author: SWOFFORD, Chief Judge.

text:
    KENILWORTH INSURANCE COMPANY, Appellant, v. Rex A. COLE et al., Respondents.
    No. KCD 29858.
    Missouri Court of Appeals, Western District.
    Sept. 4, 1979.
    As Modified Sept. 12, 1979.

      J. Michael Cronan, Jackson & Sherman, P. C., Kansas City, for appellant.
    Joe P. Willerth, Piedimonte & Cochran, Independence, Kevin E. Glynn, Miller, Simmons & Moore, Kansas City, for respondents.
    Before SHANGLER, P. J., SWOPPORD, C. J., and WASSERSTROM, J.
   SWOFFORD, Chief Judge.

The appellant (company) filed an action seeking a declaratory judgment that it did not have insurance coverage on respondent, Rex A. Cole, under an automobile liability insurance policy wherein he was the named insured, for claims arising out of an automobile accident which occurred June 15, 1975. At the time of the accident Cole was driving a Ford Mustang automobile owned by defendant Dwight V. Blackwell, a minor, and titled in the name of defendant Zula Blackwell, his mother. On that date, the Mustang came into collision with a Pontiac automobile owned by defendant Melvin Roscoe Smith and then being driven by his daughter, defendant Theresa Lucinda Smith. The other named defendants, seven in number, were occupants of the Smith or Blackwell cars at the time of the collision.

The policy of insurance involved was issued by the appellant to Rex Cole and insured him in the operation of a 1965 Ford Station Wagon, not involved in the June 15, 1975 accident.

The court below denied relief.

The company seeks judgment under the policy terms contained in Section V of the insuring clauses, which provide in pertinent part:

“V Use of other automobiles.
* * * if during the policy period . such named insured * * * owns a private passenger automobile covered by this policy, such insurance as is afforded by this policy * * * with respect to said automobile applies with respect to any other automobile, subject to the following provisions:
‡ * $ ⅜: * ‡
(d) This insuring agreement does not apply:
(1) to any automobile * * * furnished for regular use to * * * the named insured * * * ” (Emphasis supplied)

By written stipulation of the parties, filed in the court below, it was agreed:

“The sole issue in this case is whether or not the 1966 Mustang automobile was ‘furnished for regular use’ to Rex A. Cole as provided in the policy * * * ” (Emphasis supplied)

Of course, the single issue could only be determined in the court below and reviewed here in the light of the facts and circumstances disclosed by the evidence as to whether or not Blackwell did in fact furnish the Mustang automobile to Cole for “his regular use” within the meaning of the exclusionary policy provision above quoted, under applicable authorities.

The company raises as its first point of error the charge that the trial court misapplied the law of Missouri (1) in holding that the policy language “furnished for regular use” was ambiguous; and (2) in failing to follow the law of Missouri as expressed in the cases of State Farm Mutual Automobile Insurance Company v. Western Casualty and Surety Company, 477 S.W.2d 421 (Mo. banc 1972), and Farmers Insurance Company, Inc. v. Morris, 541 S.W.2d 66 (Mo.App.1976) in declaring that the policy language in those cases was more favorable to exclude- coverage than the language of the policy here involved.

At the close of all the evidence, after inquiry by the Court, counsel were granted time in which to offer suggested findings of fact and conclusions of law. If such were ever proffered to the court, they do not appear in the record. The trial court did make four findings of fact, which were, in summary: (1) the 1966 Mustang automobile driven by Cole on June 15, 1974 (sic) was owned by defendant Dwight Blackwell; (2) the Ford Station Wagon owned by Cole was ordinarily driven by Cole when he drove on business or pleasure; (3) Cole used Blackwell’s Mustang on various occasions, but primarily as an aid in starting his own Ford with the use of a jumper cable when the Ford would not start; and (4) the Mustang was not “furnished for regular use” of defendant Rex A. Cole as contemplated by paragraph V(d) of Cole’s automobile policy.

The trial court also declared four conclusions of law, as here summarized: (1) the automobile policy issued to Cole was in full force and effect at the time of the collision; (2) at that time Cole was covered by the provisions of such policy in the operation of the Blackwell Ford Mustang automobile; (3) the plaintiff insurance company was obligated to defend Cole on any claims or suits arising from the collision and to assume liability for his acts at the time of the aforesaid collision; and (4) plaintiff insurance company is not entitled to the declaratory judgment relief prayed for in its petition.

The trial court thereupon entered judgment in accordance with such findings and conclusions. The source of the appellant’s complaint in its first point on this appeal is a Memorandum Opinion of the trial court filed with said findings, conclusions and judgment. The exact points of criticism of such opinion are the statement of the trial court:

“* * * there is ‘room for construction’ of the exception to the policy and it should be construed most strongly against the insurer.”

and the statement:

“The language of the policy in this case is less favorable to exclusion of coverage than in State Farm v. Western Casualty, Mo. en banc, 477 S.W.2d 421 or Farmers Insurance v. Morris, Mo.App., 541 S.W.2d 66. In State Farm the exclusion applies to non-owned automobiles ‘furnished or available for the frequent or regular use’ of the insured; and in Farmers Insurance, the language is ‘regularly or frequently used’ by the insured.”

In the first instance, the appellant urges that the trial court “Misapplied the Law of Missouri” in holding the policy language was “Ambiguous and Therefore Must Be Construed Against Plaintiff”.

A reading of the trial court’s opinion clearly reveals that it did not hold that the policy provision was “ambiguous” but that it gave “room for construction” under the facts and circumstances of this particular case. This conclusion is bolstered by the fact that the trial court cited and relied upon the case of Brugioni v. Maryland Casualty Company, 382 S.W.2d 707 (Mo.1964) and embraced the long-standing principle there stated, at 1.c. 710[2-4]:

“It is true as the defendants contend that it is the court’s duty to interpret insurance contracts and enforce them as they are written and not to remake them, (cases cited). On the other hand, an insurance policy being a contract designed to furnish protection will, if reasonably possible, be interpreted so as to accomplish that object and not to defeat it, and, if terms of the contract are susceptible of two possible interpretations and there is room for construction, the provisions limiting or cutting down on the coverage of the policy, or avoiding liability therefor, will be construed most strongly against the insurer, (cases cited).” (Emphasis added)

See also: Giokaris v. Kincaid, 331 S.W.2d 633, 639, 641[3, 4] (Mo.1960).

The trial court obviously used the term “room for construction” as synonymous with “room for interpretation” in the light of the facts before it in this case. That such was the case is apparent from the fact that the trial court, after its comments on the exclusion clauses in State Farm v. Western Casualty, supra, and Farmers Insurance v. Morris, supra, as compared with such clause in this case (which appellant by some obscure reasoning constituted a “misapplication” of and “failure to follow” the law of Missouri) stated:

“Guidelines of the State Farm case (1.c. 424) include the type and length of use and the purpose for which the non-owned automobile is furnished. Under the facts of the present case, the use of the non-owned vehicle was for very brief periods, not for any trips of length, and primarily for use in starting the insured’s car.” (Emphasis added)

This Court cannot agree that the court below, as reflected in its memorandum opinion, either misapplied or failed to follow the law of Missouri. However, even assuming that such opinion contained erroneous legal or factual reasons for the result reached, this Court’s review is not restricted or limited thereby, and the appellate obligation resting here in this case is clear and well-defined.

It is the duty of this Court to finally dispose of a case before it on appeal, if that is possible. Rule 84.14. When this Court considers the evidence before it, under the searchlight of controlling law, and the reasonable conclusions and inferences to be drawn therefrom, and, in so doing, concludes that in a bench-tried case the proper result was reached, the judgment or decree should be affirmed. And this is true even though the trial court may have assigned incorrect or erroneous legal or factual reasons for its judgment. What the trial court may have had in mind when the case was decided is “not determinative, if the judgment is correct on any theory”. Edgar v. Fitzpatrick, 377 S.W.2d 314, 318[12] (Mo. banc 1964); City of St. Louis v. Evans, 337 S.W.2d 948, 954[2] (Mo.1960); Brown v. Montgomery, 354 Mo. 1041, 193 S.W.2d 23, 27[3] (1946); Oliver v. Fisher, 430 S.W.2d 611, 613[2] (Mo.App.1968). This long-standing principle controlling court-tried cases on appeal has properly not been diminished or altered under the present standards of Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976), nor revised Rule 73.01. Farm Bureau Mutual Ins. Co. v. Broadie, 558 S.W.2d 751, 753[1] (Mo.App.1977); Ryan v. Equitable Life Assur. Society, 560 S.W.2d 884, 886[1] (Mo.App.1977). The chief concern of this Court on such an appeal is the correctness of the result below and not the route by which it is reached. Helmkamp v. American Family Mutual Ins. Co., 407 S.W.2d 559, 566[8] (Mo.App.1966).

As was said in the case of Brown v. Montgomery, 354 Mo. 1041, 193 S.W.2d 23, 27[3] (1946):

“On appeal, we are not concerned with the erroneous reasons assigned, if the particular decree entered by the court is not erroneous, (cases cited). We must consider what the court ruled by the decree and not what it said in the opinion. * * * ” (Emphasis added)

The decree (judgment) in this case from which this appeal is lodged stated (following the findings of fact and conclusions of law above set forth):

“IT IS, THEREFORE, ORDERED AND ADJUDGED that plaintiff is not entitled to the relief prayed for in its first amended petition, but that plaintiff is obligated as aforementioned under aforementioned insurance policy issued by plaintiff, and costs are assessed against plaintiff, and let execution issue.”

The second point raised by the appellant on this appeal is that the finding by the trial court, that the Blackwell 1966 Mustang automobile driven by Cole at the time of the accident on June 15, 1975 was not furnished for the regular use of Cole, was against the weight of the evidence.

This point directly challenges the sufficiency of the evidence on the sole factual issue upon which the case hinges, as stipulated by the parties, namely, was the Blackwell automobile furnished for the regular use of Cole? In approaching appellate review of this point, this Court does so within the standard of review contained in Murphy v. Carron, 536 S.W.2d 30 (Mo.), that a decree or judgment should be set aside on this ground “with caution and with a firm belief that the decree or judgment is wrong”.

Before summarizing the evidence in this record, some preliminary observations and considerations are in order. Where the insurer seeks to escape coverage solely because of policy exclusion, the burden is upon it to prove facts which would make those provisions applicable. Kelso v. Kelso, 306 S.W.2d 534, 536[2] (Mo.1957); Giokaris v. Kincaid, 331 S.W.2d 633, 635[1] (Mo.1960). The import of the appellant’s argument under Point II is that it met this burden but that the court “ignored compelling contrary evidence” which established that the Blackwell Mustang was in fact furnished for the use of Cole. Most of the “compelling evidence” cited in its brief pertains to matters about which there is very little, if any, material conflict or dispute, and the record is absolutely devoid of the slightest indication that the learned trial judge “ignored any of the evidence before it.

A matter raised under Point II which should also be noted is appellant’s assertion that this Court should give no deference to the greater opportunity of the trial court to have judged the credibility of the witnesses as provided in Rule 73.01.3(b) and in a myriad of Missouri decisions. The factual background of this contention is that four days after the accident of June 15, 1975, one of its representatives and a video tape operator secured video-taped statements from Cole and Blackwell. The circumstances appear that these men went to those defendants’ apartment on June 19, 1975 and secured such statements in the back yard of that place because the inside light was insufficient. Cole testified that at the time he had secured his discharge from the hospital, he was at home in bed suffering from two injured vertebrae in his neck, was wearing a neck support, was in great pain, and had to be helped down to the back yard. He had no recollection of this incident until his deposition was taken in April of 1976 when he was shown a transcription of his statement. He was on that occasion examined at great length as to the content of that original statement and the deposition contains many quotations therefrom. Blackwell’s deposition was taken in June of 1976, in Utah, where he was then making his home, and the same procedures were followed.

Parts of Cole’s deposition were offered by the appellant as admissions against interest, and received at the trial of this cause, the video-taped statement was shown to the trial court, and the transcription of that statement was offered and received in evidence. Cole testified at the trial in person, and the tape, transcription thereof, deposition, and his trial testimony are now on file in this Court.

Blackwell did not testify in person at the trial, but apparently his video-taped statement was shown to the trial judge and his entire deposition was offered and received in evidence. The transcription of the videotaped statement was not offered nor is it filed as part of the record here. The tape and deposition are, however, on file in this Court. Blackwell was extensively examined upon the transcription of his videotaped statement at the taking of his deposition. It is to be presumed that able counsel for the plaintiff brought out in the depositions of both Cole and Blackwell (which have each been carefully read and studied by this Court) anything helpful to the plaintiff or affecting the credibility of the witnesses upon those occasions.

The appellant cites those cases which hold that where the evidence before a court in a jury-waived or bench-tried case consists of testimony submitted to the trial court on depositions and exhibits, the usual deference accorded the determination of a factual issue by a trial court because of its better position to judge of the credibility of witnesses is inapplicable, and, in such a case, that element of credibility can be judged at the appellate level to the same extent as by the trial court. Giokaris v. Kincaid, supra, at 1.c. 635[1]; Meyers v. Smith, 375 S.W.2d 9, 13[1] (Mo.1964); Ehrle v. Bank Bldg. and Equipment Corp. of America, 530 S.W.2d 482, 489[2] (Mo.App.1975) (where the deference rule was given limited application where most of the evidence was by deposition).

The existence and propriety of this general rule is clear and applicable here, at least to a limited extent, as to the Blackwell testimony. It has no application as to Cole’s testimony since he testified at the trial and deference must be accorded to the superior opportunity, thus afforded the trial court, to judge his credibility.

The evidence may be thus summarized:

About April 1, 1975, the defendant Rex Cole moved into an apartment at 842½ Lake Drive, Independence, Missouri. He was then the owner of a 1965 Ford Station Wagon, insured under the policy here involved for Bodily Injury and Property Damage Liability, Medical Payments, and Uninsured Motorist coverage only. He carried no comprehensive, collision or other coverage. He was employed as a brakeman on the extra board of a railroad and was subject to call at any time, on two hours notice, although his working time was usually during the daylight hours.

In about the middle of April, 1975 the defendant Dwight Blackwell moved into this apartment with Cole. The arrangement between them was that they each paid one-half of the rent, each furnished their own quarters, arranged for their own meals, and generally operated upon an independent basis. Blackwell owned a 1966 Mustang automobile although the record title was in his mother’s name. He was employed at a food company and worked from 11:00 P.M. to 7:30 A.M. five or six days a week, and obtained his sleep during the daytime. The Mustang and Ford automobiles when not in use were parked across the street in a vacant lot. This living arrangement had continued for approximately two months before the accident of June 15, 1975.

Blackwell gave Cole a set of keys to the Mustang sometime after he moved into the apartment so that he could use it to start the Ford when Blackwell was asleep. He stated at one point that Cole used the car two, three or four times a week. At other times, he would not use it for a whole week. Blackwell said Cole could use it “whenever he needed it” and that he put no restrictions on that use; that Cole upon two or three occasions bought gas (around $1.00 worth) for the Mustang and that on one occasion Cole helped Blackwell and his father put a motor, which had been rebuilt, into the Mustang.

Cole testified that about three weeks before the accident he began to have trouble with the alternator on his Ford, which ran the battery down; that prior to that time he seldom used the Mustang at all except on occasions to go around the corner to get something to eat; that when he was having car trouble he would use the Mustang to jump start his Ford in the parking area two or three times a week; that he had the keys so that he would not have to awaken Blackwell; that he regularly used his Ford to go to and from work and for all his business and social reasons; that he preferred to drive his own car; that occasionally he and Blackwell would use the Mustang together for social occasions and he would buy a little gas for it and that when he used the Mustang for reasons other than to start his own car he would ask Blackwell’s permission and was sometimes refused. On the day of the accident, he took the Mustang to get some ice and cigarettes, Blackwell was asleep, and he did not ask his permission. This was the first time he had used the car to go anywhere without Blackwell’s permission.

Blackwell stated that he never drove Cole’s Ford and the record does not show that anyone else drove it. Blackwell stated further that 95% of the time Cole used the Mustang was to jump start the Ford; that “I told him he could use it”.

As previously stated, the sole factual question which the trial court was required to find was whether or not the Mustang was furnished for Cole’s regular use under the terms of the provisions in the insurance policy covering “Use of Other Automobiles”. The broad purpose of such policy provisions is to cover “occasional or incidental use of other cars without the payment of an additional premium, but to exclude the habitual use of other cars, which would increase the risk on the insurance company without a corresponding increase in the premium”. (Emphasis added). 86 A.L.R.2d, p. 940, § 2. The key word here involved is “regular”, which in its ordinary and plain meaning imparts something of a steady or uniform course, practice or occurrence as opposed to occasional or incidental. To come within the scope of the exclusionary clause in this case the use of the Mustang automobile by Cole would have to be “habitual”.

In the case of State Farm Mutual v. Western Casualty, supra, the automobile policy contained an exclusion as to the operation of other automobiles “furnished or available for the frequent or regular use" of the named insured. In contemplation of the purchase of a new vehicle the insured had placed the car designated in the policy with a dealer for sale and the dealer gave the insured a company-owned car to drive until the transaction was completed. Insured and his family drove this non-owned automobile for a little over a month when it was involved in a collision. The Missouri Supreme Court en Banc held that the insured’s policy covered the resulting loss and that the policy exclusion as to driving other automobiles did not apply. In so doing, the Court noted the purpose of the “drive other cars” provisions and commented that some courts have ruled this question solely or primarily upon the basis of the purpose for which the non-owned automobile was furnished, rather than on the quantum of its use, and other courts have decided the question of applicability of the exclusion clause on the basis of length or type of use rather than purpose. The court there declared (1.c. 424[2]):

“ * * * we conclude that we should not limit ourselves either to a test of merely determining motive or purpose or one of simply measuring length and extent of availability of use. Rather, each case should be decided on its own facts, and the court should take into consideration the type and length of use, the purpose for which the non-owned automobile was furnished, and any other pertinent facts, including a determination of whether the use and purpose was in harmony with or violative of the objective of the ‘non-owned automobile’ clause.” (Emphasis added)

This Court in Farmers Insurance Company, Inc. v. Morris, 541 S.W.2d 66 (Mo.App.1976) adopted and applied the principles stated above in State Farm v. Western to the analysis of the facts in that record, in the light of the purposes of the “non-owned automobile” provisions and the exclusion in the Farmers policy withdrawing coverage on non-owned automobiles “regularly or frequently used” by the insured or any resident of the same household. This Court in Farmers concluded that the exclusion provision was applicable under facts vastly different from the facts under consideration in this case. In Farmers, the insured’s wife was shown to have regularly used a car owned by her son over a period of four or five years for shopping, trips to the hairdresser, driving to and from work, and of going on two vacations. The principles in the State Farm and Western cases are applicable, adopted and followed in the result here reached under the facts of this case.

In the analysis of all the record there is substantial evidence to support a finding that Cole’s use of the Mustang was occasional and incidental and not habitual and for short periods of time, usually for the purpose to jump start his Ford in the off-the-street lot where the cars were parked; he used his own Ford car for his principal transportation needs; his infrequent use of the Blackwell Mustang upon the streets was confined to going to a drive-in food place in the neighborhood, upon which occasions he asked Blackwell’s permission; and, his having a key to the Mustang was to avoid disturbance of Blackwell’s daytime sleep when he needed the Mustang to jump start his Ford. Cf. Kentucky Farm Bureau Mut. Ins. Co. v. Hill, 278 S.W.2d 729 (Ky.App.1955); Pacific Automobile Ins. Co. v. Lewis, 56 Cal.App.2d 597, 132 P.2d 846 (1943); Juzefski v. Western Casualty & Surety Co., 173 Cal.App.2d 118, 342 P.2d 928 (1959).

An important, pertinent fact in this case (which also distinguishes it from the facts in the court’s opinion in the Farmers v. Morris, supra, decision) is that there is no evidence whatsoever that anyone ever drove the Cole Ford other than Cole. Upon the rare occasions and brief periods when he was operating the Mustang on the streets and thus exposing the appellant-insurer to potential liability under the coverages extended by its policy, the Ford was not being driven, was off the street, and since there was no comprehensive coverage on it, the insurer was not exposed to any possible liability by reason of its coverage of the Ford. Under the facts in this record, there was no such lack of harmony with the principles of the non-owned automobile clause, such as would exist where there was regular use of two automobiles so as to create double exposure to liability for one premium, as was the case in Farmers v. Morris, supra.

There was substantial evidence to support the trial court’s finding that on June 15, 1975 the Blackwell Mustang automobile was not “furnished for the regular use” of Cole and such finding was not against the weight of the evidence. Certainly, this Court cannot reach a firm belief that the judgment, upon this record, is wrong. Murphy v. Carron, supra.

Appellant’s Points I and II are ruled against it.

The judgment is accordingly affirmed.

All concur.


source: Caselaw Access Project

author: GREENE, Judge.

license: Public Domain

text:
    Euel BOTKIN, Lowell Botkin, Bernell Botkin and Robert Botkin d/b/a Botkin Lumber Co., a Partnership, Plaintiffs-Appellants, v. Patrick CAIN, Erman L. Brawley, Wilbert Krueger, et al., Defendants-Respondents.
    No. 11113.
    Missouri Court of Appeals, Southern District, Division Three.
    Sept. 10, 1979.

      Donald E. Lamb, Centerville, for plaintiffs-appellants.
    William R. Edgar, Ironton, for defendants-respondents.
   GREENE, Judge.

This action was brought by plaintiffs to quiet title to several hundred acres of real estate in Reynolds County, Missouri. Among lands claimed by plaintiffs, in their petition, was the North half of Lot One of the Northwest quarter of Section 2, Township 31 North, Range 1 West.

Defendants Brawley and Krueger denied plaintiffs’ claim of title to the tract and, by counterclaim, alleged that they were owners of certain real estate that included the tract above-described. The trial court found for defendants Brawley and Krueger on their counterclaim, and entered judgment in their favor. The judgment became final, for purposes of appeal, on July 8, 1978.

Plaintiffs filed a notice of appeal on July 17, 1978. The trial transcript was filed in this court on January 15, 1979, 182 days subsequent to the filing of the notice of appeal. Rule 81.18 provides that the transcript shall be filed in the appellate court within 90 days from the date of filing of the notice of appeal. The transcript does not contain a motion directed to the trial court requesting additional time to file the transcript, nor does it contain any order by the trial court extending the time in which the transcript may be filed, as required by Rule 81.14(a).

The court file contains a purported order by the trial court granting plaintiffs an additional 90 days, from October 16, 1978, to file the transcript in this court. However, Rule 81.19 provides that the trial court shall not extend the time for filing the transcript on appeal beyond 90 days from the date of filing in the trial court of the notice of appeal, unless the transcript be ordered in writing from the court reporter within 30 days after the filing of such notice of appeal and a duplicate copy of such written order be filed in the case within 15 days thereafter. Neither the transcript nor the file reflect any such written order. Such orders and filings are jurisdictional.

Based on the record, the trial court had no authority to grant the purported extension of time to file the transcript. Donnell v. Vigus Quarries, Inc., 489 S.W.2d 223, 224 (Mo.App.1972). The responsibility for accuracy of the transcript, and of compliance with the rules regarding transcripts rests upon the appellant. Empire Gas Corp. v. Randolph, 552 S.W.2d 82, 84 (Mo.App.1977). The transcript was not timely filed in this court. The court of appeals cannot consider matters not preserved on the record, and not contained in a timely filed transcript.

Ex gratia, we note that the record supports the judgment of the trial court, that its judgment was supported by substantial evidence, was not against the weight of the evidence, and did not contain any erroneous declaration or application of law, Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976), and would have been affirmed by this court had the proper procedural steps been taken.

The appeal is dismissed.

All concur.

      . All references to rules are to Missouri Rules of Court, V.A.M.R.


author: TATUM, Judge. TATUM, Judge.

text:
    STATE of Tennessee, Appellant, v. SOUTHLAND NEWS CO., INC., et al., Appellees.
    Court of Criminal Appeals of Tennessee.
    June 8, 1979.
    On Petition to Rehear July 5, 1979.
    Permission to Appeal Denied by Supreme Court Aug. 27, 1979.
    William M. Leech, Jr., Atty. Gen. Robert L. Jolley, Jr., Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., Richard P. MeCully, Asst. Dist. Atty. Gen., Nashville, for appellant.
    Larry D. Woods and James N. Bryan, Jr., Nashville, for appellees.
   OPINION

TATUM, Judge.

This is an appeal by the State seeking to reverse a judgment of the trial court dismissing four indictments charging the ap-pellees with selling obscene material in violation of T.C.A. § 39-3013 (Chapter 510, Section 3, 1974 Public Acts of Tennessee). The trial judge sustained the appellee’s motion to dismiss on the ground that “the District Attorney General has failed to abide by Section 39-3014 of the Tennessee Code Annotated.”

The trial judge’s finding of fact upon which the indictments were dismissed is as follows:

As a factual background, these cases are allegations of the sale of certain obscene material. At a time in December of 1977, two Metropolitan Police Officers purchased certain allegedly obscene literature from the defendants, and then went to the District Attorney General’s Office of Davidson County whereupon indictments were prepared and the officers appeared before the Davidson County Grand Jury and obtained indictments. It is factually interesting to note, but not material in determining the issue, the District Attorney General had been advised by the Grand Jury to go over all the cases before presenting them to the Grand Jury and only send good ones. (See testimony of Grand Jury Foreman). The District Attorney General signed the indictments which were carried to the Grand Jury. The Court finds as a matter of fact, this prosecution was a District Attorney General’s prosecution as distinguished from an independent Grand Jury investigation directed towards returning a presentment.

Stripped to its bare essentials, the question before us is whether an indictment is invalid when the District Attorney General presents the case directly to the Grand Jury, bypassing the preliminary hearing procedure set out in T.C.A. § 39-3014. We think that this question is answered in the negative by Taylor v. State, 544 S.W.2d 897 (Tenn.Cr.App.1976). We adopt the language of the Taylor case:

In his second assignment of error, the defendant argues that the arrest warrant was issued in this case without complying with the provisions of T.C.A. § 39-3014, which section provides:
“No criminal action to enforce the provisions of §§ 39-3010 — 39-3022 shall be commenced except upon application of the district attorney general or his designated representative. Said application shall be made only with the knowledge of and approval by the district attorney general. Criminal action shall commence only on issuance of a warrant by a judge of a court of record. No warrant shall issue until the party against whom a warrant is sought is notified of the application for a warrant and given twenty-four (24) hours to appear and contest the existence of probable cause for the issuance of a warrant. If the defendant fails to appear after notice, the hearing shall be held in his absence.”
The record shows that on May 2, 1974, written notice was given to the defendant by a police officer that an application for a criminal warrant would be made on May 6,1974. The warrant was issued on the latter date by the judge of the criminal court. Thereafter, the grand jury returned an indictment on July 17, 1974, charging the defendant with exhibiting and displaying obscene motion picture films.
In view of the petition filed by the attorney general on March 23, 1974, and the proceedings that had occurred incident thereto, together with the written notice given by the police officer, we do not see that the defendant was prejudiced by reason of this technical non-compliance with the statute, for it is obvious that he had adequate actual notice of the commencement of this criminal action. Furthermore, the fact the attorney general himself did not give the notice provided by T.C.A. § 39-3014, became inconsequential after the grand jury returned the indictment.
T.C.A. § 40-1605 provides that, “The grand jury shall have inquisitorial powers over all indictable or presentable offenses committed or triable within the county.”
T.C.A. § 40-1606 provides that, “The grand jury shall inquire into all indictable or presentable offenses committed or triable within the county, and present them to the court by indictment or presentment.”
In our opinion, even if it is conceded that there was a technical non-compliance regarding the required statutory notice, it is immaterial in this case. The defendant’s conviction depends not upon the validity of the arrest warrant or proceedings incident thereto, but upon the indictment, and the grand jury having inquisitorial powers over this offense, the indictment was valid without regard to whether the defendant had received proper notice that an application would be made for the arrest warrant.
The provisions of T.C.A. § 39-3014 must not and cannot be interpreted so as to preclude a grand jury from investigating and returning indictments and presentments for violations of the obscenity laws in the exercise of its inquisitorial powers over all indictable or presentable offenses committed within the county. T.C.A. §§ 40-1605, 40-1606, 40-1609, 40-1617. Logic and the law say otherwise.
In Jones v. State, 206 Tenn. 245, 256-57, 332 S.W.2d 662, 667 (1960), our Supreme Court, in holding that all questions about the sufficiency of a warrant are foreclosed by the finding of an indictment, said:
“Counsel has cited no authority and we think none will be found in this State holding that the validity of an indictment is to be tested and limited by what is found in the warrant. The purpose of a warrant is to give an accused person notice that he is charged with some offense and if the warrant is defective, objection may be raised before the committing magistrate or upon a habeas corpus proceeding before indictment. The correct rule is, however, that all questions as to the sufficiency of the warrant are foreclosed by the finding of an indictment, because under T.C.A. §§ 40-1605 to 40-1625 grand juries in this State are given inquisitorial powers over all indictable or presentable offenses committed or triable within the county. Consequently, it would be a miscarriage of justice to hold that when the probability of the commission of a crime has been called to the attention of the grand jury by either a defective or even a void warrant, the grand jury would be powerless to investigate the situation further and to find a valid indictment for whatever offense or offenses their investigation might develop.”
In following the above rule in Manier v. Henderson, 1 Tenn.Cr.App. 341, 343, 442 S.W.2d 281, 282 (1969), our Court said, “The manner of arrest is immaterial to the validity of the indictment.”
In Mullins v. State, 214 Tenn. 366, 369-70, 380 S.W.2d 201, 202 (1964), our Supreme Court said:
“This binding over does not have to be by warrant or anything else as when the facts were properly presented to the Grand Jury an indictment might be found under these facts regardless of how the man was bound to the Grand Jury. Numerous cases are in the books and otherwise where defendants are prosecuted under indictments without being arrested prior to the return of the indictments; defendants are indicted after being released at a preliminary hearing; and in other cases defendants are prosecuted under indictments although the initial arrest was invalid.”
The case of French v. Shriver, 225 Tenn. 727, 731, 476 S.W.2d 636, 637-38 (1972), cited by the defendant in his brief, is not controlling here. That case dealt with the provisions of our former obscenity act, and involved the seizure of evidence contrary to the express provisions of that act. In that case the petitioners conceded that the obscenity statutes there involved did not “preclude the use of other legal methods of procedure for the prosecution of actions arising thereunder.” They did insist, and the court agreed, that those statutes were “exclusive with respect to seizure and suppression of any obscene material.” (emphasis added).
We would agree with the defendant’s contention if the present appeal involved the unlawful seizure of the subject evidence. Our Court has recently held that where evidence is seized without following the procedural steps outlined in T.C.A. § 39-3014, then error is present and such evidence must be suppressed. Runions v. State, Tenn.Cr.App., opinion released, Jackson, October, 1975.
We must point out, however, that the seizure of the evidence in the present case was not affected in any manner by the proceedings surrounding the issuance of the arrest warrant. Rather, the evidence in this case was lawfully seized by the district attorney general in accordance with the procedures set forth in T.C.A. § 39-3019, such seizure occurring prior to the issuance of the arrest warrant.
The indictment in this case is in all respects regular upon its face; it is signed by the District Attorney General, Carl K. Kirkpatrick, as the law requires; it contains sufficient allegations to charge the defendant with a violation of the obscenity laws; it lists the name of Eddie L. Sims as the prosecutor; therefore, the indictment being valid, it can in no wise be affected by any of the proceedings, irregular or otherwise, that were attendant to the issuance of the notice for an application for an arrest warrant.
Thus, we overrule the defendant’s second assignment of error.

On authority of Taylor, we hold that a grand jury might return a valid indictment when the proceeding under T.C.A. § 39-3014 is fatally defective or even omitted.

T.C.A. § 39-3014 does not preclude the origination of a prosecution under the obscenity statutes by presentment or indictment. This section must be construed in pari materia with T.C.A. § 39-3022:

39-3022. Remedies supplementary.— The remedies and procedures set out in §§ 39-3010 — 39-3022 are supplementary to each other and no remedy shall be construed as excluding or prohibiting the use of any other remedy.
Except as expressly herein provided, the provisions of §§ 39-3010—39-3022 shall not be construed as repealing any provisions of any other statute, but shall be supplementary thereto and cumulative thereto.

There are no express provisions in §§ 39-3010 — 39-3022 repealing or modifying T.C.A. §§ 40-1605 or 40-1606. In construing § 39-3022, we must bear in mind the fundamental rule of statutory construction requiring us to ascertain and give effect to the intention or purpose of the legislature as expressed in the statute. The legislative intent or purpose must be ascertained primarily from natural and ordinary meaning of the language used, when read in context of the entire statute, without any forced or subtle construction to limit or extend the import of that language. Worrall v. Kroger Co., 545 S.W.2d 736 (Tenn.1977). To hold that § 39-3014 is the exclusive remedy for commencing criminal prosecutions under the obscenity statutes would require us to ignore the expressed provisions of T.C.A. § 39-3022; this we are not permitted to do.

Nor is it determinative that the District Attorney General elected to commence these prosecutions by Grand Jury indictment. It is the prerogative of the District Attorney General and law enforcement personnel to omit the arrest procedure and take prosecutions directly to the grand jury. Moore v. State, 578 S.W.2d 78 (Tenn.1979); Vaughn v. State, 557 S.W.2d 64 (Tenn.1977); Harris v. State, 534 S.W.2d 868 (Tenn.Cr.App.1975). The trial judge finding “this prosecution was a District Attorney General’s prosecution as distinguished from an independent Grand Jury investigation directed toward returning a presentment” does not distinguish the cases sub judice from the Taylor case. An indictment returned by a grand jury, if valid on its face, is enough to call for trial of the charge on the merits. State v. Northcutt, 568 S.W.2d 636 (Tenn.Cr.App.1978).

The appellees rely upon Runions v. State, an unpublished opinion of this court filed at Jackson in October, 1975, and French v. Shriver, 225 Tenn. 727, 476 S.W.2d 636 (1972) for the proposition that T.C.A. § 39-3014 provides the exclusive means of initiating a prosecution under the obscenity statute. The answer given by the Taylor court, above quoted, to this contention is applicable to this case.

The judgment of the Criminal Court dismissing the indictments in case numbers C — 1863, C-1864, C-1865 and C-1866 is reversed and these cases are remanded to the Criminal Court of Davidson County for further proceedings not inconsistent with this opinion.

O’BRIEN, J., and JERRY SCOTT, Special Judge, concur.

OPINION ON PETITION FOR REHEARING

TATUM, Judge.

The appellees have filed a petition to rehear this case. The petition contains reargument of matters which we have previously considered; it neither cites new authority nor points out any material fact which we have overlooked. Tennessee Supreme Court Rule 32 (adopted by this Court).

The Petition to Rehear is denied.

O’BRIEN, J., and JERRY SCOTT, Special Judge, concur.

      . The statute with which we are concerned was enacted as Acts 1974 (Adj.S.) ch. 510, § 4. It has since been amended.


author: CAMPBELL, Justice.

text:
    James ELLIOTT, Relator, v. Honorable John BRADSHAW, Judge, Respondent.
    No. B-7968.
    Supreme Court of Texas.
    Dec. 20, 1978.
    William D. Dupree, Abilene, for relator.
    Jimmy L. Browning, Breckenridge, for respondent.
   CAMPBELL, Justice.

This is an original mandamus proceeding brought by James Elliott, Relator, requesting a writ of mandamus directing Respondent, the Honorable John Bradshaw, Judge of the District Court of Stephens County, to grant a writ of habeas corpus in a child custody case.

Relator Elliott and Carol Elliott Huffman were divorced February 26, 1975, by decree of the 326th District Court of Taylor County, which decree also named Ms. Huffman managing conservator of their two minor children. On September 19,1978, the 326th District Court modified the 1975 decree by naming Mr. Elliott managing conservator. Two days later Mr. Elliott filed a petition for habeas corpus before Judge Bradshaw in the 90th District Court of Stephens County to enforce the September 19th order.

A habeas corpus hearing was had on October 6th and on October 13th Judge Bradshaw rendered an order reciting that the 326th District Court had jurisdiction to modify the divorce decree and that it had modified the decree by naming Mr. Elliott managing conservator. The court refused to grant the writ of habeas corpus, however, because it further found that it was in the best interest of the children that they remain with their mother until the 326th District Court could hear a motion for new trial. The motion for new trial was subsequently overruled, but Judge Bradshaw still did not grant the writ and has not granted it to this date.

Section 14.10 of the Family Code provides:

(a) If the right to possession of a child is presently governed by a court order, the court in a habeas corpus proceeding involving the right to possession of the child shall compel return of the child to the relator if and only if it finds that the relator is presently entitled to possession by virtue of the court order.
(b) The court shall disregard any cross action or motion pending for modification of the decree determining managing conservatorship, possession, or support of or access to the child unless .... (the statutory exceptions do not apply in this case.)

This Court has held that Section 14.10 imposes a mandatory duty upon a trial judge to grant habeas corpus where an existing court order vests the Relator with the right to possession of children. Standley v. Stewart, 539 S.W.2d 882 (Tex.1976). Mr. Elliott has such an order, so the writ of habeas corpus should issue.

The Clerk of this Court has been directed to issue a writ of mandamus to the Honorable John Bradshaw in accordance with this opinion.


author: PER CURIAM.

text:
    Sue Ann FLYNT v. Julian GARCIA.
    No. B-8131.
    Supreme Court of Texas.
    June 6, 1979.
    Fred Riepen, Houston, for petitioner.
    Milton Schwartz, Houston, for respondent.
   PER CURIAM.

This case involves the jurisdiction of a county court at law to entertain suit and render judgment after a trial amendment raised the amount in controversy over the maximum jurisdictional limit of $5,000.

We will recite only those facts necessary for our disposition of the case and will not repeat the full statement made by the court of civil appeals at 574 S.W.2d 587.

The record before us does not contain pleadings prior to the fourth amended original petition filed April 18, 1977. By that pleading, Sue Ann Flynt sought to recover $1,778.40 plus interest under a fully matured obligation, and $3,100 plus interest in monthly payments accrued through August, 1976, under another obligation not yet fully matured. The total sought at that time was $4,778.40 plus interest. By trial amendment, she increased her demand to $6,242.40 by including accrued payments on the second obligation through the end of trial.

The court of civil appeals has held that the county court at law retained jurisdiction to “entertain the suit”, citing this Court’s opinions in Isbell v. Kenyon-Warner Dredging Co., 113 Tex. 528, 261 S.W. 762 (1924); and Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368 (1962). However, the court further held that the trial court had no “jurisdiction to enter a judgment in excess of the jurisdictional amount.”

We think the opinion of the court of civil appeals is in conflict with the general rule announced in Isbell, supra and Haginas, supra; and, therefore pursuant to Tex.R.Civ. P. 483, we grant the application of Sue Ann Flynt, and without hearing oral argument, reverse the judgment of the court of civil appeals.

The general rule stated in the two prior opinions is that “where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat that jurisdiction.” We see no reason why that general rule should not apply to a case where the original suit is within the jurisdictional limits of the court and subsequent amendments seek only additional damages that are accruing because of the passage of time. This is especially so where there is no allegation of bad faith or fraud in invoking the jurisdiction of the court.

The rule applied here will serve the purposes of judicial economy. The opinion of the court of civil appeals would reverse the judgment and remand the cause for another trial in the county court at law while allowing only a partial recovery of the amount due. If another suit is required to recover the balance, three lawsuits will result from this single claim.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.


author: DENTON, Justice.

text:
    RAILROAD COMMISSION OF TEXAS et al., Appellants, v. LONE STAR GAS COMPANY, Appellee.
    No. B-8126.
    Supreme Court of Texas.
    July 18, 1979.
    Rehearing Denied Oct. 3, 1979.

      Kelly, Hart & Hallman, Fort Worth, Robert C. Grable, Austin, Mark White, Atty. Gen., Ralph T. Aldave, Asst. Atty. Gen., Austin, for appellants.
    Scott & Douglass, Frank R. Douglass, Austin, for appellee.
   DENTON, Justice.

The question presented in this direct appeal is whether the applicable field rules allow a producer to recover his undisputed share of gas from a tract which has not been depleted of native gas entitlements, by use of an existing well bore located on another tract which has been depleted of all native gas entitlements.

E. Herbert Gatlin, one of the appellants here, applied to the Railroad Commission, the other appellant here, for an order authorizing the use of an existing well bore to produce a specific quantity of gas from the Bacon Lime Reservoir located in Henderson County. The Commission granted Gatlin’s application. Lone Star Gas Company, ap-pellee here, appealed this order to the district court of Travis County. The trial court set aside the Commission’s order and enjoined its enforcement. Since we agree with the Commission’s order granting Gat-lin’s application, we reverse the judgment of the trial court and remand the cause to that court with instructions to render judgment in accordance with this opinion.

A clear understanding of the legal issues involved in this appeal requires a brief summary of the unusual factual background of this controversy. In 1956, the Railroad Commission approved the Tri-Cities (Bacon Lime) field as a gas storage reservoir to be operated by Lone Star. Lone Star acquired storage rights to tracts overlying what it thought to be the entire Bacon Lime Reservoir and began operating the storage unit. Several years later, Lone Star discovered that the reservoir extended beyond the area of the gas storage unit and that J. W. Murchison had completed a well into the reservoir from a tract located outside the storage unit.

After an unsuccessful protest to the Railroad Commission, Lone Star filed suit against Murchison alleging a conversion of Lone Star’s gas. The trial court sustained a special exception to the petition on the ground that it failed to state a cause of action. The court of civil appeals reversed the judgment of the trial court and remanded the cause for trial. The court of civil appeals held that natural gas becomes personal property when produced and title is not lost when the gas is injected into an underground reservoir for storage purposes. Lone Star Gas Co. v. Murchison, 353 S.W.2d 870 (Tex.Civ.App.—Dallas, 1962, writ ref’d n. r. e.); see Humble Oil and Refining Co. v. West, 508 S.W.2d 812 (Tex.1974).

After the Murchison decision, Lone Star applied to the Railroad Commission for an amendment to the rules governing the Bacon Lime reservoir in order to protect the interests of all mineral owners. Lone Star proposed that no operator be allowed to produce more than the recoverable native gas originally in place under each tract of land. It also proposed 640 acre proration units with no acreage in a unit more than 6000 feet from the well bore. Lone Star urged this amendment in order to prevent physical waste, prevent the unlawful taking of stored gas and protect correlative rights in the field. As a result of Lone Star’s application, the Railroad Commission adopted a new rule for the Tri-Cities (Bacon Lime) field in 1964. This new rule, Rule 8, provides in pertinent part:

RULE 8: (a) No well completed in the Tri-Cities Bacon Lime Gas Storage Reservoir shall be permitted to produce any quantity of gas in excess of the amount of recoverable native gas originally in place in the Bacon Lime Formation underlying the acreage assigned to such well; provided, however, that not more than six hundred forty (640) continuous and contiguous productive acres shall be assigned to any well completed in the Bacon Lime Gas Storage Reservoir. No acreage assigned to a well shall be more than six thousand feet (6,000') from such well and certified plats showing acreage assigned to each well shall be filed with the Commission, and if the acreage assigned to any well has been pooled, the operator shall furnish the Commission with such proof as it may require as evidence that interests in the assigned acreage have been pooled.
(c) For the purpose of this rule, acreage assigned to each well shall be deemed to be underlain at original conditions with an amount of gas which would fill the total Bacon-Lime Reservoir under such acreage assigned to the well with native gas at original conditions. It is also provided that the Bacon Lime Gas Storage Reservoir is hereby defined to be any area which is in communication with any well presently classified in the Bacon Lime Storage Unit.

To implement Rule 8, the Commission held productive acreage hearings to determine the native gas entitlements for each of the tracts lying outside Lone Star’s storage unit. The Commission determined that Tract 7, the tract in controversy here, had 45 productive acres containing 219 acre feet of reservoir. The Commission also adopted a recovery factor of 1,111 MCF per acre-foot, resulting in an entitlement of 243,309 MCF of native gas for Tract 7.

In 1967, the Commission approved a 399.-92 acre unit around Murchison’s Holloway No. 1 well, which produced until December, 1976. At that time, the Commission ordered the well shut in because it had produced all the native gas permitted under the entitlements determined by the Commission in the 1964 hearing.

W. R. Kinabrew, owner of Tract 7, then purchased Murchison’s Holloway No. 1 well and the remaining mineral interests in the field previously assigned to the unit surrounding the well. Gatlin, as operator for Kinabrew, proposed the creation of a new 119-acre unit which included Tract 7 and two other tracts previously assigned to the Holloway No. 1 well. One of the other tracts is the tract on which the Holloway No. 1 well bore is located. The third tract, the middle tract, lies between and adjoins Tract 7 and the Holloway No. 1 tract. Although Tract 7 is connected to the Holloway No. 1 tract by the middle tract in the proposed unit, Tract 7 does not touch on any part of the Holloway No. 1 tract. All parties of Tract 7 are within 6,000 feet of the Holloway No. 1 well bore.

In 1977, the Railroad Commission approved the proposed 119 acre unit and authorized Gatlin to use the Holloway No. 1 well bore to produce 243,309 MCF of native gas attributable to Tract 7. The Commission adopted the following Findings of Fact and Conclusions of Law made by the examiners:

FINDINGS OF FACT
1. That the former Murchison No. 1 Holloway Unit containing 399.92 acres was ordered shut in after producing all recoverable gas beneath such unit.
2. That all of the E. Herbert Gatlin No. 1 Holloway Unit containing 119 acres is located within 3500' of the No. 1 Holloway well, and thus complies with provisions of Rule 8.
3. That all of Tract 7 is located within the zero isopach of the Bacon Lime reservoir.
4. That Tract 7 has never been assigned to any previous well or unit.
5. That Tract 7 has been credited with 219 acre feet of Bacon Lime containing 1111 MCF recoverable gas per acre foot.
6. That the operator of Tract 7 is entitled to recover gas from beneath such tract in accordance with Rule 8 of the rules adopted to govern the underground gas storage operations in the Tri-Cities (Bacon Lime) Field.
7. That the recoverable gas beneath Tract 7 can be produced through the existing No. 1 Holloway Unit well without the necessity of drilling an additional well on Tract 7.
8. That additional oil can be recovered from the No. 1 Holloway Unit well which is shut in at present.
9. That the Bacon Lime reservoir located outside the Lone Star — Tri-Cities Gas Storage Unit contained approximately 11.5 BCF recoverable gas and that approximately 8.2 BCF of such gas has been produced.
CONCLUSIONS OF LAW
1. That the requested approval to produce Bacon Lime gas from beneath Tract 7 through the E. Herbert Gatlin No. 1 Holloway Unit well is a conservation measure properly within Commission jurisdiction.
2. That approval of the use of the existing well. bore will not cause waste, but will give the various interest owners a reasonable opportunity to recover the hydrocarbons to which they are entitled, thus protecting correlative rights.

Lone Star appealed the Commission’s order to the trial court. The trial court judgment recites that the Commission’s order “is in all things void and is hereby reversed.” Lone Star’s prayer for permanent injunction against the enforcement of the order was granted. Gatlin and the Commission bring this direct appeal from the trial court judgment to this Court. It is undisputed that Gatlin is entitled to produce the native gas attributable to Tract 7 under the 1964 productive acreage hearings before the Commission. The only dispute concerns the method by which Gatlin can produce the gas.

As a threshold issue, we must determine what field rules govern the disposition of this case. Lone Star argues that the field rules governing oil wells in the TriCities field (Special Order No. 5-11,718), as opposed to the rules governing gas wells in the Tri-Cities (Bacon Lime) field (Special Order No. 5-33,231), should apply. Lone Star reasons that the Holloway No. 1 well is a statutory oil well because of the high ratio of oil to gas produced from the well. See Tex. Natural Resources Code § 86.-002(6). They conclude that since the well is a statutory oil well, the field rules governing oil wells apply and Gatlin cannot produce Tract 7 from the Holloway No. 1 well bore because these rules limit oil units to no more than 40 acres.

The Railroad Commission and Gatlin argue that Rule 8 applies. They reason that Rule 8 is a special field rule adopted to control the method by which producers outside Lone Star’s storage unit can withdraw a designated amount of native gas from a reservoir into which Lone Star has injected gas. Therefore Rule 8 has direct applicability to the situation before this Court and supersedes any rules to the contrary.

We agree with the Commission and Gat-lin. The preamble to the Commission’s “Special Order No. 5-33,231, Adopting Operating Rules to Govern Gas Storage Operations in the Tri-Cities (Bacon-Lime) and (Rodessa-Lime) Fields” states that “the Commission finds that the special rules currently in effect for said reservoirs are no longer applicable.” Rule 8 itself applies to “any well completed in the Tri-Cities (Bacon-Lime) reservoir.” The Commission’s order concludes that “Special Order No. 5-11,-718, adopting operating rules for the TriCities Field . . will remain effective for the Tri-Cities field, but from the effective date of this order shall have no further force nor effect for the fields established by this order.” Given the peculiar factual background of this controversy and the specific language of the Commission’s order adopting operating rules for the Bacon-Lime reservoir, we conclude that Rule 8 was especially adopted to apply to any well that is completed in the Bacon-Lime storage reservoir and that is used to produce the native gas entitlements determined by the Commission in the 1964 hearings. Rule 8 therefore applies in this cause.

The remaining issue is whether Gat-lin’s proposed unit complies with Rule 8. Lone Star argues that the 119 acre unit is not composed of “continuous and contiguous productive acres” within the language of Rule 8. First, Lone Star reasons that Tract 7 and the tract on which the Holloway No. 1 well bore is located are not “contiguous” because they do not border each other. Second, Lone Star reasons that the Holloway No. 1 tract and the tract lying between the Holloway No. 1 tract and Tract 7 are not “productive acres” because their native gas entitlements have already been produced.

We do not find these arguments persuasive. All three tracts in Gatlin’s proposed unit are composed of “productive acres” in the sense that the acreage has been determined to be within the original productive limits of the reservoir. All three tracts are “contiguous” in the sense that Tract 7 borders on the middle tract which in turn borders on the Holloway No. 1 tract. Consequently, we defer to the Commission’s finding that Gatlin’s proposed unit complies with Rule 8. See Imperial American Resources Fund, Inc. v. Railroad Commission, 557 S.W.2d 280 (Tex.1977); Auto Convoy Co. v. Railroad Commission, 507 S.W.2d 718 (Tex.1974); Texarkana & Fort Smith Ry. Co. v. Houston Gas & Fuel Co., 121 Tex. 594, 51 S.W.2d 284 (1932).

The Railroad Commission’s findings of fact and conclusions of law are sufficient to support the Commission’s order granting Gatlin’s application. These findings are supported by substantial evidence. Gatlin is therefore entitled to produce Tract 7 from the Holloway No. 1 well bore.

The judgment of the trial court is reversed and the cause is remanded to that court with instruction to render judgment in accordance with this opinion.

GREENHILL, C. J., not sitting.


author: ODOM, Judge.

text:
    Floyd Ray WHITE, Appellant, v. The STATE of Texas, Appellee.
    No. 57273.
    Court of Criminal Appeals of Texas.
    Oct. 10, 1979.

      Milton I. Fagin, court appointed on appeal, San Antonio, Floyd Ray White, pro se on rehearing, for appellant.
    Bill M. White, Dist. Atty., Gus E. Wilcox, Donald A. Clowe and Marcelo R. Montema-yor, Asst. Dist. Attys., San Antonio, Robert Huttash, State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S MOTION FOR REHEARING

ODOM, Judge.

This is an appeal from a conviction for burglary of a habitation. Punishment, enhanced by proof of two prior convictions, was assessed at life under V.T.C.A., Penal Code Sec. 12.42(d).

On original submission appellant’s conviction was affirmed in a per curiam opinion. By motion for rehearing appellant raises an issue not considered on original submission. It is pointed out by appellant that one of the prior convictions used for enhancement in this case was declared void by per curiam opinion in Ex parte White, Cause No. 60928, 578 S.W.2d 760 in this Court. We there held that the indictment was fundamentally defective. Although there was no objection to the prior conviction at trial in this case, the fact that the indictment was defective was not an apparent ground for objection because the prior conviction was proven by judgment and sentence without indictment.

We take judicial notice of our judgment in Cause No. 60928 and hold that the conviction therein held void cannot support enhancement of appellant’s punishment in this case. Because the punishment stage in this case was heard by the jury, the entire conviction must be set aside.

Accordingly, the motion for rehearing is granted, the judgment is reversed and the cause is remanded.


author: DALLY, Judge. TOM G. DAVIS, Judge.

text:
    Aburey Lewis JONES, Appellant, v. The STATE of Texas, Appellee.
    No. 55823.
    Court of Criminal Appeals of Texas, Panel No. 3.
    Sept. 20, 1978.
    On Rehearing Oct. 10, 1979.

      Jack Hampton, Dallas, for appellant.
    Henry Wade, Dist. Atty., Steve J. Wilen-sky and John D. Ovard, Asst. Dist. Attys., Dallas, Robert Huttash, State’s Atty., Austin, for the State.
    Before DOUGLAS, ROBERTS and DALLY, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for burglary of a habitation with the intent to commit theft; punishment is imprisonment for life.

Appellant urges two grounds of error. Because evidence of an extraneous offense was improperly admitted, the judgment will be reversed.

The complainant, Terry Doyle, testified that at approximately 9:00 p. m. on February 13, 1975, she was attacked by appellant in her apartment in Dallas. She resisted, and in the course of the ensuing struggle appellant tore off her robe and dragged her onto the balcony, where a neighbor came to her aid. Appellant escaped by jumping over the balcony, but he was seen entering a nearby apartment where he subsequently was arrested.

As part of its case in chief the State introduced the testimony of D_ D-- She testified that at approximately 7:30 a. m. on February 10, three days before the instant offense, appellant broke down the door of her apartment in Dallas and forced her, by use of a pistol, to cover her head with pillow cases and to disrobe. When she was slow in obeying his commands, appellant hit her in the head with the pistol. He then raped her. Before departing, appellant took her husband’s class ring, a camera, and a bracelet.

Appellant timely objected to D_ D-⅛ testimony on the ground that it was “not relevant to anything in this proceeding” and continued to object during the time the witness testified. After the prosecutor promised that he would “make it relevant,” the court overruled appellant’s objection. When D-D_had finished testifying, the court inquired, outside the presence of the jury, as to the relevance of her testimony. The prosecutor stated that it “shows his intent to take property through an attack of a woman.” Appellant subsequently denied the commission of both the burglary for which he was on trial and the rape of D_D_and theft of her property, and testified that he was in his apartment at the time of the instant offense.

Evidence of other unrelated offenses is not generally admissible, since a defendant may not be tried for some collateral crime or for being a criminal generally. The reasons for this rule have been stated in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972):

“Limitations on the admissibility of evidence of an accused’s prior criminal conduct are imposed, not because such evidence is without legal relevance to the general issue of whether the accused committed the act charged, but because such evidence is inherently prejudicial, tends to confuse the issues in the case, and forces the accused to defend himself against charges which he had not been notified would be brought against him.”

We cannot accept the State’s contention that evidence of the extraneous offense of rape was admissible to show appellant’s intent. The indictment alleged that appellant entered the complainant’s habitation “with the intent to exercise control over property . and with the intent to deprive the owner of said property . . The State having alleged that appellant entered the habitation with the intent to commit theft, evidence of an unrelated offense of rape was of no probative value in establishing that intent. Moreover, it has been held that where intent can be inferred from the act itself, evidence of extraneous offenses is not admissible. Riles v. State, 557 S.W.2d 95 (Tex.Cr.App.1977); Albrecht v. State, supra. It is presumed that an entry made without consent in the nighttime is made with the intent to commit theft. Moss v. State, 574 S.W.2d 542 (1978); Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976). D_ D_'s testimony should not have been admitted on the issue of appellant’s intent.

Evidence of the commission of other offenses by the accused may be admissible to establish his identity, motive or system. Albrecht v. State, supra; Cameron v. State, 530 S.W.2d 841 (Tex.Cr.App.1975). Evidence that would also prove a separate offense is admissible on the issue of identity only if (1) identity is a controverted issue and (2) there are distinguishing characteristics common to both the extraneous offense and the offense for which the accused is on trial. E. g., Ransom v. State, 503 S.W.2d 810 (Tex.Cr.App.1974); Cobb v. State, 503 S.W.2d 249 (Tex.Cr.App.1974); Lee v. State, 496 S.W.2d 616 (Tex.Cr.App.1973); Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972). A defendant’s denial of the commission of the crime and his reliance on the defense of alibi may raise the issue of identity. Collins v. State, 548 S.W.2d 368 (Tex.Cr.App.1976); Vaughn v. State, 530 S.W.2d 558 (Tex.Cr.App.1975); Lee v. State, supra. Since in the case at bar appellant denied that he committed the offense and offered an alibi defense, identity is a controverted issue.

In admitting evidence of the unrelated incident, however, the court should have excluded evidence of the rape. Thrush v. State, 515 S.W.2d 122 (Tex.Cr.App.1974) involved a prosecution for being an accomplice to a robbery by assault in which tape recordings of conversations involving extraneous offenses were admitted in evidence. This Court reasoned as follows:

“The ultimate question becomes one of what extraneous offenses were admissible to refute the defense of duress. The recorded conversations between Haas and appellant reveal that appellant was involved in other robberies and burglaries around the State, ranging from Lubbock to McAllen. These offenses were certainly germane to the refutation of appellant’s claim that he was coerced into participation in the robbery for which he was being tried. .
“A more difficult question is raised with regard to admission of those portions of the conversations in which appellant referred to ‘joints’ and ‘uppers.’ We fail to see what relevancy these extraneous offenses, transactions or statements had to defeating the defense of duress. The fact that some extraneous offenses are admissible does not mean that all extraneous offenses are admissible. Extreme caution should be used to insure that the extraneous offenses admitted pertain to the particular exception by which such offenses have become admissible and to avoid trying a defendant as a criminal generally. Introduction of extraneous offenses unrelated to the offense on trial in an attempt to prejudice an accused will not be countenanced.”

Evidence of the rape of D- D-was not so intertwined with the theft that it was necessary to admit evidence of the rape; however, if it had been so intertwined, no evidence of either offense should have been admitted.

An examination of the following argument by the prosecutor at the guilt-innocence stage of the trial leads to the almost inescapable conclusion that appellant was in reality being tried for the offense of rape, rather than that of burglary, with which he was charged:

“[H]e [the complainant’s neighbor] saved her, I think, from the degradation that the other girl has testified to. .
* * * * * *
“[T]his defendant, you know, really what happened to him is he got away with that other rape .
******
“Well, the young lady D-D_told you that he had raped her earlier, and he was free, wasn’t he?
******
“[Y]ou really didn’t have the personal, practical experience of, say, seeing rape cases, or anything else except what you read or hear in the news media, or whatever, unless you have had the unfortunate circumstances to be the victim, or involved in something, in some manner in that regard. A devious mind, that attacks women, they don’t always do things in a logical manner.
******
“[Bjecause they are of that character, they like to degrade and attack women, they will keep doing it and they eventually will get caught, and that is what happened to the defendant in this case, didn’t it? . Now, he took a few items from her that didn’t amount to much of value. What is the reason for that? Because a rapist kind of likes a little souvenir or memento of his offense from the victim . . . [I]t is difficult to understand the mind of a criminal, but a rapist in particular ... his intentions both in our opinion to rape and to commit theft . . . ” (Emphasis added.)

During argument at the punishment phase of the trial, the prosecutor made the following statement:

“[H]e is a burglar and a rapist, and I don’t know what else you could say about him.” (Emphasis added.)

In light of the maximum sentence of imprisonment for life which was assessed, we cannot say that admission in evidence of the extraneous offense of rape was harmless error.

The judgment is reversed and the cause remanded.

DOUGLAS, J., dissents.

Before the court en banc.

OPINION ON STATE’S MOTION FOR REHEARING

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for burglary of a habitation. Punishment was assessed at life.

On original submission, the panel reversed appellant’s conviction after concluding that evidence of an extraneous offense should not have been admitted. Over objection, the State was allowed to prove during its case in chief that three days prior to the instant offense, appellant broke into the apartment of D_ D_ in Dallas. D-D_testified that once he was in her apartment, appellant raped her and took several items of personal property.

At trial, the State maintained that the extraneous offense was admissible on the issue of appellant’s intent to commit theft in the instant offense.

Appellant’s intent to commit theft was presumed after the complainant testified that appellant entered her locked apartment without her consent in the nighttime. See, Clark v. State, Tex.Cr.App., 543 S.W.2d 125; Finch v. State, Tex.Civ.App., 506 S.W.2d 749; Garcia v. State, Tex.Cr.App., 502 S.W.2d 718. Such intent being presumed from the act itself, the extraneous offense was not admissible on this issue. See, Riles v. State, Tex.Cr.App., 557 S.W.2d 95.

The State maintains that evidence of the extraneous offense was admissible to refute appellant’s alibi defense.

Terry Doyle positively identified appellant as the individual who had broken into her apartment and dragged her onto the balcony on the occasion in question. She testified that she struggled with appellant “maybe fifteen minutes, I guess” before a neighbor came to her aid and appellant escaped by jumping over the balcony. Doyle further related that the door to her apartment was locked and she did not know how appellant gained entry. A neighbor, Charles Pierce, testified that after hearing screams he went to Doyle’s apartment and struggled with appellant until he escaped. Neither witness’ testimony was impeached on cross-examination. The State then presented evidence of the extraneous burglary, theft, and rape of D_D__ At a point following the presentation of evidence of the extraneous offense appellant testified that he was asleep in his apartment at the time of the burglary and attack on Doyle.

It is well established that an accused may not be tried for some collateral crime or for being a criminal generally. Hines v. State, Tex.Cr.App., 571 S.W.2d 322; Cameron v. State, Tex.Cr.App., 530 S.W.2d 841; Haliburton v. State, Tex.Cr.App., 528 S.W.2d 216. One of the exceptions we have recognized to this general prohibition against the use of extraneous offenses is that such evidence is admissible to refute a defensive theory raised by the accused. Buckner v. State, Tex.Cr.App., 571 S.W.2d 519; Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. When the appellant raises the defensive theory of alibi, he places his identity in issue. Mitchell v. State, Tex.Cr.App., 503 S.W.2d 562. Once the issue of identity has been raised, evidence of an extraneous offense is admissible to prove identity only if there is some distinguishing characteristic common to both the extraneous offense and the offense for which the accused is on trial. Buckner v. State, supra; Ransom v. State, Tex.Cr.App., 503 S.W.2d 810. We have nevertheless held that an extraneous offense may be admissible before the defensive theory of alibi is raised if, identity has only been proven circumstantially, or, if the State’s only identifying witness is impeached on cross-examination as to a material detail of his identification of the accused. See, Jones v. State, Tex.Cr.App., 568 S.W.2d 847; Redd v. State, Tex.Cr.App., 522 S.W.2d 890.

In the instant case, it is clear that the State was premature in its effort to rebut appellant’s defense of alibi. The State had produced positive identification by two witnesses that appellant was the perpetrator of the offense in question. This testimony was unimpeached on cross-examination. The State nevertheless proceeded to introduce evidence of the extraneous burglary, theft, and rape of D_ D_ prior to the defensive theory of alibi being raised.

We have previously held that the erroneous premature receipt of evidence of an extraneous offense may be rendered harmless based upon the subsequent actions of the defendant at trial. See, Flores v. State, Tex.Cr.App., 209 S.W.2d 168; Shannon v. State, Tex.Cr.App., 59 S.W.2d 142; Gregory v. State, 92 Tex.Cr.R. 574, 244 S.W. 615. Thus, in Vessels v. State, Tex.Cr.App., 467 S.W.2d 259, we held that when no question of identity was presented, error, if any, in the introduction of two extraneous offenses, was rendered harmless when the defendant subsequently presented an alibi defense. Likewise, we conclude that in the instant case, appellant’s alibi defense rendered the extraneous offense involving D_ D_ both material and relevant to the question of identity. We find that error, if any, in the premature offer of the evidence was rendered harmless in light of appellant’s testimony of alibi.

We further conclude that there are distinguishing characteristics common to both the extraneous offense and the offense for which appellant was convicted. Both offenses took place in the Oak Cliff section of Dallas within three days of each other. In both cases, the 26-year-old victims were alone in their apartments at the time of the entry and assault. Both victims had various items of clothing removed by the assailant, and in both cases, the perpetrator attempted to conceal his identity by covering his face either with a scarf or stocking cap.

Both the instant offense and extraneous offense would be classified as a burglary of a habitation under V.T.C.A. Penal Code, Sec. 30.02(a)(1). In discussing Sec. 30.02, supra, the Practice Commentary notes:

“The central elements of the offense continue to be entry or concealment in a building with intent to commit a felony or theft.”

This Court will not indulge in speculation as to what appellant’s intent was at the time he attacked Doyle and disrobed her in her apartment. However, we cannot conclude that the fact that the instant offense was interrupted by Doyle’s neighbor rendered the uninterrupted offense involving D_ D_ inadmissible. We conclude that the extraneous offense was germane to the refutation of appellant’s alibi defense. The details of the extraneous offense were admissible to show the common characteristics of both offenses.

We find no reversible error in the admission of the extraneous offense.

Appellant also challenges the sufficiency of the evidence to support the conviction. This argument appears to be bottomed on the appellant’s theory that the State’s case would have been “much stronger had the indictment alleged an intent to commit the offense of rape.” In Clark v. State, supra, we said, “. . . it is well settled that the act of breaking and entering a building at nighttime raises the presumption that the act was done with the intent to commit theft [numerous citations omitted].” The fact that the victim’s robe was removed in the course of the struggle which ensued after appellant entered the victim’s apartment will not defeat this presumption. We find the evidence sufficient to support the conviction.

The State’s Motion for Rehearing is granted and the judgment is affirmed.

ROBERTS, PHILLIPS and DALLY, JJ., dissent for the reasons stated in the opinion on original submission.

CLINTON, J., dissents.