author: CULLEN, Commissioner.

text:
    Ronald Dale OVERSTREET, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1975.
    Rehearing Denied May 23, 1975.
    Anthony M. Wilhoit, Public Defender, Joe A. Jarrell, Asst. Public Defender, Frankfort, Joseph S. Freeland, Paducah, for appellant.
    Ed Hancock, Atty. Gen., Guy C. Shearer, Asst. Atty. Gen., Frankfort, for appel-lee.
   CULLEN, Commissioner.

Donald Dale Overstreet appeals from a judgment which sentenced him to a term of 15 years in the penitentiary pursuant to a verdict finding him guilty of first-degree involuntary manslaughter, under KRS 435.-022(1), in a prosecution arising out of an automobile collision involving Overstreet’s car and another, in which an occupant of the other car was killed. Overstreet’s sole ground for reversal is that the trial court erred in reading to the jury, over his objection, the provisions of subsections (4) and (5) of KRS 189.520, which in substance are that in a prosecution for operating a vehicle while under the influence of intoxicating beverages, evidence that there was 0.10 percent or more by weight of alcohol in the defendant’s blood, as shown by chemical analysis, creates a presumption that the defendant was under the influence of intoxicating beverages.

A chemist testified in the instant case that a chemical analysis of Overstreet’s blood showed an alcohol content of 0.28 percent. The trial court would not permit the witness to answer questions as to how much alcohol a person would have to consume to produce that percentage, or the amount of alcohol a body would burn up in a particular period of time. However, the court thereupon proceeded to read the statute to the jury.

The statute obviously is intended to facilitate proof of the fact of drunkenness in drunken-driving cases. While proof of the results of the chemical analysis is still required, the statute eliminates the necessity of further expert testimony as to what state of sobriety or insobriety is indicated by the results of the analysis. However, the statute is confined by its terms to prosecutions for the statutory offense of operating a vehicle under the influence of intoxicating beverages, which is a misdemeanor punishable by a fine of not more than $500.

It is our opinion that the foregoing statute, which provides a convenience for the benefit of the prosecution in a limited type of misdemeanor case, cannot reasonably or fairly be extended to provide the same convenience for the prosecution in cases of a more serious character, such as the one here involved for first-degree involuntary manslaughter, a felony carrying punishment of imprisonment up to 15 years. Accordingly, we conclude that it was error for the trial court to read the statute to the jury in the instant case.

We find unqualified support for our view in the cases from other jurisdictions which have reached substantially the same conclusion under similar statutes. See People v. Manning, 7 A.D.2d 1008, 184 N.Y.S.2d 240; People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138; Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314; Fossum v. Zurn, 78 S.D. 260, 100 N.W.2d 805; State v. Aarhus, 80 S.D. 569, 128 N.W.2d 881.

A special reason for caution as concerns the scope of application of the statute in question arises from the fact that under Kentucky practice the presumption provided for by the statute is the only presumption of fact, essential to establish guilt of a crime, of which the trial court is permitted to inform the jury. See Marcum v. Commonwealth, Ky., 483 S.W.2d 122.

Although, as stated, this court finds that the reading of the statute to the jury was error, the court is not persuaded that the error was prejudicial. The evidence was that Overstreet had pursued a course of erratic driving approaching the scene of the accident, and that the accident resulted from his crossing over to the wrong side of the road, for no apparent reason, and running head-on into the victim’s car. There was ample evidence that he was drunk, from the testimony of witnesses who observed him after the accident. He produced no evidence to weaken the prosecution’s case, his story being only that he could not remember the circumstances of the accident or anything that had occurred for a week before the accident. In these circumstances we believe that the reading of the statute was not calculated to have had any significant impact on the jury’s verdict.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Helen M. NEAL, Administratrix of the Estate of Rickie Carl Black, Deceased, Appellant, v. CELINA MUTUAL INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    March 7, 1975.
    Rehearing Denied May 23, 1975.

      Edward T. Ewen, Jr., William P. Hurley, Jr., Louisville, for appellant.
    William A. Miller, Louisville, for appel-lee.
   CULLEN, Commissioner.

A small pistol accidentally fell from Robert McCue’s pocket, hit the floor and discharged a bullet, which hit Rickie Carl Black, causing his death. Black’s administrator sued McCue for damages for wrongful death, and recovered a judgment for approximately $32,000. The judgment not being satisfied, the administrator brought the instant action against Celina Mutual Insurance Company, asserting liability of that company to pay the judgment under a homeowner’s liability policy it had issued to McCue. Among other defenses, Celina relied on a “business pursuits” clause in its policy, which stated that the liability provisions of the policy did not apply.

“ * * * to any business pursuits of an Insured, except * * * activities therein which are ordinarily incident to nonbusiness pursuits.”

The circuit court, apparently being persuaded of the validity of that defense, entered summary judgment dismissing the complaint. Black’s administrator has appealed. We are affirming the judgment because it is our opinion that the accident did occur in the course of McCue’s business pursuits.

McCue operated a gasoline service station. Black was one of his employes, customarily working the evening shift, which ended at 10 p. m. On Saturday, November 2, 1968, after the close of business at 10 p. m., Black and two other employes went into the station office for the purpose of receiving their wages for the week and settling up for gasoline and other things the employes had purchased during the week from the station, on credit, for their personal use. McCue and his bookkeeper were there. The procedure was that a check had been drawn to each employe for the amount of his wages; he would endorse the check and give it back to McCue, who would then deduct from the amount of the check the sum owed by the employe and pay him the difference in cash. On the occasion in question one of the employes received his money and left. Black was given his check; he endorsed it and handed it back to McCue, who proceeded with the assistance of the bookkeeper to determine how much cash Black was due after deducting what he owed for gasoline, etc. In the process of giving Black the cash, some change fell on the floor and McCue stooped over to pick it up. It was then that the pistol fell from his shirt pocket and discharged the shot that killed Black.

The appellant administrator argues first that the accidental shooting of the pistol was not incident to the business pursuit of running a service station, in that the shooting of guns is not necessary in the operation of a service station. That argument employs a misconception of the exclusion clause. Of course accidents of any kind are not business pursuits in themselves; the exclusion clause plainly has reference to accidents that occur in the carrying on of a business pursuit.

The appellant’s second argument is that the business pursuit of paying wages to Black had ceased at the time of the accident, and the parties then were involved in the purely personal pursuit of settling Black’s personal debt to McCue. This argument likewise is without merit. Even if it be considered that the transaction in which Black was being paid his wages less what he owed for gasoline, etc., could be divided into a series of separate transactions, by some kind of second-splitting divider, the fact still would remain that Black’s debt to McCue for gasoline, etc., which was being settled at the moment of the accident, was a debt owed to McCue’s business. Black was a customer of Mc-Cue’s business in that regard, and certainly the collection by McCue of accounts receivable to his business was a business pursuit. The appellant suggests that paying the account was not a business pursuit of Black’s, but that is not the question; the exchtsion clause of the policy refers to business pursuits of the insured.

The cases relied upon by the appellant in support of her arguments are not in point. In Jackson v. Lajaunie, La.App., 253 So.2d 540, the gun was pointed and the trigger was pulled intentionally, in horseplay, which was held to be a deviation from the business pursuit of operating a filling station. Likewise, in Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687, and in State Farm Fire & Casualty Co. v. National Union Fire Insurance Co., 87 Ill.App.2d 15, 230 N.E.2d 513, the accident occurred in horseplay constituting a deviation from business. The decision in Security National Insurance Co. v. Sequoyah Marina, Inc., 10 Cir., 246 F.2d 830, actually refutes the appellant’s argument because it held that although the injured workman (in repairing the insured’s pleasure boat) was engaged in a business pursuit as far as he was concerned, the activity was not a business pursuit of the insured. So, here, even though the payment of his account was not a business pursuit of Black’s, the collection of the money was a business pursuit of McCue’s, the insured. We do not find any applicability at all of Michigan Mutual Liability Co. v. Ferguson, 15 Mich.App. 298, 166 N.W.2d 525, which merely held that shoveling snow from the roof of a building in which a mercantile business was carried on was not in pursuit of the mercantile business.

The judgment is affirmed.

All concur.


author: JONES, Justice.

text:
    Ralph STEPHENS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 21, 1975.
    Rehearing Denied May 23, 1975.

      Lewis A. White, White & Peck, Mt. Sterling, for appellant.
    Ed W. Hancock, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

Ralph Stephens was convicted on a charge of dwelling-house breaking. In conformity with the jury’s verdict, Stephens was sentenced to 6 years in the state penitentiary.

The record on appeal has been certified to this court pursuant to an agreed statement. RCr 12.72. Stephens presents three questions for this court’s consideration. First, he contends that the magistrate of District #2, Rowan County, Kentucky, had no authority to issue a search warrant from the Rowan Quarterly Court. There is no contrariety in the testimony presented on a hearing to suppress the evidence. It is admitted that Calvin R. Lytle, the magistrate of District #2, issued the search warrant about which Stephens complains. The search warrant was styled:

“The Commonwealth of Kentucky In The Rowan Quarterly Court Of Morehead, Kentucky.”

The search warrant described the location of the Ralph Stephens residence. It commanded the officer or officers to search the residence for various weapons, men’s suits, and rare-type coins ranging from pennies to silver dollars. The search warrant closed with the following statement:

“ . . . and if you find same or any part thereof, to bring it forthwith before me or any other court in which the offense in respect to which the property or things taken is triable, or retain such property in your custody subject to the order of such court.
Witness my hand the 18th day of July, 1974.
s/ Calvin R. Lytle
Judge? Magistrate District #2 Rowan Court
Morehead, Kentucky County.”

There is no merit in Stephens’ contention that only the county judge of Rowan County, or under certain circumstances, the county judge pro tern of Rowan County, had the legal authority to issue a warrant from the Rowan Quarterly Court, because we think the warrant was not in fact issued out of the Rowan Quarterly Court. The warrant was issued by Lytle in his official capacity as a magistrate.

“A search warrant may be issued, upon affidavit sufficient under section 10 of the constitution of Kentucky and sworn to before the issuing officer, by a magistrate, or by any other officer authorized by statute.” RCr 13.10.

Lytle, after signing the warrant as magistrate of District #2, Rowan County, blocked out the word “Judge,” with the letter “x.” He did the same in the jurat on the affidavit and signed it as Calvin' R. Lytle, Magistrate, District #2, Rowan County, Kentucky. The failure of the magistrate to cross out the words, “In the Rowan Quarterly Court of Morehead, Kentucky,” under the designation, “The Commonwealth of Kentucky,” did not affect the validity of the warrant.

Next, Stephens attacks the qualifications of Lytle. He contends that the magistrate had no knowledge of the Fourth Amendment of the United States Constitution. He argues also that the magistrate did not understand the meaning of “probable cause.” Lytle’s testimony reveals that he read both the warrant and the supporting affidavit. He then determined that there was “reasonable cause” to issue the warrant.

Section 10 of the Kentucky Constitution and the Fourth Amendment to the Federal Constitution are practically the same in guaranteeing citizens freedom in their persons, houses, papers and possessions against unreasonable searches and seizures. They each provide that no warrant shall issue for a search except upon probable cause supported by affidavit.

It is true that Lytle had not read recent Supreme Court cases dealing with search warrants. He had not committed to memory the Fourth Amendment of the United States Constitution. It is doubtful that he could have recited the Ten Commandments in proper sequence. If these were prerequisites to the qualification of a judicial officer to issue a warrant, the whole process of criminal justice would require restructuring. Magistrate Lytle is a constitutional officer. Sec. 142 Kentucky Constitution. He is authorized to issue search warrants. Magistrate Lytle did not possess a “judicial mind” such as did the eminent jurists Learned Hand and Oliver W. Holmes. However, the evidence convinces this court that he knew what constituted probable cause sufficient for the issuance of the warrant.

Finally Stephens attacks the sufficiency of the search warrant because it did not describe the ladies’ watch and the two rings admitted in evidence. The search warrant described with particularity that “coins ranging from pennies to silver dollars” had been taken from the house of Les Branham. In obedience to the command of the warrant, the officer took a metal box that was concealed in a hole in the wall. It was not likely that pennies or silver dollars would be laid end to end on a rafter. The most likely place for the containment of coins, watches, rings, and knives would be a metal box. The box contained two rings and a ladies’ watch which belonged to Branham. He did not identify the coins as those taken from him. Although the watch and rings were not specified in the search warrant, they were identified as items that had been stolen from the Branham home. Their seizure and introduction into evidence was legal.

“ . . . While engaged in a legitimate search under a search warrant describing specific articles, it is proper to seize stolen or contraband property, or property constituting the fruits of the crime or in-strumentalities of the crime, though the latter are not described in the warrant.” Jones v. Commonwealth, Ky., 416 S.W. 2d 342 (1967).

The metal box, nestled among the cobwebs in the rafters, contained: 27 men’s wrist watches, 38 ladies’ wrist watches, 7 pocket knives, 7 men’s rings, 22 ladies’ rings, 6 gold chains, 5 watch bands, 1 gold belt buckle, and various other items. The officer who conducted the search testified:

“Q. Can you point to one single item that made you think that it was taken from the Branham residence, other than the fact it was concealed ?
A. That . . . the fact that it was concealed, there were watches in there, there were knives in there, I knew that there had been some watches taken, I believe there had been some knives taken also from the Branham home, and that was the reason we was there, to look for those items stolen from his home.”

A review of the record before this court shows:

1. That Calvin R. Lytle, as magistrate of the 2nd Magisterial District, issued the warrant in his official capacity as magistrate. He was not acting as judge of the Rowan Quarterly Court.

2. That Magistrate Lytle was qualified to issue the search warrant.

3. That the two rings and the watch belonging to Branham and seized as a result of the search warrant were properly admitted in evidence.

The judgment is affirmed.

All concur.


author: L. T. GRANT, Special Commissioner.

text:
    LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    Court of Appeals of Kentucky.
    Feb. 21, 1975.
    Fieldon Woodward, Woodward, Hobson & Fulton, Louisville, for appellant.
    Henry V. B. Denzer, Hogan, Taylor, Denzer & Bennett, Louisville, for appellee.
   L. T. GRANT, Special Commissioner.

This is an appeal from a judgment dismissing the complaint of appellant, Liberty Mutual Insurance Company, against the appellee, State Farm Mutual Automobile Insurance Company. The question presented to the lower court was the interpretation and applicability of what has commonly been referred to as the “household exclusion” in an automobile liability insurance policy issued by appellee, State Farm. The specific question presented is whether the household exclusion applies to an additional insured under the omnibus clause of the policy.

The parties submitted the case to the court on an agreed stipulation of facts. Appellant, Liberty Mutual, issued an automobile liability insurance policy to Bards-town Road Presbyterian Church. This policy provided that with respect to the operation of a non-owned automobile, the coverage would be excess coverage over and above any other liability insurance providing coverage on the non-owned automobile.

Appellee, State Farm, issued an automobile liability insurance policy to J. E. Payne on an automobile owned by him. This policy of insurance not only insured the named insured, J. E. Payne, but also contained the usual omnibus clause defining insured, whereby his relatives and also any person or organization legally responsible for the use of the automobile, was an insured.

Under the exclusions contained in the policy issued by appellee, State Farm, to J. E. Payne was the provision that there was no coverage for bodily injury to the insured or any member of the family of the insured residing in the same household as the insured. This is the household exclusion referred to in this opinion.

On June 12, 1967, Rebecca Payne, who is the daughter of appellee, State Farm’s, named insured, J. E. Payne, was injured while a passenger in the insured automobile owned by J. E. Payne, and being operated by John D. Payne, the son of the named insured, and Rebecca’s brother. At the time of the accident both the operator, John D. Payne, and the injured passenger, Rebecca Payne, were residing in the household of the named insured, J. E. Payne, their father. John D. Payne at the time of the accident was the agent of appellant, Liberty Mutual’s insured, Bardstown Road Presbyterian Church. The Church was an additional insured under the omnibus clause of State Farm’s policy.

Rebecca filed an action against her brother, John D. Payne and Bardstown Road Presbyterian Church. Demand was made on the appellee, State Farm, by Payne and the Church for State Farm to defend them and pay any judgment obtained against them by Rebecca. State Farm refused to provide coverage to Payne or the Church on the ground that the household exclusion was applicable to both insureds.

As a result of the action, Rebecca recovered judgment in the amount of $20,000.00 against her brother and the Church, jointly and severally. The judgment further provided for indemnity to the Church by J. D. Payne in the event the Church satisfied the judgment. Subsequent thereto, the appellant, Liberty Mutual satisfied the entire judgment and now seeks to recover the full amount of the judgment from the appellee, State Farm alleging bad faith on the part of the insurance company in not providing coverage for the Church. In the alternative, the appellant seeks the policy limits of the policy of State Farm, which is $10,000.00.

The basic question to be decided is whether the household exclusion applies to an additional insured under the omnibus provisions of the insurance policy, where the injured person does not reside in the household of the additional insured, but is related to and does reside in the home of the named insured and the insured operator of the automobile. The trial court found there was no coverage afforded to the Church under the policy of insurance issued by State Farm. We affirm.

The Court has been confronted with the household exclusion in the past but we have not decided the precise issue that is presently before us. We have upheld the validity of the household exclusion, Cf. Third National Bank of Ashland v. State Farm Mutual Automobile Insurance Co., Ky., 334 S.W.2d 261 (1960), Kentucky Farm Bureau Mutual Insurance Co. v. Harp, Ky., 423 S.W.2d 233 (1968), and Orange v. State Farm Mutual Automobile Insurance Co., Ky., 443 S.W.2d 650 (1969). We have stated that the clear purpose of the household exclusion was to protect the insurer from over-friendly lawsuits, which nearly always would exist where plaintiff and insured defendant are bound by the ties of kinship and are living together. Third National Bank of Ashland, supra.

We are of the opinion that the purpose of this exclusion, as previously stated, would apply in the instant case wherein a member of the insured’s family residing with the insured is making claim against another member of the insured’s household, and the fact that the additional insured, the Church, may be derivatively liable does not militate against our stated purpose of not affording coverage under the policy.

Even though the injured party may not be a relative and member of the household of an additional insured, whose liability is derivative, there still is the relationship existing between the insured operator of the automobile and the injured party, with the likely result of an over-friendly lawsuit. To permit coverage for the additional insured whose liability is derivative under these circumstances would defeat the purpose pf the exclusion as previously expressed by this court.

For cases from other jurisdictions in agreement with this holding, see 7 Am. Jur.2d, Automobile Insurance, Sec. 131, p. 45.

Another reason why we do not believe that coverage should be provided to the additional insured under the circumstances presented here would be that it is not reasonable to afford greater coverage to an additional insured under the omnibus clause, who has paid no premium for the coverage, than to the named insured who did pay the premium for the policy.

The appellant further contends that the severability clause of the policy mandates consideration of each insured separately for purposes of construing the exclusion. The severability clause in the policy in question applies only if two or more insureds are named in the declarations, which is not the case here. The purpose of this clause is to guarantee the same protection to all persons named as insureds and not to take exclusions out of the policy. See Fuchs v. Cheeley, 285 Minn. 356, 173 N.W.2d 358 (1969), and Newman v. National Indemnity Co., Fla. App., 245 So.2d 118 (1971).

Appellant cites two cases, Ky. Utilities Co. v. Jackson R. E. Coop Corp., Ky., 438 S.W.2d 788 (1969), and Ashland Oil and Refining Co. v. General Telephone Co., Ky., 462 S.W.2d 190 (1970). These cases are not applicable to the insurance coverage question presented, but rather- apply to the question of a third party’s right to indemnity from an employer operating under the Workmen’s Compensation Act who is actively negligent.

The appellant has also cited numerous cases dealing with the employees exclusion in liability policies and the application of that type of exclusion to additional insureds.

The purposes underlying the household exclusion and the purposes underlying the employee exclusion are not similar, so therefore we do not consider these cases as controlling on the issue presented here.

It is not necessary to reach appellant’s argument that the appellee, State Farm, acted in bad faith by refusing to defend the Church and pay any judgment obtained against it by Rebecca Payne.

For the reasons stated above, we are of the opinion that the household exclusion is applicable to appellant’s insured, Bards-town Road Presbyterian Church, and that the appellee, State Farm, had no duty to defend the Church or to pay any judgment obtained against it.

The judgment is affirmed.

All concur.


author: DENTON, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Petitioner, v. R. L. WILSON, Respondent.
    No. B-4913.
    Supreme Court of Texas.
    April 16, 1975.

      Nelson, Sherrod & Carter, Stan Carter, Wichita Falls, for petitioner.
    Kearby Peery, Wichita Falls, for respondent.
   DENTON, Justice.

This is a workmen’s compensation case wherein the question is whether the plaintiff, R. L. Wilson, who had suffered a specific injury, is entitled to a recovery for total and permanent disability based upon the extension of the specific injury and its effects to his body as a whole. After trial to a jury, the trial court awarded Wilson a judgment on the verdict allowing recovery for a general injury, however, the court of civil appeals reversed and remanded the cause upon the holding that jury answers involving two controlling issues were in irreconcilable conflict. 513 S.W.2d 892. We agree, but for a different reason, with the holding of the court of civil appeals that the judgment of the trial court awarding a general disability cannot be sustained and therefore reverse the judgment of the court of civil appeals as well as that of the trial court and render judgment for Wilson for the specific injury.

Mr. Wilson, while working as a driller on an oil rig, was struck in the right eye by a piece of chain, the resulting injury requiring the surgical removal of the eye. The defendant, Texas Employers’ Insurance Association, admitted in its pleadings liability for the specific injury to the eye, however, Wilson sought recovery for total and permanent disability on the basis of the existence of a traumatic neurosis alleged to have been brought on by the injury, the removal of the eye and resulting nervousness affecting his body generally. Expert medical testimony elicited at trial was to the effect that Mr. Wilson is presently suffering from generalized, noninten-tional tremors or shakiness of all extreme-ties which was described as being characteristic of an anxiety state. Additional testimony reflected the opinion that the basis or cause of this anxiety involved the consideration of several things including Mr. Wilson’s background, including 33 years of working in the oil fields, his age of 60 years, the loss of the eye and the resulting impairment of his vision, his apprehension of the difficulty he would face in the future in obtaining work as well as his ability to do whatever job he might secure, and his anxiety over the present lawsuit.

At the conclusion of the introduction of evidence the case was submitted to the jury upon special issues, two of which were answered as follows:

SPECIAL ISSUE NO. 1:
Do you find from a preponderance of the evidence that the disability, if any, of plaintiff R. L. Wilson is not limited solely to the loss of his right eye?
Answer “It is not limited” or “It is limited.”
Answer: It is not limited.
SPECIAL ISSUE NO. 2:
Do you find from a preponderance of the evidence that the damage or harm, if any, suffered by the plaintiff as a result of the injury of December 29, 1970, extended to and affected the plaintiff’s body generally thereby causing incapacity to the body as a whole ?
Answer “Yes” or “No.”
Answer: No

It was the view of the court of civil appeals that the answers to these special issues were in irreconcilable conflict; the first creating a cause of action for a general injury and the second being a finding of a limited, specific injury. We are of the opinion, however, that an affirmative response to Special Issue No. 1 is not controlling in a determination of the existence of a general injury.

When an injury has been sustained by a particular member of the body for which the Workmen’s Compensation Act provides a specific measure of compensation, the liability of the insurance carrier is limited to the statutory amount, even though the loss of or injury to that particular member actually results in total and permanent incapacity of the employee to work. Argonaut Insurance Co. v. Newman, 361 S.W.2d 871 (Tex.1962); Texas Employers’ Insurance Association v. Brownlee, 152 Tex. 247, 256 S.W.2d 76 (1953); Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463 (1943). An injured employee, however, is not precluded from the recovering for total incapacity if he alleges and proves that the injury to the particular member also extended to and affected other portions of his body or has impaired his general health to such an extent as to totally and permanently incapacitate him. Western Casualty and Surety Co. v. Gonzales, 518 S.W.2d 524 (Tex.1975); Travelers Insurance Co. v. Marmolejo, 383 S.W.2d 380 (Tex.1964); Argonaut Insurance Co. v. Newman, supra. However, as stated by this Court in Travelers Insurance Co. v. Marmolejo, supra, 383 S.W.2d at 382.

[T]he plaintiff does not establish his right to a judgment for general disability by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member. (Emphasis added).

The ultimate issue then, is whether the injury extended to and affected other portions of Mr. Wilson’s body or was confined solely to his eye. See Travelers Insurance Co. v. Marmolejo, supra. Special Issue No. 1, however, inquired in the terms of disability only and does not constitute a finding of an extension of injury to the body generally. The jury by answering this issue affirmatively indicated that they considered Mr. Wilson to be suffering from a disability to parts of his body other than his right eye, however, no cause of that disability was established. Turning now to Special Issue No. 2, it is apparent that the jury concluded that Mr. Wilson’s disability, whatever its source, was not suffered as a result of the injury to- the eye extending to and affecting the body as a whole. It is therefore apparent that the claimant has failed in his burden to allege, prove and secure a finding that the injury to the specific member extended to and affected other portions of his body.

Upon oral argument of this cause there was considerable discussion by the attorney for the respondent as to the existence of a general injury as a matter of law in view of the undisputed medical testimony at trial to the effect that Mr. Wilson is indeed now suffering from an anxiety state that has arisen following his unfortunate accident. It may be true that Mr. Wilson’s anxiety state can be traced back to the period of time immediately following his accident for if there had been no accident and no physical harm there would have been no resulting claim or suit. This, however, would not show conclusively as a matter of law that the anxiety state was a wholly separate injury arising out of the original accident. As was stated in Texas Employers’ Association v. Espinosa, 367 S.W.2d 667 (Tex. 1963):

Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific injury.

It therefore must be concluded that although the claimant may be disabled by reason of a neurosis traceable in part to circumstances arising out of and immediately following his injury, there must be a finding that the neurosis was the result of the injury. Hood v. Texas Indemnity Insurance Company, 146 Tex. 522, 209 S.W. 2d 345 (1948).

The findings of the jury in response to Special Issues Nos. 1 and 2 preclude an award for general injury and require the rendition of judgment establishing the liability of the insurance carrier for the specific injury suffered by Mr. Wilson as provided in Article 8306, Section 12, Vernon’s Annotated Civil Statutes. Accordingly, we reverse the judgments of the court of civil appeals and the trial court and render judgment for Wilson for the specific injury, subject to a credit for the compensation payments heretofore paid to Mr. Wilson by the petitioner.


author: PER CURIAM.

text:
    V. K. HALL et al., Petitioners, v. VILLARREAL DEVELOPMENT CORPORATION, Respondent.
    No. B-5041.
    Supreme Court of Texas.
    April 23, 1975.
    Rehearing Denied May 28, 1975.
    Wilkins & Wilkins, J. E. Wilkins, Mc-Allen, for petitioners.
    Henrichson & Henrichson, E. G. Hen-richson, Edinburg, for respondent.
   PER CURIAM.

In this suit to recover the balance alleged to be due on a construction contract, the court of civil appeals affirmed the judgment of the trial court in favor of Plaintiff-Respondent, holding that the evidence was factually sufficient to support the trial court’s findings of fact. 517 S. W.2d 326. We dismiss the application for writ of error for want of jurisdiction because Petitioners here complain only of matters relating to alleged factual insufficiency of the evidence. The judgment of the court of civil appeals is conclusive on such points, and this Court has no jurisdiction to entertain them. Tex.Const., Art. V, § 6, Vernon’s Ann. St.; Hubacek v. Ennis State Bank, 159 Tex. 576, 325 S.W.2d 124 (1959); Long v. Long, 133 Tex. 623, 138 S.W.2d 798 (1939).

Although not complained of in Petitioners’ motion for rehearing in the court of civil appeals or in a point of error in this Court, we are compelled to note that the court of civil appeals, 517 S.W.2d at page 329, included incorrect statements concerning the rule applicable to its consideration of factual insufficiency of evidence points, as indicated by its conclusion:

“. . . We will not disturb the fact findings if there is some evidence of probative force to support them, viewing the evidence in the light most favorable to the successful party and indulging every legitimate conclusion that is favorable to him.”

For a statement of the proper standard to be used by the court of civil appeals in reviewing the factual sufficiency of the evidence, see In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). See also Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.L.Rev. 361 (1960).


author: REAVLEY, Justice.

text:
    Ex parte Gerald D. BUTLER, Relator.
    No. B-5084.
    Supreme Court of Texas.
    April 23, 1975.
    Rehearing Denied May 21, 1975.

      Mahoney, Shaffer, Hatch & Layton, Lee Mahoney, Corpus Christi, Robert H. Hughes, Austin, for relator.
    John L. Hill, Atty. Gen., Lee C. Clyburn, Asst. Atty. Gen., Austin, for respondent.
   REAVLEY, Justice.

This is an original habeas corpus proceeding. Relator Gerald D. Butler was held in contempt of court and sentenced to three days in the Nueces County jail by Honorable Jack R. Blackmon, Presiding Judge of the 28th Judicial District, because of Butler’s refusal to answer a question in the course of his deposition being taken before the court. Butler claimed that he was entitled to remain silent in the exercise of his privilege against self-incrimination.

The State of Texas has filed suit against relator Butler wherein it alleges that Butler owned a tract of land in Karnes County where he was violating the Texas Solid Waste Disposal Act and the Texas Water Quality Act by the disposal of industrial solid waste without permission of the Texas Water Quality Board. By that suit the State seeks injunctive relief as well as the recovery of civil penalties of not less than $50 nor more than $1,000 for each day and act of violation. In the course of obtaining discovery preparatory to the trial of the case, the State through its Attorney General began the taking of the deposition of Butler before Judge Blackmon. After preliminary inquiries and answers as to the ownership of the tract of land and identification of an aerial photograph of that land, which photograph shows a small body of water and a dirt road that extends from a paved road to the vicinity of the water, the relator refused to answer the following question:

Q. Mr. Butler, was the road built with or without your consent?

The court directed the relator to answer the question, but relator refused to answer “on the grounds that it — that it might tend to incriminate me.” After warning the relator of the probable consequences if he should persist in his refusal, and still obtaining no answer, the court found the relator in contempt and assessed his punishment at three days confinement in the Nueces County jail together with a fine of $100. The Supreme Court then granted relator’s petition for writ of habeas corpus.

Since the pending suit is strictly a civil action, it is entirely proper for the State to call the relator as a witness or to take his deposition. Meyer v. Tunks, 360 S.W.2d 518 (Tex.1962). Upon becoming a witness, however, relator retains his right and privilege against self-incrimination as contained in the Fifth Amendment to the United States Constitution and made applicable to the States by the Fourteenth Amendment, and as guaranteed by the Texas Constitution, Art. I, Sec. 10, Vernon’s Ann.St. If an inquiry calls for an answer that might reasonably present a hazard of self-incrimination to the witness, he may refuse to answer upon the ground of the privilege, and the fact that the inquiry is made in the course of a civil proceeding does not interdict the witness’s privilege. Maness v. Meyers, 419 U.S. 449, 95 S.Ct. 584, 42 L.Ed.2d 574 (1975); Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Dendy v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944).

When a witness refuses to answer upon this ground, he is not the exclusive judge of his right to exercise the privilege. The judge is entitled to determine whether the refusal to answer appears to be based upon the good faith of the witness and is justifiable under all of the circumstances. Ex parte Park, 37 Tex.Cr.R. 590, 40 S.W. 300 (1897); Farmer v. State, 491 S.W.2d 133 (Tex.Cr.App.1973). The inquiry by the court is necessarily limited, because the witness need only show that an answer to the question is likely to be hazardous to him; the witness cannot be required to disclose the very information which the privilege protects. Before the judge may compel the witness to answer, he must be “perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency’ to incriminate.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Relator’s attorney has contended that the privilege applies to relator simply because the penalty of the Texas Solid Waste Disposal Act, Art. 4477-7, Vernon’s Ann.Civ.St. (Supp.1974), is quasi-criminal and of the nature of a criminal fine or forfeiture. We disagree with this contention. There are no criminal penalties in this particular statute. The United States Supreme Court opinions affirming the applicability of the privilege to prevent forfeitures are in those cases where property may be taken from the witness by the government because that property has been used in the commission of a crime. United States v. United States Coin and Currency, 401 U.S. 715, 91 S.Ct. 1041, 28 L.Ed.2d 434 (1971); Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886). The civil penalties sought by the State in the pending suit, and the possibility that an answer by relator might tend to subject him to these penalties or to any penalty provided by the Texas Solid Waste Disposal Act, constitute no ground upon which the relator could refuse to answer. See generally: Kaminsky, Preventing Unfair Use of the Privilege Against Self-incrimination in Private Civil Litigation: A Critical Analysis, 39 Brooklyn L.Rev. 121, 134 (1972).

The determinative circumstance of the matter before us is the criminal penalty prescribed by the Texas Water Code. Sec. 21.552(a) of the Water Code provides:

No person may discharge, or cause or permit the discharge of, any waste into or adjacent to any water in the state which causes or which will cause water pollution unless the waste is discharged in compliance with a permit or other order issued by the Texas Water Quality Board, the Texas Water Development Board, or the Texas Railroad Commission.

Sec. 21.551 defines “water” as including both surface and subsurface water. Sec. 21.553 provides that any violation of Sec. 21.552 is a misdemeanor punishable by fine of not less than $10 nor more than $1,000, and it provides that each day of violation is a separate offense. An example of a conviction under this criminal statute which was upheld may be seen in American Plant Food Corp. v. State, 508 S.W.2d 598 (Tex. Cr.App.1974). The petition filed by the State in the pending suit alleges that relator is violating the Texas Water Quality Act “by causing, suffering, allowing or permitting the use or operation of the site for the disposal of industrial solid waste” and “by engaging in activity which in itself or in conjunction with other activity causes or will cause pollution of the waters of the State . . . .” The question of relator’s consent to the construction of a road to a site where waste may have been stored or placed may be critical to the proof of the State in its civil suit but, of controlling importance to the matter now before us, it may also be a link in the proof that might tend to incriminate relator under the sections set forth above of the Texas Water Code. We cannot say that relator’s hazard of prosecution or incrimination is imaginary or groundless. Therefore, his claim of the privilege against self-incrimination must be upheld.

The relator Gerald D. Butler is discharged from custody.


author: GREEN, Commissioner.

text:
    Arthur Franklin HARRIS, Appellant, v. The STATE of Texas, Appellee. Berdell JONES, Appellant, v. The STATE of Texas, Appellee.
    Nos. 49791, 49987.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    Scott McDowell, Dallas, for Harris.
    Stephen L. Halsey, Dallas, Court appointed, for Jones.

      Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Phil Adams and Jerry Banks, Asst. Dist. Attys., Dallas, Jim D. Voll-ers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a joint trial before a jury, appellants were. convicted of rape by force and threats. Punishment was assessed by the court (1) for appellant Arthur Franklin Harris, enhanced under Art. 63, Vernon’s Ann.P.C., life; (2) for appellant Berdell Jones, sixty years.

We conclude that the judgments of both appellants must be reversed for fundamental error in the court’s charges to the jury at the guilt stage.

A separate charge was given as to each appellant; however, with the exception of an instruction on alibi as to Harris, the two charges were identical except as to the name of the accused.

The first paragraph of each charge states that the accused stands charged with rape by force and threats alleged to have been committed in Dallas County on or about November 10, 1973, and notes accused pleas of not guilty.

Rape, carnal knowledge, penetration, and rape by force and threats are defined.

The jury is instructed that penetration must be proved beyond a reasonable doubt.

The court next instructs the jury concerning the law on failure of the defendant to testify.

Next, the charge tells the jury to consider only the facts and circumstances in evidence, and not matters which are not in evidence.

The jury is next cautioned to make no finding “except to show whether the defendant is guilty, beyond a reasonable doubt, or not guilty, as you may find and determine from the law and evidence in the case.”

In Harris’ case, the charge includes instructions on his defense of alibi.

The charges close with instructions that the indictment is no evidence of guilt, the customary instructions on the presumption of innocence and burden of proof (beyond a reasonable doubt), necessity of a unanimous verdict, and with the jury being told that they are the exclusive judges of the facts proved, the credibility of the witnesses, and the weight to be given the testimony, but are to be governed by the law received from the court.

Although the abstract law of the case is adequately explained to the jury, there is a complete failure to apply this law to the facts and issues in evidence. See footnote below for copy of the Harris charge.

This Court has consistently held that where no objection is made to the court’s charge in accordance with Article 36.14, Vernon’s Ann.C.C.P., a judgment will not be reversed on appeal because of error in the charge unless it appears that he has not had a fair and impartial trial. Article 36.19, V.A.C.C.P.; Peterson v. State, Tex.Cr.App., 508 S.W.2d 844; Jefferson v. State, Tex.Cr.App., 487 S.W.2d 331; Fennell v. State, Tex.Cr.App., 424 S. W.2d 631. Thus, we are confronted with the question of whether the errors in the court’s charge constitute fundamental error. See Peterson v. State, supra; Whitson v. State, Tex.Cr.App., 495 S.W.2d 944.

In Ross v. State, Tex.Cr.App., 487 S.W. 2d 744, the Court held that where the charge authorized conviction on a theory not charged in the indictment, fundamental error was presented, and the judgment was reversed notwithstanding the absence of an objection in the trial court.

In Fennell v. State, supra, the charge contained an abstract paragraph on the law of self-defense, but did not apply the law to the facts. No objection was made in the trial court, nor was this fact assigned as ground of error on appeal. Nevertheless, the Court reversed, holding that fundamental error had been committed preventing the defendant from having a fair and impartial trial.

See also Mendoza v. State, Tex.Cr.App., 491 S.W.2d 888; Rhyne v. State, 142 Tex. Cr.R. 104, 151 S.W.2d 599.

In Johnson v. State, 99 Tex.Cr.R. 25, 267 S.W. 713 (1925), Judge Littimore, speaking for the Court in reversing the conviction, said:

“An examination of the charge as given by the learned trial judge compels us reluctantly to hold that same nowhere presents the law applicable to the case. If the record in a felony case on appeal should show no charge in writing to have been given the jury, this court would reverse, and we are unable to distinguish in principle between the giving of no charge and the giving of a charge which nowhere presents the law applicable to the case.”

It is also well established that the charge, rather than state mere abstract propositions of law and general statements of principles contained in the statutes, must clearly apply the law to the very facts in the case. McCuin v. State, Tex Cr.App., 505 S.W.2d 827, and authorities cited; Oliver v. State, 160 Tex.Cr.R. 222, 268 S.W.2d 467 (on rehearing); Barnes v. State, 145 Tex.Cr.R. 131, 166 S.W.2d 708; Stanley v. State, 142 Tex.Cr.R. 495, 154 S.W.2d 856; Smith v. State, 67 Tex.Cr.R. 27, 148 S.W. 699; Guajardo v. State, 113 Tex.Cr.R. 570, 24 S.W.2d 56; Johnson v. State, supra; Edwards v. State, 96 Tex. Cr.R. 574, 259 S.W. 578.

Fundamental error is presented where error in the charge goes to the very basis of the case so that the charge fails to state and apply the law under which the accused is prosecuted. Fennell v. State, supra; Johnson v. State, supra; Ross v. State, supra. Cf. Peterson v. State, 508 S.W.2d 844; Williams v. State, Tex.Cr.App., 508 S.W.2d 83.

In the present cases, we do not have an instance in which the failure to apply the law to the fact issues went to specific defenses, as in Peterson and Williams, supra, or other cases in which an objection was held to be required for reversal. The error in the charges goes to the very basis of the cases. The charge in each case fails to apply the law of rape to the evidence, and the jury was not instructed under what circumstances they should convict, or under what circumstances they should acquit. In the situation presented, the error was calculated to injure the rights of appellants, and they did not receive the fair and impartial trial to which they were entitled under the federal and state Constitutions. See Article 36.19, V.A.C.C.P.

We hold the error in each charge to be fundamental error, of which this Court will take judicial notice in the interest of justice. Article 40.09, § 13, V.A.C.C.P.; Fennell v. State, supra.

The judgments are reversed, and the causes are remanded.

Opinion approved by the Court.

      . “NO. C-74 — 308-QN
      “THE STATE OF TEXAS IN THE 195th JUDICIAL DISTRICT “VS. I COURT OF DALLAS COUNTY, TEX-“ARTHUR FRANKLIN HARRIS J AS JANUARY TERM, A.D., 1975 '
      “CHARGE OF THE COURT
      “MEMBERS OF THE JURY :
      “The defendant, Arthur Franklyn (sic) Harris, stands charged by indictment with the offense of rape by force and threats, alleged to have been committed in Dallas County, Texas on or about the 10th day of November 1973.
      “To this charge the defendant has pleaded not guilty. ‘Rape’ is the carnal knowledge of a woman without her consent, obtained by force or threats or both.
      “ ‘Carnal knowledge’ is the penetration of the private female organ of the alleged female by the private male organ of the accused person. The slightest penetration of the female sexual organ by the male sexual organ is sufficient to constitute penetration and it need not be to any particular depth.
      “To constitute ‘rape by force,’ the accused must have ravished the alleged female by having carnal knowledge of her without her consent and against her will by means of force. The force must have been such as might reasonably be sufficient to overcome any resistance, taking into consideration the relative strength of the parties and other circumstances of the case.
      “To constitute ‘rape by threats,’ it must appear that the party charged assaulted the alleged female and by means of threats ravished and had carnal knowledge of her without her consent and against her will. The ‘threats’ must be such as might reasonably create fear of death or great bodily harm, in view of the relative condition of the parties as to health, strength, and all other circumstances of the case.
      “Further, before there can be rape, penetration of the sexual organ of the female alleged to have been ravished by the male organ of the party accused must be proved beyond a reasonable doubt.
      “You are further instructed that the law allows the defendant to testify in his own behalf, but a failure on his part to do so is not a circumstance against him and no presumption of guilt can be indulged in by the jury for a failure on his part to do so. I instruct you in this case not to refer to or discuss such failure on the part of the defendant to testify during your consideration of this case.
      “You are limited in your deliberation as jurors on the verdict of guilt or innocence only. You are to consider and discuss only the facts and circumstances as were admitted into evidence. You should not consider nor discuss facts and circumstances that are not in evidence, and in this connection, you are instructed that no juror may lawfully relate any fact or circumstance of which he or she may claim to have personal knowledge which has not been admitted into evidence before you. If any evidence has been withdrawn from the jury by the Court, you will not discuss or consider it for any purpose.
      “You will make no finding in your verdict except to show whether the defendant is guilty, beyond a reasonable doubt, or not guilty, as you may find and determine from the law and evidence in this case.
      “Now, if you find and believe from the evidence or have a reasonable doubt thereof that at the time of the commission of the offense, if any, the defendant was at his Aunt’s house, Gracy Branch, on Harwood, then you will acquit the defendant and say by your verdict ‘not guilty.’
      “You are further instructed that an indictment is no evidence of guilt. Therefore, you are instructed in this case that the indictment herein shall not be considered by the jury as any evidence of guilt, if any.
      “In all criminal cases the burden of proof is on the State. The defendant is presumed to be innocent until his guilt is established by legal evidence beyond a reasonable doubt and in case you have a reasonable doubt as to the defendant’s guilt, you will acquit the defendant and say by your verdict ‘not guilty.’
      “You are further instructed that your verdict must be unanimous and shall be arrived at by due deliberation and not by a majority vote, nor by any method of chance.
      “You are the exclusive judges of the facts proved, of the credibility of the witnesses, and of the weight to be given to the testimony, but you are bound to receive the law from the Court, which is herein given you and be governed thereby.”


author: ONION, Presiding Judge.

text:
    Luis R. GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 49723.
    Court of Criminal Appeals of Texas.
    April 30, 1975.

      John J. C. O’Shea, Lubbock, for appellant.
    Andy Shuval, Dist. Atty., Hereford, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of murder with malice. Punishment was assessed by the jury at five (5) years in the Texas Department of Corrections.

In his first ground of error appellant challenges the sufficiency of the evidence to sustain his conviction for the murder of his wife, contending the proof was based solely upon circumstantial evidence.

The record reflects that the appellant’s wife, Victoria Garcia, went to Dumas from Lubbock on November 6, 1972, and contacted Cesario Sanchez, requesting that he drive her to her brother’s home in Hereford. Sanchez testified that while stopped at a traffic light in Hereford he observed a pickup truck, and the deceased told him not to stop. The appellant, who was driving the pickup, pursued Sanchez and the deceased for a number of blocks until Sanchez turned into Lake Street, which proved to be a dead end street. Sanchez attempted to turn around, but was blocked by the pickup. When the two vehicles stopped, their headlights were facing each other. Sanchez testified that appellant came out of the pickup and started shooting toward the windshield of .his (Sanchez’s) car.

Sanchez observed a bullet strike the windshield of his car. The deceased started yelling and screaming when the shots were fired, although Sanchez never actually observed her being hit. After the volley of shots began, Sanchez ran away from the cars out into a weeded area. He heard many shots being fired in the first two or three minutes as he ran away. Sanchez returned to the scene after hiding in the weeds for two hours and found the apparently lifeless body of the deceased lying on the ground. A .38 cal. pistol that Sanchez had kept fully loaded under the floormat of his car was found by him lying on the seat of his car, though he had never drawn or shot his gun during the entire incident.

Sanchez found his car had been tampered with, but was able to get it started and drove away, but became lost and found himself in New Mexico. He started his return to Dumas, but ran out of gas and abandoned the car with the gun, and the next day turned himself in to the Dumas Police. The car and the .38 cal. pistol with one spent shell and five bullets were recovered.

Frank Martinez, appellant’s son-in-law, testified that he and his wife (appellant’s daughter) had accompanied appellant from Lubbock in his search for his wife, the deceased, who had left a 19 month baby at home when she departed. Martinez related that when they encountered Sanchez and the deceased a chase ensued, ending in the dead end street. He testified appellant got but of the truck and started toward Sanchez’s vehicle and then returned to the pickup truck and got a weapon and went toward Sanchez’s car shooting fast; and that Sanchez and the deceased were not seated far apart inside the vehicle. He stated that neither he nor his wife fired a shot, and he did not see anyone but appellant fire a shot, but later testified he heard a shot before appellant initially fired. He revealed that after Sanchez ran into the weeds the appellant came back to the pickup and got a shotgun and pursued Sanchez. Martinez related he saw the deceased lying on the ground, but was afraid to approach her for fear that the appellant would return and think he was Sanchez.

Officer Neece testified that he showed a .38 cal. pistol to Martinez and he identified such weapon as being similar to the pistol appellant had when he first approached Sanchez’s car and began firing, although it was not the same weapon. The weapon used by the appellant was not recovered.

A ballistics expert testified that the bullet taken from the deceased’s body was a .38 cal. slug, but it was so mutilated it could not be determined from which weapon it had been fired. The .38 cal. slug found in the ground near the deceased’s head was likewise mutilated, and the weapon from which the bullet had been fired could not be ascertained.

Elmer Miller of the F.B.I. laboratory in Washington, D. C, testified as to his expertise in comparing glass particles. He related that he compared the glass particles imbedded in a bullet found near the deceased’s head and glass particles taken from the windshield of Sanchez’s automobile and that the particles were identical.

Deputy sheriff Burton of Deaf Smith County testified the windshield of Sanchez’s vehicle had three bullet-like holes in it and were consistent with an object passing through the windshield from outside the automobile.

The cause of death was attested to by Dr. Jose Diaz Esquivel. A gunshot wound in the head had caused hemorrhaging, which led to the deceased’s death. He stated that the bullet had entered in a slightly downward path as it struck her. Dr. Esquivel stated that since there were no powder burns on the deceased, this almost certainly ruled out suicide.

The court charged the jury on the law of circumstantial evidence. Viewed in the light most favorable to the verdict, we conclude the evidence is sufficient to support the verdict.

Further, we observe that appellant took the stand in the punishment stage for the first time. In response to the prosecutor’s question, appellant stated that he was sorry he shot the deceased. Appellant further remarked that he had asked God to forgive him and that he was sorry for what he did. He also asked the jury to forgive him. In Boothe v. State, 474 S.W.2d 219 (Tex.Cr.App.1971), this court held that where the appellant admits in the penalty stage as to his commission of an offense he cannot complain that there is insufficient evidence to sustain the conviction. Similarly, in Richardson v. State, 458 S.W.2d 665 (Tex.Cr.App.1970), we noted that where the appellant did not testify at the hearing on guilt but did so voluntarily at the hearing on punishment admitting his mistake, he cannot on appeal question the sufficiency of the evidence. Consequently, appellant in this case is in no position to complain that the evidence did not prove he shot the deceased.

With regard to appellant’s contention that malice was not shown, it is well established that malice can be inferred from the use of a deadly weapon. Turner v. State, 505 S.W.2d 558 (Tex.Cr.App. 1974); 4 Branch’s Ann.P.C., 2d ed., Sec. 2189, p. 534. Proof of the intentional shooting of the deceased with a deadly weapon is sufficient to authorize the jury to find malice. Hemphill v. State, 505 S.W.2d 560 (Tex.Cr.App.1974); Newman v. State, 501 S.W.2d 94 (Tex.Cr.App.1973); Taylor v. State, 470 S.W.2d 693 (Tex.Cr.App.1971). We find the evidence sufficient to support a finding of malice.

Appellant’s first ground of error is overruled.

In his second ground of error appellant complains that the trial court gave instructions on provoking the difficulty which limited his right of self-defense. He contends there was no evidence to support the court’s charge of provoking the difficulty, and when the charge was given the court did not apply the law to the facts.

As to appellant’s complaint that the charge of provoking the difficulty was not properly applied to the facts of the case, we note that an identical charge was approved by this 'court in Norwood v. State, 135 Tex.Cr.R. 406, 120 S.W.2d 806 (1938). Compare Porter v. State, 152 Tex.Cr.R. 540, 215 S.W.2d 889 (1948). Appellant’s contention is without merit.

The only testimony developed in the trial raising the issue of self-defense was that of appellant’s son-in-law, Frank Martinez. It had been uncontroverted from Martinez’s and Sanchez’s testimony that appellant had chased Sanchez for many blocks, ultimately blocked his path, and immediately alighted from his truck and approached the car of Sanchez and the deceased. Though Martinez stated initially that appellant then returned to his truck, drew his pistol and began firing, he subsequently changed his testimony. Martinez later stated that it was after he had heard a shot and had seen a sparkle from inside Sanchez’s vehicle that appellant returned to his truck and began shooting.

Sanchez’s testimony sharply conflicted with that of Martinez’s as to who fired first. It was stated by Sanchez that when appellant alighted from his pickup truck after blocking Sanchez’s path, appellant started shooting toward the windshield of Sanchez’s car. There were no shots fired prior to the time appellant began shooting, according to Sanchez.

Viewing the foregoing evidence in the light most favorable to the verdict, we have Sanchez’s testimony that no shots were fired before appellant’s. The conflicting testimony of Martinez that a shot was fired before appellant began shooting presented an issue for the jury to decide. The jury, as sole trier of the facts, resolved the issue as to when Sanchez may have fired a shot against appellant in exercising their function to accept or reject any or all of the testimony and weight to be given their testimony. Lombardo v. State, 503 S.W.2d 780 (Tex.Cr.App.1974). Hence, in addition to the evidence of appellant’s aggressive actions in chasing the deceased, blocking Sanchez’s car, and immediately leaving his truck and approaching the car, the jury was authorized to determine that appellant’s initial shots provoked the difficulty as well.

In every case where the acts and conduct of the accused were the cause of an attack upon him, the issue of whether they were reasonably calculated to provoke the difficulty is a question of fact for the determination of the jury under appropriate instructions from the court. Ervin v. State, 367 S.W.2d 680 (Tex.Cr.App.1963).

The evidence was sufficient to raise the issue, and the court did not err in charging on provoking the difficulty. Valadez v. State, 408 S.W.2d 109 (Tex.Cr.App.1966); Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966); Edmonson v. State, 384 S.W.2d 702 (Tex.Cr.App.1964); Tew v. State, 379 S.W.2d 893 (Tex.Cr.App.1964).

In appellant’s third ground of error he contends that the trial court erred in failing to grant his motion to exhume the decedent’s body and perform a paraffin test. The record reflects that the murder for which appellant was convicted occurred on November 8, 1972, and appellant’s counsel began representing appellant that day. Appellant was indicted on December 8, 1972, and the trial began July 17, 1973. It was not until July 13, 1973, that appellant filed his motion to exhume the decedent’s body for a paraffin test. In support of appellant’s motion, Frank Martinez was called to testify. However, Martinez stated that the first shots fired and heard by him were appellant’s. At the time the hearing on the motion was conducted there was no evidence showing any necessity as to exhuming the deceased’s body except for a stipulation that Sanchez’s gun had been fired once and that all witnesses would deny having fired it.

Appellant’s counsel took the stand and stated he had made several oral requests for a paraffin test. However, he admitted that even though he knew no such test had ever been conducted he waited until Friday of the week before trial to file his motion. Counsel stated that he had known for over two months the trial had been set for July 16, 1973. The record similarly reflects no evidence that appellant requested the justice of the peace to disinter the body under Article 49.02, Vernon’s Ann.C.C.P.

Testimony by the prosecutor revealed that the body had been washed before burial. The only testimony that a paraffin test could successfully be administered as late as eight (8) months after burial was by appellant’s counsel, who said soap and water would not remove the evidence. However, appellant’s counsel stated that he was not a qualified chemist. Before the statement of opinion of a witness in regard to any fact in issue is admissible, he must be competent and qualified to testify. Hopkins v. State, 480 S.W.2d 212, 218 (Tex. Cr.App. 1972). Nowhere was competent evidence given during the hearing either to show the necessity of such an examination or to show that such a delayed examination would be effective. Though the court advised appellant that scientific expert testimony would be necessary to show that the delayed paraffin test would be effective in proving anything, appellant did not come forward with such evidence.

This court has had an occasion to address the question as to whether paraffin tests are even admissible into evidence. Though most of the opinion dealt with the issue of whether the performance of such a test violated the appellant’s right against self-incrimination, we held such evidence admissible in Henson v. State, 159 Tex.Cr. R. 647, 266 S.W.2d 864 (1954). Since that time various treatises have condemned such evidence and some jurisdictions have held the test inadmissible as evidence.

However, under the circumstances of this case, we need not address ourselves to whether the evidence would or would not have been admissible. Crucial to our determination is appellant’s lack of diligence in filing his motion to exhume the deceased’s body. Though appellant cites Gray v. State, 55 Tex.Cr.R. 90, 114 S.W. 635 (1908), where an appellant waited five months to file his motion to exhume a body, the facts here are substantially different. In Gray the appellant requested such motion to determine the placement of the bullets in the body of the deceased to see if the deceased had been shot in the back or front. This would have gone to appellant’s issue of self-defense, as would have information as to how many bullets were found inside the body. Such information would have been readily available from a delayed examination of the body.

In the present case, though, the trial court desired scientific expert testimony that such “paraffin test” would prove anything at the late date of the trial, and appellant declined to offer any competent evidence to that effect. An analogous situation was presented in Montes v. State, 503 S.W.2d 241 (Tex.Cr.App.1974). In Montes we held that where no benefit could be shown from the examination and testing of narcotic paraphernalia, no error would result from the denial of such an examination. Thus, we have no evidence before us to conclude that such information from a “paraffin test” would have been helpful in the determination of appellant’s issue of self-defense. Gutierrez v. State, 502 S.W.2d 746 (Tex. Cr.App.1973).

Denial of the exhuming of a body is not error unless it can be shown that such examination will tend to solve any important or material issue in the case. Johnson v. State, 106 Tex.Cr.R. 482, 293 S.W. 173 (1927). Further, the exhuming should not be allowed in any case unless it was imperatively demanded under the circumstances and was necessary for the due administration of justice. Shields v. State, 89 Tex.Cr.R. 421, 231 S.W. 779 (1921). As appellant has failed to reveal any evidence that the “paraffin test” would benefit him when conducted over eight (8) months after burial, his third ground of error is overruled.

In appellant’s fifth ground of error he complains that the trial court coerced the jury into arriving at a final verdict. In support of his argument appellant states that the jury sent a note to the court after three hours and forty minutes of deliberation on punishment, stating that they could not reach a unanimous verdict. Also, appellant states that the jury foreman stated in open court at that time that the jury was “about hopelessly deadlocked.”

The record reflects that the jury deliberated on the guilt stage of the trial for eight and one-half hours before reaching a verdict at 10 p. m. This deliberation began after two and one-half days of trial. When they returned their verdict of guilt, they then returned to deliberate on punishment until 1:40 a. m. The jury had expressed their desire to continue deliberations despite the court stating that they could recess. At 1:40 a. m. the foreman mentioned the issue of their being unable to reach a verdict. After ascertaining that the vote was 11 to 1, the court asked the jury to retire again and see if further deliberations later on that day (July 20, 1973) would “help resolve the matter or not.” The jury sent back a note to the court stating that there was a possibility of reaching a decision and asking to be recessed until 1 p. m. After returning to court around 1 p. m., the jury deliberated another hour before assessing appellant’s punishment at five (5) years. The total time for deliberation on punishment was four hours and forty minutes.

The length of time that the jury may be held for deliberation rests largely in the discretion of the court, and unless it is made to appear that the court abused its discretion in this regard, no reversible error is shown. Williams v. State, 476 S.W.2d 300 (Tex.Cr.App.1971). See Article 36.31, Vernon’s Ann.C.C.P.

A similar situation was presented in Potter v. State, 481 S.W.2d 101 (Tex. Cr.App.1972). In Potter after the jury had sent two notes to the court stating that they were unable to reach a verdict, the court instructed the jury to endeavor to reach a verdict. The jury returned with a verdict in the same approximate time of five hours as in the present case. We held that under such circumstances no undue coercion on the part of the trial court had been shown. Likewise in this case we feel that no coercion has been shown by appellant in the less than five-hour deliberation. This is especially true in view of the jury’s own determination that they felt there was a possibility of reaching a verdict. The remarks of the trial court addressed to the jury cannot be seen as coercive. See Holman v. State, 474 S.W.2d 247 (Tex.Cr. App.1971); Chafer v. State, 500 S.W.2d 139 (Tex.Cr.App.1973).

Appellant’s fifth ground of error is overruled.

In his fourth ground of error appellant contends the court erred in failing to provide a court reporter upon request when the court gave instructions to the jury concerning their deliberations upon their return at 1 p. m. on July 20, 1973, which were followed by his motions made in absence of the jury upon which the court ruled, and that no reporter was present when the verdict at the punishment stage was returned and the jury was polled, at which time he made other motions and objections upon which the court ruled.

We find no timely presented objection in writing to the absence of the court reporter.

The only manner in which the appellant has sought to support this ground of error is by a purported bystander’s bill of exception filed one year and two days after notice of appeal was given. Article 40.09, Sec. 6, Vernon’s Ann.C.C.P., provides for the filing of formal bills of exception, including bystander’s bills. The statute provides that bills of exception must be filed with the clerk and presented to the trial judge within ninety (90) days after notice of appeal is given unless for good cause shown an extension of time is granted by the court. By virtue of the Act, the filing of a formal bill of exception and a qualification of the bill are clearly a predicate for the filing of a bystander’s bill of exception. The statute provides that the bystander’s bill of exception may be filed not later than fifteen (15) days after receipt of notice from the clerk that the court has refused or qualified the bill of exception.

This predicate is not found in the record. There were no formal bills of exception filed within the ninety (90) day time, nor were there any extensions of time granted. In fact, there were no bills of exception filed.

Appellant, it appears, merely filed the so-called bystander’s bill. Such so-called bystander’s bill presents nothing for review by this court.

It is observed that the trial judge responded and filed findings of fact in which he stated that appellant did not object when he addressed the jury, and that all he said was, “Good afternoon, ladies and gentlemen of the jury, are you ready to deliberate? You may retire.”

Even if the bill was properly before this court, we could not conclude that the remarks attributed to the trial court, when no court reporter was present, were coercive or would present reversible error.

While every effort should be made to have the court reporter present at all times during a trial, we cannot conclude that appellant’s fourth ground of error has merit. It is overruled.

In appellant’s final ground of error he claims that the indictment is fatally defective in that it was not returned by a properly constituted grand jury. In support of his claim appellant states that there was no written order of appointment made as to the grand jury which returned the indictment of appellant.

Lola Veazy, who was the district clerk of Deaf Smith County, testified that she was in office at the time of the appointment of the jury commissioners for July, 1972. She stated that there was no written order of appointment for the five commissioners who selected the grand jury. However, Veazy did say that she put the names of the jury commissioners in a jury

timebook after the district judge picked them in the courtroom. She stated that she was present while the district judge picked the commissioners.

Judge Archie McDonald stated that he followed his regular practice by verbally appointing the five (5) jury commissioners. It was related by Judge McDonald that based on the record he knew he appointed the jury commissioners and he gave them their oath. He also stated that he asked them the necessary questions regarding qualifications as set forth in Article 19.01, Vernon’s Ann.C.C.P.

Appellant contends that Article 19.01, supra, requires an order appointing grand jury commissioners. This court has previously held that the forerunner to this statute, Article 333, Vernon’s Ann.C.C.P., does not require the entry of an order appointing jury commissioners, and that its provisions are directory and not mandatory. Ex parte Soliz, 159 Tex.Cr.R. 273, 262 S.W.2d 502 (1953).

Veazy’s testimony that the district judge appointed the commissioners for the July, 1972, term is sufficient to show as to what term the commissioners were to serve. Further, the court’s acknowledgement that based on the record he appointed the commissioners is sufficient to show such appointment. We find Soliz controlling for the principle that the provisions of the present Article 19.01, supra, are directory and not mandatory. The best practice is, of course, to enter a written order, then questions such as this could be eliminated.

Appellant also contends that the grand jury commissioners were not from different portions of the county as required by Article 19.01, Sec. 4, Vernon’s Ann.C.C.P. Lola Veazy, the district clerk, testified that four of the five commissioners lived in Hereford. However, she stated that of the 18,900 people in the county, 13,900 lived in the City of Hereford.

We have held that this identical provision of the former statute, Article 333, Vernon’s Ann.C.C.P., that grand jurors be selected from different portions of the county, is directory and not mandatory. Jones v. State, 153 Tex.Cr.R. 276, 219 S.W.2d 463 (1949). Further, there was testimony by the district clerk that one j'uror lived in the northeast, two in the northwest, and one in the center of Hereford. We feel that there was sufficient compliance in the statute and the trial court properly overruled appellant’s motion. Buchanan v. State, 1107 Tex.Cr.R. 559, 298 S.W. 569 (1927).

The judgment of the trial court is affirmed.

      . Born v. State, 397 P.2d 924 (Okl.Cr.App. 1964); Brooke v. People, 139 Colo. 388, 339 P.2d 993, 1959); Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966); International Criminal Police Review, January 1964, p. 28; Turkel & Lipman, “Unreliability of Dermal Nitrate Test for Gunpowder (Sic),” 46 J.Crim.L.C. & P.S. 281 (1955) ; Cowan, “A Study of the ‘Paraffin Test,’ ” 12 J. for Sci. 19 (1967) ; Scientific Evidence in Criminal Cases, pp. 157-159 (1973).

      . A court reporter should always be present when the judge is on the bench.


text:
    Dennis Leroy HIGNITE, Appellant, v. The STATE of Texas, Appellee.
    No. 49861.
    Court of Criminal Appeals of Texas.
    April 30, 1975.

      Jim G. Bray, Jr., Plano, for appellant.
    Tom O’Connell, Dist. Atty., Elliott Knott, Bill Jouette and Verla Sue Holland, Asst. Dist. Attys., McKinney, Jim D. Vollers, State’s Atty., and David S, McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction under the former Penal Code for robbery by assault with a firearm, wherein the punishment was assessed by the jury at life imprisonment.

The sole contention on appeal is that the court erred in failing to grant his motion for instructed verdict at the conclusion of the State’s .case since the undisputed evidence showed that the alleged offense occurred in Dallas County, not in Collin County, as charged.

The indictment alleged that the appellant had taken from John W. K. Simon “a 1959 Chrysler automobile, the same being the property of the said John W. K. Simon, and with the intent then and there to deprive the said John W. K. Simon of the value of the same and to appropriate the same to the use of him, the said Dennis Leroy Hignite.”

Simon testified that he lived in Richardson, and on the night of December 25, 1973, he had gone to a small youth church known as Shepherd’s Bush. He left the church near midnight and was returning to his home in Richardson driving his Chrysler automobile north on North Central Expressway, Highway 75, when he saw two hitchhikers between the S.M.U. campus and North Park Shopping Center. He stopped to give them a ride when one of the hitchhikers, the appellant Hignite, opened the passenger side of the car and stuck a gun “right in.” Simon related he took his hands off the wheel and said, “O. k., I’m scared.” Appellant then ordered Simon away from the wheel and instructed his companion, Stephen Horner, to get in the driver’s seat. Simon testified that the appellant noticed the broken gas gauge registered “empty” and instructed Horner “to get off on Forest” and go west on “LBJ,” where they found a Texaco service station and purchased gas using some money taken from Simon’s wallet and some of their own. All during this time appellant held a gun on Simon. They later returned to Highway 75 and continued in a northerly direction, stopping briefly in Plano, at which time Horner displayed a pistol to Simon. Another stop was made in the vicinity of McKinney, at which time Simon was asked if he wanted “to die slow or fast.” They returned to Highway 75 and drove just north of McKinney and again made an exit off the highway. Simon was ordered out of the car and to walk. As he started to walk “back toward Dallas,” the appellant shot him in the back and again in the leg after he was on the ground. A third shot missed. Appellant and his companion then fled in the Chrysler. The badly wounded Simon was able to make his way to a residence. Law enforcement officers were summoned and Simon gave a description of his car, its license number and a description of his assailants. They were spotted by a law enforcement officer in Collin County, and as they headed south on Highway 75 a roadblock was set up and appellant and Horner were apprehended and disarmed in Collin County.

“The venue in a robbery prosecution must be proved as alleged in the indictment. To sustain the allegation, however, the state need only prove that, by reason of the facts, the county where the prosecution is carried on has jurisdiction.” 50 Tex.Jur.2d Rev., Robbery, Sec. 41 (Venue), p. 201.

It is well established that venue in a criminal case need not be proven beyond a reasonable doubt but only by a preponderance of the evidence. Article 13.17, Vernon’s Ann.C.C.P. (as amended 1973); Esquivel v. State, 506 S.W.2d 613 (Tex.Cr.App.1974); Edwards v. State, 427 S.W.2d 629 (Tex.Cr.App.1968). Venue is sufficiently proven if from the evidence the offense was committed in the county alleged. Harden v. State, 417 S.W.2d 170 (Tex.Cr.App.1967); Edwards v. State, supra.

Upon the question of venue raised, appellant relies upon Article 13.18, Vernon’s Ann.C.C.P., which provides:

“If venue is not specifically stated, the proper county for the prosecution of offenses is that in which the offense was committed.”

In addition he cites Etzler v. State, 143 Tex.Cr.R. 327, 158 S.W.2d 495 (1942), and Busby v. State, 143 Tex.Cr.R. 72, 157 S.W.2d 394 (1942).

Busby involved a complaining witness who picked up two hitchhikers and, while traveling in Williamson County, Busby’s companion produced a pistol and ordered the complaining witness to turn the car over to them. The witness got out from under the wheel, and the defendant then began to drive, and the two robbers turned around “and came back to Travis County.” It is not clear from the opinion where the complaining witness picked up the hitchhikers or whether he remained in the car after he got out from under the wheel. Nevertheless, the court held that in view of the witness’ undisputed testimony that the offense occurred in Williamson County, venue was properly laid in that county.

In Etzler the defendant, posing as a prospective buyer of a used car, asked the salesman in Tahoka, Lynn County, for a demonstration of a car and, after driving seven or eight blocks, pulled a pistol, ordered the salesman to get a suitcase under a bush and place't in the car. The salesman was commanded to reenter the car, and the appellant then drove to Lubbock in another county before releasing the salesman, telling him the car could be recovered the next morning in Big Spring. In Etzler the court held that the robbery took place in the county where the defendant took possession and control of the automobile, and not in the county where the defendant made the salesman get out of the car. The court in Etzler observed that if the appellant had abandoned the car before he was apprehended, then the issue of whether or not he intended to permanently appropriate it would have been raised, but he did not do so.

The State urges that Etzler should be read as approving the fact that venue was properly laid in Lynn County, but not condemning the possible prosecution in Lubbock County.

The State takes the position that the evidence is unclear as to in what county the complaining witness picked up the hitchhikers, but the evidence clearly shows that the complaining witness was forced out of the car and shot in Collin County, and thereafter the appellant fled in the car and then permanently appropriated the car to his own use and benefit, and he was subsequently apprehended in the car in Collin County.

We do observe that Article 13.19, Vernon’s Ann.C.C.P., provides that:

“If an offense has been committed within the state and it cannot readily be determined within which county or counties the commission took place, trial may be held in the county in which the defendant resides, in the county in which he is apprehended, or in the county to which he is extradited.”

The State further urges that robbery is but an aggravated form of theft. Thomas v. State, 168 Tex.Cr.R. 225, 324 S.W.2d 869 (1959); Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165 (1960); Johnson v. State, 463 S.W.2d 736, 738 (Tex.Cr.App.1971). See and compare Shannon v. State, 170 Tex.Cr.R. 91, 338 S.W.2d 462 (1960). And felony theft and robbery by assault have long been held to be offenses of like character. Ex parte Romines, 419 S.W.2d 358 (Tex.Cr.App.1967); Cherry v. State, 447 S.W.2d 154, 158 (Tex.Cr.App.1969), and cases there cited.

Article 13.08, Vernon’s Ann.C.C.P., provides that:

“Where property is stolen in one county and removed by the offender to another county, the offender may be prosecuted either in the county where he took the property or in any other county through or into which he may have removed the same.”

In Wallace v. State, 458 S.W.2d 67 (Tex.Cr.App.1970), this court on rehearing held that where the robbery was a continuing offense which lasted for hours, testimony of the owner of the vacant house in which the victim was found that the house was in the forum county, and by the sheriff that both the house and a gas station where the robbers and victim stopped for gas were in the forum county was sufficient to show the continuing offense was committed in the forum county and the venue was laid in that county.

In the instant case, if it can be validly argued that it is not clear just where the offense commenced or was completed, then venue was properly laid under the provisions of Article 13.19, supra, since it is undisputed that the appellant was apprehended in Collin County. If, on the other hand, it can be argued that the evidence is sufficient to show that the offense commenced and was completed in Dallas County, venue was still properly laid in Collin County in view of the provisions of Article 13.08, Vernon’s Ann.C.C.P. As we view the provisions of that statute, it is not limited to theft cases, but if the property is stolen by other unlawful means, such as robbery, the statute would have application and authorize venue in either Dallas County or Collin County where the property was removed. Still further, it appears that the robbery alleged (the taking of the Chrysler automobile) was a continuing offense over a period of time, and venue was properly laid in Collin County, where the complaining witness was finally forced from his car and shot, and where the appellant was apprehended. See Wallace v. State, supra.

Etzler and Busby appear to have been properly decided, but to the extent they infer venue could not have been properly laid in another county they are overruled to the extent of any conflict with this decision.

The judgment is affirmed.

      . An examination of the record reflects that the complaining witness picked up the defendant and his companion in Travis County while on his way home to Taylor and that after the twosome had taken possession of the car in Williamson County, they drove back to Travis County. The complaining witness remained in the car, but after reaching Travis County was forced from the car and his money was taken from him. He was tied and left, but soon untied himself and summoned law enforcement officers. The automobile was later recovered in Indiana.

      . We note that in Smallwood v. State, 464 S.W.2d 846 (Tex.Cr.App.1971), the defendant’s contention was exactly opposite that of the appellant in the instant case. The robbery indictment in Smallwood alleged the defendant took one automobile, one watch and $14.00 in money from the complaining witness in Dallas County. The evidence showed that the defendant forced his way into the complaining witness’ car in Dallas County and ordered the witness to drive to the Central Expressway, where he took the witness’ watch and money, as well as money from the witness’ female companion. The defendant then drove into Ellis County, where be and his companion raped the female and then departed in the car. On appeal he contended that venue was not proved in Dallas County because the automobile was not finally taken until the parties were in Ellis County. In Smallwood the court, without reaching the question here involved, held that in a robbery all the property alleged taken need not be proven, and proof of the taking of a part is sufficient. The court concluded that evidence showing the taking of the watch and money was in Dallas County, and venue was properly laid. Etzler was not mentioned or cited.