author: GODDARD, Judge.

text:
    Ronald G. WALKER, Plaintiff-Appellee, v. TENNESSEE FARMERS MUTUAL INSURANCE COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Eastern Section.
    July 19, 1977.
    Rehearing Denied Aug. 12, 1977.

      Paul Campbell, Jr., Chattanooga, for defendant-appellant.
    Jack R. Brown, Chattanooga, for plaintiff-appellee.

       Petition for certiorari not sought. Published with the approval of the Presiding Judges of the three Sections.

   OPINION

GODDARD, Judge.

Tennessee Farmers, Defendant-Appellant, appeals a judgment rendered by the Circuit Court for Hamilton County, upon a jury verdict, making award for both breach of Defendant’s insurance contract in connection with the theft of a truck owned by Ronald G. Walker, Plaintiff-Appellee, and a bad faith penalty because of Defendant’s refusal to pay.

There are 12 separate assignments of error; however, they fall into three categories: (1) failure of the Court to direct a verdict in favor of the Defendant, (2) failure of the Court to direct a verdict as to the bad faith penalty, and (3) errors in the Court’s charge to the jury.

There is little conflicting evidence regarding the material facts. The Plaintiff obtained a standard liability insurance policy from the Defendant covering a 1972 Chevrolet truck. The policy also included coverage for loss by theft. According to Plaintiff’s testimony his vehicle was stolen from the Northgate Shopping Center on August 11,1975, (the correct date is August 20, as shown by the police report) about 7:30 p. m. while he had been shopping. He reported the theft to the police department of the City of Chattanooga, and on the next day his wife also reported it to the insurance carrier’s local agent. A few days later he gave a signed written report relative to the incident, as well as a taped statement. Although he complied with all the requests and completed all the papers initially required by the company, no payment was forthcoming. About five weeks after the theft one of the Defendant’s' adjustors called him and requested that he take a polygraph test relative to the loss of the vehicle. This request was made notwithstanding the fact that the Defendant had no information at that time which would indicate that the Plaintiff was in any way involved in the loss of the vehicle, although it was later learned by discovery depositions taken some two weeks prior to trial that he had submitted to two separate charges of receiving stolen property. The first an automobile, and the second a boat and trailer. At first the Plaintiff agreed to take the test but later recanted. The Defendant again requested in a formal letter to Plaintiff in care of his attorney that the examination be taken and contended in the letter that his failure to submit to the examination was a violation of the policy and a condition precedent to recovery. Subsequent to the theft and prior to suit being filed, there were a number of contacts, generally initiated by the Plaintiff, between him and the Company. These conversations consisted only of inquiries relative to the whereabouts of the truck.

The policy, in pertinent part, provides: Named Insured’s Duties When Loss Occurs — Coverages D, E, G, H, and P. When loss occurs, the named insured also shall:
(b) upon the company’s request, exhibit the damaged property to the company and submit to examinations under oath by anyone designated by the company, subscribe the same, procure and produce for the company’s examination all pertinent records, receipts and invoices, or certified copies, if originals be lost, permitting copies thereof to be made, all at such reasonable times and places as the company shall designate.

As to the first category of assignments of error, we cannot agree with Defendant’s counsel that the language of the policy is sufficiently broad to require the policy holder to submit to a polygraph examination. As has often been said, the cardinal rule in construing contracts is to determine the intent of the parties. Bob Pearsall Motors, Inc. v. Regal Chrysler-Plymouth, Inc., 521 S.W.2d 578 (Tenn.1975); Petty v. Sloan, 197 Tenn. 630, 277 S.W.2d 355 (1955); Trailmobile, Inc. v. Chazen, 51 Tenn.App. 576, 370 S.W.2d 840 (1963), and words expressing such intent are to be given their usual, natural, ordinary meaning. Seeley v. Pilot Fire & Casualty Co., 222 Tenn. 33, 432 S.W.2d 58 (1968); Moore v. Life & Casualty Co., 162 Tenn. 682, 40 S.W.2d 403 (1931); Ansley v. Travelers Ins. Co., 27 Tenn.App. 720, 173 S.W.2d 702 (1940). In our view, upon applying the foregoing rules, the words “submit to examinations under oath by anyone designated by the company, subscribe the same,” cannot admit of the construction insisted upon by Defendant.

Additionally, we note, as shown by the cases annotated in 23 A.L.R.2d at 1306, that under the general rule, polygraph examinations, because of their unreliability, may not be used in evidence. Our Supreme Court has specifically so held in criminal cases. Grant v. State, 213 Tenn. 440, 374 S.W.2d 391 (1964); Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958).

The second category directs itself to the awarding of a bad faith penalty.

As pertinent here, T.C.A. 56 — 1105 provides:

The insurance companies of this state, and foreign insurance companies and other persons doing an insurance business in this state, in all cases when a loss occurs and they refuse to pay the same within sixty (60) days after a demand shall have been made by the holder of the policy on which said loss occurred, shall be liable to pay the holder of said policy, in addition to the loss and interest thereon, a sum not exceeding twenty-five per cent (25%) on the liability for said loss; provided, that it shall be made to appear to the court or jury trying the case that the refusal to pay said loss was not in good faith, and that such failure to pay inflicted additional expense, loss or injury upon the holder of said policy; and, provided, further, that such additional liability, within the limit prescribed, shall, in the discretion of the court or jury trying the case, be measured by the additional expense, loss, and injury thus entailed.

Under the holdings of our courts, before there can be a recovery of penalty under T.C.A. 56-1105, (1) the policy of insurance must, by its terms, have become due and payable, (2) a formal demand for payment must have been made, (3) the insured must wait 60 days after making his demand before filing suit unless there is a refusal to pay prior to the expiration of the 60 days, (4) the refusal to pay must not have been in good faith. De Rossett Hat Co. v. London Lancashire Fire Ins. Co., 134 Tenn. 199, 183 S.W. 720 (1915); St. Paul Fire & Marine Ins. Co. v. Kirkpatrick, 129 Tenn. 55, 164 S.W. 1186 (1913); Third Nat. Co. v. Thompson, 28 Tenn.App. 436, 191 S.W.2d 190 (1945).

Applying the above to the facts of the present case, we are constrained to the view that no formal demand was ever made. It is true that the Plaintiff initially completed all of the forms required by the Defendant and cooperated fully in answering questions regarding the theft. This, however, does not meet the requirements of the statute, which is penal in nature and must be strictly construed. St. Paul Fire & Marine Ins. Co. v. Kirkpatrick, supra. Thus, it is incumbent upon the Plaintiff to show compliance therewith. We also concede that had a formal demand been made in all likelihood the Defendant, relying upon its insistence relative to the polygraph test, would not have paid the claim, but we are of the opinion the Defendant was entitled to notice of the claim for bad faith and a period in which to reflect upon the consequences of its failure to pay. In addressing a similar problem our Supreme Court, in St. Paul Fire & Marine Ins. Co. v. Kirkpatrick, supra, 129 Tenn. at 72; 164 S.W. at 1190, employed this rationale:

The demand provided for in the statute is intended to operate as a fair warning to the insurer that the penalty will be claimed, on failure to pay within 60 days. It is not improper or unjust that such warning should be required. This requirement does not have any bearing upon the right of the insured to enforce the contract itself. Immediately upon the maturing of the policy under its terms, the arising of the duty to pay, the insured may bring suit to enforce the contract. The penalty statute gives an additional right. Its purpose was to supersede the necessity of suit, or, in case suit should finally have to be brought as a result of the delinquency of the insurer, then to indemnify the insured against delay interposed and defense made in bad faith; the underlying thought being that the insurers on formal demand so made would, noting the warning, thereby be induced to pay the loss without suit, in the absence of some real and bona fide defense. Is it not better that the insured should in this simple manner hasten the payment of the loss within two months than that suit should be brought immediately on the maturity of the policy, and then that the insured should be compelled by the necessary delays of litigation to wait many months, or a year, or longer?

The last category of assignments of error relates to the charge of the jury, the Defendant first insisting that it was error to leave to the jury’s determination whether the terms of the contract contemplated a polygraph examination. Assuming arguen-do this to be true, and because the language of the policy is unambiguous we are inclined to agree with counsel that it was a matter for the Court, this Court has reviewed the contract and, as above noted, reached the same conclusions as did the jury. Accordingly, the error, if any, is harmless as contemplated by T.C.A. 27-117.

The second facet of this category attacks the charge of the Court in limiting the scope of proof relative to Plaintiff’s conviction as reflecting only upon his credibility, insisting that the proof was sufficient to permit the jury to consider his criminal record in deciding “whether or not the vehicle in question had ever been stolen or whether or not it was just another arrangement of this plaintiff.” The authorities cited by the Defendant are not supportive of its position, but rather, because they hold if a witness is found to have sworn falsely in one matter the jury may disregard his testimony on other matters, supports the charge given by the Trial Court.

For all of the foregoing reasons the assignments of error directed to the bad faith penalty are sustained, and all others overruled. The judgment of the Court is modified to eliminate the bad faith penalty and, as modified, affirmed. The costs are adjudged against the Defendant and its sureties.

OPINION ON PETITION TO REHEAR

Tennessee Farmers Mutual Insurance Company, Defendant-Appellant, files a petition to rehear asserting a ground that counsel believed “inadvertently escaped the attention of the Court: THAT BEING THERE IS NO EVIDENCE TO SUPPORT THE VERDICT OF THE JURY AS TO THE AMOUNT OF THE AWARD FOR THE TRUCK OF TWENTY-TWO HUNDRED ($2200) DOLLARS.”

Counsel is correct that this point escaped our attention. We suspect it was occasioned in part because the point was not specifically assigned as error, nor addressed in the Appellant’s original brief.

Nevertheless, we have considered the question, and in view of the Plaintiff’s testimony that his vehicle was worth between $2500 and $2700, and our belief that the physical evidence rule enunciated in Lowe v. Preferred Truck Leasing, Inc., Tenn.App., 528 S.W.2d 38 (1975), is inapplicable to the facts of this case, overrule the petition.


source: Caselaw Access Project

author: PARROTT, Presiding Judge.

license: Public Domain

text:
    Stephen Gregory WALLACE and Martha J. Wallace, Appellants, v. KNOXVILLE'S COMMUNITY DEVELOPMENT CORPORATION, Johnson & Galyon, Inc., Davis-Longsworth Electric Corporation, Vreeland Associates Engineers, Inc., and Morton Sweetser & Associates, Appellees.
    Court of Appeals of Tennessee, Eastern Section.
    Feb. 14, 1978.
    Certiorari Denied by Supreme Court July 3, 1978.

      Don C. Stansberry, Jr. and Richard T. Sowell of Baker, Worthington, Crossley & Stansberry, Knoxville, for appellants.
    Meridith C. Bond of Bond, Carpenter & O’Connor, Knoxville, for Knoxville’s Community Development Corp.
    Paul E. Parker of O’Neil, Parker & Williamson, Knoxville, for Johnson & Galyon, Inc.
    William A. Young and Calvin N. Taylor of Cheek, Taylor & Groover, Knoxville, for Davis-Longsworth Elec. Corp.
    Jack M. Tallent, II, of Kennerly, Montgomery, Howard & Finley, Knoxville, for Vreeland Associates Engineers, Inc., and Morton Sweetser & Associates.
   OPINION

PARROTT, Presiding Judge.

Appellants, Stephen Gregory Wallace and his mother, Martha J. Wallace, brought this suit seeking damages for injuries suffered by Stephen when he received a severe electrical shock on January 7, 1975, while changing an outdoor light bulb on a utility pole which was a part of an overhead electrical distribution system owned and operated by Knoxville’s Community Development Corporation (KCDC) at the Walter P. Taylor Housing Project in Knoxville.

The suit charges KCDC with negligence and gross negligence in its capacity as the owner-operator of the electrical distribution system. It is alleged the distribution system was not constructed in accordance with the approved plans and specifications and the utility pole plaintiff was on at the time of the injury was constructed in violation of the National Electric Safety Code.

Also named as defendants are: Davis-Longsworth Electric Corporation, builder of the electrical system; Johnson & Galyon, Inc., general contractor; Vreeland Associates Engineers, Inc., the designer of the electrical system; and Morton Sweetser & Associates, the architects. These defendants are charged with negligent design, construction and inspection and/or supervision of the construction of the electrical system and particularly the pole plaintiff was on at the time of his injury. In an amended complaint these defendants are charged with making false representations or false certifications as to construction of the electrical distribution system.

On the grounds plaintiffs’ action was barred by the four-year statute of limitations, as provided in T.C.A. 28-314, motions for summary judgment were granted to all defendants except KCDC.

At the trial of the action against KCDC the jury returned a verdict in favor of the defendant and judgment was entered dismissing plaintiffs’ suit. From the action of the circuit judge’s overruling the motion for new trial, plaintiffs have appealed and assigned error. Plaintiffs have also appealed from the circuit judge’s order granting motions for summary judgment.

We will consider first the assignments of error directed to the circuit judge’s granting of the motions for summary judgment. It is insisted there was a genuine issue of fact concerning plaintiffs’ alleged false representations and that T.C.A. 28-314 is unconstitutional. It is undisputed the Walter P. Taylor Homes Project was completed and accepted in 1967, more than four years prior to plaintiff’s injury on January 7, 1975. We have carefully read plaintiffs’ amended complaint alleging false representations and false certification. We find no charge of fraudulent concealment that would toll the statute of limitations but only the naked allegation that the defendants knew that the electrical distribution system was not constructed in accord with the approved plans and specifications. As noted in appel-lee’s brief, whatever the condition of the electrical distribution system, and particularly the pole plaintiff was injured on, such condition was obvious and fully visible. Even if the system was not constructed in accord with the plans and specifications, the condition was not concealed or hidden but was openly visible to the plaintiff and all others. Thus, we do not see how T.C.A. 28-317, which provides that one guilty of fraud or who conceals a cause of action tolls the four-year period of limitation provided in T.C.A. 28-314, could apply to the facts as alleged in this case.

The insistence that T.C.A. 28-314 is class legislation prohibited by Article 11, Section 8, of the Constitution of the State of Tennessee and is violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States will not be considered by this Court.

The record reveals there was not a compliance with Rule 24.04 Tenn.R.Civ.P. requiring notice to be given the Attorney General when the validity of a statute is questioned. Since appellants did not properly proceed below and in the exercise of our discretion, we have entered an order declining to remand the cause for the purpose of notifying the Attorney General. We do not believe appellants are in a position to assert the unconstitutionality of the statute which has been held constitutional by the circuit judge. However, if the circuit judge had held the statute unconstitutional, we more than likely would have remanded the cause. All assignments insisting the circuit judge erred in granting the motion for summary judgment are overruled.

We will now consider the errors assigned to the KCDC trial. At the time of his injury, Stephen Gregory Wallace, 17 years of age, was employed by Professional Lighting Service who contracted with KCDC to supply material, labor and equipment for replacement of exterior light bulbs for several housing projects including the Walter P. Taylor Homes. On January 7, 1975, while changing an outdoor bulb at the Walter P. Taylor Homes project, plaintiff was severely injured by an electrical shock from a 7200 volt electrical line. Plaintiff was using a wooden 40-foot extension ladder leaned against the utility pole to replace the bulb. It was plaintiff’s testimony that at the time of the injury he had replaced the bulb and was descending the ladder when he suffered electrical shock.

Plaintiffs called as a witness Roy Martin, a qualified expert in the field of electricity, who testified in his opinion the utility pole on which Wallace was injured presented an unreasonable hazard to those working in close proximity to the high voltage wires.

Defendant called as witnesses three electrical experts who testified that the electrical distribution system at the Walter P. Taylor Homes project was safe and not in violation of any provision of the National Electric Safety Code. Also witnesses testified that the proper way to change an outdoor bulb of the type plaintiff was changing was not from a ladder but by the use of a bucket truck.

Appellants in this Court have assigned four errors: (1) The circuit judge erred in refusing to declare William Singleton a managing agent of KCDC pursuant to Rule 43.02 Tenn.R.Civ.P.; (2) The circuit judge erred in refusing appellants the right to impeach and contradict Singleton when they were surprised by answers given which were materially different from the answers given to similar questions in a pretrial deposition; (3) The circuit judge erred in commenting to the jury upon the evidence; and (4) The circuit judge erred in failing to charge the jury in regard to gross negligence.

For the reasons to be given, all assignments of error are overruled and the judgment as entered affirmed.

At the time of the trial witness William Singleton was employed by KCDC as a maintenance mechanic. At the time plaintiff suffered his injury Singleton was “acting supervisor” at Walter P. Taylor Homes. Mr. Singleton testified that there were four men under his supervision and his primary obligation was maintenance at the Walter P. Taylor Homes project, and that he was normally told what to do. Plaintiff was permitted, under Rule 43.02 Tenn.R.Civ.P., to read the deposition of David M. Rhyne who was the assistant director of maintenance for KCDC. Also, plaintiff was permitted to call as a witness Tom Howard, the director of housing for KCDC.

To our knowledge the only case dealing with a managing agent as provided under Rule 43.02 Tenn.R.Civ.P. is Seaboard Coastline RR. Co. v. Hughes, 521 S.W.2d 558 (Tenn.1975). In that case the Supreme Court said that a “managing agent” is one who “(1) Acts with superior authority and is invested with general powers to exercise his judgment and discretion in dealing with his principal’s affairs (as distinguished from a common employee, who does only what he is told to do; has no discretion about what he can or cannot do; and is responsible to an immediate superior who has control over his acts); (2) Can be depended upon to carry out his principal’s directions to give testimony at the demand of a party engaged in litigation with his principal; and (3) Can be expected to identify himself with the interests of his principal rather than those of the other party.” Applying the above standards, we find, as the circuit judge did, that Mr. Singleton did not qualify as a managing agent.

We find no merit in appellants’ assignment that the circuit judge erred in refusing to permit the impeachment of witness William Singleton because of substantial and material difference in the answers given at the trial and the answers given in a pretrial discovery deposition. It is generally accepted that a party cannot impeach his own witness but may do so when a party is compelled to call an indispensable witness or a witness that is hostile and the party has been genuinely taken by surprise. King v. State, 187 Tenn. 431, 215 S.W.2d 813 (1948); Turner v. State, 188 Tenn. 312, 219 S.W.2d 188 (1949). It is not insisted that Singleton was an indispensable witness. The record clearly shows that all things Singleton was going to be questioned about were testified to by other witnesses. Thus we do not see how plaintiffs were prejudiced by the circuit judge’s refusal to permit the interrogation of Singleton by leading questions. The trial judge is vested with wide discretion in determining whether a witness is hostile and whether counsel should be permitted to cross examine his own witness. Whaley v. State, 187 Tenn. 507, 216 S.W.2d 17 (1948); Brown v. University Nursing Home, Inc., 496 S.W.2d 503 (Tenn.App.1972). We do not find that the circuit judge abused his discretion or that his refusal to permit the plaintiffs’ witness Singleton to be cross examined by plaintiffs’ counsel was prejudicial.

Appellants insist the circuit judge erred in commenting to the jury upon the evidence and expressing his opinion to the jury concerning the professional reputation of Harry Bibee, owner of Professional Lighting Service and plaintiff’s employer. The circuit judge’s comment to the jury complained of is as follows: “Of course, in employing the independent contractor the KCDC employed, it is undisputed a person who enjoyed a good reputation as an electrical contractor, and he was licensed to do business in this state, they had a right to assume that the contractor and his employees were competent in dealing with electricity.” Appellants contend there was “substantial contrary evidence” concerning the professional reputation of Harry Bibee. This contention is based on the testimony of Earl Seivers, business manager and financial secretary of Local 760 of the International Brotherhood of Electrical Workers, who testified that “he had heard that Bibee hired high school students to perform some of his services.”

We do not see that Bibee’s practice of hiring high school students had any bearing on his professional reputation. The undisputed proof from several experts was that Harry Bibee enjoyed a good reputation in the industry. It is true that a trial judge must not charge a jury with respect to matters of fact. Article 6, Section 9, Constitution of the State of Tennessee. Parties to litigation have the right to have all issues of fact decided by the jury if the evidence is in conflict. Morgan v. Tenn. Cent. Ry. Co., 31 Tenn.App. 409, 216 S.W.2d 32 (1948). In Tevis v. Proctor & Gamble Distributing Co., 21 Tenn.App. 494, 113 S.W.2d 64 (1938), plaintiff, while engaged in hauling moonshine liquor, was involved in an automobile accident. The trial judge, in his charge to the jury, commented on the fact that plaintiff was injured while hauling liquor. This Court said:

It was a fact proven in the case, and, being such, was open to comment by the court. And unless his comments on this feature of the evidence constituted such positive error as to be prejudicial to plaintiff’s rights, then no reversal should be granted for this reason. We fail to find any such prejudice, and this assignment of error is overruled.

See also Farquhar v. Toney, 24 Tenn. 502 (1844), and the criminal case of Conboy v. State, 2 Tenn.Crim.App. 535, 455 S.W.2d 605 (1970).

We do not believe the circuit judge’s remark was improper, and even if it was, such was not so prejudicial as to be reversible error but only harmless error. T.C.A. 27-117.

The final assignment insists it was error for the circuit judge not to charge gross negligence. We note at the close of the charge the circuit judge asked if there were any further special requests and an off-the-record conference was held at the bench. Further, it is noted that appellants offered no special requests asking the court to charge the law pertaining to gross negligence. Early after the adoption of the Tennessee Rules of Civil Procedure there seems to be some confusion as to the meaning of that part of Rule 51.02 which provides that “failure to make objection shall not prejudice the right of a party to assign the basis of the objection as error in support of a motion for a new trial.” The recent case of Henry County Board of Education v. Burton, 538 S.W.2d 394 (Tenn.1976), our Supreme Court put to rest any doubt as to the meaning of the rule and clearly stated the counsel’s responsibility in making special requests.

The second portion of Rule 51.02, to the effect that failure to object does not constitute waiver of errors in the instructions, is entirely consistent with and in fact preserves the pre-existing practice in this state, prior to the adoption of the Rules of Civil Procedure. It has long been the rule in this state that positive error in jury instructions could be assigned for the first time on motion‘ for new trial, regardless of whether objection had been made or a special request submitted.
Some changes in previous practice had been incorporated in Rule 51.01, with respect to the appropriate time for tendering special requests for jury instructions, but Rule 51.02 neither contemplated nor accomplished any change in previous practice with respect to assignments made on a motion for new trial.
This is not to suggest that the doctrine of waiver has no application in this and in other areas of trial practice. Counsel are expected to assist the trial court at all stages of litigation. Both the rules of waiver and considerations of harmless error, announced in cases decided prior to the adoption of the Rules of Civil Procedure, still obtain. We approve the following statement by this Court made many years ago:
“. . . counsel engaged in a trial should aid the court by calling his attention to an abstraction or an inadvertence in delivering his instructions to the jury, and, where they fail to do so, this court will not reverse unless convinced that the party complaining has [been] prejudiced by such instruction, or that justice is about to miscarry.” Carney v. Cook, 158 Tenn. 333, 13 S.W.2d 322, 325 (1929).

Another and more pertinent reason the circuit judge should not have charged gross negligence is that, although pleaded, there was no evidence to support a charge of gross negligence. It has always been the rule that unless there is evidence to support the charge, the party is not entitled to such a charge. Goodman v. Hicks, 15 Tenn.App. 231 (1931); Wilburn v. Vernon, 60 Tenn.App. 436, 447 S.W.2d 382 (1969).

Let the costs be taxed to appellants.

SANDERS and GODDARD, JJ., concur.


author:
DAUGHTREY, Judge.
      DWYER, Presiding Judge,

text:
    George Leonard LEDFORD, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 16, 1978.
    Certiorari Denied by Supreme Court June 12, 1978.

      Tyrus H. Cobb, Gerald R. Grizzell, Shel-byville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, James S. Kidd, Dist. Atty. Gen., Fa-yetteville, Rondal T. Wilson, Asst. Dist. Atty. Gen., Shelbyville, William N. Lloyd, Special Prosecutor, Lewisburg, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, George Leonard Ledford, was indicted for second degree murder as the result of his wife’s death at their rural Marshall County home on the night of May 26, 1976. Upon the defendant’s motion, venue was transferred to Bed-ford County, where Ledford was subsequently tried and convicted by a jury of second degree murder and was sentenced to 30 years imprisonment. On appeal, the defendant raises multiple assignments of error, the most serious of which concern (1) the sufficiency of the evidence to support the verdict, (2) the trial court’s failure to grant a mistrial following the prosecutor’s comment during closing argument on the defendant’s failure to take the stand, and (3) the exclusion of certain entries in the defendant’s hospital records. For the reasons set out below, we conclude that the case must be remanded for a new trial.

The factual issues litigated at trial were sharply drawn. It was the State’s theory that Ledford shot his wife and then set about to make it look as if the crime had been committed by an unknown intruder. The defense theory was that a burglar had forced open the kitchen door to the Ledford home, and, in some order, murdered Mrs. Ledford, beat Mr. Ledford senseless, and ransacked the house. Ledford, semi-conscious, bloodied and apparently beaten, was found in his kitchen the next morning by a tenant farmer. Whether his wounds were self-inflicted, as the State contended, or were sustained as the result of an assault by an unidentified assailant, as the defendant maintained, thus became the central issue of the trial.

The defendant was hospitalized as a result of his wounds, and, in a statement to police shortly after the homicide, he said that he and his wife had returned from an early evening visit and that he had gone to bed at 9:30 p. m., leaving his wife in the den watching television. He said that he was later awakened by a masked intruder who threatened him and beat him until he lost consciousness. He claimed that he could remember nothing until he came to in the hospital. (An ambulance attendant later testified that Ledford was not unconscious when transported to the hospital, because he was not completely limp; the attending physician, however, described Ledford as “comatose” on his arrival at the hospital.) Ledford maintained in his statement to police that he did not hear any shots fired. Medical testimony indicated that Mrs. Led-ford died from two .38 caliber gunshot wounds to the head, either one of which was fatal, both entering near her left ear and exiting through her right ear canal. An autopsy performed on the victim also turned up a six inch laceration to her scalp, which she suffered prior to her death from the gunshot wounds.

The defendant’s brother, Carl Ledford, had himself been indicted and acquitted of murdering his wife prior to the homicide in this case. During those proceedings, Leonard Ledford had been made his brother’s conservator, and had subsequently been sued by his brother for an accounting. That lawsuit resulted in a $13,000 chancery judgment against the defendant, which remained unsatisfied at the time of the victim’s death in this case. In his statement to police, Leonard Ledford said that before physically attacking him, his assailant demanded to know the whereabouts of the “Carl money”. It was the defendant’s additional theory that his wife had been killed because her interest in the farm property as a tenant by the entirety was an impediment to the successful execution of a lien against the property in satisfaction of the judgment secured by Carl Ledford.

Although there was no evidence whatever of any ill will between the defendant and his wife, the State made an unsuccessful attempt to show an improper relationship between the defendant and his middle-aged bookkeeper, and then argued to the jury that Ledford’s motive in killing his wife was to secure clear title to the farm property-

The State also introduced proof that in early July, some six weeks after the murder and at about the same time the local grand jury was scheduled to meet, the defendant left Marshall County and went to Dayton, Ohio, where he registered at a motel under an assumed name. When no indictment was returned, the Marshall County Sheriff swore out an arrest warrant on July 17, and the defendant was arrested in Ohio and brought back to Tennessee. (An indictment was returned against him the following November.) The State insists that the defendant’s conduct amounted to flight and that this circumstantial evidence, together with the fact that he was the only known witness to the murder, is sufficient to sustain the jury’s verdict, assuming the jury aecept-ed the State’s theory that the defendant’s wounds were self-inflicted. The defendant offered no explanation at trial for his so-called “trip to Ohio.”

In addition, the State produced three expert witnesses from the F.B.I.’s laboratory in Washington, D. C., who testified concerning tests conducted on some 32 items of physical evidence submitted to them, including wood splinters, hair samples, fingernail scrapings, pillows and other items of furnishing, blood samples, floor scrapings, rug fibers, clothes taken from the victim and the defendant, a .38 caliber gun and six .38 caliber bullets found in the Ledford home, and bullet fragments and slugs involved in the shooting. The resulting testimony was a virtuoso demonstration of expertise, but it produced not a single item of direct evidence tending to inculpate the defendant and only one item of arguably incriminating circumstantial evidence: an expert testified that one of the two bullets which caused the victim’s death had the same composition as one of the six bullets found in the Ledford home, from which the expert deduced that the two bullets were probably produced by the same manufacturer out of the same “batch.” The manufacturer, however, produces some 16 million bullets a day, according to the expert’s testimony.

The murder weapon was never identified.

It is clear that the State’s case was built entirely on circumstantial evidence, and we know of no better way to describe it than to say it was an extremely close case at best. There was uncontroverted proof that the Ledfords’ kitchen door had been forced open and that the house had been partially ransacked. The police testified that because some drawers had been rummaged while others were left unopened, and because the alleged ransacking in some instances appeared to have been done “neatly,” they came to disbelieve the defendant’s “mysterious intruder” story. They also concluded that the defendant’s wounds were “probably” self-inflicted, theorizing that the defendant had used a twisted coathanger to flail himself on the shoulders and down his back, producing pronounced red welts so severe as to have the appearance of cuts. The coathanger was introduced into evidence, as was a picture of the defendant’s wounds with the coathanger superimposed over one of the welts. While this photograph tends to establish that the wounds were inflicted with the coathanger, it sheds little or no light on the question of who inflicted the wounds. Indeed, although it appears possible that one might be able to hit oneself on the back with the coathanger in question, the very inflexibility of that object would likewise appear to preclude the infliction of wounds as severe and extensive as those depicted in photographs introduced by the State.

Nevertheless, the jury accepted the State’s theory and returned a guilty verdict. A review of the evidence suggests to us that the State’s circumstantial case probably was not sufficiently strong or cogent enough to rebut every reasonable theory other than the defendant’s guilt, which is, of course, the applicable jury standard in a prosecution based solely on circumstantial evidence. But this court does not sit as a jury on appeal, and we must measure the evidence by a different standard, i. e. whether the proof preponderates against the verdict and in favor of the defendant’s innocence. State v. Brown, 551 S.W.2d 329 (Tenn.1977). Measuring the proof against that standard, we are unable to hold that the judgment must be reversed on the insufficiency of the evidence alone.

However, we are concerned that the jury was influenced in reaching its verdict by certain other errors at trial, and given the relative weakness of the State’s case, we are unable to say that these errors did not affect the outcome of the trial. The most serious error involved a comment by the prosecutor on the fact that the defendant did not testify in his own defense.

During the opening segment of the State’s closing argument, the following colloquy occurred:

General Kidd: Also, that anything referring to the defendant’s statement would be the defendant’s statement, of course, that he gave our law enforcement officers here, at that time. And of course, not referring to his failure to testify. Then, or not testifying_ (Interrupted)
Mr. Cobb: Please the Court, we except to that statement, and move for a mistrial.
General Kidd: Certainly, anything I say -(Interrupted)
The Court: One moment, please! Ladies and gentlemen of the Jury: Ignore the statement just made by the District Attorney General. It was an improper statement. He should have known better! No reference at all can be made to the failure of the defendant to testify. He has the Constitutional Right not to testify. It’s his decision to make. The burden of proving the guilt of the defendant remains upon the State beyond a reasonable doubt. Alright. Proceed. Mr. Kidd.
General Kidd: We thank, Your Honor, for that.
The Court: Right.
General Kidd: And anything referring to a statement of the defendant is certainly to the one given to the law enforcement officers, and that alone. Because we certainly do not want to violate any Constitutional Rights, or any Rights of the defendant.

The impropriety of any comment upon a defendant’s exercise of the Fifth Amendment right not to testify is so well settled as to require little discussion. The United States Supreme Court dealt with the question in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); O’Connor v. Ohio, 385 U.S. 92, 87 S.Ct. 253,17 L.Ed.2d 189 (1966); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968), and Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968). Furthermore, Tennessee law provides that the “failure of the party defendant ... to testify in his own behalf, shall not create any presumption against him.” T.C.A. § 40-2403. See also Tenn.Const., Article 1, Section 9. Our Supreme Court has said many times that adverse comment or argument based upon a defendant’s failure to testify may be reversible error. Smithson v. State, 127 Tenn. 357, 155 S.W. 133 (1913); Staples v. State, 89 Tenn. 231, 14 S.W. 603 (1890). See also Huckaby v. State, 3 Tenn.Cr. 84, 457 S.W.2d 872 (1970); McCracken v. State, 489 S.W.2d 48 (1972). The rule is clear, and, as the trial judge in this case noted, the comment was “improper” and the prosecutor “should have known better.”

In Morris v. State, 537 S.W.2d 721 (Tenn.Crim.App.1976), this court dealt with a situation very similar to the one now before us. There the prosecutor told the jury, “. . . I’m not commenting on the fact that the defendant didn’t take the stand, because that is his God-given right . ..” 537 S.W.2d at 723. In holding that this statement resulted in reversible error, the Morris court noted that “[sjometimes it is more effective to get across a message in a negative manner” and held that “in the very telling the jury that he was not commenting on the fact the defendant didn’t take the stand, the prosecuting attorney most emphatically was making such comment.” 537 S.W.2d at 723.

Having determined that the initial comment constituted error, it next becomes our task to decide whether the cautionary instructions given by the trial judge were sufficient to cure the error so thoroughly as to render it harmless beyond a reasonable doubt. For it was in Chapman v. United States, supra, in the context of a violation of the very Fifth Amendment right involved here, that the United States Supreme Court laid down its rule for determining whether or not constitutional error may be considered harmless in a given case. There the adverse comment by the prosecuting attorney on the defendant’s failure to testify was held not to be harmless. According to the Chapman court, “before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 386 U.S. at 24, 87 S.Ct. at 828.

Reviewing this record, we do not believe that the standard announced in Chapman has been met. We are especially concerned because, taking the improper comment in context, there appears to be absolutely no justification for the prosecution to have done anything more than to identify the statement in question as the one given to police by the defendant. It was totally unnecessary to go farther and attempt to distinguish from a non-existent statement at trial. We believe the attempt to do so makes untenable any “good faith” argument on behalf of the prosecutor.

We note also several other disturbing aspects of the prosecution’s argument. In its closing segment, the State propounded to the jury what we consider to be a prejudicially erroneous explanation of the reasonable doubt standard, saying, in effect, that if the jury “knows” the defendant is guilty, but concludes that the State has failed to prove its case, the jury must nevertheless convict the defendant because the State has actually proved its case — otherwise the jury could not “know” the defendant was guilty. The Assistant District Attorney then closed his final argument by calling on the jury to convict the defendant so that “. . . Leonard Ledford won’t be walking the streets like [his brother] Carl.” To imply to the jury that they should convict one person in order to make up for what the State considered to be a wrongful acquittal of another person is, of course, so reprehensible and inflammatory that the prejudicial effect of such an argument can hardly be calculated.

We are doubly concerned with the inflammatory and prejudicial argument in this case because of the wholly circumstantial and rather insubstantial nature of the proof of guilt against the defendant. As we said in Judge v. State, 539 S.W.2d 340, 346:

While the evidence here preponderates in the State’s favor on appeal, this case was a very “close” one at trial when viewed by the reasonable doubt standard. Therefore, the prejudicial impact of the statement on the jury is likely to have been greater than it would have been had evidence of the defendant’s guilt been overwhelming, (citations omitted).

Finally, in determining that the improper argument in this case cannot be viewed as harmless beyond a reasonable doubt, we note also that there is another error in this record which may have had a cumulative effect on the jury’s verdict. In ruling on the admissibility of the defendant’s hospital records, the trial court deleted several entries at the State’s request, apparently on the ground that they called for an opinion which the recording nurse and physician were not qualified to give. Among these notations were the following entries: “badly beaten [by what app’rs 2½ " belting c metal tipping:’ “voided [urine] involuntarily”; “states fainted at funeral home”; “due to attack”; “apparently beaten.”

We recognize the discretion of the trial judge to exclude from hospital record “any portions which are objectionable.” Graham v. State, 547 S.W.2d 531, 538 (Tenn.1977). But under the Graham decision the “qualifications of the individual preparing the record may be inquired into, may be challenged, or may be disputed but this goes to weight and not to admissibility.” 547 S.W.2d at 538. We think it is clear that most of the excluded entries should have been presented to the jury, for whatever probative value they may have had. The one exception is the notation “States fainted [at] funeral home,” which on its face constitutes double hearsay and, therefore, must satisfy some exception to the hearsay rule beyond the business records exception in order to be admissible. E. Cleary, McCormick on Evidence, § 313 (2d ed. 1972).

We thus conclude that the assignments of error related to the prosecutor’s improper argument and the admissibility of the hospital records must be sustained. We are of the further opinion that the error involved was such as to deprive the defendant of a fair trial, and that the case must be remanded for retrial.

The defendant’s two remaining assignments of error require only brief mention. The trial court did not err in admitting the photograph of the defendant’s body with the twisted coathanger, later introduced into evidence, superimposed over one of the wounds. The photograph was relevant and not inflammatory, and it was therefore admissible. Furthermore, the trial court’s instruction on the law of tenancy by the entirety, while somewhat unique in a criminal trial, was not erroneous per se and covered a legal issue which had been raised by both parties to the lawsuit. However, if a similar instruction is given upon retrial, we suggest that it be carefully worded so as to avoid any possible implication that it constitutes a comment on the evidence by the trial judge.

The judgment of the trial court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

DWYER, P. J., and RUSSELL, J., concur.

DWYER, Presiding Judge,

dissenting.

I am in respectful disagreement with my colleagues as to the remand of this record. If one fact was apparent in this homicide trial to all, and in particular to the jury, it was the fact that appellant did not testify. Whether comment is made or not on this fact, that fact is and was apparent to the jury. In short, our law prohibits such comments by the attorney general; however, counter-balancing of such error must under our law be obtained through immediate curative instructions by the court.

While I cannot condone nor pardon the attorney general for venturing either directly or indirectly into this forbidden territory, I cannot say that his error was prejudicial under the facts and circumstances •found in this record. There is a line of authority in this State that holds when an objection is made and sustained coupled with prompt instructions the error is cured. Hambrick v. State, 181 Tenn. 544, 181 S.W.2d 957 (1944); Williams v. State, 218 Tenn. 359, 403 S.W.2d 319 (1966); Huckaby v. State, 3 Tenn.Cr. 84, 457 S.W.2d 872, 875 (1970); French v. State, 489 S.W.2d 57, 60 (Tenn.Cr.App.1972); King v. State, 1 Tenn.Cr.App. 137, 430 S.W.2d 810 (1968); Buchanan v. State, 2 Tenn.Cr. 398, 454 S.W.2d 178, 182 (1970); Squires v. State, 525 S.W.2d 686, 694 (Tenn.Cr.App.1975); Tooley v. State, 1 Tenn.Cr. 652, 448 S.W.2d 683, 687 (1969). Or, more adroitly stated in Morrison v. State, 217 Tenn. 374, 390, 391, 400 S.W.2d 239 (1966):

. . We must conclude that the jury made up of citizens of high intelligence, fair minded men and women, and jurors who adhere to the rulings of the court, because the court has their respect, were told and knew that they use the court as a witness as to what the law is and more or less should and do take the law as given them by the court. The court is their witness as to what this is; they have respect for him and heed what he says. This being true, when these questionable questions are asked, objections sustained to them and the jury told not to consider them, this clearly is nonprejudicial and is no basis for a reversal.” (Emphasis added.)

There is a presumption of law that a jury does not disregard the court’s instructions not to consider inadmissible evidence. Howard v. State, 501 S.W.2d 573 (Tenn.Cr.App.1973), accord, Klaver v. State, 503 S.W.2d 946, 950 (Tenn.Cr.App.1973). In O’Brien v. State, 205 Tenn. 405, 418, 419, 326 S.W.2d 759, 765 (1959), the following may be found:

“. . . the court instructed the jury to disregard any question about anything which may have affected a jury in a former trial. As far as the record shows this ended the matter until the motion for new trial was filed. Wé think of course that we cannot assume that the jury considered the evidence to the prejudice of the plaintiff in error and we certainly cannot say that the jury disregarded the instruction of the trial judge. The fact of the matter is all presumptions are to the contrary." (Emphasis added.)

Conjunctive with the previous cited cases, there is another line of authority that holds despite curative instructions of the trial court, the reviewing court must weigh the complained of evidence in the context of the whole record. That if there is doubt as to its prejudicial impact, that doubt must be resolved in favor of the appellant. Blankenship v. State, 219 Tenn. 355, 410 S.W.2d 159 (1966), in accord, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Huffman v. State, 3 Tenn.Cr. 124, 458 S.W.2d 29 (1970). Further, this court has indicated that sustaining defendant’s objection and curative instructions may not always result in automatic cure; reasoning that additional steps, such as admonishing the prosecutor, may be necessary to remove prejudice. Judge v. State, 539 S.W.2d 340, 345, 346 (Tenn.Cr.App.1976). Accordingly, in this case the trial judge sustained defendant’s objection, issued immediate curative instructions, and admonished the prosecutor thus removing any resultant prejudice.

With the above in mind I note the majority has found the convicting evidence to be sufficient and with the jury not assessing the maximum punishment, I think the error was harmless.

A review of the United States Supreme Court decisions supporting the majority reversal: Griffin v. United States, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, supra; Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968) reveals that the comment on defendant’s failure to testify was sanctioned by the California State Constitution, as follows:

Art. I § 13: “In any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury.”

Due to the evident disparity of applicable law of California and Tennessee, the application of these cases to the instant ease is questionable. The above cited United States Supreme Court cases as well as Anderson v. Nelson, 390 U.S. 523, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968), reveal that, unlike here, the court charged the jury that inferences of guilt could be inferred from the failure of the defendant to testify coupled with the prosecutor’s reliance on such a charge resulting in a free-swinging argument filled with remarks concerning the inferences to be drawn when the defendant did not testify. The prejudice which resulted in those cases is a far cry from the innocuous comment of the attorney general here, and quickly cured by the trial court.

As stated in Anderson v. Nelson, supra, this error cannot be harmless when: (1) there are extensive comments of the failure to testify; (2) when guilt is stressed by that silence as a basis of conviction; and (3) where there is evidence that could have supported acquittal. There were not extensive comments here and no stressing of guilt by defendant’s silence and the majority has found the evidence of guilt to be sufficient.

I would, in conclusion, hold that the comment by the attorney general which prompted an objection with resulting curative instructions and reiteration of that instruction to the jury in its charge cured any error. In short, the error was harmless beyond a reasonable doubt. In other words, with reliance on the prompt instructions given by the court coupled with his charge of law not to draw any inference from the appellant’s failure to testify I have no hesitation in holding and believing under our system of law that the jury of fair-minded citizens sworn to give this appellant a fair trial accepted the rebuke of the Attorney General by the court and heeded the prompt instructions of the court. While I have expressed myself that the error was harmless beyond a reasonable doubt, I must also relate that I have qualms about this “reasonable doubt” rule of Chapman v. California, supra, in this record. First, the jury has found beyond a reasonable doubt that the appellant was guilty. The appellate court evaluates that in the light of whether the evidence preponderates against his guilt and in favor of his innocence. Second, in Chapman v. California, supra, with the Constitution of California permitting inferences to be charged and permitting the prosecutor to have a free-swinging argument on defendant’s failure to testify, I can understand why an appellate court before holding that type charge and argument harmless error must do so by expressing it was not prejudicial beyond a reasonable doubt. Third, our State Constitution contains no such provision, our trial court made no such type charge, the prosecutor made no such type argument. Fourth, with the court rebuking the prosecutor, promptly charging not to consider it to the jury with further instructions in his charge I have a serious doubt that I must, under those circumstances, use the “reasonable doubt rule” of Chapman, supra, to say the error was harmless; nevertheless, as stated, I am satisfied that the single comment was not prejudicial error. In passing, to hold as the majority would preempt curative instructions and every inadvertent or questionable statement of the prosecutor would be an automatic reversible error.

The other segment on the prosecutor’s argument about reasonable doubt (the court’s charge amply explained this necessary question of proof that the State must meet before they could return a verdict of guilty) and the portion of that argument concerning appellant’s brother walking the streets (there was evidence that his brother had been acquitted of killing his wife and appellant’s statement reflected that he felt his brother was guilty), not being objected to there is no error. Sherman v. State, 125 Tenn. 19, 47, 140 S.W. 209 (1911); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Casone v. State, 193 Tenn. 303, 246 S.W.2d 22 (1952); Staggs v. State, 210 Tenn. 175, 357 S.W.2d 52, 55 (1962).

Lastly, the majority holds the court erred by excising portions of the hospital records, as follows: “due to attack”; “apparently beaten”; “badly beaten”; “voided involuntarily”. I find no error in the court excluding the “opinions” of witnesses who were not properly qualified. Covey v. State, 504 S.W.2d 387, 392 (Tenn.Cr.App.1973). Admittedly, the hospital record is admissible when offered as here by the qualified keeper conforming to the mandates of T.C.A. 24-714; however, admissibility of statements contained therein is not solely authenticated in this manner. Opinion, conclusion and other objectionable statements may properly be excised either in whole or in part as here according to other recognized rules of evidence. Graham v. State, 547 S.W.2d 531, 538 (Tenn.1977). There was, I think, no abuse of discretion by the trial court in excising the objectionable terms from those records.

I would affirm this conviction.

      . Not only was the remark wholly improper, but the severity of its potentially prejudicial effect was increased by the fact that it was couched in terms of the defendant’s failure to testify rather than his right not to take the ' stand. The word “failure” may well have conveyed to the jury the feeling that the defendant was somehow shunning an obligation, morally, if not legally, to take the stand and explain away certain circumstances pointing to his guilt. Unfortunately, the cautionary instruction given to the jury at that time reemphasized this approach, as did the final charge to the jury, wherein the trial judge again spoke of the defendant’s “failure” to testify.

      . This is particularly true since it appears that the redacted exhibit as it went to the jury included several entries based on opinion of the same nature as those excluded, and thus were equally objectionable. It further appears that only the ones helpful to the defendant were excluded, a process which may well have violated the defendant’s right to a fair hearing. Cf. Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973).


author: GREENHILL, Chief Justice.

text:
    BAYOU PIPELINE CORPORATION, Appellant, v. RAILROAD COMMISSION of Texas and Walter Van Norman, Appellees.
    No. B-7029.
    Supreme Court of Texas.
    Jan. 25, 1978.
    Hart & Hart, James P. Hart and Joseph H. Hart, Austin, Sanford W. Likover, Bel-laire, for appellant.
    John L. Hill, Atty. Gen., Marvin Sentell, Asst. Atty. Gen., Scott & Douglas, James N. Cowden, Austin, for appellees.
   GREENHILL, Chief Justice.

Bayou Pipeline Corporation brings this direct appeal from a judgment of the 53rd District Court of Travis County. As plaintiff in the district court, Bayou Pipeline Corporation [hereinafter Bayou] sought a permanent injunction against the enforcement of a Railroad Commission order dated November 23, 1976. Briefly summarized, this order directed Bayou to transport natural gas belonging to Walter Van Norman at a rate of 4.07 cents per thousand cubic feet [mcf]. The district court denied the injunction and declared that the Railroad Commission’s order was in all things valid. Invoking this court’s jurisdiction under Arti-ele 1738a and under Rule 499a, Texas Rules of Civil Procedure, Bayou presents two questions of law for our determination: first, whether the Railroad Commission had authority to fix transportation rates to be charged by Bayou, and second, whether the rate established by the Commission was determined by the correct standard. We hold for the appellees, the Railroad Commission and Walter Van Norman, on both points; and we affirm the judgment of the district court.

The present dispute had its beginnings with a mineral lease assignment from Walter Van Norman to Bertman Gas & Oil Corporation [hereinafter “Bertman”]. In 1971, Van Norman assigned to Bertman a working interest in the Gephardt, et a1, Lease in Jefferson County, Texas. Van Norman reserved, in kind, a 22½ percent of 8/8ths overriding royalty interest in the oil and gas produced from the lease. Under the terms of the assignment, Bertman assumed the obligation of delivering Van Norman’s share of the oil and gas production to market along with Bertman’s share. Since 1971, all of Van Norman’s and Bert-man’s production from the Gephardt Lease has been transported from the wellhead by Bayou Pipeline Corporation. Bayou, a wholly owned subsidiary of Bertman, owns and operates an eight and one half mile long pipeline system in Jefferson and Chambers Counties. The gas produced from the Gephardt Lease is transported by Bayou some two miles to a 20-inch pipeline owned by Union Texas Petroleum Corporation, a division of Allied Chemical Corporation. The delivery point on the 20-inch line is known as the “Jackson Pasture” delivery point.

Following the assignment to Bertman, Van Norman entered into a contract to sell his 22½ percent of the gas produced from the Gephardt Lease to Allied Chemical Corporation. The contract price was, in effect, 26 cents per mcf, and the gas was to be delivered at the Jackson Pasture delivery point. Bertman sold its 77½ percent of the gas produced to Bayou, at the wellhead, for a price of 22 cents per mcf. Bayou then transported the gas to the Jackson Pasture delivery point, where Bayou sold it to Allied Chemical Corporation for 26 cents per mcf. Van Norman’s gas was transported along with Bertman’s and, pursuant to his assignment to Bertman, Van Norman paid no transportation charge for the delivery of his gas.

Both Van Norman’s and Bayou’s gas sale contracts with Allied Chemical Corporation expired April 27, 1975. At that time, Bayou and Bertman entered a new sales contract in which Bertman agreed to sell its share of the gas produced from the Ge-phardt Lease to Bayou, at the wellhead, for approximately $1,438 per mcf. Bayou in turn, entered into a contract to sell that portion of the gas to Lo-Vaca Gathering System, at the Jackson Pasture delivery point, for approximately $1.89 per mcf. Van Norman also contracted to sell his share of the gas to Lo-Vaca, at the Jackson Pasture delivery point, for $1.89 per mcf. Bayou has continued to transport both Bertman’s and Van Norman’s gas, but Bayou now looks to Van Norman for payment of transportation charges with respect to his share.

Whether Bertman remains obligated to cover the cost of transporting Van Norman’s gas to market is the subject of other litigation between Bertman and Van Norman. The immediate dispute came into being because the transportation charge initially demanded by Bayou was considered by Van Norman to be excessive. As the parties were unable to agree upon a “fair and reasonable” transportation rate, Van Norman applied to the Railroad Commission for the establishment of such a rate. His application was placed on the Commission’s Gas Utilities Docket, No. 633; and a full hearing was held before an Examiner, with both parties presenting argument and evidence.

On November 23,1976, the Railroad Commission rendered an order containing findings of fact and conclusions of law. Among the Commission’s most significant findings were: (1) that Bayou owns and operates a natural gas pipeline which crosses public roads; (2) that the fair value rate base of Bayou’s transmission properties is $23,-781.00; (3) that, with tax liability and with total operating expenses of $45,011.00, a total revenue of $47,473.00 is required for Bayou to earn an 8% rate of return on the fair value rate base; and (4) that, with the annual delivery volume Bayou can reasonably expect, a transportation rate of 4.07 cents per mcf will produce revenues of $47,-473. Neither party here contends that these findings are not supported by the evidence.

In its conclusions of law, the Commission determined: (1) that Bayou is a gas utility within the meaning of Art. 6050, et seq., (2) that the Commission has authority to fix a reasonable transportation rate to be charged by Bayou, (3) that the Commission has authority to compel Bayou to transport natural gas at the prescribed rate, and (4) that an 8% rate of return on the quoted fair value rate base is a fair and reasonable rate of return. The Commission proceeded to order Bayou to transport Van Norman’s gas from the Gephardt Lease to the Jackson Pasture delivery point at the rate of 4.07 cents per mcf. Bayou sought judicial review of this order in the District Court pursuant to the Administrative Procedure and Texas Register Act, Art. 6252-13a § 19. As noted above, the District Court upheld the order.

In its first point of error before this court, Bayou asserts that the Railroad Commission had no jurisdiction to regulate the transportation rate to be charged by Bayou. To reach this position, Bayou places what we feel is an unwarranted construction on certain provisions of the Public Utilities Regulatory Act, Art. 1446c [hereinafter PURA].

All parties to this dispute agree that the Cox Act, Art. 6050, et seq., gives the Railroad Commission authority to regulate transportation rates to be charged by pipelines such as Bayou. The term “utility” is defined in Article 6050 to include companies

. . (2) owning or operating or managing a pipeline for the transportation or carriage of natural gas ... if said line or any part thereof is laid upon, over or under any public road or highway of this State .

Bayou does not challenge the Railroad Commission’s finding that Bayou’s pipelines do cross public roads. Article 6053, headed “Regulation of Utilities,” provides, in relevant part:

The Commission after due notice shall fix and establish and enforce the adequate and reasonable price of gas and fair and reasonable rates of charges and regulations for transporting, producing, distributing, buying, selling, and delivering gas by such pipelines in this State.

This provision clearly encompasses the activity carried on by Bayou, and it therefore authorizes the Railroad Commission to establish and enforce “fair and reasonable rates” to be charged by Bayou for transporting natural gas through its pipelines.

Bayou argues, however, that this authority of the Railroad Commission was eliminated, at least as to “gas gathering pipelines,” by the enactment of PURA. There are several stages to this argument. First, Bayou describes itself as a “gas gathering pipeline” and contends that such pipelines are excluded from the definition of “utilities” in PURA, Art. 1446c § 3(c). Bayou then looks to Section 90(a) of PURA, which provides for the repeal, effective September 1, 1976, of specific enumerated statutes and of “all other laws and parts of laws in conflict with this Act.” Bayou concludes that, because “gas gathering lines” are excluded from the definition of utilities in PURA, and are included in the definition of utilities in the Cox Act, those portions of the Cox Act which give the Railroad Commission jurisdiction over gas gathering pipelines are repealed.

Bayou’s argument is based on its position that under PURA, gas gathering pipelines are not utilities. Article 1446c § 3(c) is the provision relevant here; and this section includes in the definition of “utility” and “public utility” any non-municipal corporation which owns or operates for compensation in Texas, equipment or facilities for:

(3) transmitting or distributing combustible hydrocarbon natural or synthetic natural gas for sale or resale in a manner which is not subject to the jurisdiction of the Federal Power Commission under the Natural Gas Act (15 U.S.C.A., Section 717, et seq.) (“gas utilities” hereafter) provided that the production and gathering of natural gas, the sale of natural gas in or within the vicinity of the field where produced, the distribution or sale of liquified petroleum gas, and the transportation, delivery, or sale of natural gas for fuel for irrigation wells or any other direct use in agricultural activities is not included. [Emphasis ours]

The basic point of contention between the parties to this lawsuit is whether “the production and gathering of natural gas” constitutes ones or two excluded activities.

Bayou strongly urges that the word “and” between “production” and “gathering” should be read as “or,” so that a company engaged in either production or gathering of natural gas is excluded from the PURA definition of utility. In support of this argument, Bayou relies on Peacock v. Lubbock Compress Company, 252 F.2d 892 (5th Cir. 1958), and other cases in which courts have construed the word “and” in a statute to mean “or.” While there may be circumstances which call for such a construction, ordinarily the words “and” and “or” are not interchangeable. In Board of Insurance Commissioners v. Guardian Life Insurance Co., 180 S.W.2d 906 (Tex.1944), this court adopted the following language from 3 C.J.S. 1068 [now 3A C.J.S. 452-453], as stating the correct rule as to interpreting “and” to mean “or.”

‘This construction ... is never resorted to except for strong reasons and the words should never be so construed unless the context favors the conversion; as where it must be done in order to effectuate the manifest intention of the user; and where not to do so would render the meaning ambiguous, or result in an absurdity; or would be tantamount to a refusal to correct a mistake.’

The court in that case held that the proposed rewording of the statute in question would result in judicial legislation rather than judicial interpretation; and the word “and” was construed to mean “and.”

Bayou has not demonstrated that substituting “or” for “and” between “production” and “gathering” in Article 1446c § 3(c)(3) is necessary to effectuate the Legislature’s intent or to prevent an ambiguity, absurdity, or mistake. To the contrary, there is reason to believe that the Legislature expressly intended to exclude from PURA’s definition of “utility” those entities engaged in both production and gathering of natural gas.

In the first place, if “gathering” is to stand alone, “production” must also stand alone, and there was no need for the Legislature to exclude “production” from a definition which refers to the transmission and distribution of natural gas; clearly gas cannot be transmitted or distributed until produced.

Second, we consider the construction that has historically been placed upon the definition of “utility” in the Cox Act, Art. 6050 § 2, quoted above. While this definition would appear to include any pipeline system which crosses public roads, two Attorney General’s opinions have construed the definition as not including gathering systems operated by gas producers simply as an incident to their business of gas production, even though such systems did cross public roads. Atty.Gen.Op. 0-3524 — A (1942); Atty.Gen.Op. WW-625 (1959). In the former opinion, the Attorney General described as a “natural and fundamental law of the gas producing business” the fact that a gas producer may need to construct a gathering system to deliver his gas to a purchaser. The opinion concluded that “. . .a producer is not engaged in the pipeline business just because he must necessarily use pipes to gather his product for marketing.” Atty.Gen.Op. 0-3524-A (1942), p. 5. The Attorney General reasoned that the Legislature was aware of the “fundamental laws” of the gas production business when it enacted Art. 6050, and we feel that the Legislature was also aware of such laws when it enacted Art. 1446c § 3(c)(3). The combined activities of production and gath-. ering have traditionally been distinguished from other pipeline operations, and it is more than reasonable to infer that the combined activity is what the Legislature meant to exclude from PURA’s definition of “utility.”

Because we reject Bayou’s contention that Article 1446c § 3(c)(3) excludes gathering systems, such as Bayou, from the PURA definition of “utility,” it is unnecessary to address the remaining arguments raised under Bayou’s first point of error. Since gas gathering pipelines may be considered as utilities in both PURA and the Cox Act, the conflict Bayou alleges between the statutes does not exist.

In its second point of error, Bayou asserts that even if the Railroad Commission did have jurisdiction to fix a transportation rate to be charged by Bayou, the Commission used an incorrect standard in establishing the rate of 4.07 cents per mcf for the transportation of the gas about two miles from the wellhead to the major pipeline connection. We disagree. As evidenced by the Commission’s findings of fact and conclusions of law, summarized above, the Commission arrived at this rate by determining a fair return on the fair value rate base of Bayou’s transmission properties. This was in line with the standard which is codified in PURA, Art. 1446c §§ 39 and 40, as follows:

Sec. 39. In fixing the rates of a public utility the regulatory authority shall fix its overall revenues at a level which will permit such utility to recover its operating expenses together with a reasonable return on its invested capital.
Sec. 40(a) The regulatory authority shall not prescribe any rate which will yield more than a fair return upon the adjusted value of the invested capital used and useful in rendering service to the public.

See, Railroad Commission of Texas v. Houston Natural Gas Gorp., 155 Tex. 502, 289 S.W.2d 559 (1959), sometimes known as the City of Alvin case. Bayou does not contend that the fair value rate base or expense figures used by the Commission are unsupported by the evidence, nor does Bayou contend that 8% is not a fair rate of return. Further, Bayou does not contend that it has become significantly more expensive to transport gas from the Gephardt Lease. Essentially, Bayou’s position is that the pipeline company providing transportation services should get a share of the huge increase in the price of natural gas. To support this position, Bayou looks to Art. 6053, which authorizes the Railroad Commission to “establish a fair and equitable division of the proceeds of the sale of gas between the companies transporting or producing the gas and the companies distributing or selling it.” Assuming that this provision is applicable to the situation here, a rate which makes a “fair and equitable division of the proceeds” must nevertheless comply with the “fair return” standards codified in PURA.

The judgment of the district court is affirmed.

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


author: JOHNSON, Justice.

text:
    Earl BROUSSARD et ux., Relators, v. Honorable David A. DUNN et al., Respondents.
    No. B-7170.
    Supreme Court of Texas.
    Feb. 15, 1978.

      D. H. O’Fiel, Beaumont, for relators.
    Dugas & Kelley, Donald B. Kelley, Orange, for respondents.
   JOHNSON, Justice.

This is an action for writ of mandamus brought against the Honorable David A. Dunn, District Judge of the 163rd Judicial District of Orange County, Texas. Relators are Earl and Judith Broussard and they seek an order directing the issuance of a writ of mandamus directing Judge Dunn to vacate and expunge from the record his order of October 17, 1977, which granted a new trial and set aside a judgment theretofore rendered. The writ prayed for will be conditionally issued against Judge Dunn.

The Broussards brought suit against Herbert and Carolyn King in the 163rd District Court of Orange County, Texas on July 14, 1977. Although citation was duly served on July 18, 1977, the Kings failed to answer or to appear in court. A default judgment was rendered against the Kings on August 29, 1977, after a hearing and the presentation of evidence. Thereafter, on September 19, 1977, the Kings filed a motion to set aside the judgment and a hearing thereon was conducted on September 26, 1977. By letter to counsel for the Kings under the date of October 11, 1977, Judge Dunn indicated he would grant the motion for new trial and a judgment to that effect should be prepared. On October 17, 1977, the order setting aside the former judgment and granting a new trial was signed and entered by the court.

The Broussards contend the order setting aside the default judgment and granting a new trial is a nullity and is void as it was entered after the trial court’s jurisdiction over this matter had terminated and the original judgment had become final. The Broussards maintain that the Kings’ motion to set aside the judgment was in substance a motion for a new trial and was necessarily governed by the time limitations of Rule 329b, Texas Rules of Civil Procedure.

Rule 329b(5) provides as follows:

“Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. The failure of a party to file a motion for new trial within the ten (10) day period prescribed in subdivision 1 of this rule shall not deprive the court of jurisdiction to set aside a judgment rendered by it, provided such action be taken within thirty (30) days after the judgment is rendered. The filing of a motion for new trial after ten (10) days have expired and before thirty (30) days have expired since the rendition of the judgment shall not operate to extend the court’s jurisdiction over the judgment for a period of more than thirty (30) days from the date of the rendition of judgment.’’ [Emphasis added.]

This court has previously recognized that Rule 329b(5) governs motions to set aside default judgments. Tindall v. Rhodes, 493 S.W.2d 733 (Tex.1973). By the express provisions of this Rule a default judgment becomes final thirty days after rendition of such judgment. Under the provisions of Rule 329b, the trial court is not precluded from acting upon a motion for new trial filed after the prescribed ten-day period as long as the court acts upon the motion prior to the judgment becoming final: that is, prior to thirty days after rendition of the judgment. Rule 329b(5) specifically points out that the filing of a motion for new trial after ten days from the rendition of the judgment does not in any manner extend the court’s jurisdiction over the judgment beyond the thirty-day period prescribed by the Rule.

In the instant case the default judgment against the Kings was rendered on August 29, 1977, and became final thirty days thereafter on September 29, 1977. The court failed to act upon the pending motion to set aside the judgment within the thirty-day period as prescribed by Rule 329b since it did not attempt to enter any order until October 17,1977. The court’s original judgment, however, had become final on September 29, 1977, and the trial court lost jurisdiction to set aside the judgment after that date. Accordingly, the order setting aside the default judgment and granting a new trial is of no effect and is void.

This court assumes that Judge Dunn will vacate and expunge his order of October 17, 1977, which purports to set aside the original judgment and to grant a new trial. In the event Judge Dunn should fail to do so, the writ of mandamus will issue.


author: PER CURIAM.

text:
    George J. CESHKER, Petitioner, v. BANKERS COMMERCIAL LIFE INSURANCE COMPANY, Respondent.
    No. B-7306.
    Supreme Court of Texas.
    April 5, 1978.

      Jackson D. Wilson, II, John 0. MaeAyeal, Dallas, for petitioner.
    Mullinax, Wells, Mauzy & Baab, Oscar H. Mauzy, Dallas, for respondent.
   PER CURIAM.

ON APPLICATION FOR WRIT OF ERROR

George J. Ceshker instituted this suit against Bankers Commercial Life Insurance Company for alleged deceptive advertising and for damages that are authorized by section 16 of article 21.21 of the Texas Insurance Code. The court of civil appeals has ruled that the word “person” as used in sections 2 and 16(a) of article 21.21 of the Code means and is limited to one “engaged in the business of insurance.” In affirming the trial court’s summary judgment for the defendant, the court of civil appeals held that the plaintiff Ceshker did not have standing to sue and also that the summary judgment proofs showed as a matter of law that Ceshker was not adversely affected by the advertising. Tex.Civ.App., 558 S.W.2d 102.

We disapprove the holding which construed the Code to limit the term “person” to one who is engaged in the business of insurance. The judgment of the court is correct, however, for the other reason and we accordingly refuse the application for writ of error, no reversible error. Rule 483, Tex.R.Civ.P.


text:
    LONE STAR GAS COMPANY, Petitioner, v. The HOWARD CORPORATION, Respondent.
    No. B-7160.
    Supreme Court of Texas.
    May 3, 1978.
    Joe N. McClendon, Jackson, Walker, Win-stead, Cantwell & Miller, Jack Pew, Dallas, for petitioner.
    Roach & Robertson, John L. Roach and Myra E. Little, Dallas, for respondent.
   PER CURIAM.

Howard Corporation entered into a contract with Lone Star whereby Lone Star purchased substantial quantities of gas from Howard at a particular price. The contract contained a “favored nations” clause. Under the substance of this clause, Howard would be paid an increased price for gas if Lone Star purchased gas from others in the same designated area at a higher price than that payable to Howard and when “such [other] price was payable for gas of like character to that being purchased from Howard, and that the gas was taken under substantially similar provisions ..” [Emphasis ours.] The provisions of the contract are set out more fully in the opinion of the Court of Civil Appeals. 556 S.W.2d 372.

The case was tried to the court without a jury. The court found that the above conditions were present; i. e., that Lone Star had paid a higher price to others for gas taken under substantially similar provisions for gas of like character. The court, therefore, held that Lone Star was obligated to pay Howard the higher price. Judgment, after a remittitur, was entered for Howard. The judgment was affirmed.

We granted writ of error to review the “no evidence” points of Lone Star; i. e., that there was no evidence that the gas was of like character or that it was taken by Lone Star under substantially similar provisions.

After having heard oral arguments in connection with the written briefs, it is the opinion of this court that there is evidence to support the fact findings of the trial court. The Court of Civil Appeals, therefore, reached a correct result.

The factual determinations, and this review, are based on the contract in question. It is not, therefore, necessary to apply, or to reach, the test applied in Louisiana-Nevada Transit Co. v. Woods, 393 F.Supp. 177, by a federal district court of Arkansas in 1975.

We also agree with the holding of the Court of Civil Appeals as to attorneys’ fees.

Accordingly, the court is of the opinion that the writ of error was improvidently granted. The order granting the writ is set aside; and the writ of error is refused, no reversible error.


author: BARROW, Justice.

text:
    Mary Hollingsworth WILLIAMS et al., Petitioners, v. Dorris HOLLINGSWORTH et al., Respondents.
    No. B-7375.
    Supreme Court of Texas.
    May 24, 1978.

      Jack K. Smith, Corsicana, for petitioners.
    Bondurant & Tubb, William L. Bondu-rant, Arlington, Morehead, Sharp, Tisdel & White, Erwin Davenport, Plainview, for respondents.
   BARROW, Justice.

Mary Hollingsworth Williams, John L. Hollingsworth, Jr., William B. Hollings-worth and Jack Hollingsworth, who are children of John L. Hollingsworth, a deceased son of lone D. Hollingsworth, filed suit in the Probate Court of Tarrant County to set aside the probate of the will of said lone D. Hollingsworth. The will gave each of the contestants $100 and, after making certain specific devises and bequests to Borden B. Hollingsworth, divided the residue of the estate equally between Borden and Dor-ris Hollingsworth, the surviving sons of decedent. Answers were filed on behalf of Borden B. Hollingsworth, individually and as independent executor of the estate, and Dorris Hollingsworth.

Contestants and the independent executor appeared when the case was set for trial and announced to the court that they had entered into a settlement of the controversy whereby contestants would receive the sum of $8,000 from the residue of the estate and the will would otherwise stand as probated. The probate court rendered judgment pursuant to this settlement agreement after receiving written approval of the judgment by the attorneys for contestants and the independent executor. Dorris Hollings-worth was not present or represented at the hearing, and upon learning of the agreed judgment, he perfected this appeal. The court of civil appeals held that the agreed judgment was not proper and that contestants had abandoned their contest of the will by failing to introduce any evidence. It reversed the judgment of the probate court and ordered that contestants’ cause of action be dismissed. 559 S.W.2d 111. We reverse the judgment of the court of civil appeals and remand the cause to the probate court.

The court of civil appeals correctly held that in the absence of any agreement in conformity with Rule 11, Tex.R.Civ.P., between all parties or their attorneys, the probate court erred in awarding contestants the sum of $8,000 from the residue of the estate. It is a settled rule that a valid consent judgment cannot be rendered by a court when consent of one of the parties thereto is wanting. Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288 (1951). Neither Dorris Hollingsworth nor his attorney consented to this agreed judgment although one half of the settlement proceeds was to be paid from his part of the residuary. He timely perfected this appeal and the consent judgment was properly set aside.

The court of civil appeals erred, however, in concluding that contestants had abandoned their contest of the will and in rendering judgment that the cause be dismissed. This erroneous conclusion was based on the rule established prior to the abolishment of trial de novo in the district court. Jury trials were not available at that time for probate matters in the county court and there was a tendency for some contestants to offer as little of their evidence as possible in the county court so as to save the main thrust of their contest for the district court trial. However, since the burden of proof is upon the contestant in a suit to set aside an order admitting a will to probate, the rule developed that, if a contestant failed or refused to offer evidence in the county court in support of his cause of action, he had abandoned his suit and he lost his right to assert his cause of action in the district court. See Cullinan v. Cullinan, 154 Tex. 247, 275 S.W.2d 472 (1955); Erisman, The Contested Will Case, 1 St. Mary’s L.J. 37, 41 (1969).

We doubt that the rule of abandonment remains viable with the abolishment of the right to a trial de novo in the district court. In any event, it is clear that contestants here did not abandon their contest. To the contrary, they clearly presumed that they had settled the dispute by reducing the settlement to a judgment which was approved and signed by the attorneys for contestants and for the independent executor.

The judgment of the court of civil appeals is reversed and the cause is remanded to the probate court.

      . Rule 11 states: “No agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.”

      . Article 5, Section 8 of the Texas Constitution was amended on November 6, 1973 to give district courts concurrent original jurisdiction with the county courts in addition to the appellate jurisdiction and general control over probate matters which they had been granted previously. The amendment also gave the Legislature the discretion to expand or reduce the


author: ODOM, Judge. DOUGLAS, J.,

text:
    John T. FLORIO, Appellant, v. The STATE of Texas, Appellee.
    No. 54084.
    Court of Criminal Appeals of Texas, Panel 2.
    July 12, 1978.

      Robert C. Roe, Jr., Fort Worth, for appellant.
    Tim Curry, Dist. Atty., Marvin Collins, J. R. Molina, James G. Bennett and Mike E. Frederick, Asst. Dist. Attys., Fort Worth, for the State.
    Before ONION, P. J., and DOUGLAS and ODOM, JJ.
   ' OPINION

ODOM, Judge.

This is an appeal from a conviction for aggravated robbery; punishment, enhanced by one prior felony conviction, was assessed at sixty years.

In his first ground of error appellant contends the trial court erroneously disallowed a question he sought to ask the jury panel during voir dire in order to exercise his peremptory challenges intelligently. The record reflects:

“MR. ROE [defense counsel]: All right, let me ask this question to the panel as a group. Now, is there any member of this panel who regardless of what the evidence showed in any case could not believe that a police officer was intentionally telling a lie from the witness stand?
“MR. MOLINA: Your Honor, we’re going to object. Their role is to test the credibility.
“THE COURT: Would you mind stating that question again?
“MR. ROE: The question is: Is there any member of this jury that regardless of the evidence showed in any case could not believe that a police officer was intentionally—
“THE COURT: I’ll sustain the objection.
“MR. ROE: —telling a lie.
“THE COURT: I won’t even consider the question. I’ll sustain the objection.
“MR. ROE: Note our exception.”

In Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, a virtually identical question was disallowed by the trial court, and reversal resulted. The question there was:

“Is there any member of the panel who, regardless of what the evidence showed in any case, could not believe that a police officer was telling a willful falsehood from the witness stand?”

The trial court in its discretion may place reasonable time limits on the length of voir dire examination, and within such limits the defendant may examine each prospective juror individually and pose questions about any proper area of inquiry. The right to pose such questions is part of the right to counsel under Article 1, Section 10, Texas Constitution, in order that peremptory challenges may be exercised intelligently. Emanus v. State, 526 S.W.2d 806; Abron v. State, Tex.Cr.App., 523 S.W.2d 405; Smith v. State, Tex.Cr.App., 513 S.W.2d 823; Cook v. State, Tex.Cr.App., 398 S.W.2d 284. Furthermore, denial of-a proper question cannot be harmless error:

“Appellant is entitled to knowledge of the answers, regardless of content, to ensure knowing challenges. Mathis v. State, 167 Tex.Cr.R. 627, 322 S.W.2d 629 (1959). If the question is proper, an answer denied prevents intelligent use of the peremptory challenges and harm is shown.” Smith v. State, supra. (Emphasis added.)

The question here was proper, and on authority of Hernandez v. State, supra, reversible error is shown.

The judgment is reversed and the cause remanded.

DOUGLAS, J.,

dissents for the reasons stated in the dissenting opinion in Hernandez v. State, Tex.Cr.App., 508 S.W.2d 853, 855.


author: ODOM, Judge.

text:
    Raul Garza VILLALOBOS, Appellant, v. The STATE of Texas, Appellee.
    No. 54666.
    Court of Criminal Appeals of Texas, Panel 3.
    July 12, 1978.
    Terrence A. Gaiser, Houston, Lester Van Slyke, Jr., Richmond, for appellant.
    William A. Meitzen, Dist. Atty., Richmond, for the State.
    Before ROBERTS, ODOM and TOM G. DAVIS, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for murder; punishment was assessed at twenty-five years.

Appellant requests reversal of his conviction for error committed when the trial court overruled his objection to jury argument made by the prosecutor in his opening argument at the conclusion of the guilt stage of the trial. The record reflects:

Prosecutor: “I don’t think that self defense is adequate for this case. I don’t believe, as you were charged, this defendant has the justification of self defense and I don’t think you ought to find it. I am going to ask you to find him guilty. I believe he is just as guilty as he can possibly be.
“[Defense counsel]: Your Honor, we object to the prosecutor interjecting his personal opinion to the defendant’s guilt.
“THE COURT: Overruled.”

In Baldwin v. State, Tex.Cr.App., 499 S.W.2d 7, the Court wrote:

“Though not briefed as a ground of error, we note that in argument the prosecutor stated, T think that he’s guilty.’ An objection that such a statement improperly allowed the prosecutor to state his own opinion was overruled. The objection should have been sustained. Such argument is outside the realm of proper summation.”

The argument in the instant case likewise was improper and the objection should have been sustained.

The State cites Sikes v. State, Tex.Cr.App., 500 S.W.2d 650, and Ramos v. State, Tex.Cr.App., 419 S.W.2d 359, and asserts the argument was based on the record. Although in its brief the State asserts that throughout his argument the prosecutor qualified his remarks with the words “I think the evidence shows,” the State does not refer this Court to where such qualifying remarks appear in the record, and our own examination of the record reveals no such qualifying remarks in proximity to the argument quoted above.

Although appellant testified to shooting the deceased, no other witnesses observed the shooting, and appellant presented a case of self defense. The State’s case in opposition to the claim of self defense was circumstantial. In view of the issues at trial we are unable to say the improper argument was harmless beyond a reasonable doubt.

The judgment is reversed and the cause remanded.


author: VOLLERS, Judge.

text:
    Zachary KNIGHTEN, Appellant, v. The STATE of Texas, Appellee.
    No. 57238.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 12, 1978.
    Garry 0. Smith, Lubbock, for appellant.
    Alton R. Griffin, Dist. Atty. and Phil Gamble, Asst. Dist. Atty., Lubbock, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

The motion to revoke probation was filed alleging that appellant had violated the terms and conditions of his probation by intentionally and knowingly operating a motor vehicle without the effective consent of the owner. On May 17, 1977 a hearing was held upon the motion to revoke probation. At the conclusion of the hearing the court revoked probation, assessed appellant’s punishment at confinement in the penitentiary for a term of four years and pronounced sentence. It is from this revocation that the appellant appeals.

By ground of error number two the appellant complains that the evidence is insufficient to show that he knowingly and intentionally operated a motor vehicle without the owner’s effective consent and the trial court abused its discretion in revoking his probation upon the evidence presented to it.

The evidence reflects that on September 11, 1976 the appellant entered into a rental agreement with Dollar Rent a Car Systems for the rental of the automobile in question. The agreement was that when he took the car shortly after 2:00 in the afternoon it was to be returned by 6:00 p. m. on the same evening. He did not return it. The car was recovered some ten days to two weeks later in Dallas. The person who rented the car to appellant said that appellant did not have permission to use it after 6:00 p. m. on the evening in question.

It appears that the appellant’s contention is well taken and that the evidence is insufficient to show that appellant operated the automobile in question without the permission of the owner. There is absolutely no evidence in this record that the appellant had ever operated the automobile in question after 6:00 p. m. on the date in question. It is uncontroverted that he had permission to operate the automobile until 6:00 p. m. on that date. There is no testimony that it was in his possession on any later date in Dallas or anyplace else. The record simply will not support the conclusion that appellant operated the automobile in question after 6:00 p. m. on the date in question and therefore the trial judge abused his discretion in revoking appellant’s probation.

The judgment of the trial court is reversed.


text:
    Bobby Joe BISHOP, Appellant, v. The STATE of Texas, Appellee.
    No. 57512.
    Court of Criminal Appeals of Texas, Panel No. 3.
    July 12, 1978.
    James M. Pape, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Calvin A. Hartmann and Frank Harmon, Asst. Dist. Attys., Houston, for the State.
    Before ROBERTS, PHILLIPS and VOL-LERS, JJ.
   OPINION

VOLLERS, Judge.

Appellant was charged by indictment with the offense of delivery of a controlled substance. Upon motion of the State the prosecution was reduced to the lesser included offense of possession of a controlled substance. Upon a plea of guilty before the court the appellant was found guilty and his punishment was assessed at confinement for a period of six years and a fine of $1,000.

In his only ground of error the appellant contends that the indictment was fundamentally defective in that it failed to allege an offense because the Texas Controlled Substances Act does not specifically list cocaine as a controlled substance. Omitting the formal allegations, the indictment alleged that

“Bobby Joe Bishop, hereinafter referred to as the Defendant, heretofore on or about February 13, 1976, did then and there unlawfully, knowingly and intentionally deliver to John Tanner a controlled substance, namely cocaine.”

Appellant’s contention overlooks the provisions of Article 4476-15, Section 2.04, V.A.C.S. which provides that Schedule II substances shall consist of any of the following substances, however produced:

“(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, but not including decocainized coca leaves or extractions which do not contain cocaine or ecgonine.”

There is a similar definition contained in Section 4.02(b)(3)(D) placing cocaine in Penalty Group I of the Controlled Substances Act.

Where this definition specifically includes any compound or derivative of coca leaves but excludes decocainized coca leaves or extractions which do not contain cocaine there is a necessary implication in the definition that cocaine is a derivative of or preparation from, coca leaves. This inference is strengthened by the prior provision of Article 725b, V.A.P.C. (1925) which was the predecessor of the Texas Controlled Substances Act where coca leaves were defined as including “cocaine and any compound, manufacture, salt, derivative, mixture, or preparation of cocoa leaves, except derivatives of coca leaves which do not contain cocaine . . . ”

In connection with this contention appellant also contends that the evidence is insufficient to show that cocaine is a controlled substance. This contention is without merit because the appellant stipulated and personally testified to the fact that he did “intentionally and knowingly possess a controlled substance, namely cocaine.”

Appellant’s contention that the indictment in this cause is fundamentally defective is overruled. Judgment of the trial court is affirmed.