commercial” vehicle while it was being used exclusively for non-profit governmental activities.

On the other hand, Maryland American General Insurance Company argues that the plain and ordinarily accepted meaning of the term applies to any type of vehicle which is used for performing commercial type services and that “the United States Government is undoubtedly the largest commercial enterprise in the world.” It contends that ownership is not important; that use is controlling; that the Navy vehicle was equipped and used in a proprietary commercial enterprise run by the government in competition with private enterprise; that Ramsay was a civilian rather than a military employee, engaged in business and commerce for himself in that he was earning a living through payment for his services; and that the use of the vehicle by Ramsay was of the same nature as would be employed by a private person or company in the repair of air conditioning equipment.

The majority of the court of civil appeals held Ramsay “was engaged in a commercial activity for profit,” that his occupation was “commercial in nature, scope and fact.” It held that the term “commercial automobile” is not an ambiguous term, because it has a meaning readily ascertainable in the plain, ordinary and popular sense of the words used. In support thereof, the majority cited and followed a Louisiana court of appeals decision which so applied the term to “a truck upon which the decedent was killed . . . owned and used by him to transport pulpwood for the purpose of selling it for a profit . . .”, Hardee v. Southern Farm Bureau Casualty Insurance Company, 127 S.W.2d 220 (La.Court of App. 1961), and five other cases which followed the Hardee reasoning or result. In Hardee, the court resorted to the previous edition of the same dictionary cited by Mrs. Ramsay, in concluding that the ordinary and popular meaning of the term applied to the deceased’s pulpwood truck being used on the occasion for hauling the deceased’s own pulpwood for profit. There is nothing in the definitions relied upon or the reasoning of that decision which convinces us that the same court would have applied the same meaning to a truck which was not used in a commercial business for profit but in a nonprofit governmental operation.

Based on the same rationale as Hardee, supra, all of the five other cases (with the same exclusionary clause) cited by the court of civil appeals had no difficulty with the meaning of “commercial” because, with only one exception, the vehicle was owned in each case by a private company and was being used by the deceased at the time of the accident in carrying on a business or commercial enterprise operated for profit. For instance, as heretofore indicated, in the Washington case of Peterick v. Mutual of Enumclaw Ins. Co., supra, the company-owned truck was being used by the deceased in carrying out the business of a private corporation in testing explosives, and in Dilley v. State Farm-Mutual Automobile Ins. Co., supra, the deceased was working on a truck owned by a utility company and used in building and servicing the company’s power lines. In Farmers Insurance Exchange v. Loesche, 17 Ariz.App. 421, 498 P.2d 495 (1972), the deceased was working for a telephone company driving a half-ton pickup furnished by the company “for the exclusive purpose of transporting himself between the pay telephones to make the collections.” That case, as well as Peterick, supra, stresses that the character of use is controlling. Peterick also applies the test of how the wording would be understood by the average man purchasing insurance, and concludes that “the average man would understand that this vehicle [a ¾ ton truck owned and operated by Explosives Corporation of America] was being used primarily in business for profit . . . .” In Molzahn v. State Farm Mutual Automobile Ins. Co., 308 F.Supp. 1144 (Kan.Dist.Ct. 1968), the deceased was using a three-ton truck in the employment of a dairy company and was delivering milk for his employer to retail stores.

Ferguson v. State Farm Mutual Automobile Ins. Co., 281 Ala. 295, 202 So.2d 81 (1967), is the only case in which the vehicle (a county road grader) was owned and operated by a governmental agency and in which the same distinction as here might have been argued, since its use was not in an enterprise that had financial profit as a primary aim. However, no argument to that effect is mentioned in the opinion. The Alabama Court simply followed the result, but not the reasoning, of Hardee v. Southern Farm Bureau Casualty Ins. Co., supra, and concluded that the road grader is by nature put to uses which are generally commercial in the ordinary meaning of the term, adding “It was certainly being used for ‘commercial purposes’ as opposed to private or pleasure purposes . . .” We do not consider that opinion persuasive on the question of whether the Navy pickup was being used for commercial purposes as opposed to non-profit governmental purposes.

On motion for rehearing, the majority of the court of civil appeals cited Voelker v. Travelers Indemnity Company, 260 F.2d 275 (C.C.A., 7th Cir. 1958), and several other cases dealing with a different type of insurance coverage and exclusions applicable to National Guard members involved in accidents while in or operating military vehicles. The exclusions in those cases applied to any automobile furnished for regular use to the insured or “while used in a business or occupation of such named insured . .” The policies did not contain any reference to “commercial automobile” and the meaning of that term was not considered. However, the courts did in most of those cases conclude that the military vehicles were being used “in the business or occupation” of the insured. In Voelker, the court said that the truck “was being used in the business of the National Guard, of which Plaintiff was a member, . . .” and “that in driving the truck he [the insured National Guardsman] was not only engaged in its business but in his own business as well.” While these cases were not decisive of the same question now before us, they do at least indicate that under certain circumstances a military activity has been referred to as a “business” and military service has been referred to as a “business or occupation.” Thus, the line of cases lends weight, though not certainty, to the insurer’s construction of the meaning of the exclusionary words in the Ramsay policy.

We have concluded that both parties have offered reasonable, although conflicting, interpretations of the meaning of “commercial automobile” as applied to the facts and circumstances of this case. The term is not ambiguous when applied to a truck or automobile in actual use by a private individual or company for profit, but uncertainty and ambiguity arise when the term is applied to a Navy-owned truck used exclusively for non-profit activities of the United States Government. It is a settled rule that policies of insurance will be interpreted and construed liberally in favor of the insured and strictly against the insurer, and especially so when dealing with exceptions and words of limitation. Providence Washington Ins. Co. v. Proffitt, 150 Tex. 207, 239 S.W.2d 379 (1951). When the language of a policy is susceptible of more than one reasonable construction, the courts will apply the construction which favors the insured and permits recovery. Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953); Lloyd’s Casualty Insurer v. McCrary, 149 Tex. 172, 229 S.W.2d 605 (1950); United Service Automobile Ass’n v. Miles, 139 Tex. 138, 161 S.W.2d 1048 (1942). Under this well settled rule of law, we are compelled to affirm the trial court’s judgment in favor of Mrs. Ramsay.

Accordingly, the judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

REAVLEY and DENTON, JJ., concur in the result.

      . See other definitions quoted in note 2, infra.

      . Webster’s New International Dictionary (Second Edition, 1960), p. 538, defining commercial as “1. Of or pert, to commerce, mercantile; hence, variously: occupied with commerce; engaged with trade; ... 2. Having financial profit as the primary aim On the same page commercial automobile is defined as “An automobile used exclusively for commercial purposes, esp. in transporting goods.” See also 15A C.J.S. Commercial, 1-3.


author: ODOM, Justice.

text:
    Ex parte Charles Glen JOHNSTON.
    No. 51341.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1976.

      Percy Foreman and Dick DeGuerin, Houston, for appellant.
    Carol S. Vance, Dist. Atty., and Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Justice.

This appeal is from an order setting bail in a habeas corpus proceeding pending appellant’s trial for burglary and theft. The trial court reduced bail from $100,000 to $21,000. Appellant contends that the amount set is excessive.

The State has filed a motion to dismiss the appeal, pointing out that subsequent to the initiation of the appeal the grand jury returned an indictment against appellant. The State cites Ex parte Weeks, Tex.Cr.App., 424 S.W.2d 449, for the proposition that the return of an indictment renders moot an appeal from habeas corpus proceedings to set or reduce the amount of bail necessary to secure the release of an accused from custody who is held by virtue of a complaint.

The State is correct in that a long line of authority indicates that the instant appeal should be dismissed for the reason stated. We have closely examined the origins of the rule, however, and conclude that it no longer has a sound basis in law.

Although the State first contended that the rule should be established in Ex parte Jones, 7 Tex.App. 365 (Tyler, 1879), it was not laid down until Ex parte Cannon, 41 Tex.Cr.R. 76, 51 S.W. 914 (1899). The Court reasoned that the appeal in effect attacked the power of the State to hold the petitioner in custody without bail upon the authority of the process issuing from a complaint, but that the return of the indictment substituted the authority of that instrument and its attendant capias for that of the complaint. Because the petitioner was challenging the authority of an instrument superseded by the indictment and therefore no longer the authority for confinement, it was held that the appeal must be dismissed.

At the time of the decision in Ex parte Cannon, supra, and in a multitude of the cases that followed it, more than a mere analytical nicety was at stake. The Code of Criminal Procedure then provided as follows:

“Art. 309 [288] A bail bond shall be sufficient if it contain the following requisites:
. 5. That the bond state the time and place when and where the accused binds himself to appear, and the court or magistrate before whom he is to appear. In stating the time it is sufficient to specify the term of the court, and in stating the place it is sufficient to specify the name of Jhe court or magistrate and of the county.
“Art. 311 [290] A recognizance or bail bond entered into by a defendant, and which binds him to appear at a particular term of the district court, shall be construed to bind him and his sureties for his attendance upon the court from term to term, and from day to day, until discharged from further liability thereon according to law.”

Tex.Code Crim.Proc. (1895). The 1925 Code of Criminal Procedure carried over both provisions. Art. 273, sec. 5, Art. 275, Tex. Code Crim.Proc. (1925). Under these statutes an accused might make bail upon the complaint by giving a bond and obtain his release from custody, but the return of the indictment would effect a discharge of his surety’s liability upon the conditions of that bond. Thus, a new arrest and new bail proceeding would be necessitated by the return of the indictment. Any act of this Court in setting bail upon a complaint, therefore, would have been useless and ineffectual in the face of a subsequent indictment requiring relitigation of the matter of bail.

In 1957, Article 275a, V.A.C.C.P. (1925) was enacted. Section 1 thereof, now Art. 17.09, Sec. 1, V.A.C.C.P. (1965) provided:

“Sec. 1. Where a defendant, in the course of a criminal action, gives a bail bond or enters into a recognizance before any court or person authorized by law to take same, for his personal appearance before a court or magistrate, to answer a charge against him, the said bond or recognizance shall be valid and binding upon the defendant and his sureties thereon, for the defendant’s personal appearance before the court or magistrate designated therein, and for any and all subsequent proceedings had relative to the charge, and each such bail bond or recognizance shall be so conditioned except as hereinafter provided. . . . ” (Emphasis added.)

The 1965 revision of the Code contains a substantially similar provision, except that the distinction between bail bonds and recognizances was abolished. Art. 17.09(1), V.A.C.C.P. (1965). The 1965 Code also amended the language of Art. 273(5) — formerly Art. 309 — to state as follows:

“A bail bond shall be sufficient if it contain the following requisites:
. 5. That the bond state the time and place, when and where the accused binds himself to appear, and the court or magistrate before whom he is to appear. The bond shall also bind the defendant to appear before any court or magistrate before whom the cause may thereafter be pending at any time when, and place where, his presence may be required under this Court or by any court or magistrate. . . . ” (Emphasis added.)

Art. 17.08(5), V.A.C.C.P. (1965).

The emphasized portions of the new statutes are those containing language rendering the conditions of the original bond upon a complaint generally applicable throughout all subsequent proceedings pertaining to the original charges against the defendant. As Presiding Judge Onion stated in his Special Commentary to Art. 17.09, V.A.C.C.P.:

“. . . Section 5 of Art. 17.08 and Section 1 of Art. 17.09(275a) have been amended to provide that a bond, once given, may bind the defendant throughout the criminal proceeding to appear before any magistrate or court when required, thus eliminating the need under the old practice of requiring new bail at various stages of the proceeding. . .” (Emphasis added.)

The return of the indictment no longer automatically requires a new setting of bail and new posting of bond.

After 1957, therefore, it was extremely doubtful whether the return of an indictment ought to have rendered moot an appeal from habeas corpus proceedings to set or reduce bail. The 1965 amendments cut the slender thread of logic supporting such a rule of law after 1957. As in Ex parte Skinner, Tex.Cr.App., 496 S.W.2d 633, to dismiss an appeal challenging the amount of bail in these circumstances and thus to require the appellant to initiate a new challenge in the trial court, is to require him to do a useless thing. We further note that the return of the indictment has no effect whatsoever upon the rules respecting the determination of the proper amount of bail. Art. 17.38, V.A.C.C.P.

We hold that this appeal is not mooted by the return of the indictment. All cases to the contrary, including Ex parte White, Tex.Cr.App., 486 S.W.2d 301; Ex parte Tullos, Tex.Cr.App., 445 S.W.2d 744; Ex parte Weeks, Tex.Cr.App., 424 S.W.2d 449; Ex parte Paul, Tex.Cr.App., 419 S.W.2d 867; Ex parte Villareal, Tex.Cr.App., 407 S.W.2d 510; Ex parte Axel, Tex. Cr.App., 399 S.W.2d 812; Ex parte Spivey, Tex.Cr.App., 379 S.W.2d 898; Ex parte Bowie, Tex.Cr.App., 368 S.W.2d 767; Ex parte Guajardo, 171 Tex.Cr.R. 328, 350 S.W.2d 206; Ex parte Bowles, 166 Tex.Cr.R. 346, 314 S.W.2d 108; and Ex parte Lumpkin, 165 Tex.Cr.R. 628, 310 S.W.2d 333, are overruled to the extent of conflict with the holding herein.

Next we must consider the merits of appellant’s contention that the bail set is excessive. The trial court set bail at $20,-000 for the burglary charge and $1000 for the charge of felony theft arising out of the same incident for a total of $21,000. The record reflects that although appellant also faced burglary charges in a different county, he had never before been arrested for any offense. A police officer testified that his reputation for being a law-abiding citizen was bad.

The record does not reflect that any violence attended the commission of the alleged burglary. Appellant has been shown to be wholly indigent. He showed that he could make no bail in excess of $1000.

Under the circumstances and in light of Art. 17.15, V.A.C.C.P., we conclude that bail in the amount of $10,000 is reasonable. It is so ordered.

      . Ex parte Davis, Tex.Cr.App., 290 S.W.2d 669; Ex parte Adams, 163 Tex.Cr.R. 34, 289 S.W.2d 242; Ex parte Alaniz, 157 Tex.Cr.R. 590, 251 S.W.2d 738; Ex parte Viera, Tex.Cr.App., 233 S.W.2d 579; Ex parte Everett, 151 Tex.Cr.R. 22, 204 S.W.2d 980; Ex parte Lawler, 146 Tex.Cr.R. 341, 174 S.W.2d 972; Ex parte Cantu, 134 Tex.Cr.R. 127, 114 S.W.2d 887; Ex parte Cross, 127 Tex.Cr.R. 327, 76 S.W.2d 773; Ex parte Scott, 86 Tex.Cr.R. 591, 218 S.W. 366; Ex parte Kirby, 63 Tex.Cr.R. 377, 140 S.W. 226; Ex parte Tripp, Tex.Cr.App., 77 S.W. 222; Ex parte Forney, 45 Tex.Cr.R. 254, 76 S.W. 440; Ex parte McDonald, Tex.Cr.App., 65 S.W. 188; Ex parte Kennedy, Tex.Cr.App., 56 S.W. 921.


author: DALLY, Commissioner.

text:
    Clifton Vaughnceal ALLEN, Appellant, v. The STATE of Texas, Appellee.
    No. 51236.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Rehearing Denied March 17, 1976.

      Brad Reid, Abilene, for appellant.
    Ed Paynter, Dist. Atty., Abilene, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for aggravated assault; the punishment is imprisonment for 5 years.

The appellant asserts that the judgment must be reversed because: (1) the evidence is not sufficient to support the verdict; (2) evidence of an extraneous offense was erroneously admitted; (3) a material defense witness was improperly impeached, which also constituted prosecutorial misconduct; and (4) testimony concerning the appellant’s reputation was erroneously admitted.

The appellant contends that the evidence is not sufficient to support the jury verdict finding him guilty of an aggravated assault on a peace officer; he contends that at best the evidence would only support a judgment for resisting arrest.

On the night of February 7, 1975, Roger Cox, a City of Abilene police officer, while he was on patrol, noticed an automobile being driven in an erratic manner. He turned on the red light of the marked patrol car and followed the automobile for one and one-half blocks through an alley. The appellant who was driving the automobile stopped behind a pool hall, got out, and locked the automobile. As the officer approached, he could smell the odor of an alcoholic beverage on the appellant’s breath; he observed that the appellant was unsteady, could not walk straight, and his eyes were glassy and bloodshot. Cox was of the opinion that the appellant was intoxicated; he advised the appellant he was under arrest. While the officer was trying to advise the appellant of his rights, a crowd commenced to gather outside the pool hall. The appellant said he would not surrender to the officer unless he had an arrest warrant. Cox decided that he would need help, as a hostile crowd of from eight to twelve people had gathered. Another officer, Richard Valdez, who is the complainant, quickly responded to a call made by Officer Cox. Both officers were in police uniforms, were wearing badges, and were armed, when they followed the appellant into the pool hall and again advised him he was under arrest. The appellant resisted when the officers attempted to place handcuffs on him. He swung his fist at Cox; Valdez attempting to subdue the appellant pulled him to the floor. The appellant and a number of people in the crowd were shouting abusive and obscene words at the officers. Officer Burns was the first of several other officers who arrived to help Cox and Valdez. The appellant was “kicking very strongly” and “very wildly;” he was wearing heavy “dingo boots.” Officer Cox’s clothing was torn and he received some minor scratches. While Valdez was attempting to put cuffs on the appellant’s ankles, the appellant kicked at Valdez, several blows struck him, one of the kicking blows struck Valdez on the nose. His nose did not bleed, and he did not seek medical treatment for his injury, but Valdez testified his nose hurt and swelled and was sore for three or four days. Valdez also had two small cuts on his hand and had several stains on his pants where he was kicked by the appellant.

The appellant testified he attempted to resist the arrest but he did not strike a peace officer with his arms or legs. He said he was merely trying to pull away from the arresting officers.

Although it was instructed on the law of resisting arrest, the jury rejected this theory by finding the appellant guilty of aggravated assault.

The question presented is whether the evidence is sufficient to show that the appellant inflicted bodily injury upon Officer Valdez.

V.T.C.A. Penal Code, Sec. 22.02, in pertinent part, provides:

“(a) A person commits an offense if he commits assault as defined in Section 22.-01 of this code and he:
“(1) ■ • •
“(2) causes bodily injury to a peace officer in the lawful discharge of official duty when he knows or has been informed the person assaulted is a peace officer; or
“(3) . . .
“(b) The actor is presumed to have known the person assaulted was a peace officer if he was wearing a distinctive uniform indicating his employment as a peace officer.”
V.T.C.A. Penal Code, Sec. 1.07, provides:
“(a) In this code:
“(7) ‘Bodily injury’ means physical pain, illness, or any impairment of physical condition.”

In Ramirez v. State, 518 S.W.2d 546 (Tex.Cr.App.1975), there was a contention that the term “bodily injury” as used in V.T.C.A. Penal Code, Sec. 22.02(a)(2) is vague, uncertain, and indefinite and is therefore viola-tive of Section 10, Article I, Texas Constitution and the Due Process Clause of the Constitution of the United States. We held that “bodily injury” as defined by V.T.C.A. Penal Code, Sec. 1.07(a)(7) and as used in V.T.C.A. Penal Code, See. 22.02(a)(2) is not so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.

The jury in this case was correctly instructed on the law and its finding is supported by the testimony of Officer Valdez that his nose hurt, swelled, and was sore for three or four days; this testimony shows he suffered physical pain, and it is sufficient to support the jury verdict. See Lewis v. State, 530 S.W.2d 117 (Tex.Cr.App.1975), a robbery case, in which the twisting of a complainant’s arm causing it to hurt was held to be “bodily injury.”

We will next consider the appellant’s complaint that an extraneous offense was erroneously admitted. Testifying in his own behalf, on direct examination, the appellant said that he did not strike a peace officer with his arms or legs. He was then asked, “Did you ever kick a peace officer” and he answered, “Not that I know of.” On cross-examination, it was the appellant’s position that he “never struck any officer.” In rebuttal, the State offered evidence that on March 16, 1975, along with others, the appellant attacked, struck and kicked a peace officer when two officers were making an investigation. Whether the appellant intended to strike and injure the complainant became a controverted issue by the appellant’s testimony. This testimony concerning the subsequent assault was admissible to show that the appellant intended to strike and injure Valdez when he kicked at him. See Blankenship v. State, 448 S.W.2d 476 (Tex.Cr.App.1969); Barton v. State, 162 Tex.Cr.R. 75, 282 S.W.2d 237 (1955).

We will now consider the appellant’s contentions that a material defense witness was improperly impeached, which he alleges also constituted prosecutorial misconduct.

Gerald Ewing, a newspaper photographer, saw Officer Cox when he was in his patrol car pursuing the appellant. Ewing followed them to the pool hall. While the officers were subduing the appellant and placing him under arrest, Ewing took eight photographs; these photographs were offered by the defense and admitted in evidence.

The prosecutor terminated his cross-examination of Ewing as follows:

“Q. Now, Mr. Ewing, are you a convicted felon?
“A. Yes.
“Q. That means that you’ve had some run-ins with the Police Department in the past, then, doesn’t it?
“A. Yes.
“Q. You’ve been arrested then?
“A. Several years ago.
“Q. All right.
“[PROSECUTOR]: That’s all we have, Your Honor.
“THE COURT: All right. Anything else?
“[DEFENSE COUNSEL]: We have no other questions of this witness, Your Honor.”

There was no objection made at the time of trial, but on the hearing of the motion for a new trial it was shown that Ewing had been convicted of a felony but had been granted probation. However, before he testified, Ewing had successfully completed his probation and the conviction had been set aside. It was also shown that Ewing had been convicted during the tenure of the District Attorney who was prosecuting the case at bar, but there was no evidence of bad faith on the part of the District Attorney. See e. g. Goad v. State, 464 S.W.2d 129 (Tex.Cr.App.1971); Keel v. State, 434 S.W.2d 687 (Tex.Cr.App.1968). He testified at the hearing of the motion for new trial that at the time of trial he did not know that the witness had been convicted or that probation had been granted, terminated and set aside.

Since there was no objection at the time of trial, and there was no showing of bad faith on the part of the District Attorney, no error is shown.

At the punishment phase of the trial pursuant to the provisions of Article 37.07(3)(a), V.A.C.C.P., the State offered testimony about the appellant’s general reputation in the community for being a peaceable, law-abiding citizen. George Maxwell and Gary Rusnak were called as witnesses by the State. It was shown that they were juvenile probation officers and that they were both aware of the appel- . lant’s reputation for being a peaceable, law-abiding citizen. After Maxwell had testified without objection that appellant’s reputation was bad, Rusnak was called as a witness and asked about the appellant’s reputation. An objection was made that the District Attorney was “bringing in juvenile probation officers and raising things that are not proper in this court.” The objection was overruled and Rusnak testified- that the appellant’s reputation was bad. There was no evidence before the jury that the appellant had a juvenile record. A juvenile officer after being qualified is as competent as any other witness to testify concerning an appellant’s reputation. See and compare Broadway v. State, 418 S.W.2d 679 (Tex.Cr.App.1967); Frison v. State, 473 S.W.2d 479 (Tex.Cr.App.1971); Pogue v. State, 474 S.W.2d 492 (Tex.Cr.App.1971); Clark v. State, 500 S.W.2d 469 (Tex.Cr.App.1973); Proctor v. State, 503 S.W.2d 566 (Tex.Cr.App.1974). Moreover, Maxwell, the other juvenile probation officer, had testified without objection that the appellant’s reputation was bad. See Mitchell v. State, 524 S.W.2d 510 (Tex.Cr.App.1975). This ground of error is overruled. The judgment is affirmed.

Opinion approved by the Court.


author: CADENA, Justice. BARROW, Chief Justice

text:
    Roger L. JACKMAN, Appellant, v. Margaret JACKMAN, Appellee.
    No. 15350.
    Court of Civil Appeals of Texas, San Antonio.
    April 30, 1975.
    Rehearing Denied and Concurring Opinion Filed Jan. 21, 1976.

      Tyner, Bain & Tyner, Tyler, for appellant.
    John M. O’Connell, San Antonio, for ap-pellee.
   CADENA, Justice.

Plaintiff, Margaret Jackman, and defendant, Roger L. Jackman, were divorced in 1966. Custody of the parties’ four children was awarded to plaintiff and defendant was ordered to pay the sum of $100.00 per month per child. On May 14,1973, plaintiff filed her pleadings seeking an increase in the child support payments to $250.00 per month per child. Defendant appeals from an order, dated May 17,1974, requiring him to pay the sum of $175.00 per month for each child.

Defendant points out that plaintiff’s motion to modify the provisions of the 1966 order relating to child support was not sworn to by plaintiff as required by Tex. Family Code Ann. § 14.08(a) (1975). However, the defect in the pleading was not pointed out by defendant by motion or exception in writing and, under the express provisions of Rule 90, Tex.R.Civ.P. (1967), the defect was waived. The lack of verification was called to the attention of the trial court orally during the hearing, but the objection was limited to the sufficiency of the pleadings to support a conviction for contempt and, as a result of this objection, the motion that defendant be held in contempt was abandoned.

Defendant’s contention that plaintiff’s testimony concerning the cost per month of “keeping” each child should have been excluded under the “best evidence” rule is without merit. Defendant contends that since the evidence showed that bills and cancelled cheeks were in existence concerning such expenses, such cancelled checks and bills were the best evidence of the amounts expended by plaintiff for the upkeep of the children. However, the rule which requires the production of document applies only where the purpose of the evidence is to prove the contents of the documents. Evidence to the effect that a payment has been made is admissible without introduction of the bill or the check given in payment. 2 McCormick & Ray, Texas Law of Evidence §§ 1561, 1562, 1566 (2d ed. 1956). In this case, plaintiff was a participant in all of the transactions to which her testimony related, and her testimony was not based on records or memoranda prepared by another.

Defendant assigns as error the failure of the trial court to make additional findings requested by him after the court had filed its original findings of fact and conclusions of law.

The requested additional findings related to evidentiary matters or to facts which were undisputed, as distinguished from contested facts composing the elements of plaintiff’s cause of action. A trial court is not required to make findings on facts which are undisputed, nor to embody in its findings detailed statements of the evidence. 4 McDonald, Texas Civil Practice § 16.05 (1971 rev.). The complaint is further without merit because plaintiff has failed to bring forward a bill of exception concerning the trial court’s failure to make additional findings. Zaruba v. Zaruba, 498 S.W.2d 695 (Tex.Civ.App.—Corpus Christi 1973, writ dism’d); Stolte v. Mack Financial Corporation, 457 S.W.2d 172 (Tex.Civ.App.—Texarkana 1970, no writ); Dillingham v. Dillingham, 434 S.W.2d 459 (Tex.Civ.App.—Fort Worth 1968, writ dism’d).

At the time of the divorce in 1966, defendant, a medical doctor, was a major in the armed forces of the United States, and his monthly pay in such capacity was $1,182.73. Plaintiff earned $2,700.10 in 1966.

Defendant has been engaged in the practice of medicine in Quitman, Wood County, Texas, since he resigned his commission in January, 1970. For the year 1971 his income as a sole practitioner was $36,100.00. In 1972 he formed a professional corporation in which he is, for all practical purposes, the sole stockholder. Under this arrangement he is paid a salary of $2,583.33 per month by the corporation. In addition, the corporation pays the sum of $600.00 per month into a retirement trust for defendant and pays the premiums on a life insurance policy for defendant in the amount of $120,-000.00. The corporation also furnishes defendant with an automobile at a cost of $168.50 per month.

Since the divorce in 1966 defendant has remarried and has two stepchildren, born to his present wife during a previous marriage. His wife and one stepchild have, from time to time, .been employed by the corporation. The evidence does not reflect to any degree of certainty the gross earnings of the professional corporation nor the amount of such earnings which have been retained by the corporation. There is no evidence concerning the value of defendant’s stock in the corporation, nor of the stock which he owns in three other corporations.

By the terms of the 1966 divorce decree, defendant has the right, which he has exercised, of claiming the four children born of his marriage to plaintiff as exemptions for income tax purposes.

During the year 1973 plaintiff received, as wages, $12,507.63. She has not remarried, and the four children are William, aged 16, Donald, aged 15, Robert, aged 13, and Karen, aged 10.

Plaintiff’s testimony was to the effect that the cost of maintaining the children was $236.00 per month per child. She was able to produce no detailed records relating to each child, and it is apparent that, at least to some extent, she arrived at her figures by ascertaining the monthly expenses for herself and the four children, dividing that figure by 5. Thus, she gave as the cost of shelter for each child the amount of $58.00, which is exactly of her monthly mortgage payments. The evidence does show that each child has his own private bedroom. The evidence does not disclose the dimensions of the bedrooms, nor the location and accessibility to the children of the two bathrooms.

There are several cases in which it has been held, or stated by way of dictum, that an award for child support can be subsequently modified only where the person seeking such modification produces evidence to show a change of conditions since the date of the award which is sought to be changed. Other cases have held, or have stated by way of dictum, that the power of the court to change its decree awarding support is not dependent on a showing of changed conditions, although admitting that it would be a “rare case” in which a court would change its previous order without a showing of some change in conditions, or of some unusual circumstance justifying a change in the order. The two lines of authority are reviewed in Lynde v. Lynde, 492 S.W.2d 641, 643 (Tex.Civ.App.—San Antonio 1973, no writ), in which case this Court, speaking through Chief Justice Barrow, voiced its approval of the line of cases taking the position that the power of a court to modify its decree setting child support is not dependent on a showing of changed conditions.

In any event, the record before us supports the finding of changed conditions by the trial court. Plaintiff testified, albeit in rather general terms, that in 1967 the monthly cost of maintaining a child was $119.00 per month. The courts judicially know that we have been beset by a spiraling inflation since the original decree was entered, although the extent of such inflation may not be a proper subject of judicial notice. Angel v. Todd, 368 S.W.2d 224 (Tex.Civ.App.—Houston 1963, no writ). There is testimony to the effect that as children grow older their needs increase, and, clearly, the record establishes a significant change in the income of both parties.

Defendant asserts that, in reaching its conclusion, the trial court failed to consider factors favorable to defendant and unfavorable to plaintiff. We find no basis for this contention in the record, and, in the absence of a showing to the contrary, we will presume that the judgment below is based on a consideration of all of the evidence.

Nor can it be said that the trial court, as defendant charges, “erroneously burdened” him “with the primary duty of support . and disregarded” plaintiff’s “duty to support” the children.

Tex. Family Code Ann. § 4.02 (1975) places on each spouse the duty to support the children of the marriage. We have no quarrel with the doctrine that the law imposes on the parents an equal duty to support their children. But this equality does not mean that “the court must divide the burden of support of the minor children equally between the parties” in terms of monetary contributions. Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ). The court’s order should reflect a due consideration of the respective abilities of the spouses to contribute. Nor should the non-monetary contributions of the parent who has the care, custody and control of the children be ignored, particularly where the other parent, as has defendant in this ease, has determined to disassociate himself almost completely from the children. The fact that defendant’s aloofness is based on a sincere conviction, as a doctor, that his course of action is best for the emotional health and stability of the children does not erase the fact that plaintiff, by assuming the sole burden of guidance, counselling and ministering to their physical and psychological needs is making a substantial and important contribution.

No useful purpose would be served by attempting to review the opinions dealing with specific instances of awards for child support. The fact that each case must stand on its unique facts precludes the statement of rules which can be followed with any degree of confidence. The cases, perhaps, do yield a plentiful supply of quotable phrases which, by careful selection, can be utilized to justify affirmance or reversal in any given case.

A review of the entire record in this case will not support the conclusion that, in increasing the contribution required of the father from $400.00 per month to $700.00 per month, the trial court abused the broad discretion vested in it in cases of this nature. The fact that the award can fairly be classified as generous is not a sufficient basis for condemning it as unreasonable.

The judgment of the trial court is affirmed.

BARROW, Chief Justice

(concurring).

I concur in the result. I would add that appellant, upon timely request, should have been permitted to examine the records that appellee said she used as a basis for her testimony.