author: SHRIVER, Judge.

text:
    Clarice Nettie STORY and Robert Story, Plaintiffs-Appellees, v. SOUTHERN FIRE AND CASUALTY COMPANY, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    June 27, 1975.
    Certiorari Denied by Supreme Court Sept. 15, 1975.

      Robert L. Littleton and William M. Leech, Sr., Dickson, for plaintiffs-appellees.
    William P. Carpenter and Richard D. Speight, Nashville, for defendant-appellant.
   OPINION

SHRIVER, Judge.

The Case

This suit involves damages received in an automobile collision where there was an unidentified hit-and-run driver and where policies of insurance issued by each of the defendant companies contained provisions for uninsured motorist protection.

The declaration filed herein states that plaintiff, Clarice Nettie Story, sued the defendants, Claudine B. Sessler and Lucille Sessler, Aetna Life and Casualty Insurance Company and Southern Fire and Casualty Company, for $75,000.00 damages and for cause of action avers:

That plaintiff, on or about December 20, 1969, was riding in a 1967 Ford automobile owned by Lucille Sessler and registered in her name, and being driven by Claudine Sessler with the owner’s consent; that at about 5:00 o’clock in the afternoon, while proceeding in the direction of Ashland City, on Highway 12, near the Davidson-Cheat-ham County line, just inside Cheatham County, a car proceeding in the opposite direction at a high and reckless rate of speed was approaching them; that defendant Claudine B. Sessler failed to keep a proper lookout and, as a result of her negligence combined with the negligence of the driver of the car meeting plaintiff, the two cars collided; that the driver of the car meeting the plaintiff is unknown to her since the vehicle, after the collision, never stopped at the scene of the accident; that said car being driven by an unknown party at a high, dangerous and reckless rate of speed and partly on plaintiff’s side of the road collided with and side-swiped the automobile in which plaintiff was riding, causing it to go off of the road, striking a guard rail and jumping over same and down a steep embankment, finally coming to rest near the highway.

The declaration describes plaintiff’s injuries to her knees, legs, hips, shoulder, back and pelvis, along with numerous fractures, bruises and contusions to her entire body.

Narrative Bill of Exceptions

The Narrative Bill of Exceptions sets forth the facts and the proceedings in this case in a clear and succinct manner. Said Narrative Bill is as follows:

“NARRATIVE BILL OF EXCEPTIONS

On November 16,1970, the original declarations in these cases were filed. The defendant Southern Fire and Casualty Company was named as a defendant, as were Claudine B. Sessler, Lucille Sessler, and Aetna Life and Casualty Insurance Company. Service of process was obtained on all named defendants.

The declarations were divided into three counts. The first two counts consisted of actions wrainst the defendants Sessler for damages arising from a certain automobile accident on December 20, 1969. These counts also alleged that the injuries received and damages incurred by the plaintiffs were the direct and proximate result of the negligence of an unidentified hit- and-run driver.

The Third Count consisted of a suit directly against Southern Fire and Casualty Insurance Company, the Story’s insurer, and Aetna Life and Casualty Insurance Company, the Sessler’s insurer, under the Uninsured Motorist coverage on each policy, and more particularly under the ‘hit-and-run’ coverage.

The policy issued to the plaintiffs by Southern Fire and Casualty Company is attached hereto as Exhibit No. 1, and the policy issued to the Sesslers by Aetna Life and Casualty Company is attached hereto as Exhibit 2.

The defendant Southern Fire and Casualty Company answered on December 19, 1970, withdrew that answer on January 15, 1971, partially on the grounds that its policy provided that under the facts alleged its uninsured motorist coverage would be excess over the Aetna Life and Casualty policy. The defendants Sessler moved to strike the Third Count on January 11, 1971, and the defendant Aetna Life and Casualty demurred to the declaration on the grounds of misjoinder of the Third Count on that same date. All of the demurrers and motions were argued on January 15, 1971, and on July 1, 1971 an order was entered overruling the demurrers, and noting the exceptions of the defendants.

The defendants then all filed pleas to the merits, putting the ease at issue.

On May 22, 1972 the case came on to be heard before the Honorable J. H. Spencer, Judge. Prior to the selection of a jury, the defendants Southern Fire and Casualty and Aetna Life and Casualty moved to sever the Third Count, with plaintiffs’ consent. This motion was granted, and the Third Count severed. The defendant Southern Fire and Casualty then elected not to offer a defense on behalf of the hit-and-run motorist. Richard D. Speight, counsel for this defendant, remained in the courtroom, but did not participate in the defense.

At the conclusion of all the proof the Court granted the plaintiffs’ motion to instruct the jury that the unknown, unidentified uninsured motorist was guilty of negligence which was the direct and proximate cause of the accident, and the jury was instructed accordingly. The Court further directed a verdict against the plaintiffs and in favor of the defendant Lucille Sessler. The Court instructed the jury that even if they found for the defendant Sessler and against the plaintiffs, they should assess the damages to which the plaintiffs were entitled. After the Court’s instructions were concluded the jury retired to deliberate, and after fifteen minutes of deliberation the jury returned a verdict in favor of the defendant Claudine Sessler. An order memorializing the action of the jury was entered on June 20, 1972.

A transcript of the Court’s charge and the jury verdict is attached hereto as Exhibit No. 3 to this Bill of Exceptions, and made a part hereof.

At the conclusion of the events transcribed on Exhibit 3 above, plaintiffs’ counsel, Robert Littleton, was asked by the Judge what he wanted the Court to do about the jury’s failure to return an amount of damages. Littleton advised the Court that he did not know, and that he did not want to take advantage of the parties representing Southern Fire and Casualty since their case had been severed. Therefore, the Court should do whatever it thought best.

On June 17,1972 plaintiffs filed a motion for a new trial, with six grounds. The first five are not pertinent to the appeal. Ground No. 6, however, reads as follows:

‘6. Because the jury failed to return a verdict in keeping with the instructions of the Court; and, further, because the jury failed to follow the instructions of the Court as to its deliberations and as to its arrival at its verdict.’

On November 21, 1972, an order was entered taking a voluntary non-suit as to the defendant Aetna Life and Casualty Company. On that same date, the following order was entered:

‘By consent of the parties, as evidenced by the signatures of counsel, it is ORDERED and ADJUDGED by the Court that the motions for a new trial, heretofore filed in behalf of Robert Story and Clarice Nettie Story, in their negligence suits against the defendants, Claudine Sessler and Lucille Sessler be, and the same hereby are overruled.
/s/ J. H. SPENCER
JUDGE’

On February 5, 1974, the defendant Southern Fire and Casualty Company filed a motion to dismiss pursuant to Rule 12.02, Tennessee Rules of Civil Procedure, asking that the case against Southern Fire and Casualty Company be dismissed on five grounds. Then, on August 19, 1974, the Court issued a Memo Opinion sustaining the sixth ground of the plaintiffs’ motion for a new trial filed on June 17, 1972. An order was entered pursuant to this Memo Opinion on September 6, 1974, ordering that a new trial be granted and a jury empanelled to hear the question of damages only. On September 11,1974 the defendant Southern Fire and Casualty Company moved the Court that the Opinion of August 19, 1974 and order of September 6,1974 be set aside, and further moved that the Court dispose of its motion to dismiss filed on February 5, 1974, which was still pending.

This defendant’s motions were argued on September 16, 1974 and on October 1, 1974 an order was entered overruling those motions for the reasons stated therein, and noting the exception of this defendant to that action.

On October 2,1974, this cause again came on to be heard upon the issue of damages. At that time the Court entered an order amending the original order entered pursuant to the jury’s verdict, and further amending the order granting a new trial. On that date the parties entered into a certain stipulation of facts, stipulating the following:

1. Plaintiffs’ damages exceed the maximum amount recoverable under the Uninsured Motorist coverage, $10,-000.00.

2. Plaintiffs were paid $5,000.00 by Aet-na Life and Casualty under their Uninsured Motorist coverage.

3. Plaintiff is entitled to an award of $10,000.00, and if this award is assessed against the defendant Southern Fire and Casualty Company, that Company is entitled to a credit of the $5,000.00 paid by Aetna Life and Casualty Company.

An order was accordingly entered on October 15, 1972 awarding a judgment in favor of the plaintiff and against the uninsured, unidentified motorist for $10,000.00. Southern Fire and Casualty Company moved for a new trial on all issues heretofore raised, and that motion was denied. Because of the stipulation, it was not necessary to empanel a jury to assess the damages, but all defenses available to the defendant Southern Fire and Casualty Company, including the validity of assessing damages under the circumstances of this case, were expressly reserved.

The foregoing statements of fact constitute a chronology of the events in this case, and a narration of all of the salient facts which are material to this appeal. These facts are stipulated as being true and are not disputed by any party, and are submitted to this Court for a determination of the issues raised herein.

A/ ROBERT L. LITTLETON A/ WILLIAM M. LEECH
P.0. Box 396, Dickson, Tenn. P.0. Box 396, Dickson, Tenn.
ATTORNEYS FOR THE PLAINTIFFS
GOODPASTURE, CARPENTER, WOODS & SASSER
600 American Trust Bldg., Nashville, Tenn.
A/ Wm. F. Carpenter /s/ Richard D. Speight
ATTORNEYS FOR THE DEFENDANT-"

On the date of the accident, Aetna Life and Casualty Insurance Company had in force and effect a policy of liability insurance issued to Lucille Sessler covering the vehicle involved in the accident and applicable to the plaintiff, Mrs. Story. This policy, as hereinabove noted, contained a provision for uninsured motorist protection. Also, on the date of the accident, Southern Fire and Casualty Company had in full force and effect a policy of liability insurance issued to Robert E. Story which covered plaintiff and this policy likewise contained a provision for uninsured motorist protection.

Both of the above policies had minimum limits of $10,000.00 per person, as required by Tennessee Uninsured Motorists Statutes, and both policies included automobiles driven by hit-and-run drivers as “insured automobiles” under the uninsured motorist coverage. Both policies also contained “Other Insurance” clauses as part of their uninsured motorist coverage and, in the Southern Fire and Casualty “Other Insurance” provision, it is stated that the insurance under Part IV of the policy shall apply only to excess insurance over any other similar insurance available to such insured and applicable to such automobile as primary insurance. The language of the Aetna policy covering “other insurance” is identical to that in the Southern Fire and Casualty policy.

Assignments of Error

There are eight assignments, the first five of which deal with the procedure followed in this case, these five assignments being as follows:

“1. The lower Court erred by holding in its Memo Opinion of August 19, 1974 and the subsequent order enforcing same entered on September 6, 1974, that the motion for a new trial filed by plaintiff on June 17,1972 had not been disposed of by the agreed order entered by plaintiff on November 21, 1972.
2. The lower Court erred by directing in its Memo Opinion of August 19, 1974, and by ordering in its subsequent order of September 6, 1974, that ground six of plaintiff’s motion for a new trial be granted and that a new trial be held on the issue of damages despite the entry of an order overruling all grounds of the plaintiff’s motion for a new trial on November 21, 1972.
3. The lower Court erred in holding in its Memo Opinion of August 19,1974 that the jury had found that the hit-and-run motorist was guilty of negligence which was the direct and proximate cause of the plaintiff’s injuries, since the jury did not so hold.
4. The lower Court erred in entering an order on October 2, 1974 amending its original order of June 20, 1972 to show that judgment had been entered in favor of the plaintiff and against the hit-and-run driver when such a judgment had not, in fact, been entered on that date.
5. The lower Court erred in allowing an assessment of damages on October 2, 1974, and in entering an order awarding those damages.”

The foregoing assignments will be discussed together.

In the Brief and Argument filed by counsel for Southern Fire and Casualty the events relating directly to the above five assignments are set out in chronological order and we will follow that chronology in our discussion of said assignments.

(1) On November 16, 1970, the declaration in this case was filed alleging negligence on the part of the defendant driver and the unidentified hit-and-run motorist.

(2) On May 22, 1972, a trial was held and a severance as to Count Three of the declaration which deals with the contracts of insurance was granted and a jury heard the case against the defendants Sessler and the hit-and-run driver but did not hear any evidence with respect to the insurance contracts.

At the conclusion of the evidence the jury was instructed by the Trial Judge that the unidentified motorist was guilty of negligence and to assess damages regardless of the outcome of the cases against the defendants Sessler. However, the jury did not follow the instructions of the Court. They returned a verdict which was not against the unidentified motorist and they did not assess damages. And, it is to be noted that the Court took no action as to this omission and counsel for the plaintiffs did not request that this error be corrected at that time and the jury was discharged. It is interesting to note just what occurred with respect to the verdict of the jury.

The record shows that the jury retired at 2:30 P.M. to consider their verdict and returned at 2:45 P.M., when the following occurred:

“THE COURT: Gentlemen, have you arrived at a verdict?
FOREMAN: Yes, your Honor, we have.
THE COURT: What is your verdict?
FOREMAN: We, the jury, find Claudine Sessler, the defendant, not guilty of negligence.
THE COURT: So say you all? I don’t think it’s necessary to — well, all right. Well, gentlemen, I thank you very kindly and vou may be excused. You won’t have to come back. Members of the regular jury, I certainly thank you and I am just as appreciative as the other members of the regular jury. This is about three different weeks you have been back. Anyway, I appreciate it very much.”

(3)June 20, 1972 an order was entered memorializing the verdict of May 22, 1972 but not entering judgment against the unidentified motorist, and not assessing any damages.

(4) On June 17, 1972, even prior to the entry of the written order, plaintiff filed a motion for a new trial.

It is to be noted that the plaintiff’s motion for a new trial, as recorded in the Narrative Bill of Exceptions, is as follows:

“On June 17, 1972, plaintiffs filed a motion for a new trial, with six grounds. The first five are not pertinent to the appeal. Ground No. 6, however, reads as follows:
‘6. Because the jury failed to return a verdict in keeping with the instructions of the Court; and, further because the jury failed to follow the instructions of the Court as to its deliberations and as to its arrival at its verdict.’

On November 21, 1972, an order was entered taking a voluntary non-suit as to the defendant Aetna Life and Casualty Company. On that same date, the following order was entered:

‘By consent of the parties as evidenced by the signatures of counsel, it is ORDERED and ADJUDGED by the Court that the motions for a new trial, heretofore filed in behalf of Robert Story and Clarice Nettie Story, in their negligence suits against the defendants, Claudine B. Sessler and Lucille Sessler, be, and the same hereby are overruled.
/s/ J.H. SPENCER
JUDGE’ ”

(5) As above noted, on November 21, 1972, an order was entered with plaintiffs’ counsel’s consent and signature, overruling the motion for a new trial. It is to be observed that nothing in this record indicates in any way that during the thirty days following the entry of the Court’s decree overruling the motion for a new trial anything was done to withdraw, alter or amend this decree.

(6) More than two years thereafter, to-wit, on February 6, 1974, the plaintiff moved the Court to impanel a new jury to hear proof and award damages.

(7) Thereafter, on August 19, 1974, the Court entered a Memo Opinion which states that at the conclusion of all of the proof the Court directed the jury to find the uninsured motorist liable, and states:

“The jury, therefore, found the uninsured motorist was guilty of negligence which was the direct and proximate cause of the accident and found that the other defendants were not guilty of negligence. The jury did not assess the amount of damages.”

Insofar as this record is concerned, it is clear that the jury did not find that the uninsured motorist was guilty of negligence which directly and proximately caused the accident. It is true that the jury did not assess damages.

The Memo then states that, thereafter, the plaintiff filed a motion for a new trial, which motion was never acted upon.

The record herein shows specifically that the motion was acted on and overruled and a decree entered to that effect.

The Memo further states that, after due and careful consideration, the Court is of the opinion that all but one ground of the motion for a new trial should be overruled, and that the sixth ground of the motion should be sustained and:

“. . . the Court was in error when the jury reported that it found the uninsured motorist guilty of negligence which was the direct and proximate cause of the accident, and should have directed that they retire and fix the amount of damages for which plaintiff was entitled.”

As hereinabove stated, this record does not reflect that the jury found the uninsured motorist guilty of negligence which was the direct and proximate cause of the accident. They simply were silent on that point. They found only that the defendant driver was not guilty of negligence.

Finally, in the Memo it is stated that the Third Count of the declaration, which is an action on contract, will be continued until an ascertainment of the damages in the tort action.

Following the Memo an order was entered granting a new trial to the plaintiff for the sole purpose of determining the extent of damages sustained by the plaintiff with no reference being permitted to be made to any insurance.

Thereafter, the defendant Insurance Company filed a motion to rehear and set aside the Memo Opinion and subsequent order.

(8) The Court entered an order on October 2, 1974 granting a new trial, which amended its previous order of June 20, 1972, and awarded a judgment against the unidentified motorist.

Said order of October 2, 1974 awarded plaintiffs damages in the amount of $10,-000.00 against the unnamed uninsured motorist. It was stated in said order that the defendant Southern Fire & Casualty Company was entitled to a credit for $5,000.00 against any amount which they should ultimately be held liable to pay the plaintiffs. Said credit resulted from the $5,000.00 which previously had been paid by Aetna Life & Casualty Insurance Company under its policy. Said order did not award any judgment against Southern Fire and Casualty Company.

It is insisted by the defendant Insurance Company that the Trial Judge was in error in holding that the plaintiffs’ motion for a new trial had not been disposed of by the order of November 21, 1972 and in subsequently granting ground six of the motion for a new trial; in holding that the jury had found that the hit-and-run motorist was guilty of negligence; by amending the order entered following the jury verdict some twenty-eight months after the entry of the final judgment overruling the motion for a new trial; and by allowing assessment of damages and the entry of an order awarding same on October 2, 1974.

If the decree of November 21, 1972 disposed of plaintiffs’ motion for a new trial, then the Court simply had no jurisdiction to take the actions which were taken after that as hereinabove outlined, because that decree became final after the expiration of thirty days.

We see no escape from the conclusion that the motion for a new trial made by the plaintiffs was disposed of by the decree of November 21, 1972 and that the Court’s subsequent action in undertaking more than two years later to revise, reverse or amend his order so as to grant a new trial was erroneous, hence, the assignments in this regard must be sustained. However, this does not conclude the controversy.

Counsel for plaintiffs make a very strong plea and persuasive argument that the procedure followed by the Trial Court in this case was correct. Counsel states that it seems to be the position of the defendant that it can never be made a direct defendant for the enforcement of its contract and that, if this position be true, then plaintiff paid for protection which it is impossible for her to get. Counsel further states that the very nature of a hit-and-run driver is the fact that he cannot be located and sued personally and that, while the statute does not make specific provision for the determination of liability where the uninsured motorist cannot be located, by reference to Doe v. Sides, 222 Tenn. 121, 432 S.W.2d 889, our Supreme Court has adopted the method used in the case at bar.

We deem it desirable to discuss the questions raised by counsel for plaintiff and defendant with respect to § 56-1153, T.C.A., and proper interpretation of that statute.

Section 56-1153, T.C.A., in pertinent part, provides as follows:

“56-1153. Service upon the insurance carrier — Arbitration not required. — Any insured intending to rely on the coverage required by §§ 56-1148 — 56-1153 shall, if any action is instituted against the owner and operator of an uninsured motor vehicle, serve a copy of the process upon the insurance company issuing the policy in the manner prescribed by law, as though such insurance company were a party defendant; such company shall thereafter have the right to file pleadings and take other action allowable by law in the name of the owner and operator of the uninsured motor vehicle or in its own name; provided, however, that nothing in this paragraph shall prevent such owner or operator from employing counsel of his own choice; provided, further, that the evidence of service upon the insurance carrier shall not be made a part of the record.”

Doe v. Sides, 222 Tenn. 121, 432 S.W.2d 889, hereinabove referred to, sheds some light on the question at hand. Said case dealt with an uninsured motorist claim and involved a Virginia statute dealing with the question.

In that connection, this Court, in an Opinion which the Supreme Court saw fit to incorporate in its Opinion as an Appendix thereto, among other things, stated (p. 128, 432 S.W.2d p. 892):

“Under the Virginia Uninsured Motorists Statute, as construed by Virginia Courts, a John Doe action is an action ex delicto and judgment must first be rendered against the unknown or hit-and-run driver before the action may proceed against the insurance company. Rodgers v. Danko, 204 Va. 140, 129 S.E.2d 828; O’Brien v. Government Employees Insurance Co., 3 Cir., 372 F.2d 335.”

At another point in the Opinion it was stated:

“In Schleif v. Hardware Dealers Mutual Fire Insurance Co., 218 Tenn. 489, 404 S.W.2d 490 (1966), in an opinion by the late Mr. Justice Weldon White, the Supreme Court of Tennessee held that a suit under the standard uninsured motorist automobile policy is an action ex contrac-tu rather than one ex delicto, even though the insured under the terms of the contract must show that he is entitled to recover damages from the owner or operator of an uninsured automobile as a prerequisite to a recovery against the insurance company.”

In Glover v. Tennessee Farmers Mutual Ins. Co., 225 Tenn. 306, 468 S.W.2d 727, among other things, it was said:

“It is fundamental that the legal liability of one person to another can be ascertained only in an action brought against such person by the other in a court of competent jurisdiction. . No mere action against the insurance company to which the known uninsured motorist is not a party and in which could not be made a party could adjudicate this question so as to affect the legal liability of the uninsured motorist to the insured.”
“It is clear that when the requirement of Section 56-1153, with respect to affording the insurance carrier the right to defend the uninsured motorist is complied with, the insurance carrier is bound by the judgment. The whole intent and purpose of the uninsured motorist act, is, in essence, to provide protection by making the insurance carrier stand as the insurer of the uninsured motorist, with two necessary consequences. (1) The suit has to be brought against the uninsured motorist, with the fact of insurance excluded as a possible prejudicing factor, as in any other such case; and (2) the insurance company is bound by the judgment rendered in that suit, to the extent of its policy limits, where it is afforded the statutory opportunity to defend the uninsured motorist.” [Emphasis supplied] 225 Tenn., pp. 312, 313, 468 S.W.2d p. 730.

It is plausibly argued by counsel for the defendant Insurance Company that the language in Glover is not susceptible of more than one interpretation, that it is to the effect that in Tennessee, in order to get a judgment against an uninsured motorist that is binding on the insurance carrier, a plaintiff must sue the uninsured motorist, serve the carrier and then obtain a judgment and this was not done in the instant case.

In Schleif v. Hdw. Dealers Ins. Co., supra, the Supreme Court recognized the right of the insured to sue his insuror where the uninsured motorist is unknown.

Glover v. Tenn. Farmers Mutual Ins. Co., supra, unequivocally requires that liability of the uninsured motorist be established by a suit against the uninsured motorist. However, Glover involved a case where the uninsured motorist was known and available to be sued.

Glover does not mention Schleif, hence it must be presumed that the Supreme Court considered that the two cases dealt with distinguishable facts and therefore were not in conflict. In our view, Schleif is authority for direct suit against the insurer where the uninsured motorist is unknown; and Glover requires a suit against the known uninsured motorist.

There is good reason to advocate the “John Doe” procedure as provided by Virginia Statute and mentioned in Doe v. Sides, supra; however, it is considered that this procedure should be initiated in Tennessee by statute or rule of civil procedure rather than by decision of this Court.

The foregoing disposes of the question raised in Assignment No. 6.

Assignments Nos. 7 and 8 relate to action of the Trial Judge in respect to demurrer and motion to dismiss on grounds that Southern Fire and Casualty Company provided only excess uninsured motorist coverage over and above similar coverage by Aetna.

The appeal bond refers only to a “judgment . . . against an unidentified uninsured motorist.”

There is no final judgment against Southern Fire & Casualty Company, and no indication of any appeal from any such judgment.

There was no prayer for or allowance of any appeal from any ruling upon said demurrer or motion to dismiss, and there is no indication of any appeal from such rulings.

Thus, the issues presented by Assignments Nos. 7 and 8 are not properly before this Court and must be reserved pending final judgment thereon and appeal therefrom.

As we view the case, a tort suit was filed against known, insured motorists, the Ses-slers. In the same suit, two insurance companies were sued upon their contract liability based upon alleged tortious conduct of an unknown uninsured motorist who could not be named as a party to the suit.

The trial of a tort action against the Sésslers was severed from the trial of the contract action against the insurance companies. Said severance was eminently fair and proper to avoid the result of presenting to a jury the issue of whether damages should be assessed against individuals (the Sesslers) or against insurance companies. As a result of said severance, the issues before the court at the first trial involved only the tort liability of the Sesslers, and the verdict of the jury was properly confined to this aspect of the case.

After the first trial and dismissal of the Sesslers, there remained plaintiffs’ contract suit against the insurance companies to be decided at a future trial. At this point, the remaining undecided aspects of the case represented a typical suit of a policy holder against his insurance company for damages sustained by negligence of an unknown hit- and-run driver such as Schleif supra.

At this point it would have been in order to proceed with trial against the insurance companies upon the issues of negligence of the unknown uninsured motorist, proximate cause, amount of damages and obligations of defendants under their policies.

However, defendant, Aetna saw fit to pay $5,000.00 to plaintiffs who entered a voluntary nonsuit as to Aetna. As a result, the said undetermined aspects of the suit remained for trial against Southern Fire and Casualty Company.

Thereafter, the parties, including Southern Fire & Casualty Co., saw fit to stipulate, “Plaintiff is entitled to an award of $10,000.00.” This Court interprets said stipulation to conclude the issues of negligence of the unknown, uninsured motorist, proximate cause and amount of damages. Thus, after said stipulation, the only issues remaining for resolution were and are the obligations of Southern Fire & Casualty Company under its policy and the law applicable thereto. This includes the issue presented by the motion to dismiss based upon the existence of the Aetna policy as “primary coverage.”

Upon remand, the only issue for determination by the Trial Judge will be what, if any part of said agreed $10,000.00 damages should be assessed and adjudged against Southern Fire & Casualty Company in view of the provisions of its policy, the existence of the coverage of the Aetna policy, the amount paid by Aetna to the plaintiffs, the agreement, if any under which it paid, and the applicable law.

The judgment of the Trial Court is reversed and the cause remanded to that Court for a hearing and determination as to the liability of Southern Fire and Casualty Company under its contract. The costs of this appeal will be taxed equally, that is, one-half to plaintiffs-appellees and one-half to defendant-appellant.

Reversed and remanded.

TODD and DROWOTA, JJ., concur.


source: Caselaw Access Project

author: OLIVER, Judge.

license: Public Domain

text:
    Danny L. HEMPHILL, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    July 1, 1975.
    Certiorari Denied by Supreme Court Sept. 2, 1975.

      Richard Korsakov, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Etrula R. Trotter, Asst. Atty. Gen., Nashville, Stephen M. Bevil and David H. Rotroff, Asst. Dist. Attys. Gen., Chattanooga, for defendant in error.
   OPINION

OLIVER, Judge.

Represented in the trial court and here by appointed counsel, Hemphill has perfected an appeal in the nature of a writ of error to this Court contesting his armed robbery conviction, for which he was sentenced to imprisonment in the penitentiary for 10 years. (TCA § 39-3901.)

All of the defendant’s Assignments of Error challenge the sufficiency of the evidence. He also asserts in particular that there was no competent evidence from which the jury could find that the robber used a deadly weapon. We summarize the material evidence.

Shortly before 5:00 a. m. on October 19, 1973, Charlie Bell, who knew the defendant, was standing on a street corner in Chattanooga waiting for his usual cab ride to work. A car containing two men drove past him three times, and on the fourth trip stopped in front of him. One of the men was the defendant and the other one, whom Bell did not know, was called “Mickey” by the defendant. The defendant pulled a gun on Bell and forced him into the car, and the three then drove to a railroad underpass where the defendant held the gun on Bell and threatened repeatedly to kill him and took his wallet containing $40, his cigarettes, a tobacco pouch containing various papers and pictures, and his keys.

They then drove to Bell’s house after ascertaining its location from him. Bell’s wife and small daughter were there. Leaving Bell in the car and instructing Mickey to kill him if he tried to get out, the defendant went to Bell’s house and tried to unlock the door with the keys he had taken from him. Leaving the car, Bell ran to his front porch and told the defendant he did not intend to let him kill his wife and daughter. The defendant fled to the car when Bell’s wife turned the porch light on and opened the door and he asked her to get his gun for him. The defendant and Mickey drove away and Mrs. Bell went across the street and called the police. Bell made a positive in-court identification of the defendant as the man who robbed him. He said that although he could not be sure about the caliber of the defendant’s gun, he was positive that it was a real gun and not a toy or blank gun.

Quoting approvingly from Moore v. Commonwealth, 260 Ky. 437, 86 S.W.2d 145, 146, our Supreme Court said in Turner v. State, 201 Tenn. 562, 300 S.W.2d 920:

“Under this statute, it is not necessary for the indictment to charge, or the commonwealth to prove, that the pistol was loaded and in every respect capable of being used as a firearm. To so hold would render the statute a nullity, for the very obvious reason that the victim, or intended victim, of a robbery has no opportunity to examine a firearm to ascertain whether or not it is loaded. A person assaulted with a pistol has the right to assume that it is loaded and capable of producing death, and will not be required to subject himself to the danger of first endeavoring to ascertain those facts before yielding to the demands of the robber.”

See also: Campbell v. State, 3 Tenn.Cr.App. 556, 464 S.W.2d 334 (1971).

In James Henry Ford v. State (unpublished opinion filed at Nashville June 9, 1972, cert. den. September 18, 1972), this Court said:

“On this issue, ... we hold that when a robbery is committed by the use of a pistol, and nothing appears indicating affirmatively that it was a toy or would fire only blanks, and it appeared to be a real pistol and was used as a real pistol to put the victim in fear of being shot so as to accomplish a robber’s purpose, such a pistol is officially shown to be a deadly weapon to support a conviction for armed robbery. To put the burden upon the State to positively prove that a pistol so used was not a blank or a toy pistol is unrealistic and unreasonable. The fact that the pistol was displayed and appeared to be real and was thus used to effect a forcible robbery is strong and sufficient prima facie evidence of its deadliness. If the robber is to rely upon the theory that he robbed with a toy pistol, he must carry the burden of proving his theory.”

In the case at hand, no evidence was presented that a toy pistol was used to effect the robbery.

The defense was alibi. The defendant testified he was working the night shift at his place of employment at that time; that after getting off from work about midnight, he and a co-worker, Jerry Martin, had gone out drinking; that Martin took him home about 3:00 a. m. on 19 October 1973 and his sister Gloria unlocked the door and let him in and he went to bed and did not awaken until noon and did not leave the house until he went to work about 2:45 that afternoon; that he had known Bell since the early part of 1973 and did not rob him and had no reason to do so because he had just gotten paid and also because Bell had given him money for the asking at other times; and that he did not own and did not have access to a pistol.

The defendant’s mother and sister testified he came home around 3:00 a. m. and awoke about noon. However, they also testified that everyone was asleep between 5:00 and 7:00 a. m. that day and, therefore, they could not testify to his whereabouts during that period of time. Jerry Martin testified he was with the defendant that night and let him off at his home at 3:00 a. m.

The defense of alibi presented an issue of fact determinable by the jury, as the exclusive judges of the credibility of the witnesses testifying in support of that defense and of the weight to be given their testimony. Jones v. State, 2 Tenn.Cr.App. 160, 452 S.W.2d 365, and authorities therein cited. By its verdict the jury rejected the defendant’s alibi, and upon this record we cannot say that the evidence preponderated against the jury’s decision upon that issue.

In reviewing and considering the evidence in criminal cases when its sufficiency is challenged upon appeal, we are bound to adhere to the time-honored and well-known rules reiterated time and time again by our Supreme Court and by this Court. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799; McGill v. State, 4 Tenn.Cr.App. 710, 475 S.W.2d 223. Applying those historic principles in this case, clearly we cannot say that the jury misjudged the credibility of the witnesses and erroneously assessed the value of their testimony. The defendant has failed to carry the burden he assumed of demonstrating in this Court that the evidence preponderates against the verdict and in favor of his innocence.

Affirmed.

MITCHELL, J., and JOE D. DUNCAN, Special Judge, concur.


author: WALKER, Presiding Judge.

text:
    STATE of Tennessee, Appellant, v. Mo ASHLEY et al., Appellees.
    Court of Criminal Appeals of Tennessee.
    Oct. 3, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, William Mooney, Asst. Dist. Atty. Gen., Blount-ville, for appellant.
    Thomas R. Bandy, III, Kingsport, for Sheffield, Welch, Worley, DeBusk and Line-baugh.
    Myers N. Massengill, Bristol, for Ashley and Hartsock.
   OPINION

WALKER, Presiding Judge.

This appeal by the state concerns the application and construction of our gambling statutes on the operation of pinball machines.

In two-count indictments the seven appel-lees were separately indicted for violation of TCA 39-2001 (gaming) and violation of TCA 39-2006 (possession of gaming device.) The appellee John Welch was indicted in two cases. In each of the eight cases, the appellees filed a plea in abatement by which they insist that pinball machine cash payoff is not illegal under Tennessee law and that the electronic gaming devices referred to were pinball machines.

The pleas in abatement were heard together. It was stipulated that the devices were pinball machines. Although no evidence was taken, from the state’s offer of proof the appellees paid players in money when those players accumulated games to their credit by operation of the pinball machines maintained by the appellees in their establishments. The appellees insist that these activities charged in the indictments as gaming and possession of gambling devices are not illegal under our law. The appellant (state) contends that this conduct is proscribed by our statutes and says that a proper interpretation of our gambling statutes encompasses playing pinball machines with the chance of receiving a payoff in money and possessing pinball machines for the purpose of enticing people to risk money on the outcome. It says these are within the proscription of TCA 39-2001 and 39-2006.

The trial judge sustained the pleas in abatement and dismissed the indictments. By that ruling the pinball exception contained in TCA 39-2033(2) and (4) permits these activities and applies to both TCA 39-2001 and 39-2006.

The determination of this question requires an examination of our gaming statutes. Those alleged in the indictment are:

“39-2001. Gaming — Misdemeanor.—If any person play at any game of hazard or address for money or other valuable thing, or make any bet or wager for money or other valuable thing, he is guilty of a misdemeanor.
“39-2006. Possession of gaming device — Penalty.—No person shall have in his possession any gambling table or any device whatever for the enticement of any person to gamble . . ”

By Chapter 234 of the Public Acts of 1955, the legislature amended the gambling statutes by defining “gambling”, “professional gambling” and “gambling device.” Its definition of gambling does not refer to pinball machines but by its provisions later codified in TCA 39-2033 professional gambling expressly included “pinball machines, which award anything other than an immediate and unrecorded right of replay,” and gambling device was defined as “any . device . . . which a right to . credits . . . may be created . but in the application of this definition an immediate and unrecorded right of replay mechanically conferred on players of pinball machines and similar amusement devices shall be presumed to be without value.”

These provisions in effect proscribed pin'ball machine playing for cash in lieu of free games and if the gaming statutes had been unamended the activity here in question would violate our law.

By Chapter 406 of the Public Acts of 1957, the legislature amended the 1955 Act, the same being TCA 39-2033, by adding the words “pinball machines” to the exceptions to the definition of gambling so that the section now reads: “ ‘Gambling’ means risking any money ... for gain contingent . . . upon lot, chance or the operation of a gambling device, but does not include: . . . pinball machines.”

The amendment deleted from the definition of professional gambling “. pinball machines, which award anything other than an immediate and unrecorded right of replay.” By this provision professional gambling no longer includes pinball machines that award a cash payoff as an alternative to playing free games.

From the definition of “gambling device”, the 1957 amendment deleted “(B)ut in the application of this definition an immediate and unrecorded right of replay mechanically conferred on players of pinball machines and similar amusement devices shall be presumed to be without value.”, and in lieu thereof added: “(B)ut pinball machines shall not be deemed to be included in this definition” of gambling devices.

The gambling statutes must be construed in pari materia. Harris v. State, 207 Tenn. 538, 341 S.W.2d 576; Griffin v. State, Tenn., 495 S.W.2d 814. TCA 39-2031 which prohibits not only soliciting gambling but engaging in gambling and TCA 39-2033(2) which defines gambling encompass the same activity as TCA 39-2001. The pinball exceptions must apply to the older statutes TCA 39-2001 and 39-2006. By the clear and unambiguous language of the 1957 amendment, the award of cash in lieu of free games received on pinball machines is not proscribed. While the purpose of our gambling statutes is to prohibit gambling, not legalize it, the 1957 amendment has legalized payoff of pinball machines in lieu of games won. Any change in the law allowing this gambling activity is a matter for the legislature and not the courts.

TCA 39-2033 as amended in 1957 was considered by our Supreme Court in Smith Amusement Company v. Mayor of Chattanooga, 205 Tenn. 712, 330 S.W.2d 320 (1959). By ordinance the City of Chattanooga had prohibited the possession and maintenance of pinball machines. The court said that TCA 39-2033(2) and (4) specifically excluded pinball machines from the definition of gambling or gambling devices and the ordinance was unconstitutional as being in conflict with the general law of the state. It found this statute unambiguous. Although the effect of this decision was to permit pinball machines to be operated, gambling by payoff in lieu of free games was not at issue there and that case does not directly control our question.

Having found the trial judge correct in his conclusions of law, we affirm his action in sustaining the pleas in abatement and dismissing the indictments.

The judgments are affirmed.

DWYER, J., and DICK JERMAN, Special Judge, concur.


author: PER CURIAM.

text:
    Betty J. VICKREY, Petitioner, v. AMERICAN YOUTH CAMPS, INC., et al., Respondents.
    No. B-5605.
    Supreme Court of Texas.
    Jan. 7, 1976.
    Rehearing Denied March 3, 1976.
    Andress, Woodgate & Lodewick, William Andress, Jr., Dallas, for petitioner.
    Vance, McMullen, Connally & Robertson, Steve Robertson, Clifton, for respondents.
   PER CURIAM.

American Youth Camps, Inc. and Joe Phillips, Jr., Respondents, brought this action against Betty Vickrey, Petitioner. Respondents sought to prevent Mrs. Vickrey from foreclosing, under a deed of trust, on certain real property to which American Youth Camps claimed title, and to remove the deed of trust as a cloud on American Youth Camps’ title. Asserting breach of promise by Mrs. Vickrey, they further prayed for recovery of certain funds that American Youth Camps had become obligated to pay Mr. Phillips. Mrs. Vickrey filed a cross-action seeking judicial foreclosure. The parties reached a settlement agreement which was dictated in open court pursuant to Rule 11, Tex.R.Civ.P. At a subsequent date, the trial court entered final judgment, referring to and incorporating the earlier settlement agreement. Complaining that it did not conform to the settlement agreement reached by the parties, Mrs. Vickrey appealed from the entry of this final judgment. The court of civil appeals affirmed the final judgment as entered, holding that Mrs. Vickrey’s complaints were without support in the record. 526 S.W.2d 727.

Among other discrepancies complained of, Mrs. Vickrey points out that the settlement agreement provided for Mr. Phillips to receive 63 acres of the property in question and for his execution of a $10,-000 note favoring her, while the final judgment as entered awards the 63 acres to American Youth Camps and requires it, rather than Mr. Phillips, to execute the note. A final judgment which is founded upon a settlement agreement reached by the parties must be in strict or literal compliance with that agreement. Wyss v. Bookman, 235 S.W. 567 (Tex.Comm.App.1921); Edwards v. Gifford, 137 Tex. 559, 155 S.W.2d 786 (1941).

Pursuant to Rule 483, Tex.R.Civ.P., the decision of the court of civil appeals being in conflict with the above cited cases, the application for writ of error is granted and, without hearing oral argument, we reverse the judgment of the court of civil appeals and remand the cause to the trial court.


author:
MORRISON, Judge.
      ODOM, Judge ONION, Presiding Judge DOUGLAS, Judge

text:
    William David HOVILA, Appellant, v. The STATE of Texas, Appellee.
    No. 49396.
    Court of Criminal Appeals of Texas.
    April 30, 1975.
    On Denial of Rehearing Feb. 11, 1976.
    Howard G. Wilson, Dallas, Timothy Ann Sloan, Odessa, for appellant.
    Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Robert E. Whaley, Steven Tokoly and John Ovard, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

The offense is murder; the punishment, under Article 1257, Vernon’s Ann.P.C. and Article 37.071, Vernon’s Ann.C.C.P., death.

We are met at the outset with appellant’s contention that “the trial court failed to properly apply the standards of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).”

Witherspoon held that “a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

The Supreme Court reiterated its position in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), and again shortly thereafter in Maxwell v. Bishop, 398 U.S. 262, 90 S.Ct. 1578, 26 L.Ed.2d 221 (1970), by quoting Witherspoon :

“ ‘Unless a venireman states unambiguously that he would automatically vote against the imposition of capital punishment no matter what the trial may reveal, it simply cannot be assumed that that is his position.’ ”

In Grider v. State, Tex.Cr.App., 468 S.W.2d 393, this Court applied the doctrine set out in Witherspoon, stating:

“It is clear then that the procedure utilized in the case at bar in excusing prospective jurors after an initial expression of ‘conscientious scruples’ or disclaimer of belief in capital punishment without going further and ascertaining that the prospective juror would automatically vote against the death penalty in any case, regardless of the facts, or consider its imposition in the case irrespective of the evidence, etc., does not square with With-erspoon or the traditional Texas practice.”

See also Ex parte Martin, Tex.Cr.App., 479 S.W.2d 280; Ocker v. State, Tex.Cr.App., 477 S.W.2d 288. Cf. Tezeno v. State, Tex.Cr.App., 484 S.W.2d 374.

Initially we must determine if the test set forth in Witherspoon applies in view of the oath now required of jurors in death penalty cases and under the new procedure set forth in Article 37.071, supra, for determination of punishment in a death penalty case. See also Article 1257, supra, and Section 19.03, V.T.C.A., Penal Code.

While the new statutes provide that the jury shall take an oath that they will not let the penalty involved affect their deliberations and requires them only to answer questions while the judge actually assesses the punishment based on such answers, the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury’s answers would not be affected by their attitude toward the death penalty as a punishment for crime simply because they will not bring forth the ultimate verdict would be to disregard the obvious. We will not engage in such tenuous reasoning.

We hold, therefore, that the Witherspoon test remains the same.

We must next determine whether the requisites of Witherspoon have been met in the case at bar. At the outset of the voir dire of each jury panel, the trial court instructed them on the general principles of criminal law as well as on the new death penalty statute and the jury’s role in administering it. He then asked those who felt that they were disqualified for any reason to come forward and present their excuses. Among those who expressed reservations as to their ability to impose the death penalty were:

1. Mrs. T. W. Smith:
“Q May I have your name?
A Mrs. T. W. Smith.
MR. WHALEY [The prosecutor]: No. 2, Judge.
Q All right.
A I can’t — I don’t believe in the death penalty. I feel like I’m disqualified. I don’t think I could sit on it.
THE COURT: Any questions, gentlemen?
MR. WHALEY: No, sir.
MR. WILSON [Defense Attorney]: No. THE COURT: You may be excused.”
2. J. R. Chatham:
“Q What is your name?
A Chatham. With a clear conscience I could not make a decision of that magnitude.
MR. WHALEY: No. 21.
THE COURT: Mr. Chatham, you may be excused.”
3. Dorothy Guttridge:
“THE COURT: Will you state your name, please?
A Dorothy J. Guttridge.
MR. TOKOLY: 29, Your Honor.
THE COURT: All right.
MRS. DOROTHY J. GUTTRIDGE: I just don’t feel like I can live with myself knowing that I might have adjudged death on somebody.
THE COURT: And you couldn’t answer the issues without concerning yourself about the effect of your answers? Is that what you are telling the Court?
Right. A
MR. SIMMONS [Defense Attorney]: I have no questions.
THE COURT: Thank you. You may be excused.”
4. Juanita Miller:
“Q What is your name?
A Juanita Miller.
MR. WHALEY: No. 6.
THE COURT: Yes, ma’am?
A I’m afraid my conscience wouldn’t let me give the death sentence.
Q You couldn’t answer the questions without concerning yourself about the death penalty?
A No, I couldn’t.
THE COURT: You may be excused.”
5. Mrs. L. N. D. Wells, Jr.:
“Q Your name, please?
A Mrs. Wells.
MR. WHALEY: No. 3, Judge.
THE COURT: All right, Mrs. Wells.
A I am unalterably opposed to the death penalty.
Q To such an extent—
A I hate to say it, but it really is true.
Q Don’t hate to say it. Thank you for your courtesy in coming up.
If there is any objection to this please let me know.
(Whereupon, Prospective Juror No. 3, Second Panel, Mrs. L. N. D. Wells, Jr., was excused.)”

The cursory examination of these members of the venire was insufficient to meet the test promulgated by the United States Supreme Court in Witherspoon, and applied by this Court in Grider; and this conviction can therefore not stand.

Accordingly, the judgment is reversed and the cause remanded.

ROBERTS, J., concurs in the results for the reasons stated in his dissent in Jurek v. State, 522 S.W.2d 934 (1975).

ODOM, Judge

(dissenting).

The majority have ordered this needless reversal on inadequate reasoning. They have misinterpreted Article 37.071, Y.A.C. C.P., and have incorrectly determined the applicability of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

Witherspoon, supra, says:
“Specifically, we hold that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.”

The procedure set out in Article 37.071, supra, is mechanical, and provides for a mandatory death penalty upon an affirmative answer to each of the special fact issues submitted under Section (b). The jury neither imposes nor recommends imposition of the death penalty under this statute. In fact, under the provisions of Article 1257, V.A.P.C. (under which appellant was convicted), each juror must state under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact. The majority ignore both the mandatory character of this statute and the oath required of each juror. I must dissent to their reliance upon a presumption of jury misconduct.

I also dissent to the majority’s reversal of this conviction because the reasoning followed in their opinion is in conflict with that followed in their disposition of Jurek v. State, 522 S.W.2d 934 (1975). In Jurek the majority found that Article 37.071, supra, provides for a limitation on “the standard-less imposition of the death penalty,” by “channeling] the jury’s consideration on punishment,” and “directing] and guid[ing] their deliberations.” These controls, said the majority, saved this statute from the faults condemned in Furman v. Georgia and Branch v. Texas, 408 U.S. 238, 92 S.Ct. 2726, 32 L.Ed.2d 346. Now, say the majority, “the fact remains that the jury will know that their answers will determine whether the defendant is to be punished by death or by life imprisonment. To say that the jury’s answers would not be affected by their attitude toward the death penalty . would be to disregard the obvious.” After their finding that the controls of Article 37.071 save the scheme from unconstitutionality, they now find it obvious that the controls will be ignored. If the majority insist on being wrong, they should at least strive to be wrong with consistency, and avoid being wrong in a different way each day.

Finally, I must dissent for the reasons stated in my opinion concurring in part and dissenting in part in Jurek v. State, supra. In that opinion I pointed out the defects in Article 37.071, supra, which render it unconstitutional. Under the reasoning therein the judgment herein should likewise be reformed to provide for life imprisonment. The Witherspoon issue upon which the majority stand so ready to reverse would then be moot (Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797; Stephenson v. State, Tex.Cr.App., 494 S.W.2d 900, 910) and the judgment would be affirmed.

For all the reasons stated I dissent to the needless reversal of this case.

STATE’S MOTION FOR REHEARING

ONION, Presiding Judge

(concurring).

While I concur in the action of the majority in overruling the State’s motion for rehearing without written opinion, I have concluded that in order to clarify some confusion which exists among the bench and bar as to when a sentence should be pronounced in a death penalty case appellant’s first ground of error on original submission should be discussed.

In his first ground of error appellant contends the appeal should be abated because the trial court improperly pronounced sentence prior to the decision of this court in violation of Article 42.04, Vernon’s Ann. C.C.P., which provides in part:

“When an appeal is taken from a death penalty, sentence shall not be pronounced, but shall be suspended until the decision of the Court of Criminal Appeals has been received. . . .”

Article 42.02, Vernon’s Ann.C.C.P., provides:

“A ‘sentence’ is the order of the court in a felony or misdemeanor case made in the presence of the defendant, except in misdemeanor cases where the maximum possible punishment is by fine only, and entered of record, pronouncing the judgment, and ordering the same to be carried into execution in the manner prescribed by law.”

Article 43.14, Vernon’s Ann.C.C.P., provides that when a sentence of death is pronounced the sentence shall be executed “at any time before the hour of sunrise on the day set for the execution not less than thirty days from the day of sentence, as the court may adjudge . . . .”

Article 43.15, Vernon’s Ann.C.C.P., describes the duties of the clerk of the trial court in issuing a warrant for the execution of the sentence of death within ten days of such sentence, which shall recite, among other things, “the time fixed for his execution,” set by the trial court.

In view of the time limits set forth in these latter statutes, it is understandable why sentence is delayed in death cases until the receipt of the mandate of the Court of Criminal Appeals as required by Article 42.-04, supra. See and compare time limits for preparation of an appellate record, Article 40.09, Vernon’s Ann.C.C.P.

Article 37.071(e) provides that if the jury returns an affirmative finding on each issue submitted under the statute “the court shall sentence the defendant to death. . . . ”

and Section (f), which provides in part that the “judgment of conviction and sentence of death shall be subject to automatic review by the Court of Criminal Appeals

A study of Article 37.071, supra, reveals that the drafting of such statute started with out-of-state statutes where the words “sentence” or “sentencing” were not used in the same sense as a formal sentence defined in Article 42.02, supra, but were used as equivalent to punishment.

I therefore would hold that the provisions of Article 37.071, supra, referring to “sentence to death,” etc., refers to the assessment of punishment and not to a formal sentence, and the provisions of Article 42.-04, supra, still control. The trial judge was apparently misled by the awkward wording of Article 37.071, supra, but it is observed that no execution date was set as normally required in death sentences, apparently because the court realized that it could not be carried out within the necessary time limits while the case was on appeal, and that another sentence setting the execution date would be required.

There is no reason to abate the appeal because the court pronounced sentence. It will be regarded as surplusage. Appellant’s contention is without merit.

DOUGLAS, Judge

(dissenting).

The majority has overruled the State’s motion for rehearing without written opinion.

After further consideration, it appears that reversible error was not committed during the examination of the prospective jurors. It appears that Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, was complied with.

In my opinion jurors can qualify under Witherspoon, supra, and can take the oath under Article 1257(d), V.A.P.C., now Section 19.03, V.T.C.A. Penal Code (1974), which provides, in part:

“No person is qualified to serve as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on. any issue of fact.”

It appears that one may take such an oath and abide by it regardless of his personal opinion regarding a life or death sentence. A juror whose determination of any issue of fact would be affected, in either direction, by a mandatory punishment of life or death cannot be a fair and impartial juror.

Without going into detail about the jury selection, the jurors were not discharged as condemned in Witherspoon because they simply voiced general objections to the death penalty or expressed conscientious scruples against its infliction.

Both sides agreed that each prospective juror found by the court to be disqualified because of the inability to take the prescribed oath under Article 37.071, V.A.C. C.P., was in fact and in law disqualified.

This is not a case where there is a contention that challenges for cause were exercised by the State merely because the prospective jurors had conscientious scruples against the penalty that might be assessed.

It appears that the original opinion holds that the only way a juror could be challenged for cause by the State would be by establishing that he would automatically vote against the imposition of the death penalty in any cause. This application of Witherspoon is incorrect.

First of all, it is apparent that the United States Supreme Court, at the time it decided Witherspoon, was well aware of the fact that some state statutes impose a mandatory death penalty for certain types of crimes and that a jury could avoid such a penalty by finding the defendant guilty of a lesser offense. This assumption is certainly strengthened by the concurring opinion of Mr. Justice Douglas wherein he said:

“The problem is presented in different postures under several types of state laws. Many States, including Illinois, specifically grant the jury discretion as to penalty; in some, this discretion is exercised at a special penalty trial, convened after a verdict of guilt has been returned. In other States, death is imposed upon a conviction of first degree murder unless the jury recommends mercy or life imprisonment, although in these States the jury is allowed to find a lesser degree of murder (or to find manslaughter, if under state law there are no degrees of murder), if the evidence will permit, without regard to the formal charge. In some States, the death penalty is mandatory for certain types of crimes. In still others, it has been abolished either in whole or in part. And a few States have special rules which do not fit precisely into the above categories. .
“. . . The conscience of the community is subject to many variables, one of which is the attitude toward the death sentence. If a particular community were overwhelmingly opposed to capital punishment, it would not be able to exercise a discretion to impose or not impose the death sentence. A jury representing the conscience of that community would do one of several things depending on the type of state law governing it: it would avoid the death penalty by recommending mercy or it would avoid it by finding guilt of a lesser offense.” [88 S.Ct. 1779, 1780, emphasis added]

Therefore, it is not mere speculation that the proposition was before the Court and recognized by the Court that a jury could avoid determination of the issue of punishment, knowing the result of its answers, by finding the defendant guilty of a lesser offense. This is even more strongly emphasized by what was said in the opinion of the Court by Mr. Justice Stewart when he pointed out that

“[t]he issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant’s guilt.” [88 S.Ct. 1772, emphasis added]

This proposition is even more forcefully illustrated by what the Court pointed out in footnote 21 to the majority opinion where it said

“We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt.” [emphasis added]

The primary holding of Witherspoon was aimed at qualification of jurors for discretionary determination of punishment, as opposed to a finding of fact. The Court pointed out that

“[a] man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror.” [88 S.Ct. 1775, emphasis added]

This interpretation is strengthened by what the Court said in Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433, where the Court pointed out:

“. . . it is entirely possible that a person who has ‘a fixed opinion against’ or who does not ‘believe in’ capital punishment might nevertheless be perfectly able as a juror to abide by existing law— to follow conscientiously the instructions of a trial judge and to consider fairly the imposition of the death sentence in a particular case.” [89 S.Ct. 1141 and 1142, emphasis added]

Therefore, the main thrust of the decision in Witherspoon, as followed in Boulden v. Holman, was aimed at preventing the challenge for cause of a juror merely because he was opposed to the death penalty where the jury was to exercise discretion in assessing punishment, but the Witherspoon decision made it perfectly clear that it did not apply to a situation wherein, even though the jury was aware of the punishment, they would exercise their discretion by finding the defendant guilty of some other offense. Even though Witherspoon speaks of bias in the determination of guilt, they are referring no more to a determination of a fact issue than the instant case.

Under our statutory scheme as expressed in Article 1257(d), V.A.P.C., and the present Article 37.071, V.A.C.C.P., the jury does not assess the death penalty. The jury is charged with the determination of issues of fact under the court’s charge and by reason of the statutory scheme they must be able to state under oath that they will not let the consideration of punishment affect their determination of any issue of fact. If they cannot state that they will be unbiased on the determination of issues of fact by reason of possible punishment, then they do not qualify as jurors. It would appear that this is no different from any other basis for disqualification when a juror admits that he cannot be fair and impartial for both sides. It should be remembered that the statute is aimed not merely at conferring a challenge for cause upon the State but also upon conferring a challenge for cause upon the accused if the juror is biased in favor of the death penalty to such an extent that it would affect his impartiality upon the issue of guilt. Although it is thought by some that this might be remote, the possibility was certainly recognized by Mr. Justice Black in his dissent in Witherspoon, supra. In that dissent it was pointed out that those in the majority were unwilling to cast any doubt on petitioner’s conviction. He went on to point out that the State should be allowed to challenge for cause a juror who was biased against inflicting the death penalty just as the defendant was entitled to a challenge for cause where the prospective juror was biased in favor of the death penalty; for an example, one who adheres literally to the biblical- admonition of “an eye for an eye.”

In reading the Witherspoon opinion in its overall impact, the majority opinion was aimed at challenges for cause where the jury exercised discretion in assessment of penalty and specifically excluded a challenge for cause excluding a juror who admitted his bias one way or the other which would prevent him from making an impartial decision as to an issue of fact. Although this is a fine line to draw, it appears that the United States Supreme Court was aware of the line and drew it in Wither-spoon. The application to the instant case of what was said in the entire Witherspoon opinion leads to the conclusion that under our statutory scheme a juror who cannot state under oath that he will be unbiased on the issue of fact will be disqualified, and such disqualification is not prohibited by the proper application of Witherspoon v. Illinois, supra, merely because the juror might realize the effect of his answers to the factual questions.

A part of the State’s motion for rehearing, prepared by W. T. Westmoreland, Jr., Assistant District Attorney of Dallas County, is adopted as a part of this opinion to show the procedure used and for its reasoning. It is as follows:

“It has been said that the atmosphere of the proceeding must be considered in resolving a Witherspoon question. .

“Appellant filed a motion entitled, ‘Defendant’s Third Motion in Limine’. In paragraph 1 thereof he requested the Court to instruct the prosecutors not to inquire into any prospective juror’s personal feelings or scruples regarding the death penalty because such is not allowed by Art. 1257, P.C. In paragraph 2 he requested that the prosecutor be forbidden to bring to the attention of any prospective juror that the penalty of death may be imposed except:

(a) to inform the veniremen that the penalty of life or death is mandatory upon conviction of the offense charged and (b) to ask whether such mandatory penalties will affect his deliberations on any issue of fact. The reason assigned by Appellant was that such questions are the only questions necessary to qualify a juror for such service.

“A hearing was held on the motion prior to the voir dire of the jury, at which the following colloquy occurred:

“ ‘MR. TOKOLY (Prosecutor): We object to the first part of the Motion, Your Honor, on the grounds that I think the Witherspoon case entitled us to ask a prospective juror whether or not that juror has any conscientious scruples that would go against the imposition of the death penalty.
“‘THE COURT: I think that, though, under this — that a juror who is unalterably opposed to any sentence with (sic) would inflict death as a means of punishment, if they said that they would just absolutely under no circumstances would they want to sit as a juror in a case where the death penalty could be assessed, I think that the juror would be disqualified under the Witherspoon case.
“ ‘MR. TOKOLY: Certainly.
“ ‘THE COURT: The Witherspoon case said you have got to go on more than just scruples, you have to go further. I’m just talking about if the juror said it’s life or death, depending on your answer to the issues.
“‘MR. WILSON: (Defense Counsel): I was—
“ ‘THE COURT: And do not consider the results of your answers now, and when they said, “Well, I just wouldn’t have anything to do with death, I am just unalterably opposed to sitting in a case where I’m blindfolded and you are going to pull one of these switches, one is life and one is death”, I believe that juror should be disqualified.
“‘MR. WILSON: I would agree with that, because I don’t think he could consider the facts, put the death sentence out of his mind and make a judgment in answering these questions, if he can. (underscoring supplied)
“ ‘MR. TOKOLY: I think we are in agreement, Your Honor. The position that the State would take is that, first of all, that question as to whether or not they have any conscientious scruples against the imposition of the death penalty, that is not a disqualification question. It is simply a relevant question that aids the parties on both sides in determining that juror’s feelings, and I think that the question would then be whether or not their feelings would affect their deliberations.
“ ‘THE COURT: I think that question is pertinent.’

“This is what the position of the parties was and the context in which the voir dire was conducted. Counsel and the Court were operating under the consensus that questions regarding scruples were relevant as an aid to peremptory challenges; otherwise, the question was whether any such scruples would affect his deliberation on any question of fact. That is to say, mere conscientious scruples against death might lead to the exercise of a peremptory challenge on the part of the State, absolute inability to vote in a matter which the juror felt would result in the imposition of the death penalty might lead to a challenge for cause by the State, and inability to take the oath that the mandatory penalty of death or life would not affect his deliberations on any issue of fact simply disqualified him from service without challenge by either side, because he would not be fair and impartial, as a matter of law. The Legislature has authority to prescribe the qualifications of jurors in general (e. g. Art. 2133, R.C.S.) and in particular cases (e. g. Art. 2134, R.C.S.) and to prescribe the circumstances in which otherwise qualified citizens can be excused from jury service (Art. 2135, R.C.S.).

“The procedure followed in this case was as follows. When each new section of the jury panel was called to the courtroom, the Court explained the law of the case to them, including the fact that to qualify for service the prospective juror must take the oath. He then invited any prospective jur- or who thought he might be disqualified for any reason to approach the bench, out of the hearing of others. Some of the jurors were excused for other reasons, but the ones here pertinent were first voir dired by the Court with regard to their position on the required oath. Then each side was permitted to question the prospective juror. Sometimes they did and sometimes they did not. When the Court ruled that the juror was not qualified, each side was accorded the right to object. Although the invitation to question or object was not repeated as to every juror, it was nonetheless understood by all.

“This, then, was the ‘atmosphere’ of the proceeding. We have here a ease wherein the defendant initially wanted the prospective jurors questioned only as to their ability to take the prescribed oath, where he was given the opportunity to examine the veniremen himself on that very subject, where he was given the opportunity to object to a determination of disqualification but did not do so, and where each side had peremptory challenges left after the jury had been selected. .

“Furthermore, clearly implicit in the record, based on the position of counsel for both sides throughout the jury selection process, is the fact that each agreed that the prospective jurors found by the Court to be disqualified because of inability to take the prescribed oath were in fact and law disqualified and prohibited from sitting in this case. Query: Is Art. 35.05, C.C.P., providing that ‘One summoned upon a special venire may by consent of the parties be excused from attendance by the court at any time before he is impaneled’ not for application here? Of course, this was not a special venire, but it was a capital case and there is no reason in law or logic why the same principle should not apply.”

For the above reasons, I would grant the State’s motion for rehearing and would affirm the judgment, because the contention that the jury selection-does not comply with Witherspoon and the other contentions do not reflect reversible error.

      .As amended, Acts 1973, 63rd Leg., p. 1122, ch. 426, Article 1, Sec. 1, eff. June 14, 1973. Article 1257 was superseded by Section 19.-03 of the new Texas Penal Code, Acts 1973, 63rd Leg., ch. 399, eff. January 1, 1974. Section 19.03 of the new Penal Code is substantially similar to Article 1257 of the old code. The indictment alleged the date of the offense as June 27, 1973.

      . Added by Acts 1973, 63rd Leg. p. 1125, ch. 426, Art. 3, Sec. 1, eff. June 14, 1973.

      . Article 1257(d), V.A.P.C. states in part:
      . . No person is qualified to serve as a juror unless he states under oath that the mandatory penalty of death or imprisonment for life will not affect his deliberations on any issue of fact.”

      . The Court of Criminal Appeals of Oklahoma held that veniremen whose scruples against capital punishment would interfere with their fact finding function may be excluded from the jury. Justus v. State, Okl. Cr., 542 P.2d 598, 18 Cr.L. 2042.