text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert Harry PLANT, Defendant-Appellant.
    No. 37009.
    Missouri Court of Appeals, St. Louis District, Division Three.
    April 13, 1976.
    James C. Jones, Robert G. O’Blennis, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, B. J. Jones, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James A. Roche, Jr., St. Louis, for plaintiff-respondent.
   KELLY, Judge.

This appeal from a denial of a petition for Writ of Error Coram Nobis by the Circuit Court of the City of St. Louis seeks vacation of a sentence imposed on a plea of guilty to a charge of robbery in the first degree by means of a dangerous and deadly weapon, entered on May 13, 1960, without an evidentiary hearing. We affirm.

Appellant in his petition for Writ of Error Coram Nobis alleges that he pleaded guilty to a charge of burglary in the second degree in Cause No. 1005-H and immediately thereafter to a charge of robbery in the first degree by means of a dangerous and deadly weapon in Cause No. 1153-H on May 13, 1960, whereupon the trial court imposed sentences of imprisonment for a term of eight years on the burglary in the second degree charge and also for eight years on the robbery charge, the term on the latter to run concurrently with that imposed on the burglary charge. He further alleged that the trial court, the circuit attorney and his own attorney failed to advise him that this sentencing was invalid in that the sentences imposed could not be served concurrently as the sentencing judge had ordered.

Subsequently, and after appellant had commenced serving the terms imposed on his pleas of guilty, and sometime during 1966, after being advised by the record clerk of the penitentiary that the sentences would have to be served consecutively, he filed in the Circuit Court of the City of St. Louis a motion to vacate the aforesaid sentences on the ground that they were improper and unlawful because of the provisions of § 546.480 RSMo V.A.M.S. After a hearing, the judgment and sentence imposed on the burglary charge — Cause No. 1005-H was vacated but the Court did not rule with respect to the sentence on the robbery charge. Appellant completed service of the sentence imposed on the latter.

Thereafter, appellant was charged with burglary and stealing in the Circuit Court of St. Louis County and the Information filed in that cause charged him also with the prior robbery conviction of May 13, 1960. On January 21, 1969, the burglary and stealing case came on for trial and after an evidentiary hearing pursuant to § 556.280 RSMo Y.A.M.S. — The Second Offender Act — the trial judge found the provisions of that Act applicable to the trial and took from the jury trying the case the question of sentencing the defendant. After a jury verdict of guilty of burglary in the second degree and stealing in that cause, the trial judge sentenced appellant to imprisonment in the custody of the Missouri Department of Corrections for a term of 8 years on the burglary second degree offense and a term of 4 years for the offense of stealing, the latter sentence to be served concurrently with that imposed for burglary in the second degree. Appellant appealed that judgment and it was affirmed.

As grounds for this writ appellant contends that the trial court had no authority to vacate the judgment and sentence on the burglary in the second degree case — Cause No. 1005-H — without also vacating the judgment and sentence on the robbery charge — Cause No. 1153-H. The thrust of his argument is that this is so because pursuant to the provisions of § 546.480 RSMo 1959 (now § 546.480 RSMo 1969) the sentence for the second conviction cannot be served until the term imposed on the first conviction has terminated, and therefore, by reason of the failure of the trial court to vacate the sentence imposed and served on the robbery charge he was deprived of his right to have a jury determine his punishment in the trial of January 21,1969, on the charge of burglary in the second degree and stealing. The relief appellant sought in this petition for Writ of Error Coram Nobis is that the trial court vacate the judgment and sentence imposed in Cause No. 1153-H (that imposed on May 13, 1960 on the charge of robbery in the first degree by means of a dangerous and deadly weapon) by a nunc pro tunc order as of the date the judgment and sentence in Cause No. 1005-H was vacated, February 13, 1966.

The trial court, in its Conclusion of Law filed at the time the application for this Writ was denied, correctly concluded that appellant’s petition for the Writ was without merit and failed to state facts upon which the Writ should issue because appellant received all of the relief he was entitled to when one of the sentences imposed on May 13, 1960, was vacated, thus nullifying the effect of the consecutive sentence provisions of § 546.480 RSMo Y.A.M.S. and appellant could not thereby have been prejudiced. We note that the only grounds alleged by appellant for setting aside the remaining plea of May 13, 1960, is the misconception of the legality of imposing concurrent sentences on the appellant. However, nowhere in appellant’s petition for the Writ is there any allegation that his pleas were influenced or conditioned upon any promise or assurance that the sentences imposed thereon would be concurrent rather than consecutive. His ground for the Writ hinges on the legal effect of the statute and any error in that respect was cured when the trial court vacated the sentence on the first plea entered on that date.

We affirm.

SIMEONE, P. J., and GUNN, J., concur.

      . This section of the Missouri statutes has since been held unconstitutional; State v. Baker, 524 S.W.2d 122 (Mo.1975).

      . State v. Plant, 461 S.W.2d 736 (Mo.1971). In this appeal the question whether the trial court erred in admitting a certified transcript of serial record and a certified copy of prior judgment and sentence on the robbery charge in Cause No. 1153-H was ruled adversely to appellant.


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    Benny BARBER and Dixie Barber, Plaintiffs-Respondents. v. M. F. A. MILLING COMPANY, Defendant-Appellant.
    No. 9622.
    Missouri Court of Appeals, Springfield District.
    April 15, 1976.

      Donald E. Bonacker, Springfield, for plaintiffs-respondents.
    O. J. Taylor, Ronald Baird, Taylor, Stafford & Gannaway, Springfield, for defendant-appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   TITUS, Judge.

Defendant compounded cattle feed which plaintiffs bought and fed to their bovines. Thereafter plaintiffs claimed that the feed contained an excessive amount of lead which caused death and sickness to their animals. A jury resolved the issues by awarding plaintiffs damages in the sum of $15,000.

The first point relied on by defendant is: “The trial court, erred in permitting the plaintiffs to read certain portions of the deposition of witness Edward E. Pickett into evidence over defendant’s objections, in that the admission of such evidence had no probative force and was erroneously prejudicial to defendant.” This point preserves nothing for appellate review because it wholly ignores the directions of Rule 84.04(d), V.A.M.R., which are mandatory. M & A Electric Power Cooperative v. Nesselrodt, 509 S.W.2d 468, 470[1] (Mo.App.1974). It is impossible to ascertain from reading the point what parts of the deposition defendant is claiming were inadmissible [Nibler v. Coltrane, 275 S.W.2d 270, 274[5] (Mo.1955); Lawson v. Cooper, 475 S.W.2d 442, 447[7] (Mo.App.1972); City of St. Louis v. Cook, 405 S.W.2d 545, 549[1] (Mo.App.1966); Beasley v. Hull, 400 S.W.2d 423, 425[1] (Mo.App.1966)], and while the point asserts that admission of the unspecified deposition testimony was error, the reasons given therefor are unadulterated abstractions which do not explain “why” such evidence allegedly had no probative force and was erroneously prejudicial. Abstract statements purporting to be reasons for averred trial court error do violence to the rule which requires a point to be specific. Adams v. White, 488 S.W.2d 289, 294[13] (Mo.App.1972); Boyd v. Boyd, 459 S.W.2d 8, 12[10] (Mo.App.1970). The court of appeals is not obliged to search either the transcript on appeal or the argument portion of an appellant’s brief to come by the meaning of a point on appeal. Butterbaugh v. Public Water Supply Dist. No. 12, 512 S.W.2d 445, 447[3] (Mo.App.1974); In re Estate of Barks, 488 S.W.2d 928, 930[5] (Mo.App.1972). The only manner in which we could ascertain what parts of the deposition are intended to be included in the point or “why” it is contended their admission into evidence lacked probative force and was erroneously prejudicial, would be to resort to the transcript and to the argument section of the brief. Therefore, the deficiency of the point becomes self-evident and the merit of its substance, if any, will be passed to another day when the point may be presented in acceptable form.

Plaintiffs’ damage instruction charged the jury to measure plaintiffs’ damages, if awarded, by “the difference between the fair market value of the cattle before they were damaged and their fair market value after they were damaged.” Defendant, while conceding the instruction was in the language of MAI 4.02 except for changes necessary to adapt it to this particular case, nevertheless claims under Point II of its brief that the charge was erroneous because it “did not require the jury to determine the difference between the fair market value of the property immediately before and immediately after the alleged damage.” As defendant’s citations attest, the general rule is that evidence measuring damages for injury to personalty should relate to the difference between the reasonable or fair market value of the personalty immediately before the injury and immediately thereafter. Hood v. M. F. A. Mutual Insurance Company, 379 S.W.2d 806, 812[9] (Mo.App.1964). However, it does not follow that every evidentiary element necessary to be proved to authorize the submission of a particular instruction must be repeated in the charge to make it proper. Brittain v. Clark, 462 S.W.2d 153, 158-159 (Mo.App.1970), and cases there cited.

Rule 70.01(b), V.A.M.R., requires that an applicable MAI “shall be given to the exclusion of any other on the same subject” [DeArmon v. City of St. Louis, 525 S.W.2d 795, 800 (Mo.App.1975); Goodwin v. S. J. Groves & Sons Company, 525 S.W.2d 577, 581 (Mo.App.1975)], and Rule 70.01(c) states “The giving of an instruction in violation of the provisions of this rule shall constitute error . . . .” These rules were strictly applied in State ex rel. State Highway Commission v. Beaty, 505 S.W.2d 147, 153-154[5-7] (Mo.App.1974) where the court erred in giving MAI 4.01 instead of MAI 4.02. There is no doubt that since plaintiffs sought only property damages, MAI 4.02 was the proper measure of damage instruction to be given. Holt v. Myers, 494 S.W.2d 430, 443 (Mo.App.1973). See also Rotert v. Peabody Coal Company, 513 S.W.2d 667, 676-677[5] (Mo.App.1974), where the court of appeals directed that upon retrial plaintiffs’ damage instruction should follow MAI 4.02 rather than MAI 9.02 which employs the “immediately before” and “immediately after” wording. We find no error in giving the instruction, and moreover observe that if defendant feared the measure of damage instruction was susceptible to misunderstanding because of its general scope, it was incumbent upon defendant to submit an explanatory or modifying instruction before it can be heard to complain. Defendant offered no such instruction. Bunge Corp. v. Valley Line Supply & Equipment Co., 480 S.W.2d 859, 864 (Mo.1972); Miller v. Ranson and Company, 407 S.W.2d 48, 54-55[11] (Mo.App.1966); Hough v. Jay-Dee Realty and Investment, Inc., 401 S.W.2d 545, 551[14] (Mo.App.1966); Samuels v. Illinois Fire Ins. Co., 354 S.W.2d 352, 362[20] (Mo.App.1961).

Point III in defendant’s brief asseverates the “trial court erred in overruling defendant’s motion for directed verdict in that plaintiffs’ evidence as to damages did not establish the fair market value of the plaintiffs’ cattle immediately before and immediately after the alleged injury.” Ignoring the obvious deficiencies in this point when compared with the requirements of Rule 84.04(d), the plaintiffs, husband and wife, were shown to be the owners (as partners) of the cattle involved. They had been raised on dairy farms, had owned and raised cattle for many years and each, according to the testimony, was knowledgable of the cattle market from numerous dealings therein and other experiences therewith. Plaintiffs, therefore, being owners of the personalty in question and otherwise apparently qualified in the field, were entitled to testify as to the reasonable value of the property which had been damaged. The weight and value of their respective testimony was for the jury to determine. Carnell v. Dairyman’s Supply Company, 421 S.W.2d 775, 779[9, 10] (Mo.1967). But more to the point advanced by defendant: When plaintiff husband was asked for his “judgment as to the difference in the value of your herd before this poisoning occurred and after this poisoning occurred,” the only objection voiced was that “He has not been properly qualified . to give an opinion as to the difference, before and after difference in value.” Defendant may not interpose one objection below and another on appeal. Negley B. Calvin, Inc. v. Cornet, 427 S.W.2d 741, 746[6] (Mo.App.1968). When plaintiff wife was questioned concerning the “before” and “afterwards” market prices of the cattle, not one objection was voiced to the questions propounded or the answers given. A trial court may not be convicted of error when no objection to the complained-of testimony was presented to it [Hood v. Heppler, 503 S.W.2d 452, 456[7] (Mo.App.1973)], and defendant’s belated contention that plaintiffs’ testimony as to damages did not qualify as lawful evidence to establish the fair market value of the cattle immediately before and immediately after the alleged occurrence was waived by its failure to object thereto upon any grounds or the ground now stated. Brown v. Jones Store, 493 S.W.2d 39, 41[2] (Mo.App.1973).

Defendant’s final point, like its first point, does not comply with Rule 84.-04(d), Y.A.M.R. Point IV says “The trial court erred in entering judgment in favor of plaintiffs in the sum of fifteen thousand dollars [the amount of the verdict] in that there was no substantial evidence to support the amount of the verdict and the same necessarily was the result of speculation and conjecture.” To this point defendant cites only Kennedy v. Tallent, 492 S.W.2d 33, 39-40[10] (Mo.App.1973). Applicability of the citation to the facts and circumstances in the instant case wholly escapes us. Nothing in defendant’s concluding point sets forth “wherein” there was no substantial evidence to support the amount of the verdict or “why” it is contended the verdict was the result of speculation and conjecture. Davis v. Schott, 508 S.W.2d 193, 194[2] (Mo.App.1974). For us to gain comprehension of the abstract statements contained in defendant’s fourth point would require a search of the record and, in effect, cause us to become defendant’s advocate and counsel. Associates Discount Corp. of Iowa v. Fitzwater, 518 S.W.2d 474, 477[1] (Mo.App.1974). This we respectfully decline to do.

The judgment is affirmed.

All concur.


author: HARBISON, Justice.

text:
    GENERAL AMERICAN TRANSPORTATION CORPORATION, Appellant, v. TENNESSEE STATE BOARD OF EQUALIZATION et al., Appellees.
    Supreme Court of Tennessee.
    April 5, 1976.
    Tyree B. Harris, Nashville, for appellant.
    Everett H. Falk, Asst. Atty. Gen., Nashville, for appellees; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
   OPINION

HARBISON, Justice.

In this action appellant, a freight car company, challenges the classification for ad valorem tax assessment purposes of its property as “public utility property”. The chancellor sustained the classification, and this appeal was taken.

The action originated as a petition for certiorari from the State Board of Equalization and also as an original action for a declaratory judgment, the tax in question apparently having been paid under protest pursuant to the provisions of T.C.A. § 67-933. In the original petition for certiorari, other questions regarding the assessment were raised, but these have been abandoned. A written stipulation of the facts pertinent to the classification issue was filed before the chancellor.

The stipulation shows that the appellant is a freight ear company, owning and operating a large fleet of railroad cars of various types, including tank ears, coal cars and refrigerated units. These cars are operated for the transportation of property on railway systems running into this and other states. If Tennessee had a separate classification for tax purposes for railroad car companies, as those companies are defined in the taxing statutes of other states, there is no question but that appellant would fit such definition. See Burns Indiana Stats. Ann., § 6-1.1-8-2 (1975 Supp.); Minnesota Stats.Ann., § 295.01 (1972).

Tennessee does not separately classify and tax private car companies or sleeping car companies, but classifies, for tax purposes, the properties of these companies, together with properties of railroad companies and some twelve other types of business enterprises as “public utility property”.

The specific statutory definition contained in T.C.A. § 67-601, is as follows:

“(7) ‘Public utility property’ is hereby defined to include all property of every kind, whether owned or leased, and used, or held for use, directly or indirectly in the operation of a public utility, which shall include but not necessarily be limited to the following business entities, whether corporate or otherwise: . (3) passenger, sleeping, freight and private car companies which is hereby defined as any business, other than a railroad company, which owns, uses, furnishes, leases, rents or operates to, from, through, in or across this state or any part thereof any kind of railroad car, including but not necessarily limited to, flat, tank, refrigerator, passenger, or similar type cars . . .

Under the provisions of T.C.A. §§ 67-901 et seq., the Tennessee Public Service Commission is directed to assess for taxation the property of business enterprises such as those described above, together with railroad companies, telephone and telegraph companies, and numerous others. T.C.A. § 67 — 905 requires passenger, sleeping, freight or private car companies to furnish specific data to the Commission for the purpose of making its assessments.

The Commission is required to assess all operating property of the companies listed in T.C.A. § 67-901 at fifty-five percent of its value. The statute requires that the value shall be determined by the “unit rule of appraisal where applicable.” T.C.A. §§ 67 — 922 et seq. contain formulas and other factors to be utilized by the Commission in arriving at the distributable property assessment of companies such as appellant, and the assessment is then to be apportioned to local taxing districts by methods which are not here in question.

Appellant does not contest the propriety of the assessment of its properties by the Tennessee Public Service Commission, and as the case comes here, raises no question as to the apportionment methods used. Appellant insists, however, that it is not a “public utility” as that term is usually defined, and it contends that its property should be assessed at thirty percent of value as tangible industrial and commercial personal property are generally assessed under the provisions of T.C.A. § 67-616(b).

Prior to January 1, 1973 the Tennessee Constitution required uniformity of property taxation, and all classes and categories of property were to be assessed equally. There was no provision in the state constitution for the classification of property according to use. Even under the constitutional provisions as they existed prior to 1973, however, the Public Service Commission was required to assess for taxation the distributable properties of companies such as the appellant, railroad companies, truck lines, etc.

The 1973 amendment to the Tennessee Constitution specifically authorized the classification of property according to use. This was the purpose, spirit and intent of the amendment. It expressly authorized the classification of real property into four subclassifications, and tangible personal property into three categories. The General Assembly was left with broad discretion as to the classification and assessment of intangible personal property.

Properties of companies such as appellant for many years prior to the recent constitutional amendment had been assessed according to the “unit rule” referred to in T.C.A. § 67-902. Public utility properties of all types, real, tangible and intangible, continue to be assessed under this method pursuant to the new constitutional provisions and implementing statutes, at a uniform ratio of fifty-five percent. Industrial and commercial real property is assessed at forty percent of value, while tangible commercial and industrial personalty is assessed at thirty percent of value.

As stated, the thrust of appellant’s position is that it is not a “public utility” as that term is usually defined, and that the equipment here involved is leased to shippers and other companies which are not themselves utilities or engaged directly in the transportation business. The stipulation of fact shows that all cars belonging to appellant which are leased directly to railroad companies are assessed to those companies as utility property. The assessment here in question, however, involves only properties leased to private businesses, such as those engaged in the shipping of meat and other products requiring special types of equipment. Appellant insists that it is not a utility, and that to classify its property as utility property is arbitrary, unreasonable and violative of the equal protection provisions of the Fourteenth Amendment to the United States Constitution.

We are unable to accept the contention of appellant. It owns and uses its rolling stock for the specific purpose of transporting property over railroad lines, in direct competition with and for identical purposes as property owned and operated by the railroads themselves. The arguments made by appellant in this case are similar to those which have been made by the suppliers of railroad equipment for nearly a century, and these have been almost uniformly rejected by the state and federal courts. In two leading cases decided in 1891, the United States Supreme Court held that the states had power to tax sleeping car companies on the basis of their ownership of property within the states, and that the tax could be apportioned within the state on a mileage basis among the counties. See Pullman’s Palace Car Co. v. Pennsylvania, 141 U.S. 18, 11 S.Ct. 876, 35 L.Ed. 613 (1891); Pullman’s Palace Car Co. v. Hayward, 141 U.S. 36, 11 S.Ct. 883, 35 L.Ed. 621 (1891).

While we have not made an exhaustive examination of state statutes on this subject, we find that several states classify private car companies for tax purposes with railroads and other public utilities. See Arizona Rev.Stat. § 42-136 (1975 Supp.); Colorado Rev.Stat. § 39-L-101 (1974). The taxing statutes of both of these states are similar to the Tennessee statutes here under consideration. In the recent case of Apache County v. Atchison, Topeka & Santa Fe Ry., 106 Ariz. 356, 476 P.2d 657 (1970), the classification of railroad properties at sixty percent of value, as against the assessment of other utility properties at forty percent of value, was sustained. Properties of “private car companies” were classified and taxed in an identical manner to railroad property under the Arizona statutes.

In other states freight car lines, sleeping car companies and other furnishers of railroad equipment constitute separate or independent classifications for purposes of taxation, as previously mentioned. See 51 Code of Ala. §§ 176-177 (1974 Supp.); So.Dak.Comp.Laws § 10-31-1 (1967); Neb.Rev. Stats. §§ 77-624 et seq. (1971). In some states, for other purposes than taxation, they are regulated under the general laws governing railroads and other utilities. See So.Dak.Comp.Laws § 49-3-3 (1967).

As recognized by this Court in the recent case of Snow v. City of Memphis, 527 S.W.2d 55 (Tenn.1975), the states have very broad discretion in the classification of property for the purpose of taxation. A classification must be neither capricious nor arbitrary, but must rest upon some reasonable basis. It is not required, however, to be mathematically precise or exact.

In the Snow case, supra, the Court quoted from the opinion of the United States Supreme Court in the case of Allied Stores of Ohio, Inc. v. Bowers, 358 U.S. 522, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959), as follows:

“The States have a very wide discretion in the laying of their taxes. When dealing with their proper domestic concerns, and not trenching upon the prerogatives of the National Government or violating the guaranties of the Federal Constitution, the States have the attribute of sovereign powers in devising their fiscal systems to ensure revenue and foster their local interests. Of course, the States, in the exercise of their taxing power, are subject to the requirements of the Equal Protection Clause of the Fourteenth Amendment. But that clause imposes no iron rule of equality, prohibiting the flexibility and variety that are appropriate to reasonable schemes of state taxation. The State may impose different specific taxes upon different trades and professions and may vary the rate of excise upon various products. It is not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value.” 358 U.S. at 526-27, 79 S.Ct. at 440.

The Tennessee statutes do not attempt to assess or tax property according to ownership, but according to use. The equipment of appellant is clearly used in the transportation of property over railroad lines, and, in our opinion, there is nothing either arbitrary, illegal or unreasonable in classifying the rolling stock of freight car companies in the same category as the equipment owned by the railroads themselves. Were this not done, it would be possible for every railroad or shipper to lease its equipment from a rolling stock company, and to require the property of the latter to be assessed only as industrial or commercial property. We recognize, of course, that the Tennessee statutes now expressly provide that leased personal property used by a public utility company shall be assessed to that company. T.C.A. § 67-602(5). Further, even prior to the adoption of the present statutory provisions, and under statutes implementing the earlier constitutional provisions, this Court held that equipment leased to public utilities was properly includable in the assessment of the lessees. Pulaski Highway Express, Inc. v. Dunn, 524 S.W.2d 686 (Tenn.1975).

As to properties not directly leased to railroads, it again is obvious that leasing devices or arrangements could easily be contrived so as to achieve a lower assessment ratio, if rolling stock such as that involved here were not classified and assessed in the same manner as equipment owned and operated by the railroads themselves. We are firmly of the opinion that the classification used by the Tennessee General Assembly is an appropriate one, has a reasonable and highly practical basis, and that it offends neither federal nor state constitutional provisions.

In the case of General American Tank Car Corporation v. Day, 270 U.S. 367, 46 S.Ct. 234, 70 L.Ed. 635 (1926), the United States Supreme Court upheld, as against a federal constitutional attack, a Louisiana tax on rolling stock of a tank car company which was four mills higher than the level of state property taxes generally. In the case of Almer Railway Equipment Co. v. Commissioner of Taxation, 213 Minn. 62, 5 N.W.2d 637 (1942) app. dismissed 317 U.S. 605, 63 S.Ct. 524, 87 L.Ed. 491 (1943), a gross earnings tax on freight line companies was upheld, even though the freight companies were required to pay a greater tax with reference to their rolling stock than was required of the railroad companies themselves. A similar tax on sleeping ear companies had earlier been upheld in State v. Pullman Company, 146 Minn. 458, 179 N.W. 224 (1920) app. dismissed 257 U.S. 663, 42 S.Ct. 45, 66 L.Ed. 423 (1921).

We recognize that the State may not by legislative fiat convert a private corporation into a “public utility” for all purposes, as held in a number of cases cited by appellant. In our opinion, Tennessee has not attempted to do this, and appellant is not deemed to be or classified as a “utility” for most purposes. The statutes in question deal only with the classification of property for tax purposes according to its use. The property here under consideration is placed in the same general category as that of all other companies engaged in the business of transporting persons and property by rail.

The properties of appellants are held and furnished directly for use upon railroad lines. Some of the railroad companies operating in this state recently contended in the federal courts that their own property should not be taxed as utility property, but should only be placed in the industrial or commercial category. That contention was held to be one that properly should be addressed to the legislature, not the courts. We reach the same conclusions as to the contentions of appellants.

The judgment of the chancellor is affirmed at the cost of appellants.

FONES, C. J., and COOPER, BROCK and HENRY, JJ., concur.

      . T.C.A. § 67-902.

      . Appellants rely heavily upon the case of Crystal Car Line v. State Tax Comm'n, 110 Utah 426, 174 P.2d 984 (1946). In that case, however, there was an absence of a statutory definition of utilities or utility property, unlike the present case. There was no holding that the state lacked power to classify rolling stock of car companies as utility property and no suggestion that such classification would have been improper. There was simply an absence of statutory definition or classification for the first two tax years in issue. This was supplied and upheld as to later years.

      . App. dismissed, 401 U.S. 1005, 91 S.Ct. 1257, 28 L.Ed.2d 542 (1971).

      . Smith v. Cahoon, 283 U.S. 553, 51 S.Ct. 582, 75 L.Ed. 1264 (1931); Frost v. Railroad Comm’n, 271 U.S. 583, 46 S.Ct. 605, 70 L.Ed. 1101 (1926); Mich. Pub. Utilities Comm’n v. Duke, 266 U.S. 70, 45 S.Ct. 191, 69 L.Ed. 445 (1925). None of these cases dealt with the classification of property for tax purposes.

      . L. & N.R.R. Co. v. Atkins, 390 F.Supp. 576 (M.D.Tenn.1975), aff’d 423 U.S. 802, 96 S.Ct. 10, 46 L.Ed.2d 24 (1975).


author: RUSSELL, Judge.

text:
    Nelson Keith FOSTER, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    March 8, 1976.
    Certiorari Denied by Supreme Court April 26, 1976.
    Donald J. Boarman, Johnson City, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Lewis W. May, Dist. Atty. Gen., Mountain City, for appellee.
   OPINION

RUSSELL, Judge.

This is an appeal from the dismissal, after an evidentiary hearing, of a “petition for a writ of error coram nobis” originally addressed to this court but forwarded by our clerk to the Criminal Court of Washington County where it was treated as a petition for post-conviction relief.

The petitioner is Nelson Keith Foster, who was convicted of armed robbery in the Criminal Court of Washington County in 1971, and sentenced to ten years in the penitentiary. An immediate post-conviction proceeding resulted in a delayed appeal, and this court affirmed the conviction on March 2,1973. Certiorari was denied by our Supreme Court on May 7,1973. Foster then unsuccessfully prosecuted a federal ha-beas corpus proceeding through the federal courts. On October 26, 1973, he signed and subsequently filed a “petition for the writ of habeas corpus” in the court in which he was convicted. It was properly treated as a petition for post-conviction relief, and Foster was brought from the penitentiary for an evidentiary hearing on February 22, 1974. The two grounds alleged in the petition were counsel incompetency and the exclusion of blacks from the grand jury. The latter ground was apparently expressly waived upon the hearing, and a finding of fact made that counsel was not incompetent. Foster expressly waived in writing his right to appeal from that finding and the dismissal of the petition.

The procedures followed thereafter in State court were inappropriate, and have resulted in the complex procedural posture of the present case. On March 1, 1974, Foster filed a “motion for a temporary injunction”, seeking to enjoin the finality of the order dismissing his post-conviction petition, on the ground that the attorney whose competency he had challenged had committed perjury upon the evidentiary hearing. The trial judge summarily overruled the motion. Foster then carried his counsel incompetency complaint to Federal District Court, where it was summarily dismissed because he had voluntarily waived his State appeal and hence had not availed himself fully of State procedures. Thereafter, on February 20,1976, the clerk of this court in Knoxville received a pro se “petition for a writ of coram nobis” from Foster. Our clerk apparently decided that the petition was too late to be effective as a petition for the writ of error coram nobis, and that it had the characteristics of a petition for post-conviction relief; so he forwarded the petition to the trial court clerk “for appropriate action” and it was there promptly filed and an evidentiary hearing held thereon. Apparently the trial court was influenced by the forwarding of the petition from this court to give it more attention than it technically deserved.

This petition simply recites the history of past procedures and complains of the dismissal of the “motion for an injunction” overruled a year before, reiterates the claim that trial counsel perjured himself upon the evidentiary hearing, claims that the State in some unspecified way suppressed evidence of this perjury, and claims that counsel appointed to represent petitioner upon the last prior evidentiary hearing did not effectively assist in prosecuting the “motion for an injunction”. The petition, to acquire legitimacy as one for the writ of error coram nobis, says that these matters are “facts unknown to the court at the time judgment was entered”.

This petition might well have been summarily dismissed as an out-of-time petition for coram nobis. It was not a proper post-conviction petition. The petitioner, represented by counsel, deliberately waived his right of appeal from the finding that his trial lawyer was competent. Before that judgment was final he was accusing that trial lawyer of perjury upon the post-conviction hearing. Procedurally it would have been a simple matter to move for a rehearing in that case at that time. The “motion for an injunction” was totally inappropriate and properly overruled, from which again there was no appeal. The complaints about what happened upon a prior post-conviction hearing do not rise to the level of constitutional rights violations in the conviction process. The root question of counsel competency at that time was previously determined and that determination allowed to become final.

Furthermore, the Post-Conviction Procedure Act is not constructed to allow a series of post-eonviction proceedings without excuse. Recor v. State, Tenn.Cr.App., 489 S.W.2d 64(1972).

Nevertheless, Foster was given another evidentiary hearing and his claims ventilated. The trial judge found, as had been determined previously, that trial counsel was competent; and further found that trial counsel had not perjured himself upon the prior hearing. The evidence does not preponderate against these findings.

The complaint that the trial judge erred in not making further findings of fact is without merit. Those matters are not related to constitutional rights deprivations in the conviction process, and did not need to be further addressed.

This petitioner has abused post-conviction procedures. He has had three hearings, at considerable expense to the State.

The dismissal of this petition is affirmed.

DWYER and O’BRIEN, JJ., concur.


author: GREEN, Commissioner. DOUGLAS, Judge

text:
    William S. TURRENTINE, Appellant, v. The STATE of Texas, Appellee.
    No. 51062.
    Court of Criminal Appeals of Texas.
    April 20, 1976.
    Rehearing Denied May 19, 1976.
    James P. Finstrom, Dallas (Court-appointed), for appellant.
    Henry Wade, Dist. Atty., Steve Wilensky and Hugh Lucas, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of possession of marihuana. See Art. 725b, V.A.P.C. Punishment, assessed under the provisions of Art. 4476-15, Sec. 4.05(b)(1), V.A.Tex.Civ.Stats. (Controlled Substances Act), is five years and a fine of $5,000.00.

The record reflects that on June 17, 1973, pursuant to a search warrant, Officers Montgomery, Johnson, and two others went to the residence of appellant and his wife in Dallas. The wife answered their knock, and upon being notified of the warrant, permitted them to enter. Appellant was found asleep in an upstairs bedroom. In searching the kitchen area, Officer Johnson found a paper sack containing 8.15 ounces of marihuana in the vegetable drawer of a refrigerator and a little black box containing .09 ounces of marihuana, a cigarette roller, some cigarette papers and a pair of scissors in the kitchen cabinet. Appellant and his wife were placed under arrest.

In his eighth ground of error, appellant contends that the prosecuting attorney committed reversible error during his closing argument to the jury at the guilt stage.

The record reflects the following proceedings during such argument:

“[Prosecutor]: Now, I don’t smoke marihuana and I assume you don’t either, and there’s no evidence about how much of the stuff it would take to make a marihuana cigarette, but you can call for it and look at it if you want it. I submit it’s a reasonable deduction from the evidence there’s enough marihuana to make a man and wife high and keep them high until the year 1990. I submit this is more marihuana than this man and wife ever intended for their own personal use, and it’s a reasonable deduction from the evidence the are not only smoking it but probably giving it away or selling it.
“MR. QUILLIN [Defense Counsel]: Your Honor, we object; this is completely outside the record.
“THE COURT: Counsel, he is allowed to make a deduction, the jury can determine—
“MR. QUILLIN: There’s no testimony they meant to do that, it’s a conclusion, Your Honor.
“THE COURT: Counsel, I’m going to overrule you, if he was making it a fact— counsel, state whether or not you are calling it a fact or a reasonable deduction from the evidence.
“MR. GAY [Prosecutor]: I believe I told the jury it’s a reasonable deduction from the evidence that State’s Exhibit No. 3 here is more than any person would ever conceive of using for their own personal use, and furthermore, ladies and gentlemen, there’s no indication here that lemons were put in here to keep it fresh. If you are worried about freshness, you wouldn’t have enough marihuana in your possession for a five or ten year consumption. You just don’t go out and buy enough stuff and worry about keeping it fresh—
“MR. QUILLIN: That is not offered as a deduction from the evidence; there has been no testimony about how much it takes to make a pack of cigarettes so he has no basis at arriving at any conclusion in that regard.
“THE COURT: The jury will decide whether or not his deduction is reasonable, counsel, overrule you.”

The record reflects that H. E. Forrester, a chemist placed on the stand by the State, testified that Exhibit 3, the substance found in a paper sack in the refrigerator, was marihuana weighing a total of 8.15 ounces, including leaf marihuana, matured stalks, and seeds, and Exhibit 4, found in the little black box in the kitchen cabinet, contained .09 ounces of marihuana. J. W. Johnson, an investigator with the Dallas Police Department Narcotics Division, testified that the sack of marihuana contained some lemon wedges when he found it at appellant’s apartment, used to keep the marihuana fresh.

The record contains no evidence that appellant or his wife were engaged in selling marihuana, or giving it away. Likewise, there is no evidence to indicate the length of time it would normally take to smoke this quantity of marihuana. We find nothing in appellant’s argument inviting the quoted remarks of the State.

The argument quoted above tended to greatly exaggerate the amount of marihuana found in appellant’s possession, and even though stated as a “reasonable deduction from the evidence,” the exaggeration as to quantity and the conclusion that “they are not only smoking it, but probably giving it away or selling it” were not justified by the evidence, and constituted error. See Rodriquez v. State, Tex.Cr.App., 520 S.W.2d 778; Thomas v. State, Tex.Cr.App., 527 S.W.2d 567; Smith v. State, Tex.Cr.App., 506 S.W.2d 602; Jackson v. State, Tex.Cr.App., 529 S.W.2d 544; White v. State, Tex.Cr.App., 492 S.W.2d 488; Berryhill v. State, Tex.Cr.App., 501 S.W.2d 86; Klueppel v. State, Tex.Cr.App., 505 S.W.2d 572; Alejandro v. State, Tex.Cr.App., 493 S.W.2d 230.

The quantity of the marihuana possessed was not an issue at the guilt stage, since the case was prosecuted under the provisions of Article 725b, V.A.P.C. This statute made the possession of marihuana a felony regardless of the amount possessed. The argument of the State above quoted could only have been made in an attempt to inflame the minds of the jurors in order to secure a favorable verdict.

The court erred to the prejudice of appellant in overruling appellant’s objections.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

DOUGLAS, Judge

(dissenting).

The majority reverses this conviction because the prosecutor argued that it was a reasonable deduction from the evidence that there was enough marihuana found on the premises to make a man and wife high until 1990, and that it was more than they ever intended for their own personal use and that they were probably giving it away or selling it. After an objection was made the trial judge stated, “The jury will decide whether or not this deduction is reasonable. .” The prosecutor did not make the statement as a fact.

Officers had found 8.15 ounces of marihuana in a paper sack and .09 ounces in a little black box. If the deduction by the prosecutor was unreasonable, the jury properly would have weighed this against the State and not for it.

No reversible error has been shown; the judgment should be affirmed.

GUPTON, J., joins in this dissent.


author: ODOM, Judge.

text:
    Kevin Hargis RICHARDSON, Appellant, v. The STATE of Texas, Appellee.
    No. 51386.
    Court of Criminal Appeals of Texas.
    April 20, 1976.
    Rehearing Denied May 19, 1976.
    Anthony Nicholas & Terrence McDonald, San Antonio, for appellant.
    Ted Butler, Dist. Atty., John William Harris, Jr., Sharon Macrae and Susan Spruce, Asst. Dist. Attys., San Antonio, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from a conviction for delivery of marihuana. Punishment was assessed at five years.

Appellant contends that the trial court erred in overruling his objection and admitting into evidence a police photograph or “mug shot” of him that was taken on October 22, 1973, or approximately five months before the instant offense was allegedly committed.

Appellant contends the photograph was inadmissible for two reasons. First, the contention that it was not relevant to any issue in the case is without merit. An issue was raised at trial as to the identification of appellant by the undercover police officer who testified against him. Appellant’s principal defense was an attack upon the description and in-court identification provided by the officer. The defense included the presentation of several witnesses who testified that appellant had never had shoulder length hair, contrary to the officer’s testimony.

One such witness was Judge Carolyn Spears. She testified that while in private practice she had occasion to provide legal representation for appellant, dating from October, 1973, to March, 1974, and he never had shoulder length hair during that period.

The State offered in rebuttal the photograph in question. To the extent that it showed appellant with shoulder length or near shoulder length hair and was taken during the time period in question, it was within the discretion of the trial court to admit it into evidence.

The second objection to the photograph is that it depicts a side and frontal view of appellant and upon his chest in the frontal view appears a sign containing the following notations:

“SAN ANTONIO PD

P7302316

10-22 73

7-15 AM”

The picture was first shown to the witness Spears. She stated that it accurately depicted appellant’s appearance in October of 1973. The State then proposed to show the photograph to the jury. Appellant objected and the jury was excused while the question of admissibility was discussed.

The trial judge first properly stated that “The issue has been made on what he looked like in ’73 and I think the photograph is admissible against him.” The judge also recognized, however, that “he is entitled to have the fact that the San Antonio Police Department took it taken off of it, and the fact that they had some kind of case taken off of it.” He then inquired of defense counsel as follows:

“THE COURT: What is your objection to it, specifically?
“MR. BEANLAND [defense attorney]: The objection is on the same grounds, that it is inadmissible to have this arrangement on his chest.
“THE COURT: Then I will take that off. That is what I propose to do.
“MR. BEANLAND: But, that does not cure the problem, unless we can at least sever these [side and frontal views].
“THE COURT: How are they going to establish the date it was taken? The little arrangement on the chest shows the date.
“MR. KENNEDY [an attorney]: Let Counsel bring in the photographer and prove it up. That is the normal way photographs are proved.
“THE COURT: Well, of course — Let me see it.
“MR. HARRIS [prosecutor]: I have proved that that is the way he looked in October of ’73, through the witness. And whether that sign is there or not, I don’t care.
“THE COURT: Well, the sign doesn’t say anything. She testified that is the way he looked in ’73. All right. The objection is overruled. The item is admitted in evidence.
“MR. BEANLAND: With that cut off the chest?
“THE COURT: No, sir; with that on there. There is no way that I can keep a mug-shot from looking like a mug-shot. I can cut them in two and trim it, but a mug-shot looks like a mug-shot. It doesn’t say anything on there and that is the way the police put the date on the front of the man when they take his picture. That is part of the picture. So, I don’t — I am willing to take off the fact that it shows that the police took the photograph of him.
“MR. BEANLAND: Okay.
“THE COURT: He has to be under arrest, and the logical conclusion is that he is under arrest when they take that picture. They don’t just grab everybody and take their picture. I am willing to cut that off of it because I think that is prejudicial. But, how do you establish the date of the photograph?
“MR. BEANLAND: I am not offering it in evidence.
“THE COURT: Well, then, your objection is overruled. It is admitted in evidence, in toto.
“MR. BEANLAND: We except to that.
“THE COURT: All right.”

The trial judge accurately stated the nature of the prejudice inherent in introduction of the unexcised photograph; it tended to show the commission of an extraneous offense and, therefore, to infringe appellant’s fundamental right to the presumption of innocence, totally without necessity or justification. No other witness testified at this stage of trial that appellant had ever committed or been accused of committing any offense other than that for which he was on trial. The unexcised photograph, however, tended to accomplish precisely that purpose and was therefore inflammatory and prejudicial.

In Huerta v. State, 390 S.W.2d 770, 772, this Court stated the reason why the introduction of a mug shot was not error in that case. “All identification marks were removed, and, as far as the jury were able to determine, it might have been taken in a penny arcade.”

In George v. State, Tex.Cr.App., 498 S.W.2d 202, and Harlan v. State, Tex.Cr.App., 416 S.W.2d 422, the judgments were affirmed because, among other reasons, proper objections were not made.

In the instant case, appellant properly objected and the trial court erred in overruling that objection.

The judgment is reversed and the cause remanded.


author: ONION, Presiding Judge.

text:
    Wilmer Lane EASTER, Appellant, v. The STATE of Texas, Appellee.
    No. 51359.
    Court of Criminal Appeals of Texas.
    April 28, 1976.
    Rehearing Denied May 19, 1976.

      Calvin A. Hartmann, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough and Andy Tobias, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This appeal arises out of a conviction for murder, wherein the jury assessed punishment at life imprisonment.

This appeal presents, among other things, the question of whether an accessory is still an accomplice witness so as to require corroboration of such witness’ testimony in light of the provisions of the 1974 Penal Code.

In his grounds of error appellant contends his wife was an accomplice witness as a matter of law and that the court erred in overruling his requested instruction to, at least, submit the fact issue to the jury whether his wife was an accomplice witness; that since she was an accomplice witness, her testimony was not corroborated as required by Article 38.14, Vernon’s Ann.C.C.P.; that the court erred in admitting at the penalty stage of the trial pen packets from Arkansas which were not properly exemplified and certified.

A brief review of the facts is necessary. The deceased, Kimberly Easter, was the ten month old daughter of the appellant. The evidence reflects a long history of abuse of the deceased by the appellant prior to her death on May 22, 1974.

Alice Easter, appellant’s wife, testified for the State that about 6 p. m. on May 21, 1974, while she and the appellant were watching television the deceased began to cry; that she went to the bedroom and changed diapers on the deceased and went to get the deceased her food, but when she returned the appellant was choking the deceased, holding her out from him; that the deceased was screaming and kicking; that the appellant then threw the deceased into the air and the deceased fell and hit her head on the floor. She also testified her efforts to get the appellant to leave the child alone were unsuccessful, and appellant ordered her from the room and she left because she was afraid of him. She later could hear him cursing. Sometime later the appellant rushed out of the bedroom with the deceased in his arms and went outside and laid her on the porch and began breathing in her mouth. Appellant then took the child to a neighbor’s house and left her. Appellant’s wife testified she ran to another neighbor’s house, where an ambulance was called.

The child was then taken to Ben Taub Hospital in Houston, where she died following surgery to remove a blood clot on her brain, which the medical examiner testified was the cause of death. At the hospital she related that she and the appellant both told the police the deceased had fallen out of a bed, but she did so only because the appellant was with her. The next day the police came to question them and “on the way down” she related the appellant told her to tell the police the deceased had fallen out of a bed.

In his attempt to show that his wife was an accomplice witness, appellant relies in part upon her testimony that in September, 1973, when the deceased was only a few weeks old the appellant had beaten the child and tried to force something between her legs, and that when the child was taken to the hospital his wife had stated to the doctor she didn’t know what happened. The record reflects that the injuries were inflicted when the wife was not in the room, and although the evidence shows she told the doctor she didn’t know what happened to the child, it also reflects she told the nurse what happened and the hospital records introduced into evidence so reflect. She further testified that she was told if she wished to press charges against her husband she would have to remain in Houston and it was her desire to go to her mother’s home in Arkansas, which she did. She did not return to Houston and the appellant until' the early part of 1974.

It would appear that the wife in fact reported the incident, but it is also true the mere fact that a witness denied knowledge of a crime does not make him or her an accomplice witness. Wade v. State, 367 S.W.2d 337 (Tex.Cr.App.1963). A witness is not deemed an accomplice witness because he or she knew of the crime but failed to disclose it or even concealed it. 24 Tex.Jur.2d, Evidence, Sec. 690, p. 312; Gausman v. State, 478 S.W.2d 458 (Tex.Cr.App.1972). Further, if a State’s witness has no complicity in the offense for which an accused is on trial, his or her testimony is not that of an accomplice witness whatever may have been his complicity with the accused in the commission of other offenses. Thompson v. State, 501 S.W.2d 109 (Tex.Cr.App.1973); Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972); cert. denied, 409 U.S. 866, 93 S.Ct. 160, 34 L.Ed.2d 114; McClanahan v. State, 394 S.W.2d 499 (Tex.Cr.App.1965).

Appellant also urges that his wife was present at the time of the offense in question on May 21,1974, had guilty knowledge of the offense and did not timely disclose it. The mere fact that the witness was present when the crime was committed does not compel the conclusion that she is an accomplice witness. Silba v. State, 275 S.W.2d 108 (Tex.Cr.App.1954); 24 Tex.Jur.2d, Evidence, Sec. 690, p. 312, and cases there cited. As stated in 16 Tex.Jur.2d, Criminal Law, Sec. 83, p. 202:

“The fact that a person who is present when a crime is committed fails to give an alarm, fails to inform on a person he knows to have committed a crime, or conceals his knowledge that a crime has been committed does not make him an accessory.”

See also Prine v. State, 509 S.W.2d 617 (Tex.Cr.App.1974); Curry v. State, 468 S.W.2d 455 (Tex.Cr.App.1971); Wade v. State, supra. Thus, appellant’s wife was not an accomplice witness for the reason urged above.

We are confronted, however, with appellant’s assertion that the testimony of his wife that she had given false information to the police officers at the hospital the night of the offense that the deceased had fallen off a bed was sufficient to constitute her an accessory (after the fact) and thus an accomplice witness.

It is true that it has been held that the giving of false information can be such an act as to render one an accessory. Prine v. State, supra; Gottschalk v. State, 157 Tex.Cr.R. 276, 248 S.W.2d 473 (1952); Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853 (1929). And this is so even if the person to whom the false information is given is not a peace officer if done for the purpose of aiding the principal to evade arrest or trial. McGoodwin v. State, 134 Tex.Cr.R. 231, 115 S.W.2d 634 (1938). Further, it is not essential that the aid rendered be of such character as will enable the offender to escape or to conceal himself. It is sufficient if the aid enables elusion of present arrest and prosecution. Blakeley v. State, 24 Tex.App. 616, 7 S.W. 233 (1888); Orr v. State, 124 Tex.Cr.R. 252, 61 S.W.2d 490 (1933); Parrish v. State, 134 Tex.Cr.R. 187, 114 S.W.2d 559 (1938); 16 Tex.Jur.2d, Criminal Law, Sec. 83, p. 202.

In McGoodwin v. State, supra, it was held that a wife who made a false statement to the owner concerning the whereabouts of a stolen calf, for the purpose of aiding her husband (a co-defendant) and the accused to evade arrest or trial, was an accomplice witness.

Though there were some early decisions under former Penal Codes which indicated the contrary, it was later recognized that if a person is coerced or acts under duress in giving false information the person is not an accessory and thus not an accomplice witness. Turner v. State, 117 Tex.Cr.R. 434, 37 S.W.2d 747 (1931); Jones v. State, 160 Tex.Cr.R. 479, 272 S.W.2d 368 (1954); Reynolds v. State, 489 S.W.2d 866 (Tex.Cr.App.1973). Where the issue of coercion, duress, fear, is raised, it is at most a fact issue for the jury.

In the instant case appellant’s wife testified she made false statements, but explained that the appellant was present at the time and she was afraid of him and so made the statement. It has been held that the conclusion that a witness’ testimony is not that of an accomplice witness is not compelled by the witness’ statement that he was without knowledge or that he was forced or coerced. Cozine v. State, 87 Tex.Cr.R. 92, 220 S.W. 102 (1920); Rivas v. State, 98 Tex.Cr.R. 316, 265 S.W. 583 (1924). And in Freeman v. State, 11 Tex.App. 92 (1881), it was held that if a State’s witness implicates himself, his statement that his participation was compulsory raises the issue of fact as to whether his testimony is or is not that of an accomplice witness.

It would appear that if the instant trial had been conducted prior to the effective date of the new Penal Code a serious question would have been raised by the failure of the trial court to heed the requested submission of the fact issue to the jury as to whether appellant’s wife was an accomplice witness. However, since this is a case tried under the Penal Code effective January 1, 1974, we must determine whether, even if appellant’s wife would have been an accessory under the former Code, an instruction on corroboration was necessary or even whether it was necessary for her testimony to be corroborated in light of the changes wrought by the new Penal Code.

Under former Penal Codes it was repeatedly held that an “accomplice witness” under Article 38.14, Vernon’s Ann.C.C.P., and its forerunners was a person who, either as a principal, accomplice (to the crime) or accessory (to the accused) was connected with the crime by unlawful act or omission on her part, transpiring either before, at the time of, or after the commission of the offense, whether or not he was present and participated in the crime. See Carnathan v. State, 478 S.W.2d 490 (Tex.Cr.App.1972), cert. denied, 409 U.S. 866, 93 S.Ct. 160, 34 L.Ed.2d 114; Johnson v. State, 502 S.W.2d 761 (Tex.Cr.App.1973); Brown v. State, 505 S.W.2d 850 (Tex.Cr.App.1974); Singletary v. State, 509 S.W.2d 572 (Tex.Cr.App.1974). See also Article 38.14, Vernon’s Ann.C.C.P., n. # 2, and cases there cited.

Under the former Penal Codes the terms “principal,” “accomplice” (to the crime) and “accessory” were also defined. See, e. g., Articles 65, 70 and 77, Vernon’s Ann.P.C., 1925. And it appears to be well settled that one is not an accomplice witness who cannot be prosecuted for the offense with which the accused is charged. See Burgess v. State, 88 Tex.Cr.R. 146, 225 S.W. 182 (1920); McQueen v. State, 119 Tex.Cr.R. 287, 47 S.W.2d 317 (1932); 24 Tex.Jur.2d, Evidence, Sec. 690, p. 311, and cases there cited. See also Stephenson v. United States, 211 F.2d 702, 14 Alaska 603 (9th Cir. 1954). See also State v. Bailey, 254 N.C. 380, 119 S.E.2d 165, 171 (1961); Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964); State v. Green, 60 Ariz. 63, 131 P.2d 411 (1942); 3 Wharton’s Criminal Evidence, 13 ed. (Torcia), Sec. 645, p. 342.

In Liegois v. State, 73 Tex.Cr.R. 142, 164 S.W. 382 (1914), this court held that the term “accomplice” signifies a guilty associate in crime, and is strictly defined as one who is associated with others in the commission of a crime; the test being whether the alleged accomplice witness could be indicted and punished for the crime for which the accused is being tried.

Stated another way, the court in State v. Spruill, 28 N.J.Super. 381, 100 A.2d 766, 770 (1953), said:

“One who could not be convicted of the crime with which the accused is charged is not an accomplice, regardless of how culpable his conduct may have been.”

As a result of this rule, it is the holding in most jurisdictions in this country that an accessory after the fact is not generally regarded as an accomplice witness. Texas and Arkansas appear to be the only states which have not reached this result. 23 C.J.S. Criminal Law § 792, p. 14; 14 Am. Jur. 1, Criminal Law, Sec. 112; Monts v. State, 214 Tenn. 171, 379 S.W.2d 34 (1964), and cases there cited.

Under the former Penal Codes of this State an accessory was an accomplice witness within the purview of the procedural statute requiring corroboration. McGoodwin v. State, 134 Tex.Cr.R. 231, 115 S.W.2d 634 (1938); Barr v. State, 131 Tex.Cr.R. 369, 98 S.W.2d 811 (1936); Compton v. State, 130 Tex.Cr.R. 14, 90 S.W.2d 1093 (1936); Orr v. State, 124 Tex.Cr.R. 252, 61 S.W.2d 490 (1933); Littles v. State, 111 Tex.Cr.R. 500, 14 S.W.2d 853 (1929); Harrell v. State, 107 Tex.Cr.R. 8, 294 S.W. 597 (1927); Newborn v. State, 106 Tex.Cr.R. 354, 292 S.W. 247 (1927); Howard v. State, 92 Tex.Cr.R. 221, 242 S.W. 739 (1922). See also Prine v. State, 509 S.W.2d 617 (Tex.Cr.App.1974); Hernandez v. State, 169 Tex.Cr.R. 418, 334 S.W.2d 299 (1960); Martin v. State, 149 Tex.Cr.R. 226, 193 S.W.2d 219 (1946); Turner v. State, 117 Tex.Cr.R. 434, 37 S.W.2d 747 (1931). Under the former Penal Code an accessory was defined in Article 77, Vernon’s Ann.P.C., 1925, and the penalty provided was the lowest penalty for which the principal would be liable. See former Article 79, Vernon’s Ann.P.C., 1925. Although there was a provision (Article 78, Vernon’s Ann.P.C., 1925) that the husband or wife of an offender, his brothers and sisters and other kin and his domestic servants could not be accessories, it was held that a witness for the State who is an accessory is an accomplice witness even though because of kinship such witness could not be prosecuted as an accessory by virtue of said Article 78. Turner v. State, supra; Jones v. State, 160 Tex.Cr.R. 479, 272 S.W.2d 368 (1954); Gonzales v. State, 441 S.W.2d 539 (Tex.Cr.App.1969) (footnote # 1); Reyn olds v. State, 489 S.W.2d 866, 871 (Tex.Cr.App.1972).

The 1974 Penal Code made some notable changes with regard to parties to a crime. The distinction between a principal and an accomplice (to the crime) was abolished and an accessory has been eliminated as a party to a crime and replaced with V.T.C.A. Penal Code, Sec. 38.05, defining the separate and distinct crime of “hindering apprehension or prosecution.”

The changes are best explained by the Practice Commentaries to V.T.C.A. Penal Code, Secs. 7.01 and 38.05. The commentary to said Sec. 7.01 reads in part as follows:

“This section abolishes the distinction between ‘principals’ and ‘accomplices.’ The reason for the distinction at common law was probably to mitigate the extraordinary severity of penalties with respect to nonperpetrating parties to crime. However, the distinction proved elusive and was abolished in England in 1848 and has been repeatedly criticized in Texas, see Carlisle v. State, 31 Tex.Cr.R. 537, 21 S.W. 358 (1893); McClelland v. State, 373 S.W.2d 674 (Tex.Cr.App.1963). Since Penal Code art. 72 provided the same punishment for principals and accomplices in most cases, the distinction was virtually without significance and created unnecessary burdens of pleading and proof for the prosecution.
“This code does not employ the terms ‘principal’ or ‘accomplice;’ rather, Section 7.01 provides that one may be charged as a party to the commission of an offense if he is criminally responsible for the conduct of another who perpetrates the offense. Section 7.02 then provides the standards for determining this vicarious responsibility.
“It should be noted that ‘accessories’ are not included as parties. Accessorial criminal conduct is considered interference with the administration of justice and dealt with as a separate offense in Section 38.05 (hindering apprehension or prosecution).”

The Practice Commentary to said Section 38.05 reads as follows:

“This section replaces the prior Penal Code provisions relating to accessories, arts. 77 to 79, 81. The new offense is defined in terms of hindering public law enforcement; this approach avoids the complications that arise from the use of a complicity theory. For example, this section omits the requirement that the offender know a crime has been committed or that the purported offender is guilty of the crime, see Jones v. State, 137 Tex.Cr.R. 146, 128 S.W.2d 803 (1939). Instead, the section requires an intent to hinder apprehension, prosecution, conviction, or punishment. Furthermore, the prosecution or conviction is not dependent upon the prosecution or conviction of the person aided, as required by prior art. 81, see Moore v. State, 40 Tex.Cr.R. 389, 51 S.W. 1108 (1899).
“Hindering is graded a Class A misdemeanor. Prior law prescribed the lowest penalty to which the principal would be liable, Penal Code art. 79.
“This section omits the prior law’s exemption for relatives and servants, following the Model Penal Code’s suggestion to leave this factor to prosecutorial discretion or for consideration in sentencing.”

It clearly follows from what has been said that an accessory is no longer recognized in Texas as a party to the crime with which the accused is charged and cannot be convicted of tbe same. If chargeable at all, it would appear to be under said Section 38.05, which creates a separate and distinct offense. Under the general rule expressed earlier, such an individual could not be an accomplice witness whose testimony is required to be corroborated by Article 38.14, Vernon’s Ann.C.C.P.

In Monts v. State, 214 Tenn. 171, 379 S.W.2d 34, 43 (1964), the Tennessee court wrote:

“In Tennessee, an accessory after the fact is not subject to indictment for the offense committed by his principal; but rather he is guilty of a separate and distinct offense defined in § 39-112, T.C.A. Thus under the generally accepted test, an accessory after the fact could not be considered as an accomplice within the rule requiring that the testimony of an accomplice be corroborated. This appears to be the result reached in all the States that have passed on this question with the exception of Arkansas and Texas.”

The result reached in the instant case is reinforced when the changes made by the provisions of V.T.C.A. Penal Code, Sec. 38.-05, are considered. Unlike the former law of accessories, there is no requirement under said Section 38.05 that the offender know a crime has been committed or that the purported offender is guilty of the crime, and a prosecution under said section is not dependent upon the prosecution or conviction of the person aided.

We are not unaware of the cases earlier mentioned and decided under former codes that because of kinship certain individuals by statute were exempt from prosecution as accessories but nevertheless could still be accomplice witnesses. Whatever the validity of those cases, we conclude they are no longer viable in light of the changes made by the new Penal Code.

Thus, we hold that the court did not err in refusing the requested jury instruction, and further for the same reason we need not consider the ground of error that the testimony of appellant’s wife needed to be corroborated. Appellant’s wife was not an accomplice witness.

We do not pass upon the question of how the provisions of V.T.C.A. Penal Code, Sec. 7.01 (Parties to Offenses), which abolishes the distinction between principals and accomplices to the crime, affect the accomplice witness evidentiary rule prescribed by Article 38.14, Vernon’s Ann.C.C.P. We do not conclude that the facts of this case bring that question into play.

Lastly, appellant complains of the introduction at the penalty stage of the trial of certain penitentiary papers from Arkansas on the ground they were not properly certified and exemplified. The papers were accompanied by an attestation from A. L. Lockhart, the Superintendent of the Arkansas Department of Corrections, that the papers were correct copies of the records in his legal custody. There was also a certificate from Kelly Bryant, Secretary of State of Arkansas, certifying that A. L. Lockhart was Superintendent of the said Department of Corrections and had legal custody of the records thereof. Said certification bears the State seal of Arkansas. It clearly appears that the papers were admissible under the provisions of Article 3731a, Sec. 4, Vernon’s Ann.C.S., in effect at the time of trial in October, 1974.

The judgment is affirmed.

      . Sometimes the term “accessory” is referred to as accessory after the fact or accessory to the accused.

      . There was no requested instruction that the jury be charged appellant’s wife was an accomplice witness as a matter of law.

      . Howard v. State, 92 Tex.Cr.R. 221, 242 S.W. 739 (1922); Davis v. State, 2 Tex.App. 588 (1877).

      . Care should be taken to distinguish between the former offense of being an accomplice to the crime and being an accomplice witness. The latter is a much broader meaning. Too frequently opinions simply use the term “accomplice” without distinguishing whether the term, applies to a witness or to the offense charged.

      . Article 77, supra, provides:
      “An accessory is one who, knowing that an offense has been committed, conceals the offender, or gives him any other aid in order that he may evade an arrest or trial or the execution of his sentence. One who aids an offender in making or preparing his defense at law, or procures him to be bailed though he afterwards escape[s], is not an accessory.”

      . Section 38.05 provides:
      “(a) A person commits an offense if, with intent to hinder the arrest, prosecution, conviction, or punishment of another for an offense, he:
      “(1) harbors or conceals the other;
      “(2) provides or aids in providing the other with any means of avoiding arrest or effecting escape; or
      “(3) warns the other of impending discovery or apprehension.
      “(b) It is a defense to prosecution under Subsection (a)(3) of this section that the warning was given in connection with an effort to bring another into compliance, with the law.
      “(c) An offense under this section is a Class A misdemeanor.”

      . We observe, and observe only, that the Practice Commentary to said Section 7.01 concludes that nothing in subchapter A of Chapter 7 affects the accomplice witness rule. The case cited in the Commentary-Willingham v. State, 33 Tex. Cr.R. 98, 25 S.W. 424 (1894), does not appear to support the proposition for which it is cited, but the contrary. The writers may well have meant to cite Wandell v. State, 25 S.W. 27, Tex.Cr.App. (1894), which was decided ten days earlier, both opinions written by the same judge. Nevertheless, it is well established that in a prosecution for abortion the victim is not ordinarily an accomplice witness, although she consented to the procuring of abortion, and hence failure of a trial court to instruct on accomplice testimony is not error. Bristow v. State, 128 S.W.2d 818 (Tex.Cr.App.1939); Hammett v. State, 84 Tex.Cr.R. 635, 209 S.W. 661 (1919); Navarro v. State, 24 Tex.App. 378, 6 S.W. 542 (1887); 1 Tex.Jur.2d, Abortion, Secs. 3, 28 and 40, and cases there cited. Cf. Crissman v. State, 93 Tex.Cr.R. 15, 245 S.W. 438 (1922).


author: DOUGLAS, Judge.

text:
    Ex parte Virgil Nelson HALFORD.
    No. 51251.
    Court of Criminal Appeals of Texas.
    May 4, 1976.
    John B. Guinn and Mark S. Knapp, Cop-peras Cove, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is a post conviction habeas corpus proceeding under Article 11.07, V.A.C.C.P. Petitioner seeks relief from his conviction of rape on November 22, 1963. He contends that the trial court failed to conduct a hearing on his competency to stand trial as required by Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. He also contends that the sheriff who attended the jury was a material witness for the State and that this has been condemned by the Supreme Court of the United States in Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424. Appellant was indicted for the offense in Palo Pinto County. Venue was changed to Wichita County and later to Coryell County where he was convicted.

Petitioner was convicted approximately three years before Pate was decided by the Supreme Court. The law in Texas at the time of the trial was followed. If Pate v. Robinson is retroactive the issue must be met. In Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975), the Supreme Court of the United States, in discussing Pate v. Robinson, wrote:

“ . . .we held that the failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”

The Supreme Court of the United States has given retroactive effect to decisions which implement “the fundamental notions of fairness embodied within the concept of due process.” See Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In the following cases, the holding of Pate v. Robinson has been applied to convictions occurring before 1966 without discussing the retroactivity issue: Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967), en banc, cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246; Jackson v. Caldwell, 461 F.2d 682 (5th Cir. 1972); Bruce v. Estelle, 483 F.2d 1031 (5th Cir. 1973); Brinks v. State of Alabama, 465 F.2d 446 (5th Cir. 1972); Daugherty v. Beto, 388 F.2d 810 (5th Cir. 1967), cert. denied, 393 U.S. 986, 89 S.Ct. 461, 21 L.Ed.2d 447; Carroll v. Beto, 421 F.2d 1065 (5th Cir. 1970); Wilson v. Wainwright, 445 F.2d 837 (5th Cir. 1971); Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974).

In Williams v. United States, 401 U.S. 646, 91 S.Ct. 1148, 28 L.Ed.2d 388 (1971), the Supreme Court wrote:

“Where the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect. Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances.”

See also Ivan v. City of New York, 407 U.S. 203, 92 S.Ct. 1951, 32 L.Ed.2d 659 (1972).

Under the holding of Pate v. Robinson, the lack of a hearing on competency to stand trial affects the fact-finding process. Texas law prior to Pate did not require the trial court to conduct a hearing on a defendant’s competency in the absence of a timely request for such a hearing. Chapman v. State, 136 Tex.Cr.R. 285, 124 S.W.2d 112 (1938), reh. denied, 136 Tex.Cr.R. 285, 124 S.W.2d 996. See also Castello v. State, 373 S.W.2d 754 (Tex.Cr.App.1964). Pate held that the trial court should conduct a sanity hearing whenever “the evidence raises a ‘bona fide doubt’ as to [the] defendant’s competence to stand trial.” See also Townsend v. State, 427 S.W.2d 55 (Tex.Cr.App.1968); Ainsworth v. State, 493 S.W.2d 517 (Tex.Cr.App.1973). Thus, the issue presented is whether there was sufficient evidence before the trial court in 1963 to raise a bona fide doubt as to petitioner’s competence to stand trial.

Mrs. B. S. Halford, petitioner’s mother, testified at appellant’s trial that petitioner had a long history of mental illness and irrational behavior. She testified that petitioner was kicked in the head by a horse when he was eleven months old. She related that she noticed changes in his behavior after that accident. He fell off a horse and sustained head injuries when he was eight years old and the injury also affected petitioner’s personality. Petitioner experienced “black-out spells” at the age of fifteen and was often disoriented. Mrs. Halford described petitioner’s irrational behavior as a child which included “jumping up and falling on his face” and “covering up with a blanket in the summer, crying with pain.” Petitioner was committed to the Beverly Hills Sanitorium in Dallas in 1954 for two weeks. Later, after he was convicted of rape, he was assigned to the psychiatric mental treatment unit at Huntsville. After release from prison on a prior conviction, petitioner was committed to the state mental hospital in Wichita Falls. Petitioner’s mother and his two sisters testified that during his trial in 1963 petitioner did not understand the proceedings and that he appeared to be in a “stupor” when they visited him in jail.

Two psychiatrists and one medical doctor testified at petitioner’s trial. Dr. Charles Brown and Dr. Oscar Yerro who were members of the staff at the Wichita Falls Medical Hospital at the time of petitioner’s trial testified that petitioner was a “sociopathic personality.” The doctors related that a personality disorder creates a basic lack of conscience in the individual. Each doctor also testified that petitioner had serious personality disorders but that he was legally sane under the M’Naughten test of sanity. Dr. R. H. Smith, county health officer of Palo Pinto County, testified that petitioner was legally sane but that he had “a mental disease or derangement which he classified generally in the same area of sociopathic personality.”

Dr. Yerro testified that appellant was able to “aid counsel in the trial of his case.” None of the other doctors were questioned about petitioner’s competency to stand trial. Jack Prescott, one of petitioner’s court-appointed attorneys, testified that he considered his ability to communicate with petitioner “adequate.” Wendy Cummings, the sheriff of Coryell County at the time of petitioner’s trial, testified that he was able to communicate with appellant while he was in jail and that petitioner was a cooperative prisoner. The trial court charged the jury on the issue of sanity at the time of the offense and sanity at the time of the trial.

In Drope v. Missouri, supra, the Supreme Court identified the factors which are relevant to a determination of competency to stand trial:

“The import of our decision in Pate v. Robinson is that evidence of a defendant’s irrational behavior, his demeanor at trial, and any prior medical opinion on competence to stand trial are all relevant in determining whether further inquiry is required, but that even one of these factors standing alone may, in some circumstances, be sufficient. There are, of course, no fixed or immutable signs which invariably indicate the need for further inquiry to determine fitness to proceed; the question is often a difficult one in which a wide range of manifestations and subtle nuances are implicated. That they are difficult to evaluate is suggested by the varying opinions trained psychiatrists can entertain on the same facts.”

Defense counsel did not directly raise the question of petitioner’s competence to stand trial. However, the defense was that of insanity at the time of the offense. We hold that the court conducting the habeas corpus hearing had sufficient evidence to conclude that there was raised a bona fide doubt about petitioner’s competency to stand trial.

The contention that the sheriff acted as the jury bailiff during the trial and was a witness against petitioner violates due process will be discussed. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424, is relied upon. In that case an officer and jury bailiff was a key witness for the prosecution. The Supreme Court of the United States overturned Turner’s conviction because the due process clause of the Fourteenth Amendment was violated. Turner v. Louisiana is retroactive. Gonzales v. Beto, 405 U.S. 1052, 92 S.Ct. 1503, 31 L.Ed.2d 787, footnote 4. In the Gonzales case, the sheriff was a key prosecution witness and he was also bailiff during the trial. The Supreme Court of the United States set aside that conviction.

In the present case Sheriff Cummings was bailiff. He associated with the jury for five days. Insanity was the defense. Cummings testified that petitioner appeared to him to be sane at the time of the trial. He was also a witness on the issue of competency to stand trial which was submitted to the jury. The hearing judge had sufficient evidence to conclude that Turner v. Louisiana is applicable (even though this case was tried before Turner and the question was not raised during the trial).

The relief sought is granted on both grounds. Petitioner is ordered returned to the custody of the Sheriff of Coryell County to answer to the indictment.

ROBERTS, J., not participating.

      . The court reporter at petitioner’s trial testified at the evidentiary hearing on petitioner’s application for habeas corpus that the transcript of the trial’s testimony had been destroyed. Thus, the trial court’s findings of fact and conclusions of law on petitioner’s application for habeas corpus were based upon the testimony at the evidentiary hearing of participants and witnesses at appellant’s trial in 1963. There was no appeal from the conviction. The hearing court noted that counsel for the defense were no doubt pleased with the verdict of life instead of death and did not desire to appeal.


author: DAVIS, Commissioner.

text:
    Eloy OCHOA, Appellant, v. The STATE of Texas, Appellee.
    No. 52019.
    Court of Criminal Appeals of Texas.
    May 4, 1976.
    Patrick A. Abeyta, Lubbock, for appellant.
    John R. Hollums, Dist. Atty., Floydada, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

This is an attempted appeal from an order revoking probation wherein appellant stands convicted of the primary offense of burglary of a building. The punishment is imprisonment for three years. We have concluded that we lack jurisdiction and dismiss the appeal.

The record reflects that probation was revoked and sentence was pronounced on September 8, 1975. An original motion for new trial was filed on September 17, 1975, and the motion was amended on October 6, 1975. See Art. 40.05, Vernon’s Ann.C.C.P. These motions were overruled on October 24, 1975, and notice of appeal was given the same date.

We have observed that, since a probation revocation proceeding is tried before the court without the intervention of a jury, no rule requires the trial court to consider a motion for new trial. See Munoz v. State, 155 Tex.Cr.R. 223, 233 S.W.2d 494 (1950). In Taylor v. State, 172 Tex.Cr.R. 45, 353 S.W.2d 422 (1962), we noted that a trial judge was not without authority to grant leave to file a motion for new trial or to grant it, but it was not held that the court must consider the motion and the case was decided on other grounds. In Ausborne v. State, 499 S.W.2d 179 (Tex.Cr.App.1973), we stated that the proper remedy for challenging a probation revocation order is to give notice of appeal to this Court. Such notice must be given or filed within ten days after pronouncement of sentence. See Art. 44.08(c), Vernon’s Ann.C.C.P.

If a trial court grants leave to file a motion for new trial or to amend an original motion for new trial after probation is revoked, sentence should not be pronounced until after the motion has been overruled by action of the court or by operation of law. If such leave is granted after imposition of sentence, the sentence should be set aside and sentence repronounced after the motion is overruled by the court or by operation of law.

In the instant case notice of appeal was' not given within ten days after the pronouncement of sentence on September 8, 1975, nor was such sentence set aside and repronounced after the motion for new trial was overruled. For either reason the appeal must be dismissed.

Nevertheless, we note that under Art. 44.08(e), Vernon’s Ann.C.C.P., the trial court may permit the giving of notice of appeal after the expiration of the ten days mentioned in Art. 44.08(c), supra, on a showing of good cause. If good cause is shown, the trial court may permit notice of appeal to be given, allowing the appeal to proceed under Art. 40.09, Vernon’s Ann. C.C.P. In such event, the allegations as to good cause and the evidence thereon should be shown in the record to enable this Court to properly review the same.

The appeal is dismissed.

Opinion approved by the Court.

      . The times provided by such statute may be waived by the parties. See Savant v. State, 535 S.W.2d 190 (Tex.Cr.App., 1976), footnote # 5.

      . For a list of cases dealing with “good cause” see McIntosh v. State, 534 S.W.2d 143 (Tex.Cr.App.1976), footnote # 2.


author: RALEIGH BROWN, Justice.

text:
    James T. BOHART, Appellant, v. FIRST NATIONAL BANK IN DALLAS, Appellee.
    No. 4888.
    Court of Civil Appeals of Texas, Eastland.
    March 11, 1976.
    Rehearing Denied April 8, 1976.

      Tom James, Dallas, for appellant.
    Bruce W. Claycombe, Dallas, for appellee.
   RALEIGH BROWN, Justice.

This is a suit on a promissory note executed by James T. Bohart and his now deceased wife, Jean P. Bohart, payable to First National Bank in Dallas. Following the death of Jean Bohart and default on the note, the bank sold certain stocks and bonds pledged to secure the indebtedness evidenced by the note, and thereafter sued James Bohart and the estate of Jean Bo-hart to recover the remaining indebtedness and to judicially foreclose on other pledged stocks and bonds.

James Bohart and the independent executor of the Estate of Jean Bohart filed pleas in abatement seeking to abate the suit by authority of Section 147, Texas Probate Code. James Bohart filed a counterclaim against the bank. First National Bank responded to the pleas in abatement and filed a motion for summary judgment against both defendants. The plea in abatement as to the independent executor was sustained, but as to James Bohart was denied. The bank was granted an interlocutory summary judgment against James Bohart.

First National Bank’s motions for severance of its claim against James Bohart from Bohart’s counterclaim against the bank and for severance of the bank’s claim against James Bohart from the bank’s claim against the independent executor were granted. Summary judgment was then entered against James Bohart for the indebtedness, interest, attorney’s fees and also the judgment ordered foreclosure of stocks pledged to the bank by James Bohart to secure his indebtedness. James Bohart appeals.

Bohart argues the trial court erred in granting First National Bank’s motion for severance as to his counterclaim. We agree.

The counterclaim seeks damages for the wrongful liquidation of securities pledged as collateral for the note sued on by the Bank. Such a counterclaim meets the provisions of Rule 97(a), T.R.C.P., which states:

“Compulsory Counterclaims. A pleading shall state as a counterclaim any claim within the jurisdiction of the court, not the subject of a pending action, which at the time of filing the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.”

See also McDonald, Texas Civil Practice, Vol. 2, § 7.49.

The trial court abused its discretion in severing the Bank’s claim from Bohart’s compulsory counterclaim arising out of and turning upon the same facts. Spangler v. Hickey, 401 S.W.2d 721 (Tex.Civ.App.-Tyler 1966, no writ); Bolding v. Chapman, 394 S.W.2d 862 (Tex.Civ.App.-Austin 1965, writ ref. n. r. e.); Connell v. Spires, 264 S.W.2d 458 (Tex.Civ.App.-Eastland 1954, no writ); Ulmer v. Mackey, 242 S.W.2d 679 (Tex.Civ.App.-Fort Worth 1951, writ ref. n. r. e.); McDonald, Texas Civil Practice, Vol. 3, § 10.25.

The instant case is distinguishable from a line of cases that support the proposition that a claim for wrongful attachment or wrongful sequestration is not a compulsory counterclaim. Capetillo v. Burress & Rogers, 203 S.W.2d 953 (Tex.Civ.App.-Galveston 1947, writ ref. n. r. e.); Fisher v. Howard, 389 S.W.2d 482 (Tex.Civ.App.-Dallas 1965, no writ); Security State Bank and Trust v. Craighead, 440 S.W.2d 701 (Tex.Civ.App.-San Antonio 1969, writ ref. n. r. e.). The court in Capetillo v. Burress & Rogers, supra, stated:

“A wrongful sequestration is in the nature of an abuse of process of court procured by a party to a suit. It does not arise out of a transaction or occurrence which is being litigated, but arises out of the wrongful act of a party to the litigation in seeking to enforce rights arising out of the transaction or occurrence which is the subject matter of his suit. We must therefore hold that Rule 97(a) is not applicable.”

In the instant case, the liquidation of the pledged securities arises out of the transaction which is being litigated between the parties. It is within the jurisdiction of the court and does not require for its adjudication the presence of third parties. Rule 97(a), T.R.C.P., is applicable and the trial court erred in severing Bohart’s counterclaim against the Bank from the Bank’s claim against Bohart.

This holding makes it unnecessary to consider the other points of error, the judgment is reversed and the cause remanded.

ON MOTION FOR REHEARING

We hold the compulsory counterclaim of Bohart and the Bank’s claim involve identical facts, issues, and subject matter, and are so interwoven a severance would occasion unnecessary litigation and a multiplicity of suits. As stated in 3 McDonald, Texas Civil Practice § 10.25 (1970):

“. . . The trial court should not sever the plaintiff’s claim from the defendant’s compulsory counterclaim, or a cross-claim between defendants, arising out of and turning upon the same facts . .”

The granting of the severance was an abuse of discretion. Bates v. First National Bank of Waco, 502 S.W.2d 181 (Tex.Civ.App.-Waco 1973, no writ).

We can find nothing in the record to cause us to change the judgment heretofore entered. The motion for rehearing is overruled.