author: DUNCAN, Judge. DWYER, Judge

text:
    J. D. WHITE, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 13, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1976.

      Robert I. Livingston, Memphis, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Richard Lodge, Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr., Dist. Atty. Gen., Wayne Emmons, Asst. Dist. Atty. Gen., Memphis, for defendant-in-error.
   OPINION

DUNCAN, Judge.

The plaintiff in error, J. D. White, hereinafter referred to as the defendant, brings this appeal contesting his convictions of rape, and robbery by the use of a deadly weapon, for which he received penitentiary sentences of fifty-seven (57) years and ten (10) years respectively.

In the defendant’s first and second assignments, he attacks the sufficiency of the evidence, contending that the verdicts are contrary to the law and to the evidence.

We summarize the evidence as follows:

At about midnight on October 13-14, 1973, the victim in this case, Cynthia Little, left a friend’s house in Memphis, picked up her daughter at a nursery and was on a street trying to catch a ride to her home. She was offered a ride by the defendant, which offer she accepted. The defendant thereafter threatened her with a knife, beat her with his fists and then raped her, all of which occurred in the presence of her young daughter. He then robbed her of her purse and fourteen ($14.00) dollars. During the beating, the defendant hit the victim in the mouth, loosening two (2) of her teeth, one of which she spit out into the car. The victim accurately described the defendant’s vehicle to the police and the defendant was arrested in the same vehicle on October 22, 1973. After signing a “Consent to Search” form, the defendant’s vehicle was searched. The knife and the victim’s tooth were found in the car. A dentist compared this tooth with the victim’s remaining teeth and positively identified it as being her tooth. The victim identified the defendant in a lineup and at the trial.

Shortly after the rape, the victim related the facts and circumstances surrounding the rape to an occupant of a nearby house, James H. Taylor, and to her mother and a police officer, all of whom testified regarding the details of the victim’s conversation with them.

A doctor examined the victim after the rape and testified that his tests indicated the presence of sperm in her vagina.

Evidence of two (2) prior rapes by the defendant was admitted at the trial for the purpose of showing identity and course of conduct. These two (2) offenses involved the rapes of Jane Marshall on August 8, 1973, and Patricia Ann Sharp on September 23, 1973. The evidence showed that the same modus operandi used in the instant case was also used in the two (2) prior rapes. Each of these prior victims similarly described the vehicle used by the defendant, and this description was the same as described by the victim in the present rape. Each testified as to his mannerisms, conversations and emotional state, all of which were similar to the testimony of the victim in the present case. At the trial, each of the prior victims identified the defendant as their assailant. Moreover, Sharp’s ring and some strands of Marshall’s hair were found in the defendant’s vehicle. The evidence showing the defendant’s guilt in these two (2) prior rapes was clear and convincing.

The defendant presented an alibi defense, stating that he was at home on the three (3) occasions when these rapes had occurred. He sought to bolster his alibi through the testimony of other witnesses, some of whom stated that his automobile was at home and not in operating condition at the time of the Jane Marshall rape on August 8,1973. Significantly, the defendant testified that his car was in operating condition on that date. Other defense witnesses sought to account for the defendant’s vehicle being elsewhere on September 23, 1973 (date of the Sharp rape), and on October 13-14, 1973 (date of the instant offense), rather than at the scene of these offenses. Little and Sharp both had testified that the defendant had his hair braided at the times they were raped. The defendant testified that at the time of his arrest, his hair was in a “bush” “like a Afro” and that it was not “plaited.” A picture of the defendant made at the time of his arrest showed that his hair was braided or plaited, as testified to by Little and Sharp. The defendant testified that after he was arrested, a “secretary” at the police station plaited his hair. He denied all three (3) assaults and took a position that the police had framed all of the evidence against him. When asked why he thought Little had testified as she did, the defendant stated, “Well, I could say it’s coming from the detective.” In offering his explanation as to how. Little’s tooth got into his car, the defendant testified that the officers had said to him that they “was going to try and hide me and this is a good way,” explaining that “hiding” meant to put him in the penitentiary for a long time. The defendant further testified that the officers were “God behind closed doors. They do what they want to do.”

The evidence is compelling against this defendant in our opinion. The victim identified the defendant and his automobile; the defendant’s identity was further established by the testimony of the two (2) prior rape victims, who also identified his motor vehicle; he was arrested in the sa'me vehicle; the knife and the present victim’s tooth were found in the car; and bloodstains were found in the defendant’s car. The defendant admitted to the officers that he owned the subject automobile; that no one else drove it, and that he had the only key to the car.

The jury accredited the State’s witnesses and rejected the defendant White’s defense of alibi. The defense of alibi presents 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. Green v. State, Tenn.Cr.App., 512 S.W.2d 641 (1974), and cases cited therein.

“Rape is the unlawful carnal knowledge of a woman, forcibly and against her will.” T.C.A. § 39-3701.

Cynthia Little was assaulted with a knife, beaten about the face, her teeth were broken and one tooth was knocked out. The record shows that the defendant had sexual intercourse with her, and that it was forcibly and against her will. She resisted to the extent necessary and reasonable under the circumstances. King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962).

Further, the robbery of Cynthia Little was “accomplished by the use of a deadly weapon.” T.C.A. § 39-3901. The evidence showed that the defendant took the victim’s purse and money after threatening her with a knife, and after brutally beating and raping her. The fact that the defendant did not threaten the victim with the knife at the actual moment of the robbery, nor that the victim could not see the knife at that exact time, are of no significance.

In Burgin v. State, 217 Tenn. 682, 687-88, 400 S.W.2d 539, 541 (1966), our Supreme Court, in quoting from 77 C.J.S. Robbery § 25 at 465, stated, in part, as follows:

“Further, the robber need not be armed at all times during the robbery in order to be guilty of robbery in the first degree; he is guilty of robbery in the first degree
if he arms himself or becomes armed with a deadly weapon at any time during the progress of the taking or while the robbery is being perpetrated, and in this connection the crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape.”

The evidence in this case shows that the defendant committed this assault by the use of a deadly weapon, and it remained in his possession, either on his person or in his automobile, throughout the commission of these offenses. The threat of death to the victim by the use of this weapon was ever present and ever real from the moment that the defendant pulled the knife on her until she was released from the vehicle.

The facts in this case, as well as the law pertaining thereto, supports the defendant’s convictions of rape, and robbery by the use of a deadly weapon.

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

The evidence does not preponderate against the verdicts in these cases and the assignments on the evidence are overruled.

In his final assignment of error the defendant contends that the trial court erred in allowing the State to introduce evidence of the two (2) prior rapes of Patricia Ann Sharp and Jane Marshall.

The State offered such evidence for the stated purpose of showing the defendant’s identity and course of conduct. The judge allowed the evidence to be admitted but cautioned the jury at the time, as well as in his written charge, that such could only be considered by the jury for these stated purposes.

The similarities of the three (3) rape offenses are so great that there can be no question but that the defendant committed all three (3) rapes. In addition to the evidence heretofore covered under the first two (2) assignments, we would add that all three (3) victims testified that the defendant had a knife; that at first, he had them in the front seat of the automobile, then made them get into the back seat; that he made them disrobe; that he discussed drugs with each of them; that each of them was allowed to use Kleenex; that both Little’s and Marshall’s glasses were removed by the defendant; that Little and Sharp were both beaten by the defendant; and that in addition to other similarities, the defendant rode around with each of the three (3) victims after the rape, then let them out on the street, taking the purse of each one.

Further, each of the three (3) victims identified the defendant’s vehicle, particularly noticing that there was no inside door handle on the passenger’s door and that the hole created had been covered by silver colored tape. Each victim gave a similar description of the defendant and his vehicle to the police immediately after the occurrence of the particular assault. Each of the three (3) victims identified the defendant’s vehicle at the police station after he had been arrested.

Both Little and Sharp stated that the defendant had braided hair at the time of their attacks, with Marshall stating that the defendant had an Afro style at the time of her assault. Sharp and Marshall identified the defendant’s watch and both remembered and described certain of the defendant’s mannerisms and his emotional state, which were similar to each other and also similar to that related by Little. The defendant talked about race and inter-racial sexual activity to Sharp and Marshall.

Sharp’s ring, which had been taken by the defendant, was found in his car. Also strands of Marshall’s hair, identified by an expert from the F.B.I., were found in the defendant’s vehicle.

The general rule is that evidence of another crime is not admissible to prove a defendant’s guilt in a case on trial, but there are several exceptions to the rule. In Wrather v. State, 179 Tenn. 666,169 S.W.2d 854 (1943), the court, in enumerating these exceptions to this general rule, stated:

“Among the exceptions recognized to this general rule are when the evidence is introduced to prove identity, knowledge as reflecting an intent, plan or system, a course of conduct, or of course, when part of the res gestae.”

In the case before us, we are of the opinion that the evidence of which complaint is made clearly falls within the exception regarding identity.

In Warren v. State, 178 Tenn. 157, 161—64, 156 S.W.2d 416, 418-19 (1941), the trial court allowed proof of a robbery that occurred under similar circumstances to the one on trial, which robbery had occurred a few nights later. It is noted that in the Warren case, several witnesses had testified as to the identity of the defendant. In holding that the evidence was properly admitted, as going to the question of identity, our Supreme Court said:

“The attorney-general in his brief in this Court concedes that as a general proposition evidence of other crimes is inadmissible, but relies upon a well recognized exception applicable where, as in the instant case, the only question at issue is the identity of the party committing the crime for which the accused is on trial.

He submits that in cases of this kind such evidence is admissible and quotes the following from a leading law text book authority, 20 Am.Jur. 292, 293:

“ ‘The general rule that evidence of separate and independent crimes is inadmissible to prove the guilt of a person upon trial for a criminal offense is subject to a well-defined exception with respect to proof of the identity of the accused. The broad rule is that where evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation, it is admissible, in spite of the fact that it tends to show that the accused is guilty of other crimes for which he is not on trial. This rule is applied in a wide variety of cases, such as arson, burglary, homicide, larceny, liquor law violations, robbery, and many other instances. It is permissible, in those instances where evidence is admitted of the commission of another similar crime for the purpose of showing identity, for the accused to introduce in evidence the record of a court showing his trial and acquittal of such other crime.
“ ‘It is clear, however, that proof of the commission of another crime is not properly admitted simply for the purpose of identifying the defendant unless it is absolutely necessary to establish identification as an element of the crime. Generally speaking, it is only where the identity of the accused is not definitely connected with the offense on trial that other offenses may be introduced to connect and identify him with the case on trial. If the identity of the accused is established by other evidence and is therefore no longer an issue, it is improper to admit evidence of other crimes on the theory of proving identity. It is necessary also for such evidence to be admissible that there be such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other. However, where the sole issue is the identity of the accused, the evidence on that question by the state may properly be permitted to cover a wide range, and in a measure the rigid rules of evidence will be relaxed.’
“We find this text supported by citation of a very large number of cases from various jurisdictions. We also find annotations in 3 A.L.R. 1540, 22 A.L.R. 1016, 27 A.L.R. 357, and 63 A.L.R. 602, to the same effect. In introducing a discussion of the subject of the ‘admissibility of evidence of other offenses in criminal prosecution to prove identity of defendant,’ the annotator in 3 A.L.R. 1540, says:
“ ‘To the general rule that evidence of separate and independent crimes is inadmissible to prove the guilt of a person on trial for a criminal offense there are several exceptions, which are as uniformly accepted by the courts as the rule itself. Among these exceptions is that, where evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation, it is admissible, in spite of the fact that it tends to show the guilt of the accused of other crimes for which he is not on trial.’
“The annotator in 27 A.L.R. 358, introducing a supplementary annotation on the same subject, thus comments:
“ ‘The recent eases sustain the general rule stated in the original note in 3 A.L.R. 1540, and reiterated in the note in 22 A.L.R. 1016, that evidence of an independent and separate crime, while inadmissible to prove the guilt of one on trial for a criminal offense, is admissible where such evidence tends to aid in identifying the accused as the person who committed the particular crime under investigation, although such evidence may also tend to show the guilt of the accused.’
“We think the exception to the rule thus stated is soundly based and has been properly applied in this case. The two main conditions of its application have been met: (1) The proof shows such similarity in the circumstances of the commission of the two offenses as to afford evidence of the identity of the offender, and (2) while direct evidence was presented that the accused was the robber, the defendant’s guilt was denied and án alibi insisted upon, so that this testimony of a similar separate offense was pertinent and reasonably required to make certain before the jury the identification of the accused.”

The instant case is somewhat similar to the case of Webster v. State, 1 Tenn.Cr.App. 1, 17-20, 34, 425 S.W.2d 799, 806-07, 812-13 (1967). In that case, the defendant was convicted of abortion, and evidence of other abortions performed by the defendant was admitted. The facts and circumstances regarding the prior abortions were similar to the abortion case on trial. The court in Webster exhaustively reviewed authorities regarding the propriety of the admission of other offenses for the purpose of proving identity and course of conduct. In holding that the evidence concerning the prior abortions was properly admitted, the court, quoting from Harris v. State, 189 Tenn. 635, 639-42, 227 S.W.2d 8, 10, 11 (1950), said:

“No objection can be raised to admitting proof of independent crimes when such proof is necessary to establish identity. Warren v. State, supra; Mays v. State, supra [145 Tenn. 118, 238 S.W. 1096]; 20 Am.Jur., Sec. 312, pp. 292-293; 22 C.J.S., Criminal Law, § 684, p. 1097. And this is true whether the proof of independent crime is incidental to the establishment of identity (Sartin v. State [75 Tenn. 679], supra; State v. Becton, supra [66 Tenn. 138]) or is the basis thereof. Warren v. State, supra.
“Sometimes to establish identity it becomes relevant to show similarity of the plan or method by which more than one crime has been accomplished. Such instances should be carefully distinguished from those in which evidence of plan or method is offered to establish guilty knowledge or to negative the likelihood of fortuity, for the tests of direct relevancy are by no means the same.
“It may be, however, that a particular strategem or method has such unusual particularities that reasonable men can consider that it would not likely be employed by different persons. Wrather v. State, supra. Many men commit murder, but Jack the Ripper used his knife in a manner so peculiar that when his crimes were viewed together there could be little doubt that they were committed by the same man. Merely the fact, however, that a series of such crimes may be committed with a knife will not render them unusual enough to identify the perpetrator of one as the perpetrator of the others. Sometimes to establish the identity of a sexual pervert, evidence of an unusual perversion has been received, but this is no more than the application of a corollary of the rule above stated, that a defendant’s methods in the commission of a crime may be sufficiently unusual to amount to a signature. Barnett v. State, 104 Ohio St. 298, 135 N.E. 647, 27 A.L.R. 351.
“This court has said that where the sole question is the identity of the accused, the State may properly be permitted to cover a wide range in seeking proof of other crimes which cannot be reasonably believed to have been committed except by the same criminal who committed the offense under investigation, and thereby establish the identity of the person responsible. Warren v. State, supra.” Finally, in Webster the court concluded: “Under the trial court’s cautionary instruction, quoted above, we think the jury was properly permitted to consider all of these circumstances and that they could by so doing establish the identity of the defendant as the person who committed the abortion upon Kathryn Clayborn as charged in the indictment.”

In Harris v. State, supra, the court held that evidence of a rape by the defendant that occurred a week earlier was improperly admitted in evidence. However, the basic reason for so holding was because the facts and circumstances showed little similarity between the two rapes and provided scant grounds from which to draw an inference that the crimes were committed by the same person. The court said “the methods pursued” in the two rapes involved therein “were not so peculiar as to render it unlikely that lustful men bent upon the crime of rape might not have pursued identical methods.”

Our situation in the case, sub judice, is entirely different. The methods pursued here in all three (3) rapes are so strikingly similar that there can be no other conclusion than the fact that the defendant committed all three (3) rapes.

In Snowball v. State, Tenn.Cr.App., 477 S.W.2d 240, 244 (1971), this Court recognized the general rule that evidence of other crimes are generally inadmissible but then reviewed the instances where there is an exception to the general rule. The Court said:

“But the rule has its well-known exceptions. Such evidence is admissible when it is relevant to prove some other material issue on trial; for instance, when it tends to establish (1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme or plan for commission of two or more crimes so related to each other that proof of one tends to establish the other; and (5) the identity of the defendant on trial. Pruitt v. State [3 Tenn.Cr.App. 256], 460 S.W.2d 385, and authorities therein cited.”

In the case of Graybeal v. State, 3 Tenn. Cr.App. 466, 468-69, 463 S.W.2d 159, 160 (1970), our Court approved the admission of another crime against the defendant as going to the question of identity.

In Graybeal, the proof showed that at about 7:15 p. m., November 9, 1968, Gray-beal, armed with a .410 gauge shotgun, held up and robbed Mrs. Joyce King, an employee of the Shop and Go Market in Knoxville. He was wearing a red cap, white gloves, and was driving a greenish blue or turquoise Chevrolet automobile. Although he had a white handkerchief over his face, Mrs. King positively identified him. The defendant did not testify but offered proof of an alibi. In rebuttal of this alibi evidence, the State introduced over his objection the testimony of William and Kathleen Hickman that about 7:20 or 7:30 p. m. that day the defendant came to their place of business in a bluish green Chevrolet, wearing a red cap and gray jacket, with a white handkerchief over his face and robbed them with a shotgun or rifle. Both identified Graybeal. When he backed out the door, Mrs. Hickman says he pulled the handkerchief off or it fell down and she saw him.

The Graybeal court in an opinion by the Honorable Mark A. Walker, Judge, stated:

“The trial judge admitted the proof of the second crime on the question of identity because the defendant had raised the defense of an alibi. The defendant contends this was inadmissible, particularly that a subsequent offense is not admissible on the question of identity.
“This evidence was material on the issue raised by the defense of alibi. Evidence that is material and relevant is never rendered incompetent because it may tend to show guilt of another offense, even though such evidence be prejudicial to the defendant. See Jones v. State, 200 Tenn. 553, 292 S.W.2d 767; Liakas v. State, 199 Tenn. 298, 286 S.W.2d 856. The fact that it occurred subsequent to the crime charged does not make it inadmissible.”

It might be noted that the Honorable Robert K. Dwyer, Judge, member of the present panel, was a member of the Gray-beal panel and concurred in Judge Walker’s opinion.

In Caruthers v. State, 219 Tenn. 21, 26-28, 406 S.W.2d 159, 161-62 (1966), the defendant was accused of robbing one James Wilson Coffelt on November 22, 1964. The victim identified the defendant at the trial. The defendant attempted to establish the defense of an alibi. Evidence was admitted that on the preceding day the defendant had robbed a laundry. In spite of the fact that the similarities in the modus operandi of the two robberies were meager, the court still held that proof of the prior offense by the defendant was admissible as going to the question of identity.

We quote from that Supreme Court opinion, as follows:

“The question raised by this assignment of error is the propriety of the trial court’s admission into evidence of the testimony of Mrs. Head, relating to a prior crime allegedly committed by the defendant. The cases in this State establish that such evidence is admissible if (1) it is to be used to prove identity, knowledge as reflecting an intent, a plan or system, a course of conduct or is a part of the res gestae of the crime charged, and (2) the evidence is ‘clear and convincing’ that the defendant is the person who committed the prior offense. See Wrather v. State (1943) 179 Tenn. 666, 169 S.W.2d 854; Mays v. State (1921) 145 Tenn. 118, 238 S.W. 1096; Harris v. State (1950) 189 Tenn. 635, 227 S.W.2d 8; Brenner v. State (1965) 217 Tenn. 427, 398 S.W.2d 252.
“As stated before, the defendant attempted to raise the defense of alibi. In raising this defense, the defendant naturally questions the identification by Mr. Coffelt of the defendant as the man who robbed him. Thus, the question of identity constitutes the crucial point in this case, and the testimony of Mrs. Head was introduced to support Mr. Coffelt’s identification of the defendant as the man who committed the offense involved in this case. It therefore is apparent that the testimony of Mrs. Head was properly admitted by the trial court if there was ‘clear and convincing’ evidence that the defendant was the person who committed the prior crime. The following quotation from Wrather v. State, supra, sets out the test to be applied to determine admissibility, as follows:
“ ‘(4) Without going so far as to hold, with some of the Courts, that the proof of the independent crime must be “beyond a reasonable doubt,” we approve the rule that, to render evidence of an independent crime admissible, the proof of its commission, and of the connection of the accused on trial therewith, must be not “vague and uncertain,” but clear and convincing. Obviously, an absolute essential is that (1) a former crime has been committed, and (2) committed by the identical person on trial. Only thus can identification, or other proof of guilt, of the accused in the pending case be aided by evidence of the independent crime. And this limitation upon admissibility applies equally to all the exceptions to the general rule excluding evidence of other crimes, whether introduced to prove identity, or for any other purpose.’
“This quotation establishes, beyond doubt, that in Tennessee it does not have to be established ‘beyond a reasonable doubt’ that the defendant committed the prior crime for evidence of the prior crime to be admissible. In this case, the testimony of Mrs. Head was unequivocal. The fact that the defendant had been previously tried for the prior crime, and such trial resulted in a mistrial, in no way affects the admissibility of Mrs. Head’s testimony in this trial; for the test for conviction is clearly distinguished by the foregoing quotation from the test for admissibility. Certainly the testimony of Mrs. Head was clear and convincing evidence that the defendant committed the prior offense about which she testified.”

In the instant case, and from the proof to which we have heretofore referred, the evidence offered by the State to show the defendant’s guilt in the two (2) prior rape cases is not only clear and convincing as per the test of Caruthers v. State, supra, but actually shows his guilt of those offenses beyond a reasonable doubt.

The defendant cites as authority the case of Briggs and Taylor v. State, Tenn.Cr. App., March 6, 1974—Jackson. It is noted that certiorari was granted by the Supreme Court in this case on December 2, 1974, and the case is now pending in that Court.

In the Briggs case, which involved a robbery, this Court held that it was error for the trial court to admit evidence of a subsequent robbery to show modus operandi and identity. However, the Briggs case is factually distinguishable from the instant case. The similarities of the two robberies involved in Briggs were slight, and the “clear and convincing” evidence of the defendant’s guilt of the subsequent robbery was not present. The defendants did not testify in Briggs and no effort was made to advance a position that the police were framing them or fabricating proof as to their identities.

However, in the case at bar, there is a modus operandi that is almost letter perfect in all three (3) of the rapes; the evidence of the defendant’s guilt in all three (3) cases is “clear and convincing”; the defendant contested his identity throughout the trial and forcefully advanced a position that the police were framing him and were fabricating evidence against him.

Thus, we conclude that regardless of whatever decision the Supreme Court may ultimately reach in the Briggs case, such would not be controlling in the instant case in view of the different set of facts and circumstances present.

In the case at bar, we conclude that the evidence of these prior rapes was admissible as going to the question of the defendant’s identity.

It is true that there was considerable evidence of the defendant’s identity, ex parte the testimony regarding the prior rapes. However, the issue of the defendant’s identity was ever present throughout the case until the question was resolved by the jury.

The defendant denied that he raped the victim in the instant case. He set up a rather elaborate alibi, offering numerous witnesses in an attempt to support it. He offered witnesses to try and prove that his automobile was elsewhere, rather than at the scene of the crime on this occasion. Further, as heretofore stated, the defendant attempted to advance a position that he was the victim of some colossal frame up by the police and that they had planted and manufactured the evidence against him. If the jury had decided to accredit the testimony of the defendant and his witnesses, then the identity question would have been resolved against the State.

The question of identity is not one to be decided by the court. Such a question is within the sole province of the jury. The identification of the defendant as the person who committed the crime for which he is on trial is a question of fact for the determination of the jury, upon consideration of all the competent proof. Stubbs v. State, 216 Tenn. 567, 393 S.W.2d 150 (1965); Shye v. State, Tenn.Cr.App., 506 S.W.2d 169 (1973).

The State has the burden to prove a defendant’s identity. There is no way that it can be said that one eyewitness or one victim, or any one piece of evidence, alone or in combination, will prove identity to the jury’s satisfaction beyond a reasonable doubt, when, after the State rests, a defendant may present one, two or several alibi witnesses to show that the State’s proof is incorrect.

We find that no error was committed by the introduction of the testimony of which complaint is made and we overrule this assignment.

We find no errors in this record and we affirm the judgments of the trial court.

JOHN D. TEMPLETON, Special Judge, concurs.

DWYER, J., concurs in separate opinion.

DWYER, Judge

(concurring).

While I fully concur with our brethren in their conclusion as to the competency of the evidence of other crimes, some distinction in rationale should be observed.

It is true that the issue of identity is a question of fact for the jury and not for the court. It should be noted, however, that clearly a question of law is first advanced when the court is called upon to decide if the other independent crime(s) is admissible on the question of identity as an exception to the general rule that other crimes are not admissible. The general guidelines as to the admissibility of other crimes as substantive evidence on the issue of identity are, I think, twofold:- (1) there need be such similarity (uniqueness) in the circumstances of the commission of the offenses; or, such connection between the offenses, see Pruitt v. State, 3 Tenn.Cr.App. 256, 460 S.W.2d 385, 386, as to afford evidence of the identity of the offender as being the accused in the indictment crime; and (2) the admission of the other crimes need be necessary to aid in establishing identity, see Warren v. State, 178 Tenn. 157, 161-64, 156 S.W.2d 416, 418-19; Harris v. State, 189 Tenn. 635, 639-42, 227 S.W.2d 8, 10, 11. Such judicial determination of admissibility is a necessary safeguard so as to screen out incompetent evidence which, otherwise, if admitted, would leave the defendant open to being unfairly tried and convicted on other than the indictment crime, see Pruitt v. State, supra.

As noted in the majority, it is true that I concurred in Graybeal v. State, 3 Tenn.Cr.App. 466, 463 S.W.2d 159. A vast distinction exists, however, in that case and this one at hand. In Graybeal, the other crime was introduced in rebuttal of the defendant’s asserted alibi defense and to impeach the testimony of the alibi witnesses. The other crime was relevant for it was proven to have occurred during the same time span on the same date as the indictment crime was alleged and for which alibi was offered. I, therefore, can see the relevancy of the additional crime to impeach his defense.

However, Caruthers v. State, 219 Tenn. 21, 406 S.W.2d 159, appears to teach that denial and alibi make relevant other crimes which are not similar or connected to the indictment crime. I think the mere fact that all victims identified the defendant alone is not the key to relevancy and does not satisfy the similarities requirement; nor is denial and alibi the key to relevancy, see Harris v. State, supra.

I concur that the similarities found in this record between the other crime and the indictment crime placed a mark upon the defendant as being the perpetrator of the crime for which he was tried, and when coupled with the fact that identity was a crucial issue, the evidence of the independent crime was, I think, relevant on that issue, and importantly, does not go beyond the boundaries of Warren v. State, supra, see Harris v. State, supra.

With the above observations, I concur in the affirmation of this judgment.


source: Caselaw Access Project

author: DENTON, Justice. McGEE, Justice

license: Public Domain

text:
    In the Matter of S. J. C.
    No. B-5330.
    Supreme Court of Texas.
    Jan. 28, 1976.
    Rehearing Denied March 3, 1976.
    Clifford J. Hardwick, Odessa, for petitioner.
    Bill McCoy, County Atty., Alex P. Le-feuvre and Michael D. Atkins, Asst. County Attys., Odessa, for respondent.
   DENTON, Justice.

This is an appeal from a judgment entered by the Judge of the Ector County Court at Law, sitting as a Juvenile Court, which declared appellant, a male 15 years of age, a juvenile delinquent, and committed him to the custody of the Texas Youth Council, pursuant to Title 3, of the Texas Family Code. The petitioner’s contention is that the holding that a juvenile may be adjudicated a juvenile delinquent solely on the uncorroborated testimony of an accomplice witness is contrary to the requirements of due process and equal protection. The court of civil appeals did not agree with this contention and affirmed the judgment of the trial court. 521 S.W.2d 286 (Tex.Civ.App.1975).

On August 14, 1974, an armed robbery occurred at a restaurant in Odessa, Texas. An employee on duty at the time of the offense reviewed a police line-up and identified only the man who held the gun during the robbery. The accomplice witness, identified by the witness in the police line-up, testified at the hearing that he held the gun and that he and the petitioner here both participated in the armed robbery. The State on its own motion agreed to strike all of the witness’ testimony concerning the in-court identification of the petitioner, leaving the record void of any evidence linking petitioner to the armed robbery other than the testimony of the accomplice witness. The trial court found that petitioner did engage in delinquent conduct and committed him to the custody of the Texas Youth Council.

The sole question presented is whether the petitioner, a juvenile, having been found to have engaged in delinquent conduct based solely on the uncorroborated testimony of an accomplice witness, was denied due process and equal protection guaranteed by the Fourteenth Amendment.

Under Article 38.14, Vernon’s Ann.C.C.P., the testimony of an accomplice witness must be corroborated. It is settled in Texas that a conviction of an adult cannot be had upon the testimony of an accomplice unless such testimony is corroborated by other evidence tending to connect the defendant with the offense charged. Jackson v. State, 516 S.W.2d 167 (Tex.Cr.App.1974); Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972).

Petitioner takes the position that Article 38.14, Vernon’s Ann.C.C.P., should apply to an adjudication hearing under Title 3 of the Texas Family Code. It is not petitioner’s contention that the rule requiring corroboration of accomplice testimony is fundamental in and of itself, but merely that as adults are given this safeguard in Texas it will be in violation of due process and equal protection for a juvenile to be deprived of this safeguard and be found to have engaged in delinquent conduct.

The U. S. Supreme Court has considered a series of cases which applied due process protection factors in the trial of juveniles. Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948), concerned the admissibility of a confession taken from a 15 year old boy on trial for murder. It was held that the due process clause barred the use of the confession. Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), concerned a 16 year old boy charged with housebreaking, robbery and rape. The court held that procedural rights given an adult should not be denied children merely because juvenile proceedings are characterized as civil in nature. There the court considered requirements for a vested waiver of the exclusive jurisdiction of the Juvenile Court of the District of Columbia in order that a juvenile could be tried in the district court as an adult. The court held it was necessary that “basic requirements of due process and fairness,” be satisfied in considering the validity of such waiver of jurisdiction.

In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), concerned a 15 year old boy, already on probation, who was committed in Arizona as a juvenile delinquent upon a complaint of lewd remarks by telephone. After reviewing the cases cited above, the court observed: “accordingly, while these cases relate only to restricted aspects of the subject, they unmistakably indicate that, whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.” 387 U.S. 13, 87 S.Ct. 1436,18 L.Ed.2d 538. The court held due process in juvenile proceedings embraced adequate written notice; advice as to the right of counsel; confrontation and cross examination; and the privilege against self incrimination. In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), concerned the single question whether proof beyond a reasonable doubt is among the “essentials of due process and fair treatment” required during the adjudicatory stage when a juvenile is charged with an act which would constitute a crime if committed by an adult. After reviewing the holdings of In Re Gault, the court concluded that fundamental fairness requires the State to prove delinquent conduct beyond a reasonable doubt. In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the court considered the question whether the Due Process Clause of the Fourteenth Amendment assures the right to trial by jury in the adjudicative phase of a State Juvenile Court delinquency proceeding. The court again reviewed the series of cases dealing with the constitutional requirements guaranteed in juvenile proceedings. The court concluded that trial by jury in the court’s adjudicative stage is not a constitutional requirement. The court reasoned that in our legal system the jury is not a necessary component of accurate fact finding. While recognizing that there is nothing to prevent juvenile judges, in a particular case, from using an advisory jury, the court noted that as of that time some 28 states and the District of Columbia deny by statute a juvenile a right to a jury trial. The same result is reached in five other states by judicial decision. In ten states, including Texas, the statute provides for a jury trial under certain circumstances.

From a review of the above eases — Haley, Kent, Gault, Winship, and McKeiver— it is clear that some of the constitutional requirements attendant upon State criminal trials also have application in State juvenile proceedings adjudicative in nature. Among those which we have pointed out are the right to appropriate notice, to counsel, to confrontation and cross-examination, the privilege against self incrimination, and the standard of proof beyond a reasonable doubt. However, the courts have not held that all rights constitutionally assured to an adult accused of a crime also are to be enforced or made available to juveniles in delinquency proceedings. In fact, the U. S. Supreme Court has specifically refrained from going that far. In Kent, 383 U.S. at 562, 86 S.Ct. 1057, 16 L.Ed.2d at 97; and In Re Gault, 387 U.S. at 30, 87 S.Ct. 1445, 18 L.Ed.2d at 548 we find the following language: “We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” It is to be noted that Title 3 of the Texas Family Code has adhered to the holdings of Kent, Gault and Winship by providing for each of these constitutionally protected safeguards: (1) notice of charges, Family Code § 53.04(d); (2) right to counsel, Family Code § 51.10; (3) self incrimination, Family Code § 54.-03(e); (4) confrontation and cross-examination, Family Code, § 54.03(b); and (5) standard of proof beyond a reasonable doubt, Family Code § 54.03(f).

The juvenile judge in the instant case found from the evidence beyond a reasonable doubt that this petitioner, a juvenile, did engage in delinquent conduct, namely, armed robbery. The court finding was based solely on the testimony of an accomplice, who testified that he and the petitioner participated in the armed robbery. Does the absence of corroborated testimony of the accomplice witness prevent the juvenile hearing from measuring up to the essentials of due process and fair treatment, where a like conviction of an adult would not be upheld? Only about one half of the states of the United States have enacted statutes similar to Art. 38.14, Vernon’s Ann.C.C.P., requiring the testimony of an accomplice witness to be corroborated. VII Wigmore on Evidence, § 2056. Federal rules of evidence do not embrace the requirement of corroboration of accomplice testimony to sustain a criminal conviction. In U. S. v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969), the Court of Claims granted relief in a back-pay suit filed by a serviceman because of a defect in the military court decision in which the serviceman was sentenced to reduction in rank, partial forfeiture of pay and confinement for six months. The Court of Claims granted the relief because of the provision of the Manual for Courts-Martial which states that the court-martial “cannot” base a conviction “upon the uncorroborated testimony of a purported accomplice in any case, if such testimony is self-contradictory, uncertain, or improbable.” The U. S. Supreme Court reversed the lower court and said: “the paragraph regarding accomplice testimony is a statutory rule of evidence. Such rules do not customarily involve constitutional questions.” The court continued: “Rules of evidence are designed in the interest of fair trials. But unfairness in result is no sure measure of unconstitutionality. When we look at the requirements of procedural due process, the use of accomplice testimony is not catalogued with constitutional restrictions.” We therefore conclude that the adjudication of a juvenile delinquent solely upon the uncorroborated testimony of an accomplice is not in violation of due process and equal protection. The juvenile judge invoked the essentials of the due process and fair treatment, including the standard of proof beyond a reasonable doubt. If the admissible evidence establishes delinquent conduct beyond a reasonable doubt, the constitutional evidentiary requirement has been met. Uncorroborated accomplice testimony goes to the weight of the evidence to be considered by the trier of facts. Such testimony does not alter the standard of proof required by due process.

The judgments of the courts below are affirmed.

Dissenting opinion by McGEE, J., in which STEAKLEY and POPE, JJ., join.

McGEE, Justice

(dissenting).

I respectfully dissent. It is clear that the record before us is devoid of any evidence linking the juvenile petitioner to the armed robbery aside from the sole testimony of the accomplice witness.

The majority has held that under appropriate United States Supreme Court guidelines, the juvenile judge in this controversy complied with the essentials of due process and fair treatment, including the application of the standard of proof beyond a reasonable doubt. While I have no quarrel with their reading and interpretation of the applicable federal law up to a point, I do sincerely maintain that the majority’s review falls short of a proper analysis of the real question confronting us.

It is not the contention of the petitioner that the rule requiring corroboration of accomplice testimony is fundamental in and of itself. He basically contends that as adults are granted this safeguard in Texas, it would be a violation of due process and equal protection to deprive a juvenile of such a protective device and thereby be found to have violated a Texas penal law. The petitioner maintains that certain essential safeguards must be employed in-a juvenile case if he is to be fairly treated.

Following the holdings of Kent, In re Gault, and In re Winship, Texas law relative to juvenile proceedings was required to be somewhat revamped. Title 3 of the Texas Family Code was drafted so as to follow the basic tenets set forth in the above decisions, thereby affording to juveniles in many respects substantially the same safeguards available to adults. The Texas Code of Criminal Procedure requires the testimony of an accomplice witness to be corroborated. Tex.Code Crim.Proc.Ann. art. 38.14 (1966). Thus, the Texas decisions have held that the uncorroborated testimony of an accomplice witness will not sustain an adult conviction since “an accomplice witness is a discredited witness because his testimony alone cannot furnish the basis for a conviction.” Tex.Code Crim.Proc.Ann. art. 38.17; O’Neal v. State, 421 S.W.2d 391 (Tex.Cr.App.1967); Cast v. State, 164 Tex.Cr. 3, 296 S.W.2d 269 (1956). The test of the sufficiency of the corroboration is to eliminate the evidence of the accomplice from consideration and then to examine the testimony of the other witnesses to determine if there is inculpatory evidence. Colunga v. State, 481 S.W.2d 866 (Tex.Cr.App.1972). In essence, the uncorroborated testimony of an accomplice witness, standing alone, cannot establish the guilt of an adult beyond a reasonable doubt. Standfield v. State, 84 Tex.Cr. 437, 208 S.W. 532 (1918). The United States Constitution has also been interpreted to require proof beyond a reasonable doubt in juvenile cases, and the pertinent Texas statute so provides. Tex.Family Code Ann. § 54.03(f) (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). See, State v. Santana, 444 S.W.2d 614 (Tex.1969), vacated and remanded, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970). George v. State, 506 S.W.2d 275 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

The reason behind holding that such accomplice testimony must be corroborated is obvious — there is a high probability that such testimony may be untrustworthy. For instance, the accomplice may testify adversely to his cohort in an attempt to curry favor with the authorities. The problem of untrustworthiness exists whether it is an adult or a juvenile’s rights that are at stake. It is patently obvious that the weight that should be ascribed to uncorroborated accomplice testimony should in no way depend upon the age of the “accused.” Such a factor is clearly irrelevant and such a discriminatory distinction can serve no useful purpose. Thus, when analyzed from this perspective, it is clear that the need also exists for corroboration of an accomplice’s testimony in a juvenile adjudication hearing.

There can be no valid basis for such a discriminatory distinction between juveniles and adults when the ultimate outcome in either case may be actual physical confinement. See, Gault, supra. Such an arbitrary classification may not be justified in Texas on the grounds that the juvenile is a protected species under the law and that he is removed from the taint of criminality through the workings of a protective, rehabilitation-oriented system of justice. In a situation such as the one now before us, the protection of the child rationale clearly breaks down. The mere fact that a proceeding is labeled “civil” rather than “criminal” is no justification for denying basic rights to a juvenile that are afforded to adults. If anything, it is more logical under the protective concept of parens patriae that the legislature and courts should be more cautious with regard to the requirements that concept demands; especially pri- or to attaching to the juvenile the stigmas of being institutionalized and being declared a delinquent. Note, 27 Baylor L.Rev. 777 (1975). While the protection of the juvenile is often a valid rationale, it can have little application to the present case where the potential consequence to be faced by either juvenile or adult is the same — a deprivation of liberty. Given this specific factual pattern, no state interest justifies such discriminatory treatment.

The denial of equal protection is obvious and the consequences alarming. In this case the accomplice witness admitted committing a $125 armed robbery; if instead an individual had been murdered, it is very likely that both these youths would have been certified for transfer for trial as an adult in the criminal court whereupon Art. 38.17 of the Texas Code of Criminal Procedure would have required an acquittal of our petitioner since the only evidence linking him to the crime was the uncorroborated testimony of an accomplice. See, Tex. Family Code Ann. § 54.02 (1975). As a further example, suppose that this robbery had instead involved three individuals — two juveniles and one adult. Under the present facts, a juvenile accomplice would then testify against our juvenile petitioner and the adult, equally implicating them both. This uncorroborated accomplice testimony would be the only evidence linking either the juvenile or the adult to the crime. Under Texas law as it presently exists, it would be required that the adult be released and yet, the juvenile would be subject to confinement. This is indeed a curious anomaly — a juvenile is subject to confinement when an adult would be set free.

The denial of the juvenile petitioner’s constitutional right to equal protection is palpably evident. I fear that the holding of the majority in the present case has subjected this juvenile to the “worst of both worlds.” See, Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,16 L.Ed.2d 84 (1966). I would reverse the judgment of the court of civil appeals.

STEAKLEY and POPE, JJ., join in this dissent.

      . Texas Family Code § 54.03(c).

      . I feel that the majority’s reliance on United States v. Augenblick, 393 U.S. 348, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969) is misplaced. It would seem that any lack of corroboration was evident only in the investigatory stage of the proceeding. More importantly, the facts are dissimilar and that decision analyzed procedural due process and not the equal protection question presently before us.


author: STEAKLEY, Justice. McGEE, Justice.

text:
    Betty L. COOK et al., Petitioners, v. BRUNDIDGE, FOUNTAIN, ELLIOTT & CHURCHILL, a Partnership for the Practice of Law, Respondents.
    No. B-5371.
    Supreme Court of Texas.
    Feb. 11, 1976.
    Rehearing Denied March 24, 1976.
    Mary Neal Sisk, Dallas, for petitioners.
    Jackson, Walker, Winstead, Cantwell & Miller, Donald L. Case and Jack Pew, Jr., Dallas, for respondents.
   STEAKLEY, Justice.

As this case reaches us, it is a suit by Betty L. Cook, et al, against Brundidge, Fountain, Elliott & Churchill, a partnership for the practice of law. The suit sought to recover actual and exemplary damages against the law firm arising from alleged breaches of fiduciary duty in the attorney-client relationship, and from alleged fraudulent acts. The breaches and fraudulent acts were alleged to have been committed by Warren C. Lyon, a partner in the firm at the times in question. The motion of the law firm for summary judgment was granted by the trial court and this has been affirmed by the Court of Civil Appeals. 522 S.W.2d 740. The question for decision is whether the law firm established conclusively that it is not liable for the acts of Lyon. We hold that it did not and so reverse the judgments below and remand the cause for trial.

We learn the following from the summary judgment record. Brundidge, Fountain, Elliott & Churchill is a partnership engaged in the practice of law in Dallas, Texas. Warren C. Lyon was a partner of the law firm at the times in question. As such, in 1969, he represented the plaintiff Betty L. Cook in a divorce proceeding; he also prepared a will for her and for Isabelle Griffin, another plaintiff. Fees were charged by the law firm for these services and paid by Betty L. Cook and Isabelle Griffin. Lyon was also engaged in the real estate business and was an officer and stockholder in Texas Yummers, a Texas corporation. He also owned stock in a California company known as United States Franchise Corporation which assisted with the organization of Texas Yummers. Fees were also paid to the law firm by Texas Yummers.

Sometime in 1969, during a conference with Lyon concerning her divorce, Betty L. Cook informed Lyon that she, together with her aunt, Mrs. Isabelle Griffin, and her sister, Winifred Baker, were receiving approximately $60,000 from the sale of some property which had come to them from an estate in Illinois. Betty L. Cook asked Lyon if he knew of someone with whom they could consult concerning the investment of this money in some real estate in Texas. Lyon told her he was a silent partner in a real estate firm and might be able to help her. He suggested several investments and then told her about Yummers, a fast-food franchise operation based in California, in which he had invested at, he said, substantial profit. Lyon said he had obtained a Yummers franchise and was in the process of forming a Texas corporation to handle it.

Betty L. Cook, et al, decided to invest in Yummers. They directed their attorney in Illinois to send Lyon a check for the proceeds of the sale of the land in Illinois, which he did. The check was dated July 3, 1969, and was in the sum of $60,343.25; it was made payable to “Warren Lyon as Attorney for Isabelle M. Griffin, Winifred Baker and Betty Cook.” The check was mailed to and received by Lyon at the office of the law firm but there is no showing that the funds were deposited in or handled by or through any account of the law firm.

On July 9, 1969, Betty L. Cook, et al, conferred with Lyon in the law firm’s office. A contract was executed whereby they loaned to Texas Yummers Corporation a minimum of $50,000 to be used in the construction of a Yummers store in Dallas. Lyon signed the contract as president of Texas Yummers. Betty L. Cook, et al, alleged under oath that Lyon represented to Plaintiff Cook, Mrs. Griffin and Mrs. Baker that he had prepared the contract, that it was a good and valid mortgage contract and that as their attorney he could assure them that their interests were well-protected. Betty L. Cook testified that Lyon represented to them that their funds had been placed in a trust account until it could be invested in the new store: “The money was going to be held until actually the property was bought and the building begun and the pay back started, which was September 15. . It was to be paid back to us at one thousand dollars a month to be divided equally between the three of us for fifteen years.”

The payment due September 15, 1969, under the July 9 contract was not made. On October 16, at Betty L. Cook’s request, Lyon sent Isabelle Griffin a check for $250 from Texas Yummers Corporation to cover her living expenses.

During October and November of 1969, Lyon persuaded Betty L. Cook, et al, to exchange their rights under the July 9 contract for stock in Texas Yummers. Betty L. Cook, et al, agreed to take 12,000 shares each, at $1.00 per share, plus a $19,000 note from Texas Yummers. Betty L. Cook also gave Lyon $5,000 for 5,000 more shares on November 14. On December 4, Lyon and Weaver executed and Betty L. Cook, et al, received the $19,000 note from Texas Yum-mers. On December 23, Betty L. Cook signed an “investment letter” promising to purchase 17,000 shares; Isabelle Griffin and Winifred Baker signed similar letters for 12,000 shares each. In February of 1970, Betty L. Cook, et al, received what purported to be stock certificates for Texas Yum-mers.

The facts regarding Texas Yummers Corporation were these: a Texas Yummers Corporation was incorporated on February 27, 1969; Lyon was designated as an incor-porator and director. The law firm was retained by United States Franchise Corporation, a California corporation which owned and operated “Yummers” stores in California, to set up this Texas corporation. On March 3, 1969, Texas Yummers paid the law firm $500 as a retainer; the check was signed by Lyon. $50,000 of the funds of Betty L. Cook, et al, was deposited in an account of Texas Yummers.

On December 2, 1969, Texas Yummers was dissolved, and a new Texas Yummers Corporation was formed; Lyon was again an incorporator and director. On July 21, 1972, a Petition for Involuntary Bankruptcy of Texas Yummers was filed; on August 11, the corporation was adjudged bankrupt. On September 12, a meeting of the creditors of the corporation was held. Soon thereafter, this suit was instituted.

As indicated in the forepart of this opinion, the severed proceeding before us seeks the recovery of damages against the partnership law firm upon the theory of vicarious liability for the acts of Lyon, a partner. are concerned at this stage with the motion of the law firm for summary judgment that was sustained by the trial court and upheld by the Court of Civil Appeals upon the stated conclusion:

that the summary judgment proof established as a matter of law that Lyon had neither the actual authority nor the apparent authority to represent the law firm in the fraud perpetrated upon plaintiff. Such proof shows the fraudulent acts by Lyon were not consented to, authorized, ratified, or adopted by the other members of this law firm. 522 S.W.2d 740, 742.

This holding of the Court of Civil Appeals states the essential position of the law firm.

It should also be stated that the problem at hand does not involve in any respect the question of the personal liability of a lawyer who defrauds a client, whatever the circumstances.

The motion of the law firm for summary judgment relied for support on its filed answer, on the affidavits of Lyon, and of Ralph D. Churchill, a senior member of the firm; and upon the deposition testimony of Betty L. Cook, a plaintiff, and Charles A. Girand, a licensed Texas attorney engaged in the practice of law in Dallas.

The answer of the law firm admitted that Lyon was a partner in the practice of law but denied that he was a partner, or that he was acting in the capacity of a partner, “in giving the advice, performing the services and doing or omitting to do the acts complained of by plaintiffs.” As to such, he was, the law firm alleged, acting in his individual capacity.

The affidavit of Lyon was to the same effect, i. e., that in all transactions with Betty L. Cook, other than with respect to the divorce proceeding and the preparation of a will for her, he was acting in his individual and personal capacity, for which the law firm received no fee or payment from Betty L. Cook.

The affidavit of Churchill was to the effect that the firm is engaged exclusively in the practice of law; that Lyon as a partner was not authorized to act as an investment counselor, securities broker or dealer, or to act as a real estate broker, dealer or agent, and that Lyon was not a partner in the performance of any such services performed for Betty L. Cook; that the only service Lyon performed as a partner was the handling of a divorce for Betty L. Cook and the preparation of a will for her and perhaps a will for one of the other plaintiffs; that Lyon was acting in his individual capacity with respect to his real estate business and as a stockholder in United States Franchise Corporation, and in the corporation known as Yummers; and that “this firm received no fee, payment, commission, or profit in any of such transactions.”

The deposition testimony of Girand was directed to the reasons for the dissolution of the original incorporation of Yummers and the formation of the second corporation.

The deposition of Betty L. Cook, who was deposed as a witness on behalf of the defendants, Lyon and Weaver, dealt principally with the sequence of events in her relationship with Lyon. She also filed an affidavit in support of her response to the motion of the law firm for summary judgment. In this she stated:

At no time in my dealings with Defendant Lyon did he indicate that he was acting in any capacity other than as my attorney at law or separate from the law firm of which he was a partner. Stuart L. Mamer, an attorney of Champaign, Illinois had represented members of my family and me for several years and he acted as attorney for me, Mrs. Baker, Mrs. Griffin and my father, Professor B. F. Timmons, with regard to the sale of the Illinois property. Based on my conversations with Defendant Lyon, Mr. Mamer was told by me, Mrs. Griffin and Mrs. Baker that we had retained Defendant law firm through its partner, Defendant Lyon, to represent us in Texas, and had been accepted as clients by the Defendant law firm through its partner, Defendant Lyon. Mr. Mamer made the check for $60,343.25 payable to “Warren Lyon, as Attorney for Isabelle M. Griffin, Winifred Baker and Betty Cook” because Defendant Lyon had assured us that as our attorney he would protect and hold the funds for us pending their investment.

There was also filed by Betty L. Cook, et al, the affidavit of Stuart M. Mamer, their attorney in Champaign, Illinois. His activities, with particular reference to the law firm in Texas, were described as follows:

In the Spring of 1969, I was retained by Professor Timmons and Mmes. Cook, Baker and Griffin to represent them in the sale of Champaign property and was informed that Mmes. Cook, Baker and Griffin desired to re-invest the proceeds in real estate in Dallas, Texas. I was informed by telephone calls and correspondence from each of the three Plaintiffs herein that they were represented by counsel in Dallas, Texas. They informed me that their attorney was Warren C. Lyon, a member of the Dallas law firm of Brundidge, Fountain, Elliott & Churchill.
After the sale of the Illinois property was consummated, I deposited the proceeds therefrom in the separate Trust Account maintained by our law firm in the First National Bank of Champaign, Illinois, for the purpose of segregating our clients’ funds. On July 3, 1969, I drew a check on this Trust Account to the order of “Warren Lyon, as Attorney for Isabelle M. Griffin, Winifred Baker and Betty Cook.”
I received a letter dated July 14, 1969, from the law firm of Brundidge, Fountain, Elliott & Churchill bearing the signature “Warren Lyon.” I received a letter dated August 12, 1969, in the same style. The first of these letters showed that copies thereof had been sent to Mmes. Cook, Baker, and Griffin.
As requested in the law firm’s letter of July 14, 1969, I did indeed compute the capital gains taxes and prepared the necessary schedules for the 1969 income tax returns of Mmes. Cook, Baker, and Griffin.
The July 3, 1969, check on our Trust Account in the amount of Sixty-Thousand Three Hundred Forty Three and 25/100 Dollars ($60,343.25) was subsequently paid by our bank. It was endorsed “Warren Lyon, Attorney for Isabelle Griffin, Winifred Baker & Betty Cook.”

Vicarious liability of the law firm for the alleged damages suffered by Betty L. Cook, et al, is not claimed on the basis of any negligence or breach of duty on the part of the other members of the law firm; nor is it claimed that the other members of the law firm became cognizant of the acts of Lyon, or in anywise consented to or ratified his course of dealings with Betty L. Cook, et al. Cf. Kelsey-Seybold Clinic v. Maclay, 466 S.W.2d 716 (Tex.1971). There is no claim, on the other hand, that Lyon or the law firm gave notice to Betty L. Cook, et al, that Lyon’s authority as a partner was limited in any respect, or, more specifically, that any act of Lyon for his individual profit, or in which he had a personal interest, would be outside his authority as a member of the partnership.

The question of the liability of a professional partnership of attorneys for the acts of a partner not strictly legal in nature, but which occur during the existence of the attorney-client relationship in recognized legal matters, is of first impression in our jurisdiction. Other jurisdictions have dealt with the problem of determining the scope of business of a professional partnership in various ways. In Rouse v. Pollard, 130 N.J.Eq. 204, 21 A.2d 801 (Ct.Err. & App. 1941), the partner of a law firm persuaded a client whom he was representing in a divorce to entrust him with some of her money for investment with “the firm.” The client sued the partner and the partnership to recover her funds, and the trial court dismissed the suit as to the partnership on the ground that the partner’s actions were not within the normal scope of business of a law practice. Affirming the trial court’s dismissal, the New Jersey Court of Errors and Appeals relied on a distinction developed in England:

The English cases sustain the principle that where money is received by one member of a law partnership for the expressed purpose of a special investment, . there may be liability by one partner for the misconduct of another in the misapplication of the fund, but that if one of the partners receives money indefinitely, to lay out when a proper security may be found, he is not acting within the character of an attorney and does not thereby make his partner liable. 21 A.2d at 804.

In Douglas Reservoirs Water Users Ass’n v. Maurer & Garst, 398 P.2d 74 (Wyo.1965), Maurer, a partner in the law firm, misappropriated a $10,000 check given to him by the Water Users Association, of which he was a member and the treasurer; the funds were supposed to be used to purchase a bond in the name of the association. The Wyoming Supreme Court affirmed a summary judgment in favor of the law partnership, holding that Maurer was not acting within the ordinary scope of the partnership business as a matter of law when he misappropriated the funds:

There is nothing to indicate that legal work had been involved in collecting money from the United States for Douglas Reservoirs Water Users Association, or that the $10,000 check had been entrusted to Maurer for a transaction ordinarily performed by lawyers. 398 P.2d at 77.

In Blackmon v. Hale, 1 Cal.3d 548, 83 Cal.Rptr. 194, 463 P.2d 418 (1970), the plaintiff gave an attorney a check payable to the attorney’s partnership trust account, in order that funds would be available to the attorney in negotiations for plaintiff’s purchase of a note and mortgage on some real property. The partner misappropriated the funds, and plaintiff sued the partnership for their recovery. Reversing the trial court’s judgment in favor of the partnership, the California Supreme Court held that the partnership was liable for the partner’s malfeasance on the ground that the partner was acting within the scope of his apparent authority in accepting plaintiff’s funds.

The Court stated, at 83 Cal.Rptr. 194,199, 463 P.2d 423, 424:

Although the firm’s records indicate that Adams and Hale regarded plaintiff as a client of Adams only, there is no evidence whatever that either Adams or Hale ever informed plaintiff that Adams was not representing plaintiff as a member of the firm. Moreover, Adams and Hale held themselves out to the public and to plaintiff as partners. The partnership displayed a sign viewable from the street reading “Adams and Hale, Attorneys at Law.” Such signs are commonly used by law firms to indicate a partnership. (See Fletcher v. Pullen (1889) 70 Md. 205, 213, 16 A. 887, 888.) Plaintiff testified that he knew that the firm was called Adams and Hale and that he dealt with Adams in the firm’s offices. Furthermore, Adams instructed plaintiff to make his check payable to the Adams and Hale Trust Account. In the absence of other evidence these facts would justify a reasonable man in believing that he was dealing with a partnership.

In Zimmerman v. Hogg & Allen, P. A., 286 N.C. 24, 209 S.E.2d 795 (1974), Greene, who was a principal shareholder in Hogg & Allen, a professional association for the practice of law, represented Zimmerman, who was an officer and employee of a company which had engaged Hogg & Allen as its general counsel, in some personal legal matters. Zimmerman sent Greene $24,000 to be used in the purchase of shares of Kentucky Fried Chicken. Zimmerman sued Greene and Hogg & Allen for misappropriation of his money. Reversing the trial court’s summary judgment in favor of Hogg & Allen, the North Carolina Supreme Court held that there was a fact question whether, in accepting Zimmerman’s money, Greene was acting within the normal scope of business of the professional association. The court stated its conclusions as follows:

Under these particular circumstances, we are of the opinion that plaintiff’s evidence was sufficient to justify a reasonable and prudent belief by plaintiff Sam Zimmerman that the Professional Association had conferred authority upon Greene to receive the funds from him for investment while acting as its agent. Thus plaintiff’s evidence raised a genuine material issue for trial as to whether Greene acted within the scope of his authority and as agent for the Professional Association at the times complained of. The issue so raised was material because without establishing agency, plaintiff could not recover . . . 209 S.E.2d at 804, 805.

In Croisant v. Watrud, 248 Or. 234, 432 P.2d 799 (1967), plaintiff had engaged an accounting firm to advise her on tax matters and to prepare tax returns for her business enterprises. After selling one of her businesses, she made arrangements with a member of the accounting firm, who had handled the business of plaintiff for the firm previously, to collect payments under the contract of sale, as well as some collection of rents from other property, and to make various disbursements of the money. The funds collected were deposited in an account of plaintiff, from which the accountant had authority to make withdrawals. The accountant misapplied some of the funds, and plaintiff sued the accountant’s partnership to recover the loss. The Oregon Supreme Court, reversing a judgment in favor of the partnership, held that the partnership was liable for plaintiff’s loss, even though the accountant’s services to plaintiff were not services ordinarily performed by accounting firms:

If a third person reasonably believes that the services he has requested of a member of an accounting partnership is [sic] undertaken as a part of the partnership business, the partnership should be bound for a breach of trust incident to that employment even though those engaged in the practice of accountancy would regard as unusual the performance of such service by an accounting firm.
The reasonableness of a third person’s belief that a partner is acting within the scope of the partnership should not be tested by the profession’s own description of the function of its members. Those who seek accounting services may not understand the refinements made by accountants in defining the services they offer to the public. Whether a third person’s belief is reasonable in assuming that the service he seeks is within the domain of the profession is a question which must be answered upon the basis of the facts in the particular case. 432 P.2d at 803.

It is doubtful if the treatment of the problem by these various jurisdictions, and the rationale applied for solutions, can be harmonized; or that an accepted rule can be said to appear. A stricter view against the liability of a professional partnership for the misdeeds of a partner with a client is indicated in Rouse and Douglas Reservoirs ; a more liberal view is indicated in Blackmon, Zimmerman and Croisant. Surprisingly, also, only two of the jurisdictions, California and Wyoming, considered the problem in the light of their respective uniform partnership acts which, in our view are particularly relevant, if not controlling. Indeed, the conclusions we reach, later stated, rest in great measure upon the provisions of the Texas Uniform Partnership Act, Vernon’s Ann.Civ.St. art. 6132b.

Prior to the enactment of the Texas Act in 1961, there did not exist a comprehensive corpus of substantive law governing the partnership form of business association. See Sher and Bromberg, Texas Partnership Law in the 20th Century, 12 Sw.L.J. 263 (1958). Application of the Act to a professional partnership has not been invoked as yet although the dissenting opinion in Kelsey-Seybold, supra, involving a medical partnership, recognized that the Uniform Partnership Act, art. 6132b, “provides for liability of the partnership for wrongful acts of a partner ‘acting in the ordinary course of the business of the partnership.’ ” In Kelsey-Seybold, supra, however, it was assumed in the writing for the majority that in engaging in the acts in question the doctor-partner was not acting in the ordinary course of the business of the medical partnership; whereas, this is the problem now at hand.

There are, admittedly, compelling and unique considerations with respect to partners engaged in the practice of law. The fiducial obligations of a law partnership set it apart from commercial partnerships. For a discussion of the high obligations of a fiduciary see Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509 (1942). These characteristics and obligations inherent in the practice of law are universally understood and acknowledged by the legal profession. Nevertheless, the provisions of art. 6132b are expressly applicable to a professional partnership such as one of law. Section 6 of the Act defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” Section 2 defines “business” as including “every trade, occupation, or profession.” Governing the issue at hand, i. e., the conditions to liability of a partnership for the acts of a partner, Sections 9, 13 and 14 of the Act provide:

Sec. 9. (1) Every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument, for apparently carrying on in the usual way the business of the partnership of which he is a member binds the partnership, unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no such authority. (Emphasis added)
(2) An act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners.
Sec. 13. Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is cause[d] to any person, not being a partner in the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act. (Emphasis added)
Sec. 14. The partnership is bound to make good the loss:
(a) Where one partner acting within the scope of his apparent authority receives money or property of a third person and misapplies it; and
(b) Where the partnership in the course of its business receives money or property of a third person and the money or property so received is misapplied by any partner while it is in the custody of the partnership.

We have recently spoken of apparent authority in terms of estoppel, and have said that one seeking to charge a principal through apparent authority of an agent must prove such conduct on the part of the principal as would lead a reasonable prudent person to suppose that the agent had the authority he purports to exercise. Douglass v. Panama, Inc., 504 S.W.2d 776 (Tex.1974). The extent of authority of a partner is determined essentially by the same principles as those measuring the scope of the authority of an agent. In Randall v. Meredith, 76 Tex. 669, 13 S.W. 576 (1890), this Court wrote of the implied powers possessed by a partner:

Between partners themselves, and between the firm and persons dealing with the firm, it must be presumed that each partner is the agent of the firm, empowered to carry out its objects, and to transact the business for which the partnership was formed, in the usual and customary way pursued by other firms engaged in a like business; and, in the absence of restrictions on this power, rights must be adjusted in view of its existence. Third persons dealing with a member of a firm in reference to partnership matters, in the absence of power expressly conferred, must recognize the fact that the partner’s power to bind his firm is restricted to the doing of such things as are within the scope of the particular business. Between the partners themselves, and between the firm and persons dealing with it through a partner, there is no doubt that the usages of firms engaged in the same character of business in the same country, as well as the general usage of the firm in the conduct of its business, may be looked to to ascertain the implied powers possessed by a partner. If the power exercised in a given case be one usually exercised by partners in a like business, all the members of the firm must be supposed to have intended to confer a like power on each other. If the power be habitually exercised by a partner, and acquiesced in by the other members of the firm, it is but fair to conclude that the members of the firm intended it to be exercised. 13 S.W. at 581, 582.

As stated before, it is not claimed either that Lyon was authorized by the partnership to act as he did in the Yummers matter or that Betty L. Cook, et al, had notice or knowledge that Lyon had no authority to act for the partnership in what he did. Assuming misapplication of the funds, the crucial consideration in determining whether the law firm is bound by the acts of Lyon by force of the statutory provisions is whether in receiving the funds of Betty L. Cook, et al, in the sum of $60,-343.25, Lyon was “apparently carrying on in the usual way the business of the partnership” (Sec. 9); or, as also expressed, whether he was “acting in the ordinary course of the business of the partnership” (Sec. 13). If so, it would follow that Lyon was “acting within the scope of his apparent authority” when he received the money and property of Betty L. Cook, et al; and that the law firm is “bound to make good the loss” from his misapplication of the funds (Sec. 14).

It was the burden of the law firm as the defendant-movant for summary judgment to establish as a matter of law that no fact issue stands in the way of judgment in its favor. Cf. Burns v. Gonzalez, 439 S.W.2d 128 (Tex.Civ.App.—1969, writ ref’d n. r. e.) with respect to the burden in trial on the merits. The summary judgment burden was that of establishing the negative of the statutory issues, namely, that Lyon was not apparently carrying on in the usual way the business of the law firm, i. e., was not acting in the ordinary course of its business and hence was not acting within the scope of apparent authority by force of statute. See Torres v. Western Casualty & Surety Co., 457 S.W.2d 50 (Tex.1970); Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The defendant is required to meet the plaintiff’s case as pleaded and to demonstrate that the plaintiff cannot prevail. Glenn v. Prestegord, 456 S.W.2d 901 (Tex.1970); Guidry v. Neches Butane Products Co., 476 S.W.2d 666 (Tex.1972). There can be no further burden upon the plaintiff if the requisite facts for summary judgment are not established by the summary judgment record. See Torres, supra, and Box v. Bates, 162 Tex. 184, 346 S.W.2d 317 (1961).

As noted earlier, the thrust of the affidavits of Churchill and Lyon in support of the motion for summary judgment was that the law firm is engaged exclusively in the practice of law, and that Lyon was not acting for the partnership in performing the services in question. But at the least, the acceptance by Lyon of the check of $60,343.25 payable to “Warren Lyon as Attorney for” Betty L. Cook, et al, together with the deposition testimony of Betty L. Cook upon which the motion of the law firm for summary judgment also relied for support, and, further, the affidavit of Betty L. Cook and that of the Illinois attorney, demonstrate the existence of fact issues with respect to the statutory conditions to liability of the partnership. This being so, the record does not establish conclusively that the law firm is not accountable to Betty L. Cook, et al, for the acts of Lyon.

The judgments of the trial court and of the Court of Civil Appeals are reversed and the cause is remanded for trial.

Dissenting opinion by McGEE, J., in which GREENHILL, C. J., joins.

McGEE, Justice.

I respectfully dissent. I would hold that in this case the summary judgment proof established as a matter of law that Lyon had neither the actual nor the apparent authority to represent the law firm in the fraud perpetrated upon the petitioners. Further, no liability should rest upon the law firm under any of the controlling provisions of the Texas Uniform Partnership Act. Tex.Rev.Civ.Stat.Ann. art. 6132b (1970).

The record clearly reveals that Mrs. Cook initially asked Lyon whether he knew of someone to whom she could speak concerning the possible investment of certain monies in Texas properties. Thus, aside from her legal problems Mrs. Cook inquired of Lyon whether he knew of someone she could discuss investments with — apparently realizing that any discussion relative to legal matters had ceased. She specifically inquired as to whether he knew of “either an investment counselor or a real estate person.” Lyon’s answer was that he was a silent partner in a different field — a real estate firm, and that he could therefore be of some service to her in that separate capacity. It is undisputed that no member of the law firm other than Lyon played any part in, or received any benefit from, Lyon’s alleged misapplication of funds. The funds were not deposited in, nor handled by, or through any account of the law firm. Thus, it is clear that the investment counseling by Lyon was done without the knowledge of anyone else in the law firm and that the firm neither received a fee, nor profited in any way by Lyon’s actions. The end result is that the pleadings, affidavits and depositions reveal that the activities out of which the defalcations arose did not constitute a partnership endeavor.

In Randall v. Meredith, 76 Tex. 669, 13 S.W. 576, 581 (1890), the court stated:

“Third persons dealing with a member of a firm in reference to partnership matters, in the absence of power expressly conferred, must recognize the fact that the partner’s power to bind his firm is restricted to the doing of such things as are within the scope of the particular business.”

Nevertheless, the majority has held that the liability of the law firm may ultimately be established under the applicable provisions of the Texas Uniform Partnership Act. Section 4(3) of the Act expressly states that “[t]he law of agency shall apply under this Act.” Upon recognizing this fact the majority states that assuming misapplication of the funds, the crucial questions determinative of whether the law firm is to be held liable for Lyon’s misdeeds are: “ . whether in receiving the funds of Betty L. Cook, et al, in the sum of $60,343.25, Lyon was ‘apparently carrying on in the usual way the business of the partnership,’ (Sec. 9); or, as also expressed, whether he was ‘acting in the ordinary course of the business of the partnership’. (Sec. 13). If so, it would follow that Lyon was ‘acting within the scope of his apparent authority’ when he received the money and property of Betty L. Cook, et al; and that the law firm is ‘bound to make good the loss’ from his misapplication of the funds. (Sec. 14).”

Thus, as viewed by the majority, the key is obviously the receipt of the funds. Though I would not limit the construction of the Act simply to the mere receipt of the funds, and aside from the confusion inherent in the majority’s statement, I maintain that the liability provisions of the act are clear and well defined. In the present case, it is not claimed that Lyon had been authorized by the partnership to act as he did with reference to the Yummers investment. Nor does anyone claim that Betty Cook, et al, had notice or knowledge that Lyon had no authority to act as he did. Thus, the key questions that must be answered in order to determine whether the law firm is to be held liable are whether Lyon was “acting in the ordinary course of the business of the partnership.” (Sec. 13); or, whether he was “apparently carrying on in the usual way the business of the partnership.” (Sec. 9). Further, liability may also attach to the law firm if Lyon was “acting within the scope of his apparent authority.” (Sec. 14).

Based on my construction of the statutory liability provisions set out in the Texas Uniform Partnership Act as they apply to the present fact situation, I would uphold the summary judgment entered in favor of the law firm. I would hold that the law firm met its summary judgment burden and established that Lyon was not acting in the ordinary course of the partnership business. I would further hold that Lyon was not acting within the scope of his apparent authority, nor was he apparently carrying on in the usual way the business of the partnership within the meaning of the Texas Uniform Partnership Act. The authority of a partner to act as an agent for his partnership is limited to such transactions as are within the scope of the partnership business; and neither the partnership nor the other partners are bound by the unauthorized acts of one partner in a matter not within the usual or apparent scope of business of the partnership. Neither a partnership nor its innocent partners are liable for a conversion which is not effected in the course of the firm’s business. Similarly, as was revealed in the Randall case, supra, third persons dealing with a member of a firm must recognize that the partner’s power to bind his firm is restricted to doing things that are within the scope of the particular business. Perhaps the initial respect which Mrs. Cook entertained for Lyon’s business sagacity and investment acumen was seeded in the fact that he was a member of that particular law firm; but he was a member of that firm for the practice of law, and that membership did not per se create liability by his partners for his acts outside the general scope of the practice of law. Rouse v. Pollard, 130 N.J.Eq. 204, 21 A.2d 801 (1941).

Mrs. Cook’s inquiry related to whether Lyon knew of an individual who could serve in the distinct capacity of an investment counselor. Lyon’s answer clearly indicated to her that he would be acting in her behalf in a separate, nonlegal capacity. It therefore may not be said that Lyon was “apparently carrying on in the usual way the business of the partnership.” Such representations and financial failure arose out of Lyon’s own private deal and not in the course of the partnership business. Where a person deals with one of the partners in a matter not within the scope of the partnership, the intendment of the law is that he deals with him on his own private account.

When Mrs. Cook went to the offices of Brundidge, Fountain, Elliott & Churchill in reliance upon their reputation as a law firm to obtain legal advice and met with Lyon as a member of the firm who would render the desired service, she had no justification therein for relying upon the responsibility of the partnership for any disconnected service assumed by Lyon outside one that was characteristically within the practice of law. When Lyon volunteered himself as a real estate and investment counselor in the present case due to Mrs. Cook’s instigating inquiry he was not “apparently carrying on in the usual way the business of the partnership,” nor was he “acting in the ordinary course of the business of the partnership” within the meaning of the Partnership Act. In this case Lyon was acting in a private, nonlegal advisory capacity, and he was therefore entirely outside the scope of his authority and without the scope of the business carried on by this law firm. Such actions were not incidental to the business of a firm engaged exclusively in the practice of law. Because of these conclusions, it is clear that Lyon was also not “acting within the scope of his apparent authority” when he received the monies of Betty Cook, et al.

This court described “apparent authority” in Douglass v. Panama, Inc., 504 S.W.2d 776, 778 (Tex.1974), as follows:

“Apparent authority is based on estoppel, and one seeking to charge a principal through apparent authority of an agent to bind the principal must prove such conduct on the part of the principal as would lead a reasonably prudent person to suppose that the agent had the authority he purports to exercise.” [Emphasis added].

Since apparent authority is based on es-toppel, it cannot be established by the acts of the agent; “it must arise from words or conduct of the principal.” Custom Leasing, Inc. v. Texas Bank and Trust Company of Dallas, 516 S.W.2d 138, 144 (Tex.1974); Rourke v. Garza, 19 Tex.Sup.Ct.J. 36, 530 S.W.2d 794 (Tex.1975). Further, apparent authority in such cases exists only as to those things ordinarily entrusted to one occupying such a position. Rourke, supra. In the instant case we find no actions by the principal law firm that would induce Mrs. Cook to believe that Lyon was authorized to act for the firm as a real estate broker or investment counselor. The firm did nothing to indicate to Mrs. Cook that Lyon was authorized to act in their behalf outside of the practice of law. Mrs. Cook herself stated in her affidavit and deposition that she had no contact with any other member of the law firm beyond greeting Mr. Churchill briefly on a few occasions. The mere fact that the law firm had conferred upon Lyon the authority to practice law within the scope of their partnership would not create the apparent authority to engage in investment counseling transactions as a service disconnected from the practice of law. See, Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050 (Tex.Civ.App.—Waco 1931, writ ref’d).

As a final note, I maintain that it is clearly evident that the majority has failed in its duty to lend a guiding hand to the trial court below. For instance, in what fashion do the three statutory liability provisions interrelate so as to possibly affix liability to the law firm? Since the ultimate outcome is dependent upon these pertinent liability provisions, what are the special issues that should be submitted in such cases? Whose viewpoint or actions determine the existence or nonexistence of liability? What does “apparently carrying on in the usual way the business of the partnership” mean? It is inevitable that the jury will require some form of instruction as to these matters. And, since the term “apparent authority” as set out in the statute has obviously not received its traditional interpretation, that concept will also require further specification and delineation. That problems and confusion are created is evident. The questions which arise call for and deserve answers. This case presents the initial instance in which the partnership liability provisions have been directly confronted and analyzed in such a fashion, and therefore, further guidance is essential.

Nevertheless, as I view the Texas Uniform Partnership Act, even under the petitioners’ version of the facts there was no genuine issue as to any material fact, and the matters before the court failed to show any liability on the part of the law firm. Accordingly, summary judgment was properly entered and the judgment of the court of civil appeals should be affirmed.

GREENHILL, C. J., joins in this dissent.

      . As originally filed, the suit complained also of Warren C. Lyon, Jerry L. Weaver and Roger Milton; upon motion of Betty L. Cook, et al, the trial court severed the cause of action against the other defendants, and this severed cause now pends in the trial court.