text:
    Ollie J. HOPKINS, d/b/a Jim Hopkins & Son, Appellant, v. FIRST TENNESSEE NATIONAL BANK, Appellee.
    Court of Appeals of Tennessee, Western Section.
    Oct. 13, 1977.
    Rehearing Denied Nov. 28, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.

      David S. Haynes, Bristol, for appellant.
    Frank K. Moore, Kingsport, for appellee.
   NEARN, Judge.

Ollie J. Hopkins appeals from an adverse judgment rendered in the Chancery Court for Sullivan County at Kingsport.

Counsel for appellant asserts, and opposing counsel agrees, that the case comes to this Court for a review de novo with a presumption that the decree below is correct unless the evidence preponderates to the contrary. T.C.A. § 27-303. In part, both counsel are incorrect.

Hopkins filed his bill in the Chancery Court for a declaration of the rights, duties and liabilities between the parties arising out of mutual business transactions. The Chancellor appointed a Special Master to hear proof and report to the Court inter alia, the amount of indebtedness, if any, owed by Hopkins to the bank. The Master heard extensive proof and determined that Hopkins had as a matter of fact received from and owed the bank $39,645.46 principal by virtue of 14 notes either signed by Hopkins or signed by another for him, and that Hopkins had received every dime the bank said he received. The Chancellor confirmed the report of the Master.

Facts found by a Master and concurred in by the Chancellor are unassailable on appeal on the “preponderance of the evidence” test of T.C.A. § 27-303. On appeal such approved fact finding has the same weight as a jury verdict at law. Staggs v. Herff Motor Co. (1965) 216 Tenn. 113, 390 S.W.2d 245; Brown v. Dailey (1886) 85 Tenn. 218,1 S.W. 884. We have no right to disturb such findings (T.C.A. § 27-113) unless it is (a) a matter which should not have been referred to the Master, or (b) there is no evidence to sustain the finding. See Ferrell v. Elrod (1971 M.S.) 63 Tenn. App. 129, 469 S.W.2d 678.

Matters of accounting are proper items to submit to a Master.

There was evidence that Hopkins received the funds and either signed notes for same or authorized another to sign his name for him. The full amount due the bank for money loaned was determined to be $46,426.01. Such fact is now unreviewa-ble. However, that determination on our part is not determinative of the appeal.

Counsel for appellant alleges that the Master made no finding regarding certain set offs claimed by Hopkins and that both the Master and the Chancellor erred in not allowing same.

The Assignments of Error addressed to matters allegedly not determined by the Master require that we examine the record to determine if, in fact, the Master did fail to make a finding of fact regarding the alleged set offs. If no finding on the issue was made by the Master and the Chancellor alone determined the issue, such determination would be reviewable under the rule of T.C.A. § 27-303, as there would not be a concurrent finding of fact by the Master and Chancellor.

Our examination of the record reveals that the record itself is deficient, but, in our opinion, the deficiency will not prove fatal to a consideration of the matter of set offs. Although the transcript of certain proceedings before the Chancellor and orders contained in the technical record indicates that exceptions to the report of the Master were made, the record is bare of any filed exceptions to the Master’s report. However, the Master’s report is in the record and, in our opinion, affirmatively shows that the matter of certain set offs was not considered by him. Exceptions are necessary in those cases where it is charged that the Master came to a wrong conclusion on matters referred to him. When the charge is that the Master failed to report upon matters referred to him it is inappropriate to file exceptions to the report, for it is not what is in the report that is complained of; it is what is not in the report that is the subject of the complaint. See Gibson’s Suits in Chancery, 5th Ed. § 659.

The fact that no filed exceptions are found in the record is an additional reason why we may not review the matters of fact which were found by the Master and con-eurred in by the Chancellor, but affords no reason to prevent us from reviewing that which was not determined by the Master.

The record indicates that Hopkins owns and operates an automobile salvage yard and repair shop. Hopkins needed a line of credit and obtained same from First Tennessee National Bank. Over a period of about one year Hopkins dealt exclusively with Dennis Phillips, a bank officer. Phillips and Hopkins became friends and began to engage in business transactions between themselves, separate and apart from the banking business. Phillips and Hopkins together bought and sold used cars as a sideline. As a result of the friendship and private mutual business interests, the business practices between Hopkins and the bank became sloppy. To say the least, sound business and banking procedures were not applied. Hopkins kept no records of his dealings with and borrowing from the bank. Later, Phillips left the employ of the bank. The bank requested payment from Hopkins of 14 notes in its file. Hopkins had no records and requested that the bank show him by the records what was owed. During these negotiations Hopkins filed this bill for declaratory judgment.

The claimed set offs upon which the Master failed to make a determination and which we may consider, are alleged losses of Hopkins caused by the bank’s alleged (a) honoring of a draft with the wrong documents attached, (b) misplacing of vehicle titles, and (c) failing to deposit Hopkins’ funds to his account.

In this matter of set offs the burden was upon Hopkins to prove same. He who alleges a fact must prove it. Evidently the Chancellor was of the opinion that Hopkins had not carried that burden. The evidence does not preponderate against that conclusion by the Chancellor. Hopkins kept no books or records and sought to prove deposits to the bank through Phillips solely by oral testimony which Phillips denied. Hopkins had not so much as a copy of a deposit slip. We consider all of Hopkins’ evidence regarding these alleged set offs to be weak and improbable. Therefore, all Assignments of Error addressed to matters of set off are overruled with the result that the decree below is affirmed.

Costs are adjudged against the appellant and surety.

Honorable William H. Inman, by designation of the Supreme Court of Tennessee, took part in the hearing of this appeal in the absence of Presiding Judge C. S. Carney.

Done at Knoxville in the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.

MATHERNE, J., and INMAN, Special J., concur.

OPINION AND ORDER ON PETITION

A Petition to Rehear and for Diminution of the record has been filed by appellant, to which a response was duly filed by appellee. The petition cites no reason why we should rehear the matter. It simply “moves the Court to rehear the above styled case”. Additionally, the petition seeks an order of diminution to the Trial Court to send up a part of the technical record allegedly omitted, i. e., appellant’s “Exceptions to the Report of Special Master”.

After consideration of the requests we must deny both.

The petition to rehear portion of the request gives no reason why the matter should be reheard and was not filed within the time requirements of Rule 22 of this Court.

A suggestion for diminution of the record is late if not made prior to argument. Such suggestions are to be accompanied by certified copies of the omitted record. The suggestion is both late and deficient. Also, it is inappropriate.

As we tried to point out in our first Opinion, concurrent findings of fact of the Master and Chancellor are not facts which we may review by weighing and deciding where we think the preponderance of the evidence lies. We are forbidden by statute to reweigh such fact finding. T.C.A. 27-113. Such concurrent fact finding has the same effect as a jury finding of fact. We may not weigh the preponderance of evidence in jury findings. We reject all such Assignments of Error that suggest we do. If the Assignment of Error is that there is no (meaning not any) evidence to support the findings or verdict, we may consider such Assignment of Error; but we do not weigh evidence as a fact finding body. We simply ascertain if there is any evidence to support the verdict. We search for its presence in the record. This is a purely legal determination, for if we find such evidence to be in existence we do not weigh it, but affirm merely because of its existence.

The majority of appellant’s complaints on appeal stated that the evidence preponderated against the concurrent findings of Master and Chancellor. We could not consider them.

As further pointed out, one area of complaint, i. e., set offs, did not involve a concurrent finding of Master and Chancellor because that area of proof was not considered by the Master but weighed by the Chancellor alone. Therefore, the fact finding complaint was reviewable on the scales of “preponderance of the evidence”. As requested, we did so review and found that the evidence did not preponderate against the finding of the Chancellor.

Lest we should be faulted for failing to follow the general rule that a Master’s report unexcepted to below may not be complained of on appeal, even in an Assignment of Error that there is no evidence to support the joint finding, we pointed out that no exceptions were required to be filed as to facts not found by the Master.

Therefore, the bringing up of the allegedly omitted exceptions from below will not empower us to reweigh evidence on appeal on a preponderance scale as requested and the filing of exceptions to a Master’s report was entirely unnecessary in the matter of the set offs considered by this Court.

Diminution of the record would not enhance appellant’s position one iota and would be the equivalent of flogging a dead horse.

It is therefore ORDERED that the petition is denied at petitioner’s cost.

      . For example, counsel for appellee in addressing the Chancellor on March 5, 1976, stated, "_appearance would be made for the purpose of filing replies to exceptions, which exceptions consisted of sixty-four pages....”


source: Caselaw Access Project

author: . NEARN, Judge.

license: Public Domain

text:
    Oscar JEFFREYS and wife, Shirley Ann Jeffreys, Appellants, v. LOUISVILLE & NASHVILLE RAILROAD COMPANY, INC. and O. Daugherty, Appellees.
    Court of Appeals of Tennessee, Western Section.
    Oct. 21, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.
    Charles R. Terry, Morristown, Ward S. Whelchel, Jr., Knoxville, for appellants.
    J. W. Baker, Knoxville, for appellees.
   . NEARN, Judge.

While plaintiff was attempting to cross the defendant’s tracks in his Volkswagen automobile, defendant’s train struck plaintiff’s vehicle and seriously injured plaintiff.

The issue on appeal is whether the Trial Judge was correct in directing a verdict for the defendant railroad and its engineer at the close of all the proof. The nature of the issue requires a review of the proof in a light most favorable to the plaintiff. Poole v. First Nat. Bank of Smyrna (1946 M.S.) 29 Tenn.App. 327, 196 S.W.2d 563; Baggett v. Louisville & Nashville Railroad Co. (1962 W.S.) 51 Tenn.App. 175, 365 S.W.2d 902.

Viewing the proof in the required manner would result in the following factual situation. Plaintiff was on his way to work at about 7:00 a. m. on the morning of May 16,1975. He was travelling southwardly on Jackson Road. This was the usual and customary route he travelled to and from work. For the purpose of easy description it will be said that Jackson Road runs in a north-south direction and defendant’s tracks cross it in an east-west direction. At the time of the collision it was daylight and there was no fog although a light rain was falling. There is no mechanical device for warning traffic of an approaching train, but the crossing is marked by prominent “cross-bucks”.

As a result of the injuries sustained, plaintiff has no memory of the collision and was not able to testify of his actions immediately prior to the collision. The testimony of events immediately surrounding the collision is supplied primarily by the train crew and the investigating police officer. Their combined testimony is that the train speed was about 25 m. p. h. and as the engine approached the track with its headlight and zig-zag light operating, bell ringing and whistle blowing, plaintiff was approaching the track at about 10 m. p. h. The train crew thought he was going to stop, but he did not and proceeded onto the track immediately in front of the train either without ever looking at the train (engineer) or looking up at the train only immediately before impact (fireman).

From the photographic exhibits and testimony in the record it could be determined that the railroad has permitted some growth on its right of way which to some extent limits visibility of southbound vehicular traffic approaching from the north. However, the testimony is that at a distance of 50 feet from the crossing a train approaching from the east could be seen 150 feet from the crossing. At a distance of 25 feet from the crossing, an approaching train could be seen at least 650 feet from the crossing and at a distance of 15 feet a train could be seen 1,342 feet from the crossing.

Counsel for appellant cites us to instances in the record where the testimony of the train crew is confusing in that one’s testimony might tend to contradict another or his own. The discrepancies are argued to be disputed issues of fact which therefore should have been submitted to the jury. Also, it is argued that the act of the railroad in allowing some trees to grow on its right of way might be considered by a jury as an act of negligence on the part of the defendant railroad. However, such argument fails to consider the basic question. That question is not what the proof shows in regard to the railroad’s negligence, but what the proof shows in regard to the plaintiff’s negligence. In other words, the question is does the proof establish that as a matter of law the plaintiff is guilty of proximate contributory negligence?

While it is true that, like a dead man, an amnesiac is afforded the presumption that he acted with due care, such presumption continues only in the absence of evidence to the contrary. Tennessee Cent. Railroad Co. v. Page (1925) 153 Tenn. 84, 282 S.W.2d 376; Oder v. Parks (1948 E.S.) 34 Tenn.App. 303, 237 S.W.2d 571; Louisville & Nashville Railroad Co. v. Frakes and Payne (1928 M.S.) 11 Tenn.App. 593. All of the evidence in this case is to the contrary. The plaintiff was familiar with all aspects of the crossing and knew that trains frequently passed it. According to the defense witness, he never looked toward the train or did not look toward it till he was hit. Had he looked toward the train, he was chargeable with seeing that which was there for him to see. Klein v. Illinois Cent. Railroad Co. (1927 W.S.) 4 Tenn.App. 563; Louisville & Nashville Railroad Co. v. Anderson (1929) 159 Tenn. 55, 15 S.W.2d 753; Union Railway Co. v. Jinks (1965 W.S.) 55 Tenn.App. 491, 402 S.W.2d 495. There for him to see and to hear was a train approaching with lights flashing, whistle blowing and bell ringing. Perhaps the visibility was to some degree limited by tree growth, but plaintiff knew of that condition as he crossed that same track twice each working day. The evidence is undisputed that the train could have been seen by the plaintiff for some distance before mounting the tracks.

The general rule is that it is negligence per se for a person to enter upon a track without looking or listening. Tenn. Central Ry. Co. v. Hayes (1928 M.S.) 9 Tenn.App. 116; Louisville & Nashville Railroad Co. v. Frakes and Payne, supra. It is only in exceptional eases that the rule does not apply, and in cases in which the facts relied upon as creating the exception itself are not superinduced by the want of due care. Nashville, Chattanooga & St. Louis R. Co. v. Witherspoon (1903) 112 Tenn. 128, 78 S.W. 1052; Tenn. Cent. Ry. Co. v. Page, supra. It cannot be disputed from the proof but that plaintiff did not look and listen before getting upon the track and failed to see the danger that was there to see and the possibility of which he was bound to know. We are unable to find facts in the record which makes this case an exception to the general rule and therefore conclude that the Trial Judge was correct in directing a verdict for the defendant.

The judgment of the Trial Court is affirmed with costs of appeal adjudged against appellant.

Done at Knoxville m the two hundred and second year of our Independence and in the one hundred and eighty-second year of our Statehood.

CARNEY, and MATHERNE, JJ., concur.


author: DUNCAN, Judge.

text:
    Verlena SCOTT, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 16, 1977.
    Certiorari Denied by Supreme Court Feb. 6, 1978.

      N. Alan Lubin, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Hugh W. Stanton, Jr.., Dist. Atty. Gen., Michael.W. Hughes, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DUNCAN, Judge.

The appellant, Verlena Scott, maintains that the trial court erred in refusing to hear her petition for probation. The appellant pled guilty to five offenses of selling heroin and received a penitentiary sentence of not less than five years nor more than ten years for each offense, the sentences to be served concurrently. We find that the trial court correctly interpreted Tenn.Code Ann. § 40-2901 (Supp.1976) as depriving it of jurisdiction to entertain the appellant’s petition.

The appellant’s five convictions for selling heroin were predicated upon her violation of Tenn.Code Ann. § 52-1432(a)(l)(A) (1977). This statute provides a minimum penitentiary punishment of not less than five years and a maximum punishment of not more than fifteen years. Two of the appellant’s offenses occurred on January 13, 1976, one on January 16, 1976, and two occurred on February 17, 1976.

Tenn.Code Ann. § 40-2901 (Supp.1976) lists certain categories of defendants who are not eligible for probation consideration, one such being a defendant who “has been convicted of two (2) or more felonies for which the maximum sentence provided by law exceeds ten (10) years confinement in the state penitentiary.” The quoted language was added to the statute by legislative amendment in 1976.

The appellant argues that because her multiple convictions occurred on the same day they should be treated as a single conviction, thereby making her eligible to apply for probation under the provisions of Tenn.Code Ann. § 40-2901 (Supp.1976). We find no merit to this argument.

In ruling on similar contentions in habitual criminal prosecutions, our courts have consistently held that the entry of multiple guilty pleas on the same date is not to be construed as a single conviction. Pearson v. State, 521 S.W.2d 225 (Tenn.1975); State ex rel. Ves v. Bomar, 213 Tenn. 487, 376 S.W.2d 446 (1964); State ex rel. Goss v. Bomar, 209 Tenn. 406, 354 S.W.2d 243 (1962); Hobby v. State, 499 S.W.2d 956 (Tenn.Cr.App.1973). In Pearson v. State, supra, the court, in rejecting the defendant’s argument that two of his convictions should only be counted as one conviction because the convictions occurred on the same date, said: “It is not necessary that defendant should have been tried and convicted on separate days.” The convictions necessary to make one an habitual criminal must have been for separate offenses, committed at different times, and on separate occasions. Tenn.Code Ann. § 40-2801 (1975); State ex rel. Goss v. Bomar, supra.

The appellant’s convictions were on separate indictments for separate offenses, committed at different times, and on separate occasions, and analogizing from the legal propositions that have been applied in habitual criminal prosecutions on this question, we conclude that her convictions are to be considered separate and multiple.

Thus, the appellant has been convicted of five felonies, and the maximum sentence provided by law for each of these felonies is not more than fifteen years; thus exceeding the ten (10) years confinement provision mentioned in Tenn.Code Ann. § 40-2901 (Supp.1976). Therefore, her right to petition for probation is excluded by the express provisions of this statute.

The appellant’s reliance on Frazier v. State, 485 S.W.2d 877 (Tenn.Cr.App.1972) is misplaced. Frazier dealt with the question of the commission of multiple felonies on the same date, and not with the question of multiple convictions on the same date.

As a final complaint, the appellant contends that Tenn.Code Ann. § 40-2901 (Supp.1976) is unconstitutionally vague because' it does not define the word “conviction” or instruct on how to apply the term. We find no vagueness in the statute. The word “conviction” is a common word capable of being easily understood, and the statute is clear in stating that if one is “convicted of two (2) or more felonies” which fall into a certain category, then that person is not entitled to the benefits of its provisions. Prior to the 1976 amendment to this statute, our Court held this statute to be constitutional. State v. Clayton, 480 S.W.2d 922 (Tenn.Cr.App.1972). Likewise, we find the statute with the additional language contained in the 1976 amendment to be constitutional.

We overrule the appellant’s assignments of error. The judgment of the trial court is affirmed.

DWYER, P. J., and O’BRIEN, J., concur.


author: BARROW, Justice.

text:
    L. D. BOUNDS, Petitioner, v. Kerry Tyrone CAUDLE et al., Respondents.
    No. B-6792.
    Supreme Court of Texas.
    Nov. 30, 1977.
    Rehearing Denied Jan. 25, 1978.
    Mahoney, Shaffer, Hatch & Layton, Lee Mahoney, Corpus Christi, for petitioner.
    Wood, Burney, Nesbitt & Ryan, James P. Ryan, Corpus Christi, for respondents.
   BARROW, Justice.

This is an appeal from two separate judgments resulting from a consolidated jury trial of an appeal from a probate proceeding and a tort action. The suits resulted from the death by gunshot of Mrs. Robbie Bounds. The children of Mrs. Bounds, Kerry Tyrone Caudle and Cheryl Kay Caudle, alleged and the jury found that their stepfather, Dr. L. D. Bounds, intentionally and wrongfully caused their mother’s death. The trial court rendered judgment in the probate proceeding which admitted the will of Mrs. Bounds to probate, but disqualified Dr. Bounds to serve as Independent Executor of the estate. Judgment was rendered in the tort action whereby a constructive trust in favor of the children was imposed on all of Mrs. Bounds’ property which would have passed to Dr. Bounds under her will, and they were granted the proceeds of a life insurance policy on Mrs. Bounds’ life payable to Dr. Bounds. The two children were also awarded the damages found by the jury for their claim under Art. 4651 et seq. for the wrongful death of their mother. The court of civil appeals affirmed the judgment in the probate proceeding, and it upheld the imposition of the constructive trust and the award of the insurance proceeds. It reversed and rendered a take-nothing judgment on the claim for wrongful death. 549 S.W.2d 438. We reverse the judgments of the lower courts and remand the cause to the trial court for a new trial.

Robbie Caudle and Dr. Bounds were married in 1962. No children were born of this marriage; however, both had been married once before and each had two children by their prior marriages. The shooting ended a nine-year marriage marked by discord and even some physical abuse. On the night of March 1, 1971, Mrs. Bounds was shot twice and killed in the bedroom of the family home in Corpus Christi. Only the deceased and Dr. Bounds were present at the time of the shooting. The evidence is conflicting about whether Dr. Bounds intentionally shot her or whether she was unintentionally shot while he was attempting to wrest the revolver from her grasp. Dr. Bounds was indicted for murder, but was permitted to plead nolo contendere and, upon this plea, he was convicted of negligent homicide in the first degree, a misdemeanor.

CAUDLE APPLICATION

We granted the application of the Caudle children to consider whether or not the interspousal tort immunity doctrine should bar their claims which are based on a wilful or intentional tort. The children recognize that they cannot,recover in the suit for wrongful death if Mrs. Bounds’ cause of action, had she survived, is barred by the doctrine. See Tex.Rev.Civ.Stat.Ann. art. 4672. The doctrine of interspousal tort immunity was adopted in Texas in the case of Nickerson and Matson v. Nickerson, 65 Tex. 281 (1886), and was last considered and upheld by this Court in Turner v. Turner, 385 S.W.2d 230 (Tex.1965). It is urged that there has been such a great change in recent years in Texas laws regarding marital property and the nature of marital relationship that the doctrine is no longer valid for wilful or intentional torts.

The doctrine of interspousal tort immunity had its origin in the common law and is based on the legal fiction that the husband and wife became one person in law. Under this concept, married women lost their capacity to sue or be sued without the joinder of the husband. The wife’s personal and property rights as well as her legal existence were considered suspended during the marriage. The husband’ acquired all of his wife’s choses in action and could assert them in his own name, and he became liable for the torts of his wife. This concept necessarily made it impossible for one spouse to maintain an action against the other. Comment, Intrafamily Immunity, 20 Baylor Law Review 27 (1967).

At one time almost all jurisdictions adopted the rule that interspousal suits for personal torts were not permitted. In Nickerson and Matson v. Nickerson, it was held that torts inflicted upon the wife by her husband and another gave no right of action to the wife against her husband. The court said:

The rule at common law, that no action can be maintained by a wife for a tort committed upon her person by her husband, has been often said to rest upon their entire unity; but it would seem to us to rest rather upon grounds of public policy.

In Turner v. Turner, this Court held that the husband had no right of action against his wife to recover for his attorney’s fees incurred in defending an alienation of affections suit filed against the Turners by the wife of a friend. The Court said:

The Nickerson case has been followed by many cases, and an examination of Shepard’s Texas Citations discloses that the rules of law laid down as quoted above have never been questioned. See also Gowin v. Gowin, Tex.Civ.App., 264 S.W. 529, 1924, affirmed, Tex.Com.App., 292 S.W. 211, 1927; Latiolais v. Latiolais, 361 S.W.2d 252, 253, Tex.Civ.App.1962, writ ref. n. r. e.; 30 Tex.Jur.2d, p. 234, § 145.

There have been major changes in the laws defining the marital relationship since the Turner decision. The 1967 amendment to what was then Article 4615 (now Section 5.01(a)(3) of the Family Code) provided that a wife’s recovery for personal injuries other than for loss of earning capacity is part of her separate estate. See Graham v. Franco, 488 S.W.2d 390, 396 (Tex.1972). Section 4.04 of the Family Code now permits a spouse to sue and be sued without the join-der of the other spouse. Under Section 5.21 of the Family Code the wife has the sole management, control and disposition of her separate estate. These changes invalidate the common law rationale for the doctrine, the fictional unity of the marriage relationship.

Nevertheless, we must determine if the doctrine should be maintained as a matter of public policy. We recognize fully the importance of the family unit in our society and that peace and tranquility in the home are endowed and inspired by higher authority than statutory enactments and court decisions. See Felderhoff v. Felderhoff, 473 S.W.2d 928, 933 (Tex.1971). However, we do not believe that suits for wilful or intentional torts would disrupt domestic tranquility. The peace and harmony of a home which has already been strained to the point where an intentional physical attack could take place will not be further impaired by allowing a suit to be brought to recover damages for the attack.

In recent years the interspousal tort immunity doctrine has come under severe attack from nearly all courts that have considered the doctrine. In 1955 the annotation, Action by One Spouse Against the Other, was published in 43 A.L.R.2d 632 and in Section 6 it listed 17 states which to some extent permitted one spouse to sue the other spouse for personal injuries. The supplements to this annotation show that there is now a clear majority of states which have abrogated the doctrine completely or limited its application. The doctrine has also been subjected to severe criticism by most legal writers. See Speer, Marital Rights in Texas, § 317 (4th ed. 1961) and Prosser, Law of Torts, § 122 (4th ed. 1971). Although most authorities recognize a distinction between a claim based on a negligent act and one based on an intentional tort, all agree that there is no sound basis for barring a suit for an intentional tort. We concur and accordingly we abolish the rule established in Nickerson to the extent that it would bar all claims for wilful or intentional torts. This holding shall be applicable only in the present case and in similar cases in which the tort occurred on or after March 1, 1971, the date Mrs. Bounds was shot. The children of Mrs. Bounds are not barred from asserting a claim for damages against Dr. Bounds for the wrongful death of their mother.

BOUNDS APPLICATION

The application of Dr. Bounds urges that there is no legal basis to support the imposition of the constructive trust or the forfeiture of the life insurance proceeds. He also asserts that there were several procedural errors in the trial of the case which require a reversal of the judgment.

Dr. Bounds contends that before a constructive trust can be imposed there must be a conviction and sentence for wilfully bringing about the death of the insured. He urges that since he was convicted only of the offense of negligent homicide, a constructive trust should not have been imposed. This contention is largely based on Sec. 41(d) of the Probate Code which provides in part:

Convicted Persons and Suicide. No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice, in wilfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; . . . (Emphasis added)

Dr. Bounds asserts the Probate Code takes precedence over Art. 21.23 of the Insurance Code which provides:

The interest of a beneficiary in a life insurance policy or contract heretofore or hereafter issued shall be forfeited when the beneficiary is the principal or an accomplice in willfully bringing about the death of the insured. When such is the case, the nearest relative of the insured shall receive such insurance. (Emphasis added)

Although the conviction for negligent homicide implies that the killing was committed without intent, it is settled law that the judgment in the criminal case was not binding upon the court in the civil proceeding. State v. Benavidez, 365 S.W.2d 638 (Tex.1963); W. O. Hair v. Penn Life Ins. Co., 533 S.W.2d 387 (Tex.Civ.App.-Beaumont 1975, writ ref’d n. r. e.). This rule is particularly applicable here where the conviction was based upon plea bargaining.

Texas courts have taken the position that the law will impose a constructive trust upon the property of a deceased which passed either by inheritance or by will if the beneficiary wilfully and wrongfully caused the death of the deceased. Greer v. Franklin Life Ins. Co., 148 Tex. 166, 221 S.W.2d 857 (1957); Parks v. Dumas, 321 S.W.2d 653 (Tex.Civ.App.-Fort Worth 1959, no writ); Pritchett v. Henry, 287 S.W.2d 546 (Tex.Civ.App.-Beaumont 1955, writ dism’d). See also Pope v. Garrett, 147 Tex. 18, 211 S.W.2d 559 (1948). The trust is a creature of equity and does not contravene constitutional and statutory prohibitions against forfeiture because title to the property does actually pass to the killer. The trust operates to transfer the equitable title to the trust beneficiaries. Although we have found no case which considered the relationship of Sec. 41(d) of the Probate Code to the common law rule which imposes a constructive trust, it was pointed out in Greer that Art. 21.23 should be held to restate the common law rule which would bar the beneficiary of a life insurance policy from profiting from his own wrong.

We therefore conclude that the imposition of a common law constructive trust in a situation such as presented here is not inconsistent with the legislative intent behind Sec. 41(d) which requires an outright forfeiture in the case of a convicted killer.

The jury here found: (1) that Dr. Bounds shot and killed Mrs. Bounds; (2) that the action of Dr. Bounds in shooting and killing Mrs. Bounds was intentional; and (3) that such action was wrongful. These jury findings fully support the judgment of the trial court forfeiting his interest in the insurance policy on the life of Mrs. Bounds and imposing a constructive trust on the property devised to him under her will.

Dr. Bounds has also complained in his application for writ of error that the trial court erred in overruling his objections to the submission of Special Issue No. 3 which reads as follows:

Do you find from a preponderance of the evidence that the action of the Defendant, L. D. Bounds, in shooting and killing Robbie M. Bounds, if you have found that he did, was wrongful?

Dr. Bounds timely objected to the submission of this issue in that the court failed to define the word “wrongful” and further that it did not instruct the jury as to the elements of self-defense. In connection with this objection, Dr. Bounds submitted a requested instruction wherein he defined “self-defense” in substantially the form suggested by this Court in Grieger v. Vega, 153 Tex. 498, 271 S.W.2d 85 (1954). No question has been raised concerning the correctness of the requested instruction, but the .court of civil appeals found that there was no evidence to raise the issue of self-defense. The court concluded that since Dr. Bounds testified that he did not “intend” to shoot Mrs. Bounds, the ultimate issue was accidental death and not self-defense.

In support of its holding that the defense of accidental death and self-defense cannot co-exist, the court of civil appeals cited Whitehead v. State, 450 S.W.2d 72 (Tex.Cr.App.1968) and Sias v. State, 495 S.W.2d 890-891 (Tex.Cr.App.1973). The rule in these two cases is best explained by the description in Sias of the Whitehead holding as follows:

In the relatively recent case of Whitehead v. State, 450 S.W.2d 72, this Court in an opinion by Judge Morrison on motion for rehearing held it was not error to refuse to give a charge on self-defense where the defendant testified that the killing was an accident and he had nothing to fear from the deceased. (Emphasis ours)

It is significant that in both Sias and Whitehead the fatal weapon was in the hands of the accused and there was no testimony in either case that the defendant was placed in fear of imminent death or great bodily harm at the hands of the deceased. It is such fear which is the essential element of self-defense, not intent to kill. Vernon’s Penal Code Ann. sec. 9.31(a).

Here the testimony of Dr. Bounds is that when he and Mrs. Bounds arrived home the argument which had begun at the dinner club was continuing and that when he came out of the bathroom, she was standing in the bedroom pointing the revolver at him. He further testified that he was able to grab the gun and, while struggling with her for possession of the gun, she was shot.

He testified:

I told you I don’t know where my hands were at the time that we were scuffling over the gun. I know I had at least one hand on the gun, because that’s what I was trying to control, the gun, because I didn’t want to get shot. I didn’t want her to get shot, but it happened anyway.

Also:

Q You said you were going to be able to handle him [sic]. You pulled the gun around this way.
A I told you I grabbed the gun and diverted it away from me. You’re doing this. I’m not doing that.
Q You were pointing the gun at her?
A I was getting it away from me. That was my main . .
Q Getting it away from you?
A Yes.
Q And it went towards her?
A It did when it went over.
Q Were you trying to discharge the gun in her direction?
A I was trying to protect myself.

This evidence, although refuted and rebutted by circumstantial evidence, clearly is some evidence that Mrs. Bounds was shot during the scuffle which ensued when Dr. Bounds undertook to disarm her in order to keep from being shot. This testimony raises the issue of self-defense as well as that of accidental death. We do not find the two defenses inconsistent under the facts in this case. The submission of both have been upheld in criminal cases under somewhat similar facts. See Garcia v. State, 492 S.W.2d 592 (Tex.Cr.App.1973).

We are required to apply the “no evidence” test in determining whether the requested instruction was required to be submitted to the jury. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); McDonald v. New York Central Mutual Fire Ins. Co., 380 S.W.2d 545 (Tex.1964); 3 McDonald, Texas Civil Practice § 12.08C (1970); Tex.R.Civ.P. 279; Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex.Law Rev. 359 (1960). As a result, we must consider only the evidence and the inferences that may be reasonably drawn therefrom which are favorable to Dr. Bounds’ contention that he was acting in self-defense, and to disregard all of the evidence and inferences to the contrary. Under this test, the testimony of Dr. Bounds does raise the issue that he was acting in self-defense at the time that Mrs. Bounds was shot and killed. Furthermore, the issue was properly raised by his trial amendment and was timely requested by him in his instruction to be given with Special Issue No. 3. The trial court therefore erred in refusing to give this instruction. This error mandates a reversal of the judgment and remand for a new trial.

We have considered the other procedural errors complained of by Dr. Bounds and we agree with the disposition made of these points by the court of civil appeals.

The judgments of the courts below are reversed and the consolidated cause is remanded to the trial court for trial on the merits. The costs of this appeal are taxed one-half to Dr. Bounds and one-half to the Caudle children.

ON MOTION FOR REHEARING

The Caudle children urge that this Court is without jurisdiction to consider Dr. Bounds’ application for writ of error because he failed to file a Motion for Rehearing in connection with the final judgment of the court of civil appeals. See Oil Field Haulers Association v. Railroad Commission of Texas, 381 S.W.2d 183 (Tex.1964). They contend the court of civil appeals rendered a second, final judgment after rendering its original judgment. The argument is without merit, however, because the record shows that only one judgment was entered into the record and that Dr. Bounds timely filed a Motion for Rehearing.

Accordingly, the Caudles’ Motion for Rehearing is overruled. The Motion for Rehearing cited by Dr. Bounds is also overruled. No further Motions for Rehearing will be permitted to be filed in this cause.

      . Vernon’s Rev.Civ.Stat.Ann.

      . 43 A.L.R.2d, Later Case Service 332 (1969) and June 1977 Pocket Part 147.

      . It is settled that the law of self-defense is the same in both civil and criminal cases. Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478 (1943).


author: DENTON, Justice. STEAKLEY, Justice,

text:
    CITY SAVINGS ASSOCIATION et al., Petitioners, v. SECURITY SAVINGS AND LOAN ASSOCIATION OF DICKINSON, Texas, Respondent.
    No. B-6699.
    Supreme Court of Texas.
    Jan. 18, 1978.
    Rehearing Denied Feb. 22, 1978.

      Baker & Heard, Dow H. Heard and Lowell B. Hays, Houston, John L. Hill, Atty. Gen., Thomas M. Pollan, Asst. Atty. Gen., Graves, Dougherty, Hearon, Moody & Gar-wood, Robert J. Hearon, Jr., Austin, for petitioners.
    Clark, Thomas, Winters & Shapiro, Mary Joe Carroll and Conrad Werkenthin, Austin, for respondent.
   DENTON, Justice.

This is a suit by Security Savings and Loan Association of Dickinson, Texas, to set aside an order of the Savings and Loan Commissioner granting the charter application of City Savings Association to be located in League City, Texas. The district court upheld the Commissioner’s order, but its judgment was reversed and the cause remanded to the Commissioner for further proceedings by the court of civil appeals. 547 S.W.2d 710. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Upon the trial, petitioner introduced the record of the hearing held by the Commissioner, and a certified copy of the petitioner’s application for charter. The trial court admitted the charter application with its attached exhibits. The court of civil appeals held this to be reversible error because the application was not offered in evidence before the Commissioner, but it did not pass on the contention that the Commissioner’s order was not supported by substantial evidence.

Judicial review of orders of the Savings and Loan Commissioner is controlled by Art. 852a § 11.12. Section 11.12(5)(b) provides in pertinent part:

The review of any other act, order, ruling or decision of the Commissioner or of any rule or regulation shall be tried by the court without a jury in the same manner as civil actions generally . . . but no evidence shall be admissible which was not adduced at the hearing on the matter before the Commissioner or officially noticed in the record of such hearing.

The Savings and Loan Act is rather specific in its requirements concerning the application for savings and loan charters and the Commissioner’s consideration of such applications. Section 2.07 provides that when a “proper” application for a charter has been filed, the Commissioner is required to set a hearing and give interested parties an opportunity to appear and present evidence for or against such application. Section 2.01 sets out the requirements for an application for a charter. It must be shown that the capitalization requirements of Sections 2.02 through 2.04 have been met and the required funds paid in. The application must also contain two copies of Articles of incorporation for the proposed association stating (1) the name of the association; (2) the site of the principal office; and (3) the names and addresses of the intended directors. Two copies of the bylaws under which the association proposes to operate are to be included, together with statements, exhibits, maps and other data sufficiently detailed and comprehensive to enable the Commissioner to pass on the matters set forth in Section 2.08(2), (3), and (4) of the Act. The requirements of this section of the Savings and Loan Act are very similar to Rule 1.1 of Rules and Regulations for Savings and Loan Associations. Section 2.08 of the Act provides “that the Commissioner shall not approve any charter application unless he shall have affirmatively found from the data furnished with the application, the evidence adduced at such hearing, and his official records that:”

(1) the prerequisites, where applicable, set forth in Sections 2.02, 2.03, 2.04, 2.05, and 2.06 have been complied with and that the Articles of incorporation comply with all other provisions of this Act;
(2) the character, responsibility and general fitness of the persons named in the Articles of incorporation are such as to command confidence and warrant belief that the business of the proposed association will be honestly and efficiently conducted in accordance with the intent and purpose of this Act and that the proposed association will have qualified full-time management;
(3) there is a public need for the proposed association and the volume of business in the community in which the proposed association will conduct its business is such as to indicate profitable operation;
(4) the operation of the proposed association will not unduly harm any existing association. [Emphasis added.]

Since Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966), it has been settled that judicial review in cases involving applications for savings and loan charters is limited to the Commissioner’s certified record. There the court held that the Legislature had adopted “the rule that the Commissioner’s order is to stand or fall upon the evidence adduced and matters noticed at the Commissioner’s hearing. It is from this record that the District Judge is to determine whether or not the Commissioner’s order is arbitrary, i. e., whether it is reasonably supported by substantial evidence. The circumstance that the record of the Commissioner’s hearing contains hearsay or other species of evidence deemed unreliable is a matter for the consideration of the trial judge in determining the issue of ‘substantial evidence.’ ” Through the process of official notice, the application, including the documents attached to the application as a part of it, becomes a part of the record in the matter. Citizens of Texas Savings and Loan Association v. Lewis, 483 S.W.2d 359 (Tex.Civ.App.1972, writ ref’d n. r. e.).

It is petitioner’s contention that the Commissioner properly complied with the requirements of Section 2.08 in approving the application for a charter by considering the “data furnished with the application,” the evidence adduced at such hearing, and his official records. At the beginning of the administrative hearing, the hearing officer placed in the record the following statement:

Now, this concludes our introductory remarks, except to say that the Commissioner will take official and judicial knowledge of the fact that the application contains all of the prerequisites and that the protests are duly and timely filed, in connection with this particular hearing.

We think the Commissioner “officially noticed” the application when he officially found that it contained all prerequisites under Sections 2.01, 2.01a, 2.02, 2.03, 2.04 and 2.08. Thus the capitalization requirements of a proposed savings and loan charter, i. e., a statement as to the amount, if any, of permanent reserve fund subscribed and paid; the names and addresses of such subscribers and the amount subscribed; the amount of savings liability, if any, with which the association will commence business; and the amount of paid in surplus or expense fund with which the association will commence business as required by Sections 2.01, 2.02, 2.03, and 2.04, were officially noticed by the Commissioner and were before him. The capitalization, subscribers, and amount subscribed are definite and specific. These requirements are not speculative or subject to interpretation. The application was made known to respondents by official notice of the hearing and the respondents had an opportunity to examine, test and challenge this material.

The requirements of Section 2.08(2), (3), and (4), namely, the character, responsibility and general fitness of the proposed in-corporators, public need and profitability, and absence of undue harm of any existing associations were also “officially noticed” by the Commissioner and became a part of the record before the Commissioner.

Having been “officially noticed” by the Commissioner and thus a part of the record before him, the application, together with its attached exhibits, was admissible in the trial court, not as conclusive proof of the statements contained therein, but as evidence subject to be reviewed by the trial court. We think the court of civil appeals improperly found this evidence inadmissible in the trial court and not a part of the record. However, even if it may be said the application was erroneously admitted into evidence in the trial court, it was not essential to support the Commissioner’s order.

Although respondents principally rely on the contention that reversible error was committed by the trial court in admitting into evidence petitioners’ application for charter, they also have counterpoints of error which contend that the holding of the court of civil appeals is correct because there was not substantial evidence to support the Commissioner’s order granting the charter.

In considering this contention we will be governed by the well settled substantial evidence rule. Lewis v. Gonzales County Savings and Loan Association, 474 S.W.2d 453 (Tex.1971); Gerst v. Goldsbury, 434 S.W.2d 665 (Tex.1968); Gerst v. Nixon, 411 S.W.2d 350 (Tex.1967).

The following information was contained in the application for charter and the attached exhibits, and was used by the hearing officer in finding the underlying facts supporting his order; permanent reserve stock would be issued; the stock would not be retired or withdrawn except as prescribed by law; 25,000 shares were to be issued, with a par value of $10.00; $250,000 had been paid-in; there was a paid-in surplus of $62,500; the name of the association, its site, and the names and addresses of its directors; and the expectation of the applicants would be a net loss of $6,770 in the first year of operation, a net income of $36,300 in the second year, and a net income of $91,900 in the third year. This information was also included in the direct testimony by witnesses and exhibits offered by the applicants for the charter, thus the documents were cumulative of the direct evidence offered before the Commissioner. Two economists, a building contractor and a director and manager of the proposed Savings and Loan Association testified. The two economists testified that the primary trade area for the proposed Savings and Loan Association, League City, Texas, had the following characteristics: a 4% growth rate; a mean family income of $12,483; 1.1% unemployment; 6% of its population was below the poverty level; 40% of the population was under thirty-five years of age; the average cost of homes was in excess of $20,000. They further testified that there was only one savings and loan association and one bank in the primary trade area. Approximately 4.5 million dollars worth of construction took place in 1970 in the area. Other banks and savings and loan associations in the area surrounding the primary trade area had an increase in assets ranging from 42% to 186%. They noted that there was a substantial increase in time and savings deposits in the general area. They testified that the savings potential in 1974 was $3,634,000. In 1975 it would be $3,800,000, and in 1976 it would be $4,734,000. Both economists concluded that League City needed another savings and loan association, and that no undue harm would result from a second savings and loan association. Mr. Lammers, a Director and Manager of the proposed Savings and Loan Association testified as to the character of the directors, outlining their past business experience, in addition to the financial structure of the proposed Savings and Loan Association.

Respondents offered rather extensive evidence in opposition to the application including the testimony of an economist whose testimony contradicted in some aspects the testimony offered by the petitioner.

While there is evidence to the contrary, we believe there is substantial evidence in the record to support the Commissioner’s order granting the charter application of Petitioner, City Savings Association, to be located in League City, Texas.

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

Dissenting opinion by STEAKLEY, J., in which POPE, J., joins.

STEAKLEY, Justice,

dissenting.

I agree with the writing and the judgment of the Court of Civil Appeals and in respectfully dissenting would add only this.

We had best confine judicial review to the record certified by the Commissioner and from this determine if the applicant has discharged its factual burden under Sections 2.01-2.08 of Art. 852a. See Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966), where we wrote:

The substantial procedural change in this rule by the 1963 Act was to make the record of the Commissioner’s hearing rather than evidence produced originally in court the basis from which it must be determined if the evidence conclusively required affirmative findings relating to the matters mentioned in subsections (3) and (4) of Section 2.08. (Italics added for emphasis).

Perhaps it is not amiss to consider the application and attached documents noticed by the Commissioner but not offered in evidence at the administrative hearing, to determine if the jurisdiction of the Commissioner was invoked. This was clearly the purpose of the “notice” of these documents by the hearing officer here: “ . . . the Commissioner will take official and judicial knowledge of the fact that the application contains all the prerequisites . . .

But the court has gone much farther than this. Approved is the action of the trial court in expanding the certified record to include the application and all of the attached exhibits “for the facts stated therein.” This is justified on the theory that “through the process of official notice” all is a part of the record whether or not introduced in evidence at the administrative hearing, and whether or not included in the certified record. Citizens of Texas Savings and Loan Association v. Lewis, 483 S.W.2d 359 (Tex.Civ.App.1972, writ ref’d n. r. e.), is cited in support. But this decision merely holds that the Commissioner may “notice” the application and his official records for the purpose of determining if his jurisdiction to decide the issues of public need, profitable operation and undue harm to existing associations, has been properly invoked.

Not only this but the court has also sanctioned the use by the hearing officer of the information contained in the application and attached exhibits “in reporting the underlying facts supporting his order,” notwithstanding these documents were not offered in evidence by the applicant.

As I see it, this raises serious questions of due process by reason of the absence of opportunity for cross-examination. Moreover, the administrative process is confused as to the initial burden on the applicant, and one is left to wonder at what point and under what showing are facts to be considered as established and subject to refutation.

POPE, J., joins in this Dissent.

      . Statutory references are to Tex.Rev.Civ.Stat. Ann. (Vernon’s 1964).


author: STEAKLEY, Justice.

text:
    Julius O. ADAMS et al., Petitioners, v. Victoria V. BARRY, Respondent.
    No. B-6888.
    Supreme Court of Texas.
    Jan. 18, 1978.
    Rehearing Denied Feb. 15, 1978.

      Ñaman, Howell, Smith, Lee & Muldrow, Louis Muldrow and Wade Hutto, Waco, for petitioners.
    Wash & Hodges, David L. Hodges, Waco, for respondent.
   STEAKLEY, Justice.

The question here is whether proffered testimony in support of the probate of an alleged lost will was properly excluded by the trial court pursuant to Article 3716, Tex.Rev.Civ.Stat., commonly called the Dead Man’s Statute.

George H. Adams died in 1973 and a will executed by him on July 31, 1968 was admitted to probate. A brother, Julius 0. Adams, was the named beneficiary; and an attorney, Robert F. Salter, was named independent executor. Sometime later, this suit was filed by Miss Victoria V. Barry, Respondent, to set aside the earlier probate of the 1968 will, and to admit to probate an alleged lost will of Adams claimed to have been dated January 29, 1972, and to have named Miss Barry as sole beneficiary. The only evidentiary support for the alleged lost will was the testimony of Miss Barry. This was excluded by the trial court and an instructed verdict was rendered against Miss Barry. The Court of Civil Appeals reversed and remanded upon the holding that the testimony in question did not involve a transaction with the deceased and hence was not violative of Article 3716. 551 S.W.2d 792. We reverse this judgment and affirm that of the trial court.

Article 3716 provides as follows:

In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any transaction with, or statement by, the testator, intestate or ward, unless called to testify thereto by the opposite party; and the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent arising out of any transaction with such decedent.

Although often criticized, this statute remains a viable part of the law of evidence in Texas and in other jurisdictions. See II J. Wigmore, Evidence § 578 at 695 (3rd ed. 1940); C. McCormick & R. Ray, Texas Law of Evidence, § 323, et seq. (2d ed. R. Ray & W. Young 1956); Cheek, Testimony As To Transactions With Decedents, 5 Tex.L.Rev. 149 (1927). See also, Andreades v. McMillan, 256 S.W.2d 477, 478-9 (Tex.Civ.App.1953, writ dism’d w. o j.). The statute is a legislative exception to the general rule that parties to a lawsuit are competent to testify, Roberts v. Yarboro, 41 Tex. 449 (1874), and as such it is strictly construed. Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d 291 (1944). The statute has limited application and by its terms operates to exclude the testimony of a party in a suit by or against executors, administrators, or guardians which relates to a transaction with or statement by the decedent. See, Walker, The Dead Man’s Statute, 27 Tex. B.J. 315 (1964). The statute is a rule insuring fairness between the litigants. Holland v. Nimitz, 111 Tex. 419, 232 S.W. 298 (Tex.Com.App., holding approved) aff’d on other grounds on motion for rehearing, 111 Tex. 419, 239 S.W. 185 (1921). Its purpose is to exclude the testimony of a living party pertaining to a transaction with or statement by the deceased whose death precludes rebuttal. Holland v. Nimitz, supra, and cf. Martin v. McAdams, 87 Tex. 225, 27 S.W. 255 (1894). The rule does not prohibit a party from testifying to facts from personal knowledge arising otherwise than from a transaction with or statement by the decedent. Wideman v. Coleman, 17 S.W.2d 786 (Tex.Com.App.1929); Martin v. McAdams, 87 Tex. 225, 27 S.W. 255 (1894); Roberts v. Roberts, 405 S.W.2d 211 (Tex.Civ.App.1966, writ ref d n. r. e.).

A portion of the testimony of Miss Barry in her bill of exceptions was as follows:

“Q Miss Barry, did you see — did you see a will signed by George Adams?
A Yes, sir.
Q What was the date of that will that was signed by George Adams?
A January the 29th of 1972.
Q Did you read the will?
A Yes, sir.
Q And, what were the terms of the will?
A He said that I was to be the sole beneficiary of his estate as I had done likewise with mine.
Q Was the will witnessed?
A Yes, sir.
Q Who was it witnessed by?
A It was witnessed by Mr. Edwin Powell who was the attorney in with Mr. Salter at the time and Mrs. Penny who is Mr. Salter’s secretary.
Q Were all of these people in the room when it was signed?
A Yes, sir.
Mr. Wash: Your Honor, we offer that.”

It was established by questions directed to Miss Barry by the trial judge that she was testifying with respect to an occasion when she and the deceased Adams allegedly executed separate wills in which each was the named beneficiary of the other. In answer to other questions by the court, Miss Barry stated that she and George Adams went to Salter’s office and were handed their respective wills in the presence of Mrs. Penny and Mr. Powell; that they each read their own will and then exchanged them and each read the will of the other; that she then signed her will and it was witnessed; and that Mr. Adams then executed his will. Mr. Powell and Mrs. Penny testified at the trial. Mr. Powell stated that he did witness a will for Miss Barry on the occasion in question but that he did not recall ever witnessing a will by George Adams. Mrs. Penny testified that on the occasion in question Mr. Salter dictated Miss Barry’s will, which she then typed and which was then executed. Mrs. Penny stated unequivocally that she did not prepare a will for George Adams and, further, that she had not, at any time, witnessed a will by George Adams.

Counsel for Miss Barry candidly states that there was a transaction with the deceased “behind what she says,” but contends there was no transaction with the deceased within the provisions of Article 3716 in her testimony that she saw the will, that it was signed by Adams, and that it contained provisions naming her as sole beneficiary. We disagree.

Particularly pertinent in the context of the facts shown here is the observation of the court in Holland v. Nimitz, supra. There, in speaking of the object of the statute, the court said that death having sealed the lips of one of the parties, the law, for reasons founded upon public policy, seals the lips of the other. See also Martin v. McAdams, supra. It is apparent that in her testimony quoted above Miss Barry was not testifying to facts within her independent knowledge disassociated from the acts of the deceased, George Adams. The term “transaction” involves a mutuality or concert of action, see Harper v. Johnson, 162 Tex. 110, 345 S.W.2d 277 (1961), and whatever knowledge Miss Barry possessed with respect to the alleged lost will of George Adams was inseparably connected with the transaction between them. Cf. Wideman v. Coleman, 17 S.W.2d 786 (Tex.Com.App.1929). See also Stewart v. Long, 394 S.W.2d 25 (Tex.Civ.App.1965, writ ref’d n. r. e.) in which it was ruled that the viewing by the husband of a will “laid there on the bed [by the wife] to show me what was going on” was a part of a transaction with the wife.

As noted earlier, apart from the testimony of Miss Barry, which we hold is within the proscription of Article 3716, there is no proof of the alleged lost will of George Adams that she seeks to probate. Cf. International Travelers' Ass’n v. Bettis, 120 Tex. 67, 35 S.W.2d 1040 (1931).

Accordingly, the judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

GREENHILL, C. J., concurs in the result.


author: BROWN, Commissioner.

text:
    Robert Elmer KLEASEN, Appellant, v. The STATE of Texas, Appellee.
    No. 56073.
    Court of Criminal Appeals of Texas.
    Nov. 23, 1977.
    State’s Motion for Rehearing Denied Feb. 8, 1978.

      Marvin 0. Teague, Houston, on appeal only, for appellant.
    Ronald D. Earle, Dist. Atty. and Charles E. Hardy, Asst. Dist. Atty., Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was convicted of the Capital Murder of Mark Fischer, a missionary of the Church of Jesus Christ of the Latterday Saints. The jury found appellant guilty of murder during the course of robbery, and answered “Yes” to the special issues submitted to them pursuant to Article 37.071, Vernon’s Ann.C.C.P. Punishment was assessed at death.

The conviction was based upon circumstantial evidence, which, in the light most favorable to the jury’s verdict, showed that the deceased and his missionary companion, Gary Darley, disappeared after visiting appellant on October 28,1974. A prayer book and nametag belonging to Darley, containing bullet holes, were found on the property surrounding the house trailer where appellant lived. Personal effects of the deceased and Darley were found in appellant’s trailer during searches conducted within the following weeks. A key ring, with keys to the missionaries’ apartment and car, was also found in the trailer. Their car was subsequently found, abandoned and stripped, and the wheels and license plates were found in a structure adjacent to appellant’s trailer. A bandsaw, located in a taxidermy shop behind which appellant lived, was seized, and an analysis showed that bits of human blood and tissue were found on the saw. Human hair was also found on the band-saw, which was identified as matching that of Darley’s. The evidence indicated that appellant had access to the bandsaw at all times.

Clothing belonging to appellant was found in a receptacle next to the trailer, which clothing was stained with bits of human blood. Hair matching that of the deceased and Darley was found on the clothing. The evidence showed that appellant had knowledge of the means to dispose of animal carcasses, without detection. Evidence also indicated that appellant harbored hostilities towards members of the Mormon church. A further recitation of the facts and evidence upon which the jury’s verdict was based is not necessary, in light of our holding.

Appellant contends that the November 5th search of his trailer was illegal, and that the evidence obtained from this search was therefore inadmissible against him under Art. 38.22, Vernon’s Ann. C.C.P. The search was conducted pursuant to a federal warrant, obtained by an agent for the Bureau of Alcohol, Tobacco and Firearms. During the search, several items were seized, among which were Mormon bibles, a Seiko watch identified as belonging to the deceased, a key ring and keys which opened locks to the car and apartment of the deceased and Darley, and a manuscript which detailed the means of disposing of the carcasses of illegally killed deer. Appellant contends that the affidavit for the search warrant was insufficient under Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and that the warrant, on its face, showed no probable cause to search the trailer.

As a preliminary matter, the State contends that appellant has no standing to contest the validity of the search. At the pre-trial hearing on appellant’s motion to suppress, appellant showed that he had moved the trailer onto the property of Lem Rathbone, owner of the taxidermy shop, in the spring of 1973. He further showed that appellant had been in possession of this trailer for some nineteen months. The State showed that the trailer in which appellant had been living for nineteen months had been stolen from a sales lot in Oak Hill in April of 1973. The record owner of the trailer testified that he had never given anyone permission to take the trailer and that he had later collected insurance proceeds for his loss. There was no evidence adduced tending to show how appellant acquired the trailer, or that he was in any way connected to the theft of the trailer. On this basis, the trial court ruled that the fruits of the search were admissible against appellant, since he had no standing. The court stated:

“There is no question in the Court’s mind that the trailer house was stolen. The defendant did not have the consent or permission from the owner to be in it or to use it, irrespective of who stole it. That’s immaterial. He has no standing to complain about the search.”

The same evidence regarding the trailer was offered at trial. Again, there was no evidence to connect appellant to the theft, or show the manner of his acquisition of the trailer. The trial court admitted the fruits of the search during the trial, based upon its previous ruling.

The initial question presented to this Court for review is whether the trial court erred in denying appellant’s motion to suppress on the ground that appellant lacked standing to contest the search. We hold that the trial court did so err.

It is well established that in order for a defendant to contest the validity of the search and seizure he must establish that he himself was the victim of an invasion of privacy. Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). It is entirely proper to place upon one who challenges the validity of a search the burden of establishing that his own rights were violated by the illegal search. Jones v. United States, supra; Maldonado v. State, 528 S.W.2d 234 (Tex.Cr.App.1975); Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.1973).

A defendant can show that he has the requisite standing to contest the search in three ways; he may show that he was lawfully on the premises at the time of the search; he may show that his possession of the seized objects is itself an essential element of the offense with which he is charged; he may show a proprietary or possessory interest in the premises searched or the items seized. Jones v. United States, supra; see also Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Appellant was not present on the premises when it was searched, nor was he charged with an offense for which possession of the seized evidence was an essential element. Thus, in order to bring himself within the protection of the prohibition against unreasonable searches and seizures, appellant must show a possessory interest in the trailer. We hold that he has done so.

Appellant showed that he had been in possession of the trailer for nineteen uninterrupted months. His personal possessions were in the trailer, and the evidence showed that he had lived in the trailer on the same site for this period of time. The trailer was used as his residence. The wheels were off the trailer and it was up on concrete blocks. There were no license plates on the trailer, and appellant had hooked up power lines to it.

The only evidence offered to defeat appellant’s claim of standing was the fact that this trailer had at one time been stolen from the true owner. The State incorrectly asserts that this fact alone is sufficient to show appellant’s lack of any possessory interest.

Clearly the evidence adduced at trial was insufficient to prove that appellant himself stole the trailer. Pool v. State, 528 S.W.2d 255 (Tex.Cr.App.1975); Bradshaw v. State, 482 S.W.2d 233 (Tex.Cr.App.1972). Due to the passage of time, this was not even possession of recently stolen property which would raise a presumption of guilt of the offense of theft. See Preston v. State, 147 Tex.Cr.R. 79, 178 S.W.2d 522 (1944). There was no evidence that appellant knew that the trailer was stolen.

On these facts, it appears that appellant did have a sufficient possessory interest in the trailer and its contents to properly contest its search. Appellant had a reasonable expectation of privacy sufficient to warrant protection by the 4th Amendment.

This is not the case where appellant failed to allege or present any evidence of his possessory interest. Smith v. State, 530 S.W.2d 827 (Tex.Cr.App.1975); Hull v. State, 510 S.W.2d 358 (Tex.Cr.App.1974); Hutchinson v. State, 509 S.W.2d 598 (Tex.Cr.App.1974); Clemons v. State, 501 S.W.2d 92 (Tex.Cr.App.1973); Thomas v. State, 493 S.W.2d 957 (Tex.Cr.App.1973); Holcomb v. State, 484 S.W.2d 929 (Tex.Cr.App.1972); Willeford v. State, 454 S.W.2d 745 (Tex.Cr. App.1970).

Thus concluding that appellant has standing to contest the validity of the search and seizure, we now reach appellant’s contentions that the affidavit and search warrant were defective.

Appellant contends that the affidavit upon which the search warrant was issued was defective under Aguilar v. Texas, supra. The affidavit for the federal search warrant reads as follows:

“BEFORE [magistrate] Phillip Sanders Austin, Texas
“The undersigned being duly sworn deposes and says:
“That he has reason to believe that on the premises known as the residence of ROBERT KLEASEN described as a ‘Twilight búngalo’ travel trailer approximately 18 ft. in length, color white/green/beige with two small butane bottles mounted on the front and all outbuilding and appurtenances thereto located on U.S. Hwy 290E approximately 2.6 miles west of State Hwy 71 on the south side of the road and approximately 25 yards behind-the business place entitled ‘Austin Taxidermist’ on U.S. Hwy 290E which is owned and operated by L. M. Rathbone in the Western District of Texas there is now being concealed certain property, namely Browning rifle, .22 caliber, serial number 14922T37, and sale receipts from McBride’s Gun Shop to ROBERT KLEASEN which are instruments of the crime of violation of Title 18, United States Code, Section 922(a)(6), false statement in acquisition of a firearm. .
“And that the facts tending to establish the foregoing grounds for issuance of a Search Warrant are as follows: a statement made to the affiant by a reliable citizen who lives near ROBERT KLEASEN that he has seen KLEASEN shooting a firearm of this same general description on the premises where the travel trailer is located within the past week and that KLEASEN has also been seen in possession of several other different type firearms on the premises described above also within the past week.
/s/ Dale Littleton. Special Agent Bureau of Alcohol, Tobacco
and Firearms
“Sworn to before me, and subscribed in my presence November 5, 1974
/s/ Phillip Sanders
/s/ United States Magistrate”

In Aguilar v. Texas, supra, the Supreme Court held that an affidavit for a search warrant may be based upon hearsay information and need not reflect the direct personal observations of the affiant. However, the magistrate must be informed of the underlying circumstances from which it can be determined that the informant received his information in a reliable way. The magistrate must also be informed of specific factual allegations from which the officer concluded that the informant was “credible” or his information “reliable.” Absent such factual allegations, there is not a sufficient basis for a neutral magistrate to make an impartial determination that probable cause exists.

In the instant case, the affidavit is based upon the hearsay statement of an unnamed informant. There are no facts in the affidavit from which the magistrate could have determined the informant’s credibility or reliability. The informant is unnamed. There is no allegation that he ever gave information previously which turned out to be true. There are no allegations that the affiant investigated the reliability of the informant or why the affiant considers him to be trustworthy. The affi-ant simply asserts in a conclusory manner that the unnamed informant is “reliable.” A mere statement that the source of the hearsay is reliable or credible offered the magistrate no substantial basis for crediting the hearsay. Therefore, we conclude that the affidavit is insufficient to meet constitutional standards. Aguilar v. Texas, supra; Avery v. State, 545 S.W.2d 803 (Tex.Cr.App.1977); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1976); Caldarera v. State, 504 S.W.2d 914 (Tex.Cr.App.1974); Rushing v. State, 500 S.W.2d 667 (Tex.Cr.App.1973); Kemp v. State, 464 S.W.2d 141 (Tex.Cr.App.1971).

The State’s reliance upon Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.1969), cert. den. sub. nom. Gaston v. Texas, 396 U.S. 969, 90 S.Ct. 452, 24 L.Ed.2d 435 (1969), is misplaced. This is not the case where there is sufficient detail in the affidavit from which a magistrate could infer the informant’s credibility. Nor is it the case where the affiant’s personal knowledge corroborated or supplemented the hearsay statement in order to save an affidavit insufficient under Aguilar. The affiant’s allegation that appellant possessed a rifle with a specified serial number and sales receipts from McBride’s Gun Shop is not shown to be corroborative of the informant’s statement that he saw appellant fire a gun on his own property. Nor is there any indication in the affidavit as to where or how the affiant independently learned this information. We conclude that the affidavit has not been rendered sufficient as the State contends. See Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959); Evans v. State, 530 S.W.2d 932 (Tex.Cr.App.1976); Lowery v. State, 499 S.W.2d 160 (Tex.Cr.App.1973); Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1972).

We further note that the affidavit on its face .shows no probable cause. The affiant bases a showing of probable cause upon the statement of the informant that the informant had seen appellant shooting a firearm on the premises where the trailer was located. This statement shows no probable cause that a crime has been committed. There is nothing in the affidavit or search warrant to indicate that it is a violation of state or federal law for appellant to discharge a firearm on his premises in that location. Therefore, the informant has no knowledge concerning the commission of a criminal offense. Probable cause that a crime has been committed is not shown.

Further, the affidavit does not state why the affiant believed that appellant was in violation of federal law. He asserts that the rifle and sales receipts are instruments of the crime of making a false statement in the acquisition of a firearm, under 18 U.S.C., Section 922(a)(6). But the affiant does not present any facts from which the magistrate could have determined that appellant had indeed made false statements in violation of federal law.

Thus, the affidavit and search warrant do not reflect probable cause that appellant committed any crime. Lacking probable cause, any search made pursuant to such warrant was in violation of the Fourth Amendment, Vernon’s Ann.Tex.Const., Art. I, Sec. 9, and Articles 1.06, 18.01, Vernon’s Ann.C.C.P.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

Rehearing denied; DOUGLAS, dissenting.

VOLLERS and W. C. DAVIS, JJ., did not participate.

      . Appellant did not testify in his own behalf at trial. However, he did testify at the punishment phase, and stated that he had bought the trailer from a former work associate.


author: ODOM, Judge. DOUGLAS, Judge,

text:
    William Carlyle DRUMM, Appellant, v. The STATE of Texas, Appellee.
    No. 52878.
    Court of Criminal Appeals of Texas, En Banc.
    Nov. 2, 1977.
    State’s Motion for Rehearing Denied Feb. 15, 1978.

      James P. Pinstrom, Dallas, for appellant.
    Henry Wade, Dist. Atty., Gary W. Love, C. Wayne Huff and Jan E. Potts, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for driving while license suspended under Arti-ele 6687b, Sec. 24, V.A.C.S. Art. 6687b, Sec. 34, V.A.C.S. Punishment was assessed at a twenty-five dollar fine and six months in jail.

In his first ground of error appellant asserts:

“The trial court erred when it overruled appellant’s motion to quash the information in this cause because it failed to give appellant sufficient notice of the nature of the operator’s license suspension relied upon by the state for conviction.”

The information alleged in relevant part that appellant:

“. . . on or about the 15th day of December A.D. 1974, in the County of Dallas and State of Texas, did unlawfully drive and operate a motor vehicle on a public street and highway there situated when his Texas operators license was then and there suspended, said suspension having been theretofore ordered and effected by the Texas Department of Public Safety under the authority and provisions of Art. 6687b, Sec. 24, Vernon’s Annotated Texas Civil Statutes.”

In his motion to quash the information appellant asserted the following reason:

“The information and affidavit fail to give sufficient notice to the defendant of the date or nature of the driver’s license suspension upon which the state relies for conviction. In that regard the defendant would show that he has not been furnished any documents or exhibits by anyone pertaining to said alleged conviction or suspension. Nor is any subsection under the section alleged given the defendant.”

The court overruled the motion to quash.

The information did allege that appellant’s license was suspended under Art. 6687b, Sec. 24, V.A.C.S., but did not allege a subsection of Section 24. The statute in Section 24 provides:

“(a) The license of any person shall be automatically suspended upon final conviction of any of the following offenses:
1. Negligent homicide resulting from the operation of a motor vehicle;
2. Driving a motor vehicle while under the influence of intoxicating liquor or narcotic drugs;
3. Any offense punishable as a felony under the motor vehicle laws of this State;
4. A conviction of a driver of a motor vehicle involved in an accident or collision, upon a charge of failure to stop, render aid, and disclose his identity at the scene of said accident or collision;
5. A conviction upon a charge of aggravated assault upon the person by means of motor vehicle, as provided by law.
(b) The suspension above provided shall in the first instance be for a period of twelve (12) months. In event any license shall be suspended under the provision of this Section for a subsequent time, said subsequent suspension shall be for a period of eighteen (18) months.
(c) The suspension of any license shall be automatically extended upon licensee being convicted of operating a motor vehicle while the license of such person is suspended; such extended period of suspension to be for a like period as the original suspension, and is in addition to any other penalty assessed, as provided in this Act.”

It can be seen that several grounds for automatic suspension are provided in Art. 6687b, Sec. 24, supra. In his brief on appeal appellant restricts his argument under this ground of error to the complaint that failure to allege the subsection of Art. 6687b, Sec. 24, supra, under which his license was suspended deprived him of sufficient notice upon which to prepare his defense.

In Tave v. State, Tex.Cr.App., 546 S.W.2d 317, 318, we held:

“[I]n the prosecution of a defendant for driving a motor vehicle while his operator’s license is suspended it is necessary to allege whether his operator’s license was suspended under the provisions of Article 6687b or 6701h, V.A.C.S. The failure to do so renders an information fatally defective.”

The issue here, however, is not whether the information in the case at bar is defective on its face, but whether it can withstand attack by a motion to quash for failure to give adequate notice on which to prepare a defense. This is the opposite of the situation in Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266, where the issue was not the sufficiency of the indictment to give adequate notice to the defendant, but was its sufficiency to invoke the jurisdiction of the trial court. See Ex parte Cannon, supra, concurring opinion at 270. These two functions of the state’s accusatory pleading are distinct (see Day v. State, Tex.Cr.App., 532 S.W.2d 302, at 315, n. 7), and complaints regarding the sufficiency of that pleading to fulfill one or the other of those functions are subject to different rules for presentation, and different measures for validity. See American Plant Food Corp. v. State, Tex.Cr.App., 508 S.W.2d 598.

Although challenge to an accusation for failure to give adequate notice on which to prepare a defense must be asserted in a timely fashion (American Plant Food, supra), when properly asserted with adequate statement of the manner in which notice is deficient, fundamental constitutional protections are invoked. Because of the fundamental notions of fairness that require adequate notice of the nature of the charges against the accused in our system of justice, a timely claim of inadequate notice requires careful consideration. This calls for examination of the criminal accusation from the perspective of the accused, as contrasted to the measurement of its allegations against the statute that is the test for a claim that no offense is alleged. Thus, although the information in the case at bar does not reveal the jurisdictional defect exhibited in Tave, supra, that case does not dispose of the claim of insufficient notice raised here.

Defendant’s argument in substance is that Art. 6687b, Sec. 24, supra, provides for automatic suspension of the driver’s license without notice upon final conviction for any one of several offenses, and that in order to prepare his defense he is entitled to notice of the suspension grounds relied on by the state. In the face of the constitutional presumption of innocence to which every accused is entitled, it cannot be claimed by the state, when there is a motion to quash on these grounds, that appellant knew the grounds for the suspension of his license. There may exist several such grounds for suspension, and there may exist various defenses to some or all of those grounds. It is not for us to speculate on possible defenses; those are for the accused and counsel to investigate, prepare, and establish if they can. In order to perform that duty, however, the accused is entitled to notice of the particular cause for suspension upon which the state will rely. The accused is not required to anticipate any and all variant facts the state might hypothetically seek to establish. When the defendant petitions for sufficient notice of the state’s charge by motion to quash adequately setting out the manner in which notice is deficient, the presumption of innocence coupled with his right to notice requires that he be given such notice. Appellant here was entitled to such notice and his motion to quash was sufficient to point out his need. The motion to quash should have been granted.

In Grider v. State, Tex.Cr.App., 398 S.W.2d 937, 938, the court held the complaint and information were sufficient under Adams v. State, Tex.Cr.App., 376 S.W.2d 832 “to charge the offense defined in Section 5 of Art. 6701h, V.A.C.S.,” and stated, “The trial court did not err in overruling the appellant’s motion to quash the information.” An examination of the record shows that the subsection of the statute was not alleged in Grider. As explained above, the sufficiency of the State’s pleading to allege an offense against the law is not the test for the adequacy of notice in the face of the presumption of innocence and a motion to quash for insufficient notice. Grider v. State, supra, is overruled.

For failure to grant the motion to quash and provide adequate notice to appellant of the charges against him, the judgment is reversed and the prosecution under this information is dismissed.

DOUGLAS, J., dissents.

DOUGLAS, Judge,

dissenting on State’s motion for leave to file Motion for Rehearing.

The majority reverses the State’s motion for rehearing without written opinion. Appellant was convicted for driving a motor vehicle while his license was suspended. The majority erroneously overrules Grider v. State, 398 S.W.2d 937 (Tex.Cr.App.1966), and writes that the section of the statute used to revoke the probation must be alleged so that a defendant may know what to defend against. Neither the majority nor the appellant has indicated what defense to the suspension of a driver’s license would be available to an accused. If one could be suggested or shown, this, writer would reconsider the question. Once a licensee has been convicted under any subdivision of Article 6687b, Section 24, V.A.T.S., the suspension is automatic. What defense could there be to the suspension? That case has been tried and it is final. He has had his day in court. He knows that the license has been suspended.

The suspension is an historical fact and it should make no difference under what section of the act the license was suspended. See the reasoning in the Attorney General’s Opinion No. H-1053, September 14, 1977.

The State’s motion for leave to file should be granted and the judgment should be affirmed.

      . Contrast jurisdictional defects, which may be raised at any time. American Plant Food, supra.