text:
    ALLIED CHEMICAL CORPORATION and the Travelers Insurance Co., Appellants-Defendants, v. Harold M. WELLS, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    March 19, 1979.

      Richard W. Krieg, Knoxville, for appellants-defendants.
    Robert P. Rule, Jr., Knoxville, for appel-lee-plaintiff.
   OPINION

HARBISON, Justice.

Appellee, Harold M. Wells, brought this action against his employer and its insurance carrier seeking workmen’s compensation benefits as the result of a heart attack which he suffered on January 17, 1977. The complaint alleged that a further attack occurred on August 4, 1977, and these episodes were alleged to “constitute injuries by accident arising out of and in the course of” the employment. It was alleged that they were “the direct and proximate result of the mental and physical exertion and strain” connected with the appellee’s work. Appellants denied that the employee had sustained a compensable injury by accident.

Appellee was employed as a supervisor, or foreman, in a factory producing seat belt assemblies for the automobile industry. He was among the management personnel of the factory, and his occupation was basically sedentary in nature. His work involved quality control and inspection of incoming components and outgoing finished products. Several inspectors worked under his supervision. He was required to keep a number of records, to consult with his inspectors and superiors, to check on product quality, and to inspect the machinery and plant area under his control. His employment, however, involved very little physical activity or exertion. The Chancellor did not find that appellee’s heart attack was caused or contributed to by any physical activity or exertion on and prior to the date of onset, nor would the record support any such conclusion.

Appellee’s basic contention in the litigation has been that, his heart attack was caused or contributed to by mental strain and anxiety created by his working conditions. The Chancellor so held, but after a careful consideration of the record, we are of the opinion that appellee’s proof is insufficient to bring the case within the statutory requirements pertinent to this case that compensation benefits be the result of injury by accident. T.C.A. § 50-902(d).

While this Court recognized in the case of Jose v. Equifax, Inc., 556 S.W.2d 82, 84 (Tenn.1977), that mental stimulus, such as fright, shock, or excessive unexpected anxiety resulting in injury might justify a compensation award, the present claim goes beyond the parameters suggested in that case. On the date of his initial heart attack, and for several weeks prior thereto, appellee points to no particular incident or episode, physical or mental, as having triggered or precipitated the onset of his heart attack, which resulted in a myocardial infarction. Rather, it is insisted that chronic stress, emotional strain and worry over his job responsibilities and conditions were the precipitating cause, and that his resulting myocardial infarction constituted an industrial “accident” sufficient to support a compensation award.

On January 17, 1977, when appellee suffered the infarction, he was 54 years of age. He was substantially overweight and smoked heavily. As early as 1973 he had been advised by his physician to stop smoking but had not done so, and at the time of his illness he was regularly smoking about one and one-half packages cigarettes daily. His mother had suffered from hypertension, and his physicians testified that appellee also suffered from this condition as well as from atherosclerotic heart disease. In addition, he had chronic obstructive pulmonary disease with mild congestive heart failure. The lung disease consisted of chronic bronchitis or emphysema, probably related to his smoking.

Appellee testified that prior to January 17, 1977, he had experienced shortness of breath while going about his duties, and his medical records indicate that he had also had chest pains for some indefinite period of time. Both of these symptoms had been relieved by rest. Apparently appellee had not had a physical examination for a number of years prior to the incident out of which this suit arises, nor to his knowledge had he had any heart attack or any other serious illness.

Appellee had been employed by Allied Chemical Corporation since 1968. He worked in a factory in Florida until 1971. He was transferred to Knoxville and had been employed in the Knoxville plant continuously since that time. The record indicates that he was a conscientious and dedicated employee, always willing to undertake any responsibilities assigned to him, and that he cooperated fully with management officials in attempting to carry out their policies. He willingly undertook additional work and responsibilities when assigned to him, and his superiors held him in high regard.

There were a number of changes in ap-pellee’s working conditions during the four months preceding his heart attack. Neither party produced any employment records, and the exact chronology of events is somewhat difficult to reconstruct from the record. During either the latter part of September or in early October 1976, however, it appears that there were complaints registered with the employer by Ford Motor Company, one of its principal customers, about quality control and production methods. A number of supervisory personnel were either dismissed or reassigned in what is described in the record as a general “shakeup” at the factory. For some six to eight weeks thereafter, appellee was required to work longer hours, including several consecutive weekends. He testified that he regularly worked from about 6 or 6:30 a. m. until 5 or 5:30 p. m., approximately eleven hours. His formal job title was that of supervisor.

On November 12,1976, appellee was notified that he was being replaced as supervisor by one of his foremen, and thereafter he worked as a job foreman. There was no loss of salary involved in this change of responsibility. Apparently, by that time, appellee was no longer working on weekends; at least, he testified that he was notified of this job change on a Friday, and that he was off on the following Saturday and Sunday. He testified that this change in his work assignment caused him great concern and anxiety.

On December 6, 1976 appellee was notified that he would be required to work on a different shift from his previous one. Beginning on December 15, 1976 and continuing through the date of his heart attack, January 17, 1977, he worked on the evening shift. He testified that he was required to attend a short meeting prior to the commencement of the shift at 4 p. m., so that he usually reported for work at about 3:30 or 3:45. He had a break for a meal from 8 to 8:30 p. m. and testified that he usually got home between 2 and 3 a. m. As stated, no time records were filed, but apparently appellee’s hours of work on the night shift were somewhat shorter than those on his previous day shift.

Appellee testified that as a result of the change in shift, his sleeping and eating habits were altered. He testified to general concern and worry over conditions at the plant during the entire four-month period prior to his heart attack. As previously mentioned, however, he pointed to no specific incident or series of incidents involving emotional crises or stress either on the day of his heart attack or at any time for more than a month prior thereto. No one else employed at the plant during this time testified. The last specific incident of which appellee complained was that of having to change shifts, a change of which he was notified on December 6 and which took effect on December 15.

Appellee testified that during the afternoon prior to his reporting for work on January 17, 1977, he felt slight nauseous and unwell. He did not eat anything prior to reporting to work. Before his shift began at 4 p. m., he checked some records and also looked for a receptacle in the assembly line area which was reported to need tagging. The regular shift commenced at 4 p. m. Appellee testified that he engaged in no physical exertion but did do some record keeping at a desk and checked with some of his inspectors on product quality and control. He went to the cafeteria at 8 p. m. and purchased some beef stew. While eating this, he became nauseated. He reported to the nurse’s station and while there suffered severe chest pain. He was then hospitalized, and it was found that he had suffered a myocardial infarction. He remained hospitalized until early in February when he was permitted to return home. Later in February he was again hospitalized for further observation and treatment. He recuperated at home and by June was able to return to work on a part-time basis. He continued to work until August 4, 1977, when he experienced further chest pain and was advised by his physician to accept a program of long-term disability benefits offered through his employer.

The medical testimony indicates that ap-pellee did not suffer a further myocardial infarction in August, as alleged in the complaint. As we understand it, the claim for workmen’s compensation benefits rests upon whether or not the infarction suffered in January 1977 can properly be said to have resulted from an industrial accident within the contemplation of the statute.

As pointed out in the case of Jose v. Equifax, Inc., 556 S.W.2d 82, 84 (Tenn.1977), a very liberal interpretation has been given in this state to the statutory requirement of “injury by accident.” Nevertheless, the Court there stated:

“. . . but this still does not embrace every stress or strain of daily living or every undesirable experience encountered in carrying out the duties of a contract of employment. Workmen’s compensation coverage is not as broad as general, comprehensive health and accident insurance.”

In that case, a number of previous decisions in this state dealing with mental and emotional stimuli were reviewed, and it is not necessary to repeat that discussion here.

Although there is medical testimony in the record indicating that mental and emotional strain, worry and anxiety — even of a chronic, rather than an acute, variety — can contribute to the onset of a myocardial infarction, we are of the opinion that to permit coverage on the facts shown in the present record would expand the statutory criterion of “injury by accident” beyond reasonable limits. The medical testimony is clear that any number of factors can trigger or precipitate a myocardial infarction when coronary arteries are narrowed to the critical point by pre-existing atherosclerotic disease. We are of the opinion that absent either physical exertion or some acute, sudden or unexpected emotional stress directly attributable to employment, an industrial accident should not be deemed to have occurred, even though worry, anxiety or emotional stress of a general nature may have preceded the onset of an infarction.

In the present case there is no evidence that any physical exertion which appellee experienced on or about January 17, 1977 was sufficient to cause his myocardial infarction. Eliminating this, there is simply insufficient evidence in the record of an injury by accident, within the contemplation of the statute, to justify an award of workmen’s compensation disability benefits. See Travelers Ins. Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611 (1968); Bowman v. Smith-Built Homes, Inc., 221 Tenn. 102, 424 S.W.2d 801 (1967).

We have examined authorities from other jurisdictions, relied upon by appellee, in which recovery has been allowed for myocardial infarctions and other heart conditions found to have resulted, in whole or in part, from emotional stress or strain. See generally, IB A. Larson, Workmen’s Compensation Law, § 38.65 (1978).

In many of these, although not in all, some unusual or sudden event involving emotional stress, fright or shock could be pointed to as the precipitating event. In others, the statutory provisions did not include a requirement of injury by accident.

In a case with facts strikingly similar to those presented here, Millar v. Town of Newburgh, 43 A.D.2d 641, 349 N.Y.S.2d 218 (App.Div.1973), recovery was denied. There an employee sustained a myocardial infarction as a result of emotional strain. The court said:

“Briefly stated decedent became ‘emotionally upset’ when his employer decided to divide his supervisory duties into two separate employments and hired a new man at $10,000 a year, whereas decedent was then receiving $6,000, to take over one of the two departments decedent had formerly jointly headed. There was no decrease in decedent’s salary. The ‘emotional stress’ of being confronted with this employment development, the board has found, led to a myocardial infarction which resulted in decedent’s death and thus there was found to have been a compensable accident. Concededly, there is substantial evidence establishing causal relationship and evidence that decedent, in fact, became disturbed at the employer’s decision to divide his employment duties and assign a portion thereof to another at a higher salary than decedent was then receiving.” 349 N.Y.S.2d at 219.

The court held that a compensable industrial accident had not been demonstrated under these facts.

It is indeed difficult to formulate a general rule that would be applicable to all cases. The issue is usually factual, rather than legal, but there are obviously limits to any realistic application of the criterion of “injury by accident.” Emotional stress, to some degree, accompanies the performance of any contract of employment. When this is “within the bounds of the ups and downs of emotional normal human experience” courts frequently decline to impose liability upon employers for conditions resulting from “cumulated” strain. See generally IB A. Larson, Workmen's Compensation Law, p. 7-152 (1978).

The judgment of the trial court is reversed and the suit is dismissed at the cost of appellee.

COOPER, FONES and BROCK, JJ., and HUMPHREYS, Special Justice, concur.

      . At all times pertinent to this case, only certain occupational diseases were covered by the Tennessee Workmen’s Compensation Act, unless the employer had opted for full coverage. Diseases of the heart, lung and hypertension arising out of and in the course of all types of employment were made compensable by an amendment which became effective after the present claim arose. See T.C.A. § 50-1101 (1978 Supp.).


source: Caselaw Access Project

author: MATHERNE, Judge.

license: Public Domain

text:
    J. B. WILLIAMS, Plaintiff-Appellant, v. Bill VAN HERSH, James E. Threlkeld and M. N. Murray, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    May 17, 1978.
    Rehearing Denied June 28, 1978.
    Certiorari Denied by Supreme Court Feb. 26, 1979.

      Neely, Green & Fargarson, Memphis, for plaintiff-appellant.
    Threlkeld & Howard, P.A., Memphis, for defendants-appellees.
   MATHERNE, Judge.

J. B. Williams, the purchaser under a contract to buy realty, sues to rescind the contract on the ground that he was induced to sign by the fraud of the sellers Threlkeld and Murray and their agent Van Hersh. The defendants Threlkeld and Murray filed a counter claim wherein they seek specific performance of the contract, or, in the alternative, damages for the breach thereof. The chancellor dismissed Williams’ lawsuit seeking recision and entered judgment in favor of the defendants for specific performance.

I.

On motion of the defendants the lawsuit was tried before a jury. The determinative issue at trial was whether the defendants Van Hersh and Murray had fraudulently represented to the plaintiff that financing in the sum of $6,000,000 was available to the plaintiff from the New York Life Insurance Company for the development of the realty. The issues submitted to the jury and the answers given are as follows:

I.
Do you find, from a preponderance of the evidence in this case, that on December 31, 1974, M. N. (Doc) Murray made a false representation to Ed Carey that a commitment had been approved by the New York Life Insurance Company to provide financing for the proposed high-rise office building?
Answer: No.
II.
Do you find, from a preponderance of the evidence in this case, that on December 31, 1974, Bill Van Hersh made a false representation to J. B. Williams that a commitment had been approved by the New York Life Insurance Company to provide financing for the proposed highrise office building?
Answer: Yes.
IF YOUR ANSWER TO EITHER OR BOTH OF THE ABOVE ISSUES IS “YES”, PROCEED TO ISSUE NUMBER THREE.
III.
Do you find from a preponderance of the evidence on this case, that J. B. Williams signed the contract of December 31, 1974 because of his reliance upon the aforesaid false representation or representations? Answer: No.

By two assignments of error the plaintiff raises the one determinative question that Issue No. Ill was improperly submitted to the jury because the record reveals that there was no factual dispute but that the plaintiff did rely upon the fraudulent representations óf Van Hersh.

II.

The plaintiff did not object to the submission of Issue No. III. That question was first presented as Ground I of the plaintiff’s Motion for - a New Trial. The defendants argue that the plaintiff can not complain of the submission of Issue No. Ill because he failed to timely object in the trial court. We agree with the defendants.

The submission of issues in a jury trial in chancery was formerly governed by T.C.A. § 21-1014, which required the submission of specific issues to the jury. T.C.A. § 21-1014 was repealed by Chapter 565, Public Acts 1972, and the procedure is now governed by Rule 49, Tennessee Rules of Civil Procedure. Rule 49.01, Special Verdicts, provides as follows:

The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answers or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instructions concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives his right to a trial by jury of the issue so omitted unless before the jury retires he demands its submission to the jury. As to an issue omitted without such demand, the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

It is to be noted that Rule 49.01 specifically deals with the situation where the trial court fails to submit all issues of fact raised by the pleadings or the evidence. Rule 49.01 does not, however, specifically deal with the procedure to be followed in the situation where, as here, the judge allegedly submits an improper issue to the jury. We fail to find a reported Tennessee case on the subject.

After a review of the authorities from other states and of decisions by the courts of federal jurisdiction, we hold that as a general rule a party who complains of a special issue submitted to the jury under Rule 49.01 must at the trial raise the question in some way, as by objection, exception, motion or request before he can contend on motion for a new trial that the court erred in submitting the particular question to the jury. 66 C.J.S. New Trials § 46 c, p. 158. See also: 1 Gibson’s Suits in Chancery, § 581, (5th Ed. 1955); 5A Moore’s Federal Practice, § 49.03, (2nd Ed. 1977); cases annotated at 28 U.S.C.A., Federal Rules of Civil Procedure, Trials, Rule 49, note 14, p. 357.

The chancellor, prior to summations by the attorneys, informed them of the three questions he would submit to the jury. Neither party made any objection nor requested a withdrawal or restatement of any issue. Absent an obvious miscarriage of justice, or situations of extreme hardship or of extraordinary and compelling circumstances, we hold that a party may not acquiesce in the special issues submitted by the court and then, after a verdict unfavorable to him, object to a particular question as submitted.

In the case at bar Issue No. Ill was properly submitted. One of the elements of positive fraud is that the representation must have been to an existing fact which is material and the plaintiff must have reasonably relied upon that representation to his injury. Haynes v. Cumberland Builders, Inc. (Tenn.App.1976) 546 S.W.2d 228, citing: Whitson v. Gray, 40 Tenn. 441 (1859); Dozier v. Hawthorne Development Co. (1953) 37 Tenn.App. 279, 262 S.W. 705. By its answer to Issue No. Ill the jury removed the issue of fraud as result of the false representation by Van Hersh to the plaintiff.

IV.

Even though the plaintiff, under the record, can not assign in this Court error in the submission of Issue No. Ill, we have reviewed the record in the light of the plaintiff’s insistance that there is no factual dispute but that the plaintiff did rely upon the fraudulent representation of Van Hersh.

It is true that the plaintiff testified that Van Hersh verbally assured him that the $6,000,000 loan was available to develop the land to be purchased by the plaintiff, and that he relied on that assurance when he signed the contract to purchase the land for $1,000,000. There being no direct proof to the contrary, the plaintiff insists that his statements in that respect must be accepted as true and the finding by the jury on Issue No. II that Van Hersh did falsely make that representation to the plaintiff entitles the plaintiff to recover.

We disagree with this argument. The record establishes that the plaintiff is an experienced business man. The plaintiff, on cross examination, was unable to state to whom the loan was to be made, when the loan would be made, when and under what terms it would fall due, the rate of interest it was to draw, the security required for the loan or the conditions, if any, the lender would place upon the development. The jury determines the credibility of the witness. In this lawsuit the jury did not believe the plaintiff on the question raised under Issue No. III.

The case of Ray Carter Inc. v. Edwards (1969) 222 Tenn. 465, 436 S.W.2d 864, relied upon by the plaintiff, is not in point. Here the testimony of the plaintiff is contradicted “by circumstances inconsistent with its truth” wherein the plaintiff testified that he contracted to purchase real property for $1,100,000 in reliance on the verbal assurance of a real estate agent that a named insurance company would lend to some unnamed party $6,000,000 for the development of the property, at some unknown time, due at some unknown date, at an unknown rate of interest and under unknown conditions that any such lender might attach to the development. The claim of the plaintiff that he relied upon such false assurance is incredible.

All assignments of error are overruled and the decree of the chancellor is affirmed. The cost in this court is adjudged against the appellant and the sureties on his bond, for which execution may issue if necessary. This cause is remanded to the trial court for such proceedings as may be necessary for the enforcement of its decree.

NEARN, J., and DYER, Special Judge, concur.

ON PETITION TO REHEAR

The appellant filed a Petition to Rehear wherein he claims that an objection was made to the submission of Issue No. Ill to the jury. Attached to the petition are the affidavits of the attorney for the appellant, the defendant Threlkeld and the chancellor, all to the effect that the attorney for the appellant did object to the submission of Issue No. Ill at the time the issues were formulated during a conference between the chancellor and the attorneys. The affidavits show also that the objection was not raised in open court and it is not shown in the record. The thrust of the petition to rehear is a request that this Court hold that the objection was made. We can not so hold.

However, as pointed out in the original opinion Issue No. Ill was properly submitted to the jury. Reliance upon a representation to the injury of the relying party is a necessary element of fraud. In this lawsuit it matters not whether the appellant objected to Issue No. Ill, the result would be the same. The jury held that the appellant did not rely upon the representation to his detriment. There is material evidence from which the jury could so conclude. The appellant, under all the proof, was not entitled to recover.

The petition to rehear is overruled.

NEARN, J., and DYER, Special Judge, concur.


author: SANDERS, Judge.

text:
    Charles “Chuck” McGILL, Jr., et al. v. Anna Lee Adams HEADRICK et al.
    Court of Appeals of Tennessee, Eastern Section.
    Oct. 13, 1978.
    Certiorari Denied by Supreme Court Feb. 12, 1979.

      Robert L. Ogle, Jr., of Ogle, Wade & Vickers, Sevierville, for appellants.
    Ben D. Brabson, Jr., of Brabson & Brad-field, Sevierville, for appellees.
   OPINION

SANDERS, Judge.

The pertinent issue in this case involves setting aside a deed to real estate.

A. V. Adams died intestate in Sevier County in 1972. His estate consisted of a small amount of personal property and a farm containing approximately 125 acres. He had no children and left surviving his widow, the Defendant-Appellant, Anna Lee Adams (Headrick). His next of kin were three brothers, Earl Adams, Leonard Adams and Ervie Adams. One brother and one sister had predeceased the intestate and they each left children surviving. The deceased’s brother, Ed Adams, had two children, Appellee Margaret Fowler, and Roy E. Adams. The deceased sister left seven children, being the Plaintiffs, Charles “Chuck” McGill, Jr., Hugh “Jerry” McGill, Perman “Pete” Giles McGill, and Plaintiff-Appellees, Ima Lee Bennett, Robert E. McGill, Doris Hampton, and Ralph McGill.

During his lifetime the deceased, A. V. Adams, had told his brother, Leonard Adams, that if he should predecease his wife, the Defendant, he wanted her to have everything he owned. Shortly after his death on July 18, 1972, Earl, Leonard, and Ervie Adams, each of whom owned a one-fifth interest in the farm subject to Defendant’s homestead and dower, executed a deed to the Defendant for their interests in the property.

The Defendant was A. V. Adams’ second wife and they had been married a little over three years when he died. Consequently, she was not acquainted with some of the nephews and nieces and had only a limited acquaintance with the others. For this reason it was decided Mr. Leonard Adams would contact the nephews and nieces about conveying their interest in the land to the Defendant. Mr. Adams contacted the nephews and nieces concerning conveying their interests to the Defendant and all but three of them executed deeds for their interests in the property. After the three brothers had conveyed their interests in the property, but before any of the nephews and nieces had conveyed their interests, the state filed a condemnation suit to condemn 26 acres of the land for highway purposes. At the time the suit was filed the state deposited $5,200 as the value of the land taken. However, when the case was tried in March, 1974, the jury awarded $33,868.90 in damages.

In August, 1975, the three nephews who had not conveyed their interests in the property to the Defendant filed suit in the Chancery Court seeking to have the balance of the land sold for partition. These Plaintiffs were Charles “Chuck” McGill, Jr., Hugh “Jerry” McGill and Perman “Pete” Giles McGill. They are three of the seven children of the deceased sister and each owned a ⅛5 interest, subject to Defendant’s homestead and dower. The complaint also asks that the funds in the clerk’s office from the condemnation suit be impounded in the hands of the clerk and master; that the interests of the respective parties in the funds be determined; that the Defendant be required to render an accounting as ad-ministratrix of her husband’s estate. It also named the remaining nephews and nieces as parties defendant and asked the Court to determine what interest their deed to the Defendant had conveyed to her. All of the nephews and nieces except Roy E. Adams filed answers and asked to be realigned as Plaintiffs.

Ima Lee Bennett, Robert E. McGill, Doris Hampton and Ralph McGill filed a cross complaint in which they sought to have their deed to the Defendant set aside. In general, they contended they thought they were signing a deed to a cemetery lot and not a deed to the farm. They also seek a pro rata share of the funds in the condemnation proceeding.

The case was heard by a Special Chancellor sitting by interchange. The Chancellor held the deed from the Plaintiffs, Ima Lee Bennett, Robert E. McGill, Doris Hampton and Ralph McGill to' the Defendant was void insofar as the conveyance of their interests in the farm was concerned, but it was valid and binding insofar as the conveyance of their interests in the cemetery lot was concerned. He also held each of these four Plaintiffs had a Vas interest in the farm and a Vas interest in the proceeds from the condemnation after payment of expenses. He held Margaret Fowler had a Vio interest in the proceeds from the condemnation but, since neither she nor her brother, Roy E. Adams, contested the validity of their deed to the Defendant, it was valid. He ordered the Defendant’s homestead and dower set aside to her and the remainder of the property sold for partition.

The Defendant has appealed and assigned error. In her brief the only part of the Chancellor’s decree which the Defendant challenges is the voiding of the deed as to the four Plaintiffs’ interests in the farm.

The Chancellor filed a memorandum opinion and his reasons for setting the deed aside as to the farm were (1) lack of consideration, (2) failure of the Defendant to disclose to the Plaintiffs what property was included in the deed, (3) Plaintiffs did not read the deed before signing it, (4) since the Defendant was the administratrix of her husband’s estate, a fiduciary relationship existed between her and the Plaintiffs, and (5) the Defendant had the benefit of counsel and the Plaintiffs did not have the benefit of independent advice.

It appears the Chancellor was impressed by the fact it was not reasonable that Plaintiffs would have conveyed their interests in a valuable piece of property to the Defendant without being paid for it. As he put it, “. . . none of the litigants were close or even knew each other enough to negotiate.”

The record reveals the condemnation suit was filed September 29, 1972. The deed from the Plaintiffs to the Defendant is dated November 22,1972. The state deposited $5,200 as the value of the land taken. This was approximately $200 per acre. Each of the Plaintiffs’ interests in the property was ½5. Their portion of these proceeds would have been less than $150 each. Based on these figures each of their interests in the farm would have had a value of approximately $700. It was only after the jury returned a verdict of over $33,000, almost two and a half years after the deed was executed, that it appeared to be valuable property.

The deed was executed by Plaintiffs, Ima Lee Bennett, Ralph E. McGill and Doris A. Hampton, at the same time. They were all at the home of Mrs. Hampton in Knoxville at the time. At the time of the execution of the deed the Defendant and Leonard Adams, as well as Betty Rose, a notary public, were present. Ima Lee Bennett testified her home was in Toledo, Ohio, and she was visiting her sister, Mrs. Hampton, in Knoxville at the time she signed the deed. She testified she did not read the deed prior to signing it. She said the deed was handed to her folded over and the Defendant told her it was a deed for a cemetery lot. She said she was not deprived of an opportunity to read the deed had she desired to do so. Although she insisted she thought she was signing a deed only for a cemetery lot, on cross-examination she testified her uncle, Leonard Adams, had called her in Toledo. He told her about the condemnation suit. She said, “Leonard Adams told me how it was about each part and how much it would be an heir. He said it wouldn’t be over, our part, over $600 or $700 when we got through with attorneys. That us kids would probably have $300 or $400 out of the estate. That’s what he told me over the phone.” She further testified:

“MRS. BENNETT: I don’t have no lies to tell. You can ask me anything. I don’t care. I don’t go around I/e ing if that’s what you’re inferring.
“Mr. Ogle:
“Q But you knew the State was taking this property?
“A Taking the 26 acres.
“Q You knew that when you signed this deed?
“A Yes, but what it was worth, that I don’t know.
“Q You thought maybe you would get $300. or $400. out of it, and you were willing to give that to Mrs. Adams, weren’t you?
“A The $300. or $400. correct because it would cost me that to drive backwards and forwards from here to Toledo.
“Q It’s just a matter, you were willing to deed your interest in the land the State was taking for the $300. or $400. Is that right?
“A I didn't want to drive back and forth down here.”

Plaintiff Doris Ann Hampton testified she did not read the deed prior to signing it. The Defendant told her it was for cemetery lots. On cross-examination she testified as follows:

“Q You knew the State was condemning or taking some of this property, the 26 acres, didn’t you?
“A When?
“Q I say you knew it, didn’t you?
“A I knowed later on.
“Q Did you know it at the time you signed this deed?
“A I knowed the State was going to take it, yes.
“Q You thought you would get $300. or $400. out of it. Is that right?
“A That what I was told.
“Q You didn’t want to fool with it, did you?
“A The way I look at it, I wouldn’t hurt anybody for $300. or $400.
“Q And you wanted Mrs. Adams, Anna Lee Adams, to have it at that time, didn’t you?
“A Yes, at that time because all I knowed was my part—
“Q And when the jury awarded $33,000. you changed your mind, didn’t you?
“A No, after I found out how she done us, I changed my mind.”
* * * * * *
“Q Have you discussed this with anyone involved in this lawsuit? That is, Mr. McGill there, sitting over there, had he talked to you about this prior to the time you signed the deed?
“A I don’t remember.
“Q Have you discussed with any of these people here after Arvil Adams died about his estate prior to the time you signed this deed?
“A Yes, I told my sister what my uncle told me it was for, and I said I wouldn’t do Anna Lee that way for $300. or $400.
“Q Who did you discuss it with?
“A I told my sister later on.”

Ralph McGill testified he lived in Toledo, Ohio. He was visiting his sister, Mrs. Hampton, at the time he signed the deed. He was told by the Defendant and Leonard Adams the deed was for cemetery lots. He didn’t read the deed, he just glanced through it. On cross-examination he testified:

“Q Wasn’t it related to you that all you were going to get out of the estate was $300. or $400.?
“A My sister called me in Toledo.
“Q When was this?
“A I don’t know.
“Q Prior to the execution of this deed?
“A This was before the deed was signed.
“Q Before this was signed?
“A Yes.
“Q But you knew you were going to get $300. or $400. out of the estate was what you were talking about. Is that right?
“A But I figured we would sign this later.”
* * * * * *
“Q When was the first time you were requested or knew anything about the execution of this deed? Was it before you went to your sister’s on the date of execution?
“A I think I was in Ohio at the time.
“Q Who called you?
“A My sister.
“Q What did she say to you?
“MR. BRADFIELD: I object to what she said, your Honor.
“THE COURT: She’s a party.
“Mr. Ogle:
“Q What did she say to you?
“A We talked.
“Q You’re talking about Doris Inman?
“A No, I’m talking about Ima Lee.
“Q What did she say to you?
“A Something about she was going down, and was I coming down Christmas. I said yes. She said Uncle Leonard said there was some property which we would be entitled to maybe $200. or $300. after everything. Was I willing to mess around with it. I said no not particularly.
“Q Were you advised that the State was taking some property?
“A Really, I don’t remember or recall it.
“Q You never talked to Leonard Adams, did you, about this?
“A When?
“Q Before the execution?
“A No.
“Q Did she ask you when you were coming down?
“A She wanted to know if I was coming down Christmas.
“Q Was anything said about signing a deed at that time?
“A They said something about sending one. I never did receive one in . the mail.”

Robert E. McGill did not sign the deed at the time the other three Plaintiffs did. It appears he signed it some time later. He and the Defendant arranged a meeting at a drive-in restaurant for his signing. He testified he did not read the deed prior to signing it. He said the Defendant told him she needed him to sign it because the state was taking some of the property at $50 per acre. He said he was not paid anything for signing. The Defendant did not tell him it was for cemetery lots.

Mr. Leonard Adams testified in behalf of the Defendant. He said he talked to the Plaintiffs prior to their signing the deed. When asked what he told them, he said:

“A I told them, I tried to explain to them the best I knew how that Arvil being deceased, and I told them they didn’t have to sign it. I told them they were all minor heirs but my sister, makes you minor heirs with her deceased, and I said you can hold out if you want to, the best I remember, you have your share which would be a little. When you sign it, though, you’re signing your rights away. That’s what I told them the best I remember.”

He denied he ever told any of the Plaintiffs they were signing a deed for cemetery lots. He also testified he was present at Mrs. Hampton’s home when the three Plaintiffs signed the deed and he never heard the Defendant represent to any of them the deed was for cemetery lots. He understood the Plaintiffs were signing a deed for their interest in the farm.

Betty Rose testified she was present at the home of Mrs. Hampton on the occasion the three Plaintiffs executed the deed. She is a notary public and went there for the purpose of taking their acknowledgments. She said there was no mention of cemetery lots by anyone. She didn’t know whether or not the Plaintiffs read the deed but they had an opportunity to do so had they desired.

The Defendant testified she never paid the Plaintiffs anything for signing the deed. Nothing was asked and nothing was promised. The Plaintiffs did not read the deed prior to signing it. She never represented to the Plaintiffs the deed was for cemetery lots. When asked what she told the Plaintiffs, she testified as follows:

“Q When did you talk to them?
“A I didn’t talk to them at first. I presented the situation to the brothers. Leonard was elected. He knew them better. Some of them, I didn’t know at the time. I asked him to talk to them and ask them if they would help me, and he explained the situation to them. I had no conversation telling them about the land.
“Q What did you tell them?
“A I asked him to sign because he told me they would.
“Q You never discussed what it was or anything. Is that right?
“A I never discussed anything except it was the deed to the land.
“Q Did you ever represent to them they were just signing away the graveyard lots?
“A No, because the graveyard lots are immaterial.
“Q They are contained in this deed?
“A Yes, I asked you, because Arvil owned the lots, should they go on that deed, and you said yes.”

We shall consider in order the reasons advanced by the Chancellor for setting the deed aside insofar as the farm land is concerned. We shall first determine whether or not there was sufficient consideration to pass title.

There seems to be no real dispute but what all of the Plaintiffs knew they were executing a deed. Three of them say they thought the deed was for a cemetery lot only; one said he executed the deed because he was told the state was trying to take part of the land for $50 an acre. None of them demanded money for their deed and none was offered. However, something motivated them to sign the deed. The deed recites the consideration to be “One Dollar and other good and valuable consideration.” It has been the rule in this jurisdiction for many years that a deed without consideration, but which is sufficient in form and recites a valuable consideration, passes title in the absence of fraud or the intervention of the rights of third parties. Battle v. Claiborne, (1915) 133 Tenn. 286, 180 S.W. 584.

In the case of Davidson County v. Beauchesne, (1959) 39 Tenn.App. 90, 281 S.W.2d 266, the plaintiff challenged the consideration recited in the deed, saying the consideration was for other property not included in the deed. There, 281 S.W.2d at page 269, the court said:

“We think plaintiff was estopped by her deed to maintain this suit or to deny the above recital. Estoppels are three kinds: (1) by record, (2) by deed, and (3) by matter in pais. ‘Estoppel by deed is a bar which precludes one party to a deed and his privies from asserting as against the other party and his privies any right or title in derogation of the deed or from denying the truth of any material facts asserted in it.’ 19 Am.Jur., Estoppel, sec. 6, p. 603.
“ ‘ “A fact admitted by recital, or directly in a covenant or deed, concludes all the parties to it, and cannot be averred against.” Henderson v. Overton, 10 Tenn. 394-397, 24 Am.Dec., 492.’ Battle v. Claiborne, 133 Tenn. 286, 302, 180 S.W. 584, 588.
“ ‘ “Estoppel by warranty is based on the fundamental principles of giving effect to the manifest intention of the grantor, appearing on the deed, as to the lands or estate to be conveyed, and of preventing the grantor’s derogating from or destroying his own grant by any subsequent act.” Condit v. Bigalow, 64 N.J.Eq. 504 (513), 54 A. 160.’ Battle v. Claiborne, supra, 133 Tenn. 303, 180 S.W. 588.”

The fact that the Plaintiffs failed to read the deed when they had an opportunity to do so cannot be relied upon as grounds for setting it aside. “The mere fact of the failure on the part of a grantor to read over a deed or to have it read to him before signing it is not, in the absence of any fraud or fraudulent representations as to its consequences, a ground for setting it aside.” 23 Am.Jur.2d, Deeds § 136.

In this jurisdiction our courts have not had occasion to address the question of failure to read a deed but our courts have, on many occasions, held that one will not be heard to say he failed to read a contract as a defense to its enforcement. In the case of Baker v. Baker, 24 Tenn.App. 220, 235, 142 S.W.2d 737, 746, the court said:

“In so far as the complainant’s case proceeds upon the theory that she did not read the contract and was unaware of its contents, we think, under the evidence as developed so far, she must fail. If she did not read it she had a full opportunity to do so and there is nothing in the record to indicate that there was any advantage taken of her in connection with its actual execution". Hence she could not be heard to say that she did not know the contents of it. The case of Spurlock v. Brown, supra, as well as.numerous others unnecessary to cite, rule this point against her under the evidence in the record before us.”

Again, in the case of Hardin v. Combined Insurance Co. of America, (Tenn.App.1975) 528 S.W.2d 31, the court, at page 37, quoted with approval as follows:

“ ‘To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he made or to allow him to admit that he signed it but did not read it or know its stipulations would absolutely destroy the value of all contracts.’ 12 Am.Jur., 629. ‘In this connection it has been said that one is under a duty to learn the contents of a written contract before he signs it, and that if, without being the victim of fraud, he fails to read the contract or otherwise to learn its contents, he signs the same at his peril, and is es-topped to deny his obligation, will be conclusively presumed to know the contents of the contract, and must suffer the consequences of his own negligence.’ 17 C.J.S., Contracts, § 137, pages 489, 490.”

This brings us to consideration of the finding by the Chancellor that a fiduciary relationship existed between the Defendant and the Plaintiffs. The holding by the Chancellor is predicated entirely on the fact that the Defendant had qualified as administratrix of her husband’s estate after his death. It is the insistance of the Defendant that, since the transaction here involved real estate and an administrator has no jurisdiction over real estate, no fiduciary relationship existed.

In addressing the authority of an administrator over real estate, Pritchard on Wills, 3d Ed., page 93, § 605, says:

“But no interest in or power over the real estate of the decedent is conferred upon the personal representative by the common law or our statutes. Independently of a power given in the will, the executor or administrator can not manage or dispose of realty. He may, by statute, execute a conveyance of real estate pursuant to a written contract to convey made by the testator or intestate in his lifetime, but if the representative assume to sell and convey lands, his conveyance is a nullity, and the notes executed to him for the purchase-money are without consideration and will be can-celled and set aside in a court of equity. He has no power to abandon a contract made by the decedent for the purchase of realty, though the estate be equitable merely, and the title doubtful; whatever the title may be, it passes to the heirs, and not to the personal representative, and his acts in relation thereto are inoperative as to them. And so, an executor without a power in the will, has no such interest in land as entitles him to notice of the removal of a partition fence, and notice to him is not binding on the heirs. He cannot even make a contract which will bind the estate for the repair of a building on the land. In short, the executor or administrator has nothing to do, virtute officii, with the lands of the decedent, except to subject it, in case of the insolvency of the personalty, in the mode prescribed by statute, to the satisfaction of the decedent’s debts.
“Real estate can only be made liable in case the personal estate is insufficient to pay the debts; and if the heir has aliened it to an innocent purchaser, without notice of debts due by the ancestor, it cannot be reached, but the creditor’s remedy is against the heir for the value of the land.”

In the case of Fulton, et al. v. Davidson, et al., 50 Tenn. 614, it is held that an executor who sold land by order of the court was acting in a “double capacity” as executor in regard to personal property and as trustee in regard to the .proceeds from the sale of real estate. The court further held he was liable on his bond as to personal property but not as to the proceeds from real estate. He was personally liable for the funds from the sale of the real estate.

We cannot agree with the Chancellor that a fiduciary relationship existed between the Plaintiffs and Defendant but, even if it did, there was no relation between the duties the Defendant owed as administratrix and the execution of the deed, nor is there any showing of a breach of that confidential relationship by the Defendant.

In the case of Robinson v. Robinson, (Tenn.App.1974) 517 S.W.2d 202, the court said:

“It is not the confidential relationship between the parties that our courts are concerned with, but the abuse of that relationship. This point is made clear in the case of Turner v. Leathers, 191 Tenn. 292, 232 S.W.2d 269, where the court said: ‘It is not a question of whether he knew what he intended to do, but how this intention was produced, whether it was by abuse of a confidential relationship or a fiduciary relationship.’ ”

The Chancellor also pointed out in his memorandum opinion that the Plaintiffs did not have the benefit of independent advice. In Robinson v. Robinson, supra, the court, in addressing the question of independent advice, said:

“While it is a well-established rule in certain eases involving undue influence that the donor must have the benefit of independent advice, we do not think it applies in the case at bar.
“In the case of Turner v. Leathers, supra, (191 Tenn. 292, 232 S.W.2d 269) the court said:
“ ‘Under the circumstances presented in this cause, on account of the age, physical and mental deterioration of the donor, and where he is under the unquestioned "dominion and control” of the do-nee, it is necessary that he have competent, independent advice, free from the influence of the donee, in order for the gift to stand.’
(Emphasis ours.)”

In the case at bar we do not think the doctrine of independent advice is applicable. The Chancellor did not make a finding of fraud by the Defendant, nor do we find evidence to support such a finding.

We, accordingly, sustain the assignment of error as to the holding of the Chancellor that the deed was void as to the farm property. The decree of the Chancellor will be modified to this extent.

It is also noted that a mistake was made in both the memorandum opinion of the Chancellor and the decree in this case. It is there recited that the Defendant owned a ⅜ interest in the real property when it should have read she owned a interest in the real estate.

To the extent the decree of the Chancellor is not modified, it is affirmed. The case is remanded for carrying out the provisions of the Chancellor’s decree.

The costs of this appeal are taxed to the Appellees.

FRANKS, J., and WILLIAM I. DAVIS, Special Judge, concur.


author: PHILLIPS, Judge. DOUGLAS, Judge.

text:
    John Douglas DOESCHER, Appellant, v. The STATE of Texas, Appellee.
    No. 54865.
    Court of Criminal Appeals of Texas, Panel No. 1.
    Sept. 27, 1978.
    Rehearing Denied March 21, 1979.

      John C. Hendrik (court appointed on appeal only), Dallas, for appellant.
    Henry M. Wade, Dist. Atty., William M. Lamb, David Schick, and John Ovard, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, PHILLIPS and W. C. DAVIS, JJ.
   OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for aggravated robbery. Punishment was assessed at 75 years’ imprisonment.

Appellant complains in his first ground of error that the trial court’s findings of fact and conclusion of law to the effect that the State’s witnesses’ identification of appellant as the armed robber was not irreparably tainted by a suggestive pretrial photograph lineup were erroneous.

The testimony of the two State witnesses (who subsequently identified appellant at the trial) at the pretrial hearing demonstrated that their identification of appellant was based primarily on their observations of him on the night of the robbery and not on the photograph presented to them in the photographic array consisting of seven mug shots. Both eyewitnesses testified that the detectives presenting the photographic arrays made no effort to influence their choice of photographs and both detectives denied attempting to influence the witnesses in their selection of any photograph. Our review of the photographic array utilized in the identification process reflects that seven mug shots were utilized, none of which carry any specific distinguishing marks that would impermis-sibly suggest which photograph was to be selected. Appellant’s complaint that his photograph is the only one taken in front of a height indicator is of little consequence since no other photograph gave the respective heights of the other subjects in the photographic display. Therefore, all subjects could have been of the same approximate height. Our review of the facts of this case and the totality of surrounding circumstances demonstrates that the photographic display was not impermissibly suggestive and did not “give rise to a very substantial likelihood of irreparable mis-identification.” White v. State, 496 S.W.2d 642, 647 (Tex.Cr.App.); Atkinson v. State, 511 S.W.2d 293 (Tex.Cr.App.); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant’s first ground of error is overruled.

Appellant complains of certain deficiencies in the securing and execution of the search warrant upon which police officers searched appellant’s home and seized various items admitted into evidence against him. Five particularized issues are raised by appellant in support of his contention that the search warrant and its execution were deficient. Certain basic princi-pies control our disposition of appellant’s Ground of Error No. 2. First, the affidavit given in support of securing a search warrant controls over the search warrant. Riojas v. State, 530 S.W.2d 298 (Tex.Cr.App.); Oubre v. State, 542 S.W.2d 875 (Tex.Cr.App.). Second, as appellant recognizes, the determination of the legal adequacy of an affidavit in support of a search warrant is to be made within the four corners of the document involved. Jackson v. State, 365 S.W.2d 935 (Tex.Cr.App.); Aubre v. State, supra; Riojas v. State, supra.

Appellant complains that the affidavit in support of the search warrant is insufficient for failing to present the reviewing magistrate sufficient surrounding circumstances upon which to conclude that the unnamed informants relied upon by affiant were reliable or credible or that the informants could conclude that the items sought by the search warrant were where they were purported to be. The pertinent portion of the affidavit reads:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
I Officer D. H. Pfeifer, a police Detective for the city of Grand Prairie, have been investigating the aggravated robbery of the Buddies Supermarket on N. Carrier in Grand Prairie.
During the investigation officers found a white pick-up truck used in the robbery and positively identified by an eyewitness to the robbery as being used in the robbery.
A witness who knows John Doescher personally has stated to the affiant that, he observed Doescher drive up and park the pick-up used in the robbery where it was found. This witness saw this the night of the robbery and shortly thereafter. Two eyewitnesses of the robbery did positively identify John Doescher⅛ photograph as being the robber. This identification occurred on this date of 1-9-75. The address to be searched is the address of John Doescher and Doescher has even listed this as his address with his parole officer. Doescher is presently on parole for robbery and has been seen by the affiant entering and leaving 2038 Fort Worth Street on several occasions within the past two weeks. The license plate on the pick-up used in the robbery is registered to a man named Tag-gert at 2038 Fort Worth Street and the affiant knows Taggert to be a friend of Doescher.
On 1-9-75 person or persons unknown called the affiant by phone and stated ‘that John Doescher robbed the Buddies store and has the gun and bag used in the robbery at 2038 Fort Worth Avenue at this time.’
Mrs. John Doescher, after being arrested and warned of her rights by officers, stated that part of the money taken in the robbery is at 2038 Fort Worth Street, Grand Prairie, Texas.”

The implements identified in the affidavit and search warrant for seizure were “a yellow money bag and blue steel revolver pistol.”

It is clear from a review of the affidavit that, aside from appellant’s wife, none of the informants upon whom the affiant relied are named or in any other way characterized as credible or reliable by the affiant. See Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.); Carvajal v. State, 529 S.W.2d 517 (Tex.Cr.App.); Adair v. State, 482 S.W.2d 247 (Tex.Cr.App.). Nevertheless, the failure to allege prior reliability is not necessarily a fatal defect in the affidavit. Adair v. State, supra; Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.). Affidavits in support of search warrants are to be interpreted in “a commonsense and realistic fashion.” U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Of significant relevance to the determination of whether probable cause exists for the issuance of the search warrant is any corroboration by the affiant of the hearsay declarations which are presented to the magistrate in the affidavit. Spineili v. U.S., 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As stated in Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.):

“In order for an affidavit to show probable cause, it must set forth sufficient circumstances to enable a magistrate to judge, independently, the validity of the affiant’s belief that contraband is at the place to be searched.” Id. at 379.

Although the above excerpt from Frazier refers to contraband, it is clear that a search warrant is appropriate to seize “property acquired by theft or in any other manner which makes its acquisition a penal offense” (Article 18.02(1), V.A.C.C.P.) or “implements or instruments used in the commission of a crime” (Article 18.02(9), V.A.C.C.P.).

A distinction has always been recognized between the hearsay statements of unnamed confidential informants who are regularly involved in nefarious activities with the criminals upon whom they inform and citizen eyewitnesses to a crime, when an assessment of their credibility and/or reliability is involved. This Court has never stated that the distinction is sufficient to eliminate the necessity of either naming the eyewitness or presenting some statement to the magistrate that would allow him to determine that the eyewitness informant is credible and/or reliable. Avery v. State, supra; Frazier v. State, supra; United States v. Bell, 457 F.2d 1231 (5th Cir., 1972).

The affidavit in this case shows that the affiant’s knowledge about the presence of a bag and gun and their location was obtained by an anonymous telephone tip. Nothing in the affidavit reflects that the affi-ant’s investigation of this robbery up to the time of the tip or afterwards established that a gun and/or bag was used in the course of the robbery. Although the magistrate was apprised that the crime being investigated was aggravated robbery, we note that aggravated robbery can be committed without the necessary involvement of a deadly weapon. It can be committed with the causation of serious bodily injury in the course of committing robbery. The affiant’s investigation and corroboration of other hearsay information provided him from eyewitnesses to the robbery do not cure the deficiency that exists in this affidavit with respect to the actual items identified in the affidavit and search warrant for seizure. Thus, the magistrate was not apprised of any fact, information, or “underlying circumstances” to permit him to conclude that the “yellow money bag and blue steel revolver pistol” were connected with the aggravated robbery or at the location identified for search in the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

However, the State contends there to be no error since the searching police officers had also obtained the consent of appellant’s wife to search the same premises prior to the search. Appellant’s third ground of error alleges that his wife’s consent to the police officers to search their residence was legally insufficient and that any items seized pursuant thereto should have been suppressed by the trial court. We agree with the appellant.

Whether a consent to search is voluntary is a question of fact to be determined from the totality of the circumstances surrounding the giving of that consent. Kolb v. State, 532 S.W.2d 87 (Tex.Cr.App.). That Mrs. Doescher could give consent for the search of the premises is beyond dispute. See Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.). A search conducted pursuant to consent is one of the specifically established exceptions to the Fourth Amendment requirements of both the warrant and probable cause. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Davis v. United States, 328 U.S. 582, 66 S.Ct. 1256, 90 L.Ed. 1453 (1946); Rice v. State, 548 S.W.2d 725 (Tex.Cr.App.). One’s protected right to privacy can be waived through the consent to search. Article I, Section 9, Texas Constitution; Fourth Amendment, U.S. Constitution; Kolb v. State, supra; Paprskar v. State, 484 S.W.2d 731 (Tex.Cr.App.).

However, a search cannot be justified as lawful on the basis of consent where that “consent” has been given only after the official conducting the search asserts that he has a warrant. Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968); Stephenson v. State, 494 S.W.2d 900 (Tex.Cr.App.); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.). Further, the burden is upon the prosecution to show that the consent was freely and voluntarily given. Bumper v. North Carolina, supra.

The question of whether a voluntary consent to search is ever possible in the face of an assertion that the investigating officers presently have a search warrant has never been answered. Bumper v. North Carolina, supra, leaves the impression that the answer would be negative. The Supreme Court wrote:

“The issue thus presented is whether a search can be justified as lawful on the basis of consent when that ‘consent’ has been given only after the official conducting the search has asserted that he possesses a warrant. We hold that there can be no consent under such circumstances.
When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority. A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.
* * * * * *
When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion— albeit colorably lawful coercion. Where there is coercion there cannot be consent.” Id. 391 U.S. at 548-550, 88 S.Ct. at 1791-1792.

The coerciveness of the claim of authority is no less when made at the police station, as was done here, than at the doorstep of the premises to be searched. Nor does the printed warning of one’s right not to consent to a search lessen the coercion inherent in a claim of lawful authority to search under a search warrant. Finally, an otherwise cooperative predisposition on the part of the consenting party cannot salvage a “consent” obtained under such circumstances, as is abundantly demonstrated under the facts of Bumper v. North Carolina, supra.

We therefore hold, as a matter of law, that there can be no voluntary consent to search if the officers securing the “consent” assert that they presently possess a search warrant to search the premises for which “consent” is sought.

Even were we to conclude that a “voluntary consent” to search is conceivable in the face of a law enforcement officer’s claim of lawful authority to search pursuant to a presently possessed search warrant, we would have to conclude that the prosecution has failed to carry its burden of proving that, under the totality of the surrounding circumstances, Mrs. Doescher’s consent was voluntary, as a matter of fact. Bumper v. North Carolina, supra; Schneckloth v. Bustamonte, supra. The precise question confronting the Supreme Court in the latter case was what the prosecution had to prove in order to establish a voluntary consent to search and, concomitantly, whether the person consenting had to know of his right to refuse consent. The court concluded that such knowledge was but one element in the totality of circumstances to be considered in making a factual determination of “volun-tariness.”

The evidence adduced at the hearing on appellant’s motion to suppress reflects that Mrs. Doescher was arrested and searched in Arlington at about 9:00 p. m. on the night in question. Certain currency was seized from her at that time. She was transported to the Grand Prairie police station where she executed the consent to search form at about 10:00 p. m., while in custody. Before executing the form, Mrs. Doescher was told that the police already possessed a search warrant. The police also reassured her that measures would be taken to minimize any disturbance to her ill father attendant upon any search. There was no evidence upon whether Mrs. Doescher received her Miranda warnings upon being arrested or arriving at the Grand Prairie police station. It is clear from the testimony of Mrs. Doescher that she concluded a search was inevitable, regardless of her consent vel non.

Upon consideration of the totality of surrounding circumstances, we conclude that the prosecution failed to carry its burden of proving by clear and convincing evidence that Mrs. Doescher’s consent was freely and voluntarily given. Escamilla v. State, 556 S.W.2d 796 (Tex.Cr.App.). Although the consent form ostensibly informed Mrs. Doescher of her right to refuse consent, the facts of her custody and being informed of a presently possessed search warrant establish that her consent was coerced, albeit implied and lawful. See Bumper v. North Carolina, supra; Schneckloth v. Bustamonte, supra; Evans v. State, supra; Kolb v. State, supra; cf. Tamez v. State, 534 S.W.2d 686 (Tex.Cr.App.).

We therefore hold that the search of appellant’s premises violated his right to remain secure from unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 9, of the Texas Constitution.

However, the question still remains of whether the error was harmless.

First, none .of the items seized in the course of the search of 2038 Ft. Worth Street on January 9, 1975, were admitted into evidence. Rather, their seizure and identification were testified to. Second, approximately $10,800.00 was stolen in the alleged robbery at gunpoint; some of the currency being new bills, some old. Mrs. Doescher voluntarily surrendered approximately $6,478.00 to the police from the premises two days after the search. This currency was identified as being bound similarly to some of that taken in the instant robbery. Third, two eyewitnesses positively and unequivocally identified appellant as the perpetrator.

In light of the totality of this record, we are convinced, beyond a reasonable doubt, that the jury would not have reached a contrary conclusion as to appellant’s guilt or innocence absent the testimony relating to the various items seized in the course of the search complained of here. We are of the opinion that the error of the trial court in permitting testimony to be introduced concerning these items was harmless beyond a reasonable doubt. See Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.); Clay v. State, 518 S.W.2d 550 (Tex.Cr.App.); Bridger v. State, 503 S.W.2d. 801 (Tex.Cr.App.); Holcomb v. State, 484 S.W.2d 929 (Tex.Cr.App.); Cole v. State, 484 S.W.2d 779 (Tex.Cr.App.).

We have reviewed appellant’s pro se supplemental briefs and have concluded that their consideration would add nothing to the jurisprudence of this State and are hereby overruled.

The error in this case being harmless beyond a reasonable doubt, the judgment is affirmed.

Before the court en banc.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DOUGLAS, Judge.

Appellant was convicted for aggravated robbery. Punishment was assessed by the court at seventy-five years.

The Court, on original submission, held that the search warrant upon which appellant’s house was searched was defective because the affidavit supporting it failed to present sufficient surrounding circumstances upon which the reviewing magistrate could judge either the reliability and credibility of the unnamed informants or determine that the items in question were where they were alleged to be. The Court concluded, however, that the error was harmless in light of the totality of the record.

Appellant points out that the opinion on original submission recited that none of the items found during the search was admitted into evidence. These items were not formally introduced but they were exhibited before the jury after testimony had been admitted that they were taken as a result of the search. Because of this, we have again examined the affidavit and the search warrant. We now conclude that the affidavit is sufficient to show probable cause for the search.

The affidavit in question states in relevant part:

“MY BELIEF OF THE AFORESAID STATEMENT IS BASED ON THE FOLLOWING FACTS:
“I, Officer D. H. Pfeifer, a police Detective for the city of Grand Prairie, have been investigating the aggravated robbery of the Buddies Supermarket on N. Carrier in Grand Prairie.
“During the investigation officers found a white pick-up truck used in the robbery and positively identified by an eyewitness to the robbery as being used in the robbery.
“A witness who knows John Doescher personally has stated to the affiant that he observed Doescher drive up and park the pick-up used in the robbery where it was found. This witness saw this the night of the robbery and shortly thereafter. Two eyewitnesses of the robbery did positively identify John Doescher’s photograph as being the robber. This identification occurred on this date of 1-9-75. The address to be searched is the address of John Doescher and Doescher has even listed this as his address with his parole officer. Doescher is presently on parole for robbery and has been seen by the affiant entering and leaving 2038 Fort Worth Street on several occasions within the past two weeks. The license plate on the pick-up used in the robbery is registered to a man named Taggert at 2038 Fort Worth Street and the affiant knows Taggert to be a friend of Doescher.
“On 1-9-75 person or persons unknown called the affiant by phone and stated ‘that John Doescher robbed the Buddies store and has the gun and bag used in the robbery at 2038 Fort Worth Avenue at this time.'
“Mrs. John Doescher, after being arrested and warned of her rights by officers, stated that part of the money taken in the robbery is at 2038 Fort Worth Street, Grand Prairie, Texas.”

It is well settled that independent corroboration on the part of the affi-ants or informants may be used to supply deficiencies in either of the Aguilar requirements. Wood v. State, 573 S.W.2d 207 (Tex.Cr.App.1978); Stoddard v. State, 475 S.W.2d 744 (Tex.Cr.App.1972). See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Frazier v. State, 480 S.W.2d 375 (Tex.Cr.App.1972). To show probable cause the affidavit must set out sufficient circumstances to enable the magistrate to independently determine whether the affiant’s beliefs are valid. Lopez v. State, 535 S.W.2d 643 (Tex.Cr.App.1976); Frazier v. State, supra. Although no magical formula exists for stating probable cause in affidavits, they are to be interpreted in a “commonsense and realistic fashion.” United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).

In Lopez v. State, supra, the affidavit in support of the search warrant was based on the hearsay statements of a named informant to the effect that .he had seen the defendant moving bloodstained bumper jacks from a car on the premises and had observed blood on the car’s tires. The informant lived across the street from the defendant and was described as “gainfully employed.” The defendant challenged the affidavit because it failed to show that the informant was credible or reliable. After noting that hearsay information in an affidavit is sufficient to satisfy the Aguilar test provided the informant is named and the information supplied suggests that the informant had direct knowledge of it, this Court held that since the informant lived across the street from the premises to be searched, was gainfully employed and gave detailed information, his credibility was sufficiently established to justify the issuance of the warrant.

In Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976), the affidavit was based solely on the hearsay statements of the co-defendant’s wife to the effect that she saw furniture stolen in a burglary by her husband and his co-defendant unloaded at the address to be searched. The affidavit named the informant but contained no other statements regarding her credibility. The Court held that the allegations in the affidavit were sufficient probable cause to support the issuance of a search warrant. See Wood v. State, supra.

In the case at bar, the affidavit named the wife of appellant as an informant and stated that she had told officers that money obtained in the robbery was in the house to be searched. Two eyewitnesses to the robbery positively identified appellant as the robber. The address of the premises to be searched, 2038 Fort Worth Street, was given by appellant as his address to his parole officer. Appellant was on parole for robbery and he was observed by the affiant entering and leaving the address on several occasions within two weeks prior to making the affidavit. The truck identified as being used by the robber is registered to a man named “Taggert” at 2038 Fort Worth Street whom the affiant knew to be appellant’s friend.

In United States v. Squella-Avendano, 447 F.2d 575 (5th Cir. 1971), the court noted the development of a three-tiered method of analyzing whether the Aguilar tests have been met and stated in part:

“Secondly, less detailed information from a reliable source may be used as grounds for a finding of probable cause if independent investigation by law enforcement agencies yields sufficient verification or corroboration of the informant’s report to make it ‘apparent that the informant had not been fabricating his report out of whole cloth.’ Spinelli v. United States, supra.
“If sufficient corroborative evidence can be collected to support a clear inference that the informer was generally trustworthy, then Aguilar’s second requirement is met.”

See and cf. Abercrombie v. State, 528 S.W.2d 578 (Tex.Cr.App.1974). See also Whiteley v. Warden of Wyoming Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971); Weeks v. Estelle, 509 F.2d 760 (5th Cir. 1975).

Based on these recitations, we conclude that the magistrate was warranted in determining that the named informant was credible and the information given was reliable.

The affiant had talked to an anonymous informant who advised him that appellant had participated in the robbery and that the money bag and gun could be found at 2038 Fort Worth Street. This information, coupled with that set out above, was sufficient to place the gun and money bag at appellant’s residence, 2038 Fort Worth Street. See Wood v. State, supra.

For these reasons, the appellant’s motion for rehearing is denied.

The judgment is affirmed.

ROBERTS and CLINTON, JJ., dissent.

      . Article 18.02, V.A.C.C.P., has now been amended to include “property or items, except the personal writings by the accused, constituting evidence of an offense or constituting evidence tending to show that a particular person committed an offense.” Acts 1977, 65th Leg., p. 640, ch. 237, § 2, effective May 25, 1977. See also Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978).

      . V.T.C.A., Penal Code, Sec. 38.03, provides:
      “(a) A person commits an offense if he intentionally prevents or obstructs a person he knows is a peace officer or a person acting in a peace officer’s presence and at his direction from effecting an arrest or search of the actor or another by using force against the peace officer or another.
      (b) It is no defense to prosecution under this section that the arrest or search was unlawful.”

      . WAIVER OF SEARCH
      Date 1-9-75
      Time 9:30P
      I, Vickey Lynn Doescher, having been informed by Sgt. D.D. Sherman of my constitutional right not to have a search made of the premises hereinafter mentioned without a search warrant and of my right to refuse consent to such a search, hereby authorize Sgt. Sherman and Raymond Whitley policemen of the Grand Prairie Police Department, City of Grand Prairie, Dallas County, Texas, to conduct a complete search of my residence located at 2038 Ft. Worth. These officers are authorized by me to take from my residence any and every type of narcotic drug, barbiturate of amphetamine, or any other property which may be in violation of the laws of The State of Texas or of the United States. This written permission is being given by me to the above named officers voluntarily and without threats or promises of any kind and is given with my full and free consent.
      Signature /s/Vickev Doescher
      Witness: /s/Shearon Sandhon

      . Mrs. Doescher testified she was told that the police had a search warrant by one of the interrogating officers. Detective Pfeifer denied being present when the consent form was executed. Sgt. Sherman, who actually obtained Mrs. Doescher’s signature on the consent form, testified that he could not recall whether he told Mrs. Doescher about the search warrant. The testimony shows that several detectives were present in the course of Mrs. Doescher’s interrogation, including Detectives Pfeifer, Sherman, and Whitley. Only Detective Pfeifer denied telling Mrs. Doescher that he already had a search warrant. The record further reflects that the search warrant was executed at the residence between 10 and 10:30 p. m., January 9, 1975, “a couple of hours” after it was issued.

      . The police picked up Mrs. Doescher’s brother before searching the house in order to comply with their promise to Mrs. Doescher.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We are mindful of the rule of Schneckloth v. Bustamonte supra, that an express warning of one’s right to refuse consent is not a condition precedent to a voluntary consent by a person not in custody. In this vein, the purpose for the prophylactic measures mandated by Miranda was to mitigate the inherent coerciveness of station house interrogations. This “reality” of law enforcement is not irrelevant to a determination of the “voluntariness” of a consent to search, especially in light of the Supreme Court’s reference to Fifth Amendment cases in Schneckloth v. Bustamonte, supra.


author: ODOM, Judge. PHILLIPS, Judge. DALLY, Judge,

text:
    Larry Gene STAFFORD, Appellant, v. The STATE of Texas, Appellee. Roy Gene GARDNER, Appellant, v. The STATE of Texas, Appellee.
    Nos. 56400, 56401.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Nov. 22, 1978.
    Rehearing Denied April 4, 1979.
    Lawrence B. Mitchell, Dallas, for appellant.
    Henry M. Wade, Dist. Atty., John H. Hagler, Joe Revesz and Jim Johnson, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

These are appeals from convictions for the burglary of a Tom Thumb grocery store in Dallas during which a large quantity of cigarettes was taken. Appellant Stafford's punishment, enhanced by two prior convictions, was assessed at life. Appellant Gardner’s punishment, enhanced by one prior conviction, was assessed at 25 years.

Appellants contend that the trial court committed error by overruling their objection to a statement made by the prosecution during final argument which they construe as a comment on appellants’ failure to testify and that such error deprived them of a fair trial.

On the morning of April 29, 1976, police officers, who knew nothing about the burglary which had occurred earlier in the morning, were stopped by a man who stated he had stayed the night at the Lawnview Motel. He reported that during the night he had observed men carrying large quantities of cigarettes into room 126. The officers went to the motel to investigate. There they came upon appellants who matched the descriptions given by the man and discovered 496 cartons of cigarettes in their room. These cigarettes were later identified as having come from the burglarized Tom Thumb store. Shortly thereafter the officers were informed of the burglary by another officer and appellants were placed under arrest.

Prosecutor’s statement during closing argument to which appellants object was as follows:

“Mr. Mitchell told you in one breath that what lawyers have to say in the case is not evidence because they’re not witnesses; that you must gain and gather your evidence from that witness stand. Those who raised their right hand and under penalty of oath swear to tell the truth so help you God. By way of example what witness took the stand and told you jurors those cigarettes were already in that room at three a. m., April 29th, 1976.
“MR. MITCHELL: Objection, Your Honor, that could be construed as a comment on the failure of the Defendant to testify.
“THE COURT: Overrule your objection.”

It is well settled in this State that the failure of accused to testify on his own behalf cannot be made the subject of comment by the prosecution. Such a comment is a violation of the privilege against self-incrimination guaranteed by Article I, Sec. 10 of the Texas Constitution and the express provisions of Article 38.08, V.A.C.C.P., which provides in part that “ . . . the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” See Bird v. State, Tex.Cr.App., 527 S.W.2d 891 and the cases cited therein. Such a comment is also a contravention of the federal constitutional guarantees against self-incrimination contained in the Fifth Amendment, made applicable to the states by the Fourteenth Amendment. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

In order for a comment made by the prosecution to violate Article 38.08, the language used when viewed from the standpoint of the jury, must make the inference that the comment had reference to defendant’s failure to testify a necessary one. “It is not sufficient that the language might be construed as an implied allusion to the accused’s failure to testify.” McDaniel v. State, Tex.Cr.App., 524 S.W.2d 68, 70.

The only testimony which bears directly on the question is that of the motel clerk on duty that morning. He testified that appellant Stafford had checked into room 126 at 3:00 a. m. on April 29, paying the double occupancy rate. He also stated that someone had rented the room for two hours earlier in the night and that at approximately 2:30 a. m. he had gotten a call from the maid who told him the room was clean.

The comment of the prosecution in the instant case directed the jury’s attention to room 126 at the Lawnview Motel at 3:00 a.m. on April 29, 1976, the time appellants checked into the motel. The question we must answer is, who could have testified as to the condition of the room at that time? Appellants certainly could have. The State contends that the comment was not necessarily directed at appellants because the maid, who was not called as a witness, could also have testified about the presence of cigarettes in the room at that time. The only basis for this contention was the clerk’s testimony that the maid had called about 2:30 a. m. to say the room was clean. The prosecutor’s arg-ument was directed at 3:00 a. m. not 2:30. The only event before the jury occurring at 3:00 a. m. was appellant Stafford’s check-in to the motel. The only persons who could have testified that there were cigarettes in the room at 3:00 a. m. were appellants. Thus, the jury’s attention was forcibly directed to the fact that appellants had not testified. The prosecutor’s argument, which must be construed as a comment on appellants’ failure to testify, violated both their constitutional and statutory rights.

The judgments are reversed and the causes remanded.

DALLY, J., dissents.

Before the Court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

PHILLIPS, Judge.

On original submission, appellants’ convictions were reversed because the prosecutor’s closing argument was considered to be a direct reference to the appellants’ decision not to testify at their trial. See Fifth and Fourteenth Amendments, U.S.Constitution; Article I, Section 10, Texas Constitution. The panel, with one member dissenting without a written opinion, carefully set forth this Court’s standard for review in such cases, reviewed the relevant testimony and argument, and reached its decision.

The State’s Motion for Rehearing was granted in order for the full Court to consider whether the original opinion remains viable when the facts set forth therein are considered in conjunction with allegedly overlooked evidence that showed the motel room to be locked. However, the evidence does not show that the motel room was locked after the maid cleaned the room at 2:30 a. m. The State relies on the motel clerk’s testimony that appellant Stafford requested a key to the room in order for him to unload some things he had. The evidence does not support the conclusion the State urges. The State argues that the evidence concerning the maid’s 2:30 a. m. report that the room was clean and Stafford’s request for a key shows there was “other evidence” supporting the prosecutor’s complained-of argument. However, the State did not frame its argument in such terms. Its argument emphasized the lack of evidence which could only be adduced from the appellants. The request for a key evinces at most a concern for the security of Stafford’s property and a desire on his part to lock what could have been an otherwise unlocked motel room. Even if the record showed the door was locked, the argument was no less direct in its reference to the failure of appellants to produce evidence peculiarly within their possession.

We therefore conclude that the original disposition of this appeal was correct and the State’s Motion for Rehearing is overruled.

DALLY, Judge,

dissenting.

Although I dissented on original submission without written opinion I dissented to the reversal of the judgment of Gardner because he did not object when the complained of argument was made; therefore, even if the argument did constitute error, which I believe it did not, the error was waived and not preserved. A new rule of law with which I cannot agree and for which no authority is cited is stated in footnote 1 as follows:

“Appellants were tried together and it is apparent from the record that the attorneys for appellants were working closely together such that the objection of Stafford’s attorney to the prosecutor’s statement is sufficient to preserve the error for Gardner as well.”

I dissented to the reversal of the judgments of both Stafford and Gardner because the prosecutor’s argument did not constitute error.

It has been said many times that:

“The rule is well established by this Court that before an argument of the prosecution will constitute a comment on the failure of the appellant to testify, the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the appellant must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion.”

Edmond v. State, 566 S.W.2d 609 (Tex.Cr.App.1978); Nowlin v. State, 507 S.W.2d 534 (Tex.Cr.App.1974); Turner v. State, 504 S.W.2d 843 (Tex.Cr.App.1974); Armstrong v. State, 502 S.W.2d 731 (Tex.Cr.App.1973); Ramos v. State, 419 S.W.2d 359 (Tex.Cr.App.1967); Richardson v. State, 172 Tex.Cr.R. 299; 356 S.W.2d 676 (1962).

The prosecutor’s statement of which complaint is made and to which Stafford’s attorney objected as as follows:

“Mr. Mitchell told you in one breath that what lawyers have to say in the case is not evidence because they are not witnesses; that you must gain and gather your evidence from the witness stand. Those who raised their right hand and under penalty of oath swear to tell the truth so help you God. By way of example, what witness took the stand and told you jurors those cigarettes were already in that room at 3:00 a. m. April 29, 1962?
“MR. MITCHELL: Objection, Your Honor, that could be construed as a comment on the failure of the defendant to testify.
“THE COURT: Overrule your objection.”

In his objection Stafford’s attorney said that the argument could be construed to be comment on the failure of the defendant to testify. This was an accurate statement. The argument could have but did not necessarily refer to the appellant Stafford’s failure to testify nor did it necessarily refer to the appellant Gardner’s failure to testify.

A maid cleaned the room at approximately 2:30 a. m. The appellants checked into the room at 3:00 a. m.

“It is often stated as a settled rule of evidence that where a person, object, relation or state of things is proved to have existed at a particular time, its continuance is presumed until the contrary is shown. This so-called presumption has been applied to a great variety of subjects including: Ownership, possession and value of property, sanity and insanity of a person, continuance of human life, continuance of partnership, incompetency of a witness, retention of an existing domicile, continuance of illicit intercourse, continuance of marriage, continuance of rules of law and equity once existing in a foreign jurisdiction, and many others.” (Footnotes omitted.) McCormick and Ray, Evidence, Sec. 81 (2d ed. 1956).

See also Bell v. State, 142 Tex.Cr.R. 106, 161 S.W.2d 109 (1942); Cook v. State, 96 Tex.Cr.R. 586, 258 S.W. 1058 (Tex.Cr.App.1924); Walker v. State, 64 Tex.Cr.R. 70, 141 S.W. 243 (1911).

The maid was not called as a witness to testify whether or not there were any cigarettes in the room at 2:30 a. m. In view of the above presumption, her testimony as to whether or not there were cigarettes in the room when she left it would have given rise to a presumption of the continuity of the existing state of things and would have had probative value. The prosecutor’s argument can well be construed as a reference to the failure to obtain the testimony of the maid rather than a reference to the failure of the appellants to testify.

I dissent to the overruling of the State’s motion for rehearing.

ONION, P. J., and DOUGLAS, W. C. DAVIS, JJ., join in this dissent.

      . Appellants were tried together and it is apparent from the record that the attorneys for appellants were working closely together such that the objection of Stafford’s attorney to the prosecutor’s statement is sufficient to preserve the error for Gardner as well.

      . Appellant Gardner admitted he shared the room with Stafford when approached by police later in the morning.