author: DUNCAN, Judge.

text:
    Aaron ARMES, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    May 26, 1976.
    Certiorari Denied by Supreme Court July 26, 1976.

      George H. Buxton, III, Oak Ridge, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, Robert T. Beaty, Asst. Dist. Atty. Gen., Oneida, for defendant-in-error.
   DUNCAN, Judge.

OPINION

The defendant, Aaron Armes, brings this appeal contesting his conviction for murder in the second degree, for which offense he received a penitentiary sentence of 30 years.

In his first complaint, the defendant argues that the court erred in allowing certain statements made by him to a deputy sheriff to be admitted into evidence.

Officer John Seiber testified that while he was transporting the defendant from the scene of the shooting to the jail, the defendant volunteered a statement to him, the officer’s testimony in this regard being as follows:

“Yes, sir, he made the statement that he killed her over something that he had nothing to do with, and then in a moment or two, he made another, or asked the question, rather, asked if, in my opinion, that he could get off on the grounds of temporary insanity.”

The defendant objected to the introduction of this testimony on the grounds that the statement constituted a form of “plea bargaining.” The trial court denied his motion to suppress this testimony and held it to be admissible. We are of the opinion that the trial court was correct in its ruling.

Without discussing the technical aspects of “plea bargaining” and the proper persons who can engage in such activity, we categorically state that a mere inquiry from a defendant to a deputy sheriff about the feasibility of a possible defense to a homicide does not rise to the level of “plea bargaining.”

In his brief, the defendant cites Moulder v. State, 289 N.E.2d 522, 525-27 (Ind.App.1972), where the Court said:

“The majority of our courts now follow the rule that communications relating to plea bargaining in criminal prosecutions are privileged and are not admissible in evidence.”

However, the Moulder opinion further states:

“The character of the communication is the test to be applied. The communication must have as its ultimate purpose the reduction of punishment or other favorable treatment from the State to the defendant.”

in the present case, the defendant’s statement to the deputy sheriff contained no offer to plead guilty, nor did he seek any favorable consideration from the deputy sheriff. Clearly, the defendant’s statements did not have as their ultimate purpose the reduction of punishment or other favorable treatment from the State. We find no merit to the complaint made and overrule the assignment.

Next, the defendant complains of the following portion of the trial judge’s charge to the jury:

“The use of a deadly weapon by the party killing, when shown, raises a presumption of malice sufficient to sustain a charge of second degree murder unless it is rebutted by other facts and circumstances.”

The defendant insists that this language in the jury charge denied him constitutional due process, and he relies upon the authority of In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). In our opinion, the quoted instruction, when considered in the context of other pertinent instructions given by the court, or even considered by itself, does not run afoul of the United States Supreme Court’s holdings in these cases.

After charging the jury on the offense of murder in the first degree, the trial judge then instructed the jury regarding the offenses of murder in the second degree, voluntary manslaughter, and involuntary manslaughter, meticulously setting forth the elements of each of these offenses. The charge clearly instructed the jury that before they could convict the defendant of any one of these offenses, the State had the burden of proving beyond a reasonable doubt all of the elements of such offense.

In re Winship, supra, held that the “Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” Criminal prosecutions in Tennessee have always been conducted in accordance with this rule. We find nothing in the court’s charge in the present case that is contrary to this basic proposition.

In Mullaney v. Wilbur, supra, the United States Supreme Court considered the effect of presumptions in murder cases as they related to the ultimate burden of proof. Mullaney involved a state of Maine rule that required a defendant charged with murder to prove that he acted in the heat of passion on sudden provocation in order to reduce the homicide to manslaughter.

In Mullaney, the trial court instructed the jury that Maine law recognized only two kinds of homicide, murder and manslaughter; that malice aforethought was an essential element of the crime of murder, without which the homicide would be manslaughter; that if the prosecution established that the homicide was intentional and unlawful, malice aforethought would be conclusively implied unless the defendant proved by a fair preponderance of the evidence that he acted in the heat of passion on sudden provocation; and that malice aforethought and heat of passion on sudden provocation were inconsistent things and that by proving the latter the defendant would negate the former and reduce the homicide from murder to manslaughter.

The United States Supreme Court held that this Maine rule did not comport with the requirement of the due process clause of the fourteenth amendment that the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime charged, citing In re Winship, supra. The Court concluded by specifically saying:

“We therefore hold that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.”

A close reading of Mullaney and the footnotes to it indicate that legal presumptions in favor of the State are forbidden only in very limited situations. As we interpret Mullaney, it only addresses the issue of the erroneous use of presumptions where the effect is to shift the burden of proof from the State to the defendant. Mullaney sanctions the use of presumptions so long as they satisfy certain due process requirements and do not remove the State’s burden to prove each element of the offense beyond a reasonable doubt. Mullaney further approves the legal principle that a defendant may be required to produce “some evidence” contesting the otherwise presumed or inferred fact; that is, that he satisfy the production burden but not the ultimate burden of persuasion. Mullaney v. Wilbur, supra, 95 S.Ct. nn. 20, 28, 31, at 1888, 1891-92.

In Mullaney, the Court recognized that many states require a defendant to show some evidence indicating that he acted in the heat of passion before requiring the prosecution to negate this element by proving beyond a reasonable doubt the absence of any passion. The Court found no fault with this proposition, stating, “Nothing in this opinion is intended to affect that requirement.” Mullaney, supra, 95 S.Ct. n. 28, at 1891.

Even though Mullaney would sanction it, the instructions in the present ease did not require the defendant to negate malice, nor did they place on him the burden of going forward with “some evidence.”

The “presumption” used in the present case is similar to the constitutionally permissible “presumptions” which have been approved by the United States Supreme Court. United States v. Gainey, 380 U.S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965); Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973).

In United States v. Gainey, supra, the Court held constitutionally permissible an inference of guilty knowledge from the defendant’s presence at an illegal still, stating that there was a rational connection between the facts proved and the ultimate fact presumed. In Barnes v. United States, supra, the trial judge instructed the jury that the unexplained possession of recently stolen property would justify an inference that the defendant possessed it with the knowledge that it was stolen. In holding this inference was constitutionally permissible, the Court said, 93 S.Ct. at 2362-63:

“The evidence established that petitioner possessed recently stolen Treasury checks payable to persons he did not know, and it provided no plausible explanation for such possession consistent with innocence. On the basis of this evidence alone common sense and experience tell us that petitioner must have known or been aware of the high probability that the checks were stolen. Cf. Turner v. United States, 396 U.S. [398], at 417, 90 S.Ct. [642], at 652 [24 L.Ed.2d 610]; Leary v. United States, 395 U.S. [6], at 46, 89 S.Ct. [1532], at 1553 [23 L.Ed.2d 57], Such evidence was clearly sufficient to enable the jury to find beyond a reasonable doubt that petitioner knew the checks were stolen. Since the inference thus satisfies the reasonable doubt standard, the most stringent standard the Court has applied in judging permissive criminal law inferences, we conclude that it satisfies the requirements of due process.”

As explained by the United States Supreme Court in Mullaney, such inferences or presumptions, as were involved in Gainey and Barnes, do nothing more than shift the production of proof burden to the defendant. This is constitutionally permissible where the presumed or inferred fact satisfies due process requirements. Mullaney, supra, 95 S.Ct. n. 31, at 1891-92. Also, see generally, McCormick, on Evidence, § 346 (2d ed., 1972).

In the Barnes case, 93 S.Ct. n. 11, at 2363, our attention is called to the proposition that the burden of going forward may not be freely shifted to the defendant, citing Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed.2d 1519 (1943) and Leary v. United States, 395 U.S. 6, 44-45, 89 S.Ct. 1532, 1552, 23 L.Ed.2d 57 (1969), but then the Barnes Court went on to state:

“Tot held, however, that where there is a ‘rational connection’ between the facts proved and the fact presumed or inferred, it is permissible to shift the burden of going forward to the defendant. Where an inference satisfies the reasonable-doubt standard, as in the present case, there will certainly be a rational connection between the fact presumed or inferred (in this case, knowledge) and the facts the Government must prove in order to shift the burden of going forward (possession of recently stolen property).”

Certainly, in the present case, there is a rational and logical connection between the facts proved, i. e., an intentional killing by the use of a deadly weapon without any justification, and the fact presumed or inferred, i. e., malice.

In Tennessee, the rule has long been followed that, “All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. And, if a weapon is handled in a manner so as to make the killing a natural and probable result of such conduct, malice will be presumed from the use of the weapon.” Everett v. State, 528 S.W.2d 25 (Tenn.1975); Sikes v. State, 524 S.W.2d 483 (Tenn.1975); Gann v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964); Morelock v. State, 3 Tenn.Cr.App. 292, 460 S.W.2d 861 (1970).

In examining the trial judge’s instructions in the present case in the light of these Tennessee and United States Supreme Court cases to which reference has been made, we do not see any problem with respect to the specific complaint before us. In the present case, the jury was advised that the State had the burden of proving beyond a reasonable doubt all of the elements of second degree murder. Once the State carried this burden, the proof ipso facto, negated beyond a reasonable doubt all of the elements of voluntary and involuntary manslaughter. Insofar as the jury charge in question is concerned,. Mullaney requires nothing more.

The instruction complained of merely told the jury that the use of a deadly weapon in a homicide raised a presumption of malice which would support a verdict of second degree murder unless other facts and circumstances rebutted this presumption. This instruction did not place upon the defendant the burden of proving the. absence of malice. Unlike Mullaney, the charge placed no burden upon the defendant to prove any element of the offense. It did not require the defendant to present other facts and circumstances, or any evidence to rebut the presumption. Certainly, the jury could consider any proof offered by the defendant and/or his witnesses in deciding if the presumption had been rebutted, but it also could look to all of the State’s direct proof, the proof elicited upon cross-examination of the State’s witnesses, and every other fact and circumstance in the case in deciding the issue.

As stated in Ingram v. State, 1 Tenn.Cr.App. 383, 387, 443 S.W.2d 528, 530 (1969):

“ ‘The law presumes malice from the killing with a deadly weapon, but the jury may look to all the facts and circumstances developed by the evidence, either of State or the defendant, to ascertain whether the malice is rebutted, a reasonable doubt enuring to the benefit of the defendant: Bryant v. State, 7 Baxt. 67’ [66 Tenn. 67 (1872)]; Foster v. State, 74 Tenn. 213 (1880).” (emphasis added).

The instruction in the present case is unlike the instruction denounced by our Supreme Court in Liming v. State, 220 Tenn. 371, 373, 379, 417 S.W.2d 769, 770, 772 (1967). In the Liming case, the Court discussed a presumption in the context of a specific intent crime. There the trial judge instructed the jury that “The fact that he had them in his car (referring to the pistols) the presumption is that he carried them for the purpose of being armed, and the burden of proof is on him to show that he had them for some lawful or legitimate purpose.” (emphasis added). Our Supreme Court found that this instruction was erroneous since it “relieved the State of the obligation of proving intent to go armed, an essential ingredient of the offense . . and deprived defendant of the presumption of innocence.” '

Another basis for the result reached in the Liming case is simply that the fact that an individual carries pistols in a car is not a sufficient reason for presuming an intent to go armed. There is no rational connection between the facts proved, i. e., having the pistols in the car, and the fact presumed or inferred, i. e., the intent to go armed. Barnes v. United States, supra, 93 S.Ct. n. 11, at 2363. Another obvious reason for the Liming result is that the court’s instructions, as emphasized above, shifted the burden of persuasion to the defendant. This is not permissible. Mullaney v. Wilbur, supra; In re Winship, supra.

We do not have a Liming type instruction involved in the present case. Here, the instruction did not shift to the defendant the burden of proof in the sense of the burden of persuasion. Actually, the instruction did not even shift the production burden to the defendant, as would have been permissible. Mullaney, supra, 95 S.Ct. nn. 20, 28, 31, at 1888, 1891-92. In our view, the court’s charge in the present case is compatible with Mullaney.

Our interpretation of Mullaney is consistent with the recent holding in State v. Travis, 26 Ariz.App. 24, 545 P.2d 986 (1976) where that Court held that the inference of malice to be drawn from the use of a deadly weapon does not violate the standards of Mullaney.

In his brief, the defendant also takes issue with the Tennessee rule that when a deliberate killing is shown, the law presumes the existence of malice sufficient to support a conviction of second degree murder, and when such is shown the burden is on the State to establish that the killing constituted murder in the first degree, if such is charged, and a corresponding burden is on the defendant to show mitigating facts and circumstances sufficient to reduce the degree of the homicide below second degree murder. Thomas v. State, 210 Tenn. 297, 358 S.W.2d 315 (1962); Braziel v. State, 529 S.W.2d 501 (Tenn.Cr.App.1975); Shanklin v. State, 491 S.W.2d 97 (Tenn.Cr.App.1972); Gordon v. State, 478 S.W.2d 911 (Tenn.Cr.App.1971).

The defendant argues that the portion of this rule placing the onus on a defendant to reduce a crime of second degree murder to manslaughter, is contrary to the holdings of the Mullaney case. Certainly, the burden of persuasion in a criminal case cannot be shifted to the defendant, and in light of Mullaney, this issue will merit the court’s critical analysis, if and when it is properly before the court; however, we are not involved with this question in the present case. Here, the trial court’s instructions did not contain any of this suspect language, nor did they place any burden of proof on the defendant to reduce the offense from second degree murder to a lesser degree.

In this case, apart from the presumption of malice arising from the use of the deadly weapon, the jury had before it many other facts and circumstances to show malice on the part of the defendant.

The evidence in this case showed that the deceased was killed with a shotgun on March 9, 1975, at about 2:00 a. m. Shortly after the killing, the defendant told an ambulance driver that he had shot the deceased and that she was out in the trailer “floating in her own blood.” The defendant volunteered a statement to a deputy sheriff that he “killed her over something that he had nothing to do with,” and solicited the deputy sheriff’s opinion as to whether he “could get off on the grounds of temporary insanity.”

The defendant admitted to the sheriff that he and his wife had argued over a suspected relationship between her and his brother; that he was cleaning his shotgun at about 2:00 a. m., and fired the gun into the yard; that he didn’t remember reloading the gun, and did not hear it go off again, but that as he was leaning over to turn on a heater, he saw his wife fall.

The sheriff found one spent shotgun shell on the kitchen table and another spent shell in the gun. It was shown that the gun had to be manually reloaded after each firing, and in order to fire the gun, the hammer had to be cocked and the trigger pulled. Shotgun pellet holes were found in a curtain over a broken window above the kitchen sink, the window ostensibly broken out by the shotgun pellets. The deceased’s body was found lying on the floor in a large pool of blood, in close proximity to the broken window. The officers found no gun cleaning equipment in the trailer. Other proof offered by the State showed that the physical evidence present was inconsistent with the defendant’s version of the shooting.

The evidence in this case does not comport with the defendant’s insistence that this was an accidental shooting. Neither is there any evidence in this case to show that the defendant killed the deceased while laboring under any heat of passion upon adequate provocation. The State has negated these lesser degrees of homicide by proving the elements of second degree murder beyond a reasonable doubt.

In our opinion, the jury had before it ample evidence, apart from the effect of the judge’s instruction on the presumption of malice arising from the use of a deadly weapon, from which the jury could find that the State had carried its burden of showing malice beyond a reasonable doubt.

We find no merit to the complaint regarding the court’s charge to the jury and overrule the assignment predicated thereon.

Finally, the defendant makes some additional complaints about the legal sufficiency of the convicting evidence and about his conviction for second degree murder. Further, he complains that the verdict was so excessive as to show “caprice and whim” on the part of the jury. Other than relating these additional assignments to the basic complaint which he has made about the court’s charge on the presumption of malice, he presents no brief or argument in support of these additional assignments; accordingly, these assignments are overruled. Roberts v. State, 4 Tenn.Cr.App. 537, 474 S.W.2d 165 (1971).

We have heretofore reviewed some of the evidence in connection with our ruling on the defendant’s second complaint. From our review of the entire proof, we are of the opinion that the evidence is amply sufficient to support the defendant’s guilt of murder in the second degree. The evidence does not preponderate against the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1973). Further, the punishment imposed by the jury was within the limits allowed by law; thus, it cannot be said that the verdict indicates passion, prejudice or caprice. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

We find no errors in this record. Accordingly, we affirm the judgment of the trial court.

WALKER, P. J., and DWYER, J., concur.


source: Caselaw Access Project

author: WALKER, Presiding Judge.

license: Public Domain

text:
    Charles Webster SMITH, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    June 3, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.
    Walker Gwinn, Asst. Public Defender, Memphis, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Arthur T. Bennett, Asst. Dist. Atty. Gen., Memphis, for defendant in error.
   OPINION

WALKER, Presiding Judge.

From his conviction of murder in the second degree with imprisonment of ten years, the defendant below, Charles Webster Smith, appeals in error.

The case was tried April 15 and 16, 1974, by Judge Perry H. Sellers who retired September 1, 1974, and then signed the bill of exceptions when it was presented to him as a late one August 22, 1975. The retired judge was without authority to sign the bill of exceptions more than 60 days after vacating office and we remanded it for the successor judge to approve it under T.C.A. § 27-110 if he found that it fairly stated the truth of the case. We now have the bill of exceptions authenticated by the successor judge.

The state’s evidence shows that about 2:00 a. m., August 19, 1972, the deceased, Mack Edward Thomas, made a proposal for sexual intercourse to Patricia Ann Banks who was living with the defendant. When she reported this to the defendant, he had her call the deceased downstairs from her mother’s apartment. He told the deceased to leave Patricia alone. The deceased, intoxicated, cursed and walked toward the defendant who shot him three times, once in the back.

Testifying in his own defense, the defendant said that the deceased was cursing as he came down the stairs and put his hands on the defendant’s neck. The defendant backed off and saw the deceased reach for something in his pocket upon which the defendant fired several times, first to frighten him, but the deceased kept approaching the defendant, who then fired at the deceased in self-defense.

The assignment challenging the sufficiency of the evidence is overruled. The jury did not accept the defendant’s theory of self-defense. The facts here support the conviction of second degree murder. See Bunch v. State, 3 Tenn.Cr.App. 481, 463 S.W.2d 956.

The defendant contends the trial judge erred by refusing to allow counsel to interrogate a juror who believed he might have known the defendant.

During the trial a juror indicated he had possibly been acquainted with the defendant. The trial judge conducted an inquiry and determined that the juror was unbiased and could continue to serve. The trial judge did not abuse his discretion and no further inquiry was required.

The defendant complains that he was not furnished a complete transcript.

Defendant’s trial counsel approved the bill of exceptions. One of the claimed omissions is a bench conference out of the hearing of the jurors. In two or three places the recording was inaudible. We have examined the entire record and would feel it hypercritical, indeed, to say that this defendant has not been afforded a reasonable and sufficient record. See Hunter v. State, 222 Tenn. 672, 440 S.W.2d 1; Carr v. State, 2 Tenn.Cr.App. 568, 455 S.W.2d 619.

All assignments are overruled and the judgment is affirmed.

DWYER, J., and PHIL B. HARRIS, Special Judge, concur.


text:
    Alvin T. WHITE, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    June 8, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      David Vincent, Nashville, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., John E. Rodgers, Asst. Dist. Atty. Gen., Nashville, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

In three counts the Davidson County grand jury indicted the defendant below, Alvin T. White, for (1) rape of Marcelle Schlosser; (2) abduction of a female with intent to defile her (T.C.A. § 39-3709) and (3) abduction of a female from her parents (T.C.A. § 39-3708). At the conclusion of the proof, the state elected to proceed only on the first count. The jury found White guilty of rape and fixed his sentence at imprisonment for 30 years.

Marcelle Schlosser, an 18-year-old mentally retarded girl, lived in Nashville with her parents under constant supervision. She attended a school for retarded children. On May 16, 1974, at about 3:30 p. m., she returned from the school on a bus and her father told her to sit on the porch while he went to the bathroom. At this time a person, identified by the next door neighbor as the defendant, drove into the driveway in his station wagon. Marcelle went to the driver’s side of the station wagon and then got in the passenger’s side. The neighbor ran out of her house calling to the defendant to wait but he backed out and drove away at a fast speed.

Another witness identified the defendant as the driver of the car he met in which car the girl was a passenger.

The police were immediately notified that this retarded girl had been kidnapped or abducted and they began a search for her.

At about 7:20 p. m., the girl was put out of the defendant’s station wagon about a block from her home. A witness took his license number. Her two sisters found Marcelle highly emotional, hysterical, crying, jerking and jumping. She was limping, holding her vaginal area, and said, “He hurt me in my butt.” She was promptly taken to a hospital and examined at which time dirt, grime and charred particles were found in her vaginal and rectal area. The defendant’s home had been partly burned and contained charred wood. There was physical damage to the vagina, the hymen ring had been torn and penetration had occurred. She was treated for vaginal bleeding and a Trichomonas infection, caused by intercourse, developed.

The girl told her mother that a man took off her clothes and got on top of her. On account of her mental condition she was unable to give an account of the details of the incident when called as a witness.

The defendant, age 36, testifying in his own behalf, denied any connection with the crime. He said he had been at home all that day. His wife corroborated his alibi. He admitted owning the station wagon involved but said it had been stolen that day and that he had reported the theft to the police. He admitted his home was charred by a fire.

The defendant had a beard at the time of the crime but was clean shaven the next day. His bed was described as filthy.

It is clear that the girl had intercourse. From the evidence the jury could find that the defendant took this retarded girl from her home without permission and carried her in his station wagon to his home, which was in a charred condition, and had sexual intercourse with her there forcibly and against her will. From her whole physical and emotional condition after the incident, the jury could find that the defendant used force and violence and that the act was against the will of this retarded girl. The jury could have reasonably found that she put up all the resistance of which she was capable. In her mental condition she was incapable of great or prolonged resistance. Under the rules laid down in King v. State, 210 Tenn. 150, 357 S.W.2d 42, the evidence does not preponderate against the verdict. The assignments on the weight and sufficiency of the evidence are overruled.

The defendant contends that venue was not established.

The evidence shows that the defendant’s home where the offense occurred is in North Nashville which the court judicially knows is in Davidson County. The defendant’s car is registered in Davidson County. From all the evidence, the jury could properly find that the offense took place in Davidson County. See Gilliland v. State, 187 Tenn. 592, 216 S.W.2d 323.

The defendant says the trial court erred in allowing a witness to testify from records that she neither kept nor checked.

Over defendant’s objection, a senior stenographer of the police department testified in rebuttal that no report was made of the stolen car on the police records. She did not check the records personally nor did the person who examined the records do so at her direction. The evidence was hearsay and inadmissible. In view of the testimony of two eyewitnesses who saw the defendant in his station wagon with the girl, this testimony was harmless error.

All assignments are overruled and the judgment is affirmed.

RUSSELL and DAUGHTREY, JJ., concur.


author: GALBREATH, Judge.

text:
    Rufus Lee CROSS, Plaintiff in Error, v. STATE of Tennessee, Defendant in Error.
    Court of Criminal Appeals of Tennessee.
    June 9, 1976.
    Certiorari Denied by Supreme Court Aug. 16, 1976.

      Steven E. Lane, Knoxville, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., Herbert S. Moncier and John W. Gill, Jr., Asst. Dist. Attys. Gen., Knoxville, for defendant in error.
   OPINION

GALBREATH, Judge.

Plaintiff in error has perfected this appeal from his conviction in the Criminal Court of Knox County of armed robbery and the resulting sentence of 30 years in the penitentiary.

Only two assignments of error have been alleged on this appeal. The first challenges the use of a photograph or mug shot of the defendant for identification purposes.

Inasmuch as the seventeen year old defendant was positively identified by the victim who testified he had known the boy and his people for years as the young black male who robbed him at pistol point, any error as to permitting a nearby witness to identify the defendant after viewing his photograph under rather suggestive circumstances is rendered harmless. Although the witness identified the defendant from a number of pictures of black young men shown him on the day of trial, the defendant was the only one shown wearing his hair in the distinctive way the bandit did.

The victim and the other eyewitness testified the assault was made in broad daylight by a young black male with his hair in plaits, or pigtails. While the victim, as aforesaid, knew the defendant from previous associations, the other witness did not, and due to the drastic change in the appearance he could not positively say the defendant was the person he saw commit the crime until after he was shown a picture of Rufus Lee Cross in pigtails.

We feel that under the circumstances the identification procedure was proper. When a defendant drastically alters his physical appearance either at the time of the crime or later so as to make his identification more difficult, then it is permissible to permit the witnesses to view the defendant as he looked at the time of the crime if this is practical. Thus, one who was wearing a hat at the time he was seen committing a crime may be required to wear the hat in the courtroom in order that a witness may view him as he looked at the time the crime was committed. See Barrett v. State, 190 Tenn. 366, 229 S.W.2d 516.

As noted in Bennett v. State, 530 S.W.2d 511 (Tenn.1975), the admissibility of identification evidence based on photographs depends on the totality of circumstances. While it would have been better if one or more of the other young men in the photographs shown the witness had been wearing the same type hair style as that of the defendant, we cannot say, particularly in view of the untainted and positive identification of the victim, that any possible impropriety was harmful.

We cannot view the matters complained of in the second assignment of error as harmless. It relates to the admission on cross-examination of defendant of the prior crimes committed while a juvenile. Defendant was still only 17 when bound over by juvenile court for treatment as an adult on this offense. The admission of proof of other crimes is itself an exception to the general rule of evidence and has been strictly limited other than for impeachment to unusual circumstances giving rise to relevancy in spite of the inherent prejudice. See Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523. The acts of a juvenile constitute an exception to the above exception. This exception is embodied in both statute and court decision:

T.C.A. § 37-233 provides:
“(a) An order of disposition or other adjudication in a proceeding under this chapter is not a conviction of crime and does not impose any civil disability ordinarily resulting from a conviction or operate to disqualify the child in any civil service application or appointment.
“(b) The disposition of a child and evidence adduced in a hearing in juvenile court may not be used against him in any proceeding in any court other than a juvenile court, whether before or after reaching majority, except in dispositional proceedings after conviction of a felony for the purposes of a presentence investigation and report.

The Supreme Court held in Acres v. State, 484 S.W.2d 534 (Tenn.1972):

“The District Attorney was permitted to ask the defendant Acres about his pri- or acts of misconduct as a juvenile and about Juvenile Court proceedings. This was error and should not have been permitted, because on trial was a sixteen year old youth who, under the law, is clothed with innocence insofar as his juvenile record is concerned, and to allow the State to penetrate that armor of innocence which is thrown about him by Statute in a case of this nature is in our opinion clearly error and violative of the defendant’s rights.
******
“. . .to permit it would allow the State to reveal the juvenile record and the indiscretions of youth of a defendant on trial for his life. It would then be reasonable to assume that anyone who has committed a youthful indiscretion would hesitate to go on the witness stand in his own behalf, lest the revelation of the indiscretion might prejudice some jur- or or jurors against him.”

Therefore, the admission of evidence of these prior acts by the defendant was reversible error. While the proof of guilt was substantial, the defendant did present evidence of an alibi; and we cannot say beyond a reasonable doubt that the proof of the rather long and serious delinquencies did not affect the jury’s verdict as to the degree of guilt as it quite probably did on the issue of punishment.

Reversed and remanded.

DWYER, J., and SAM LEWIS, Special Judge, concur.


author: McGEE, Justice.

text:
    CITIZENS FIRST NATIONAL BANK OF TYLER, Petitioner, v. CINCO EXPLORATION COMPANY, Respondent.
    No. B-5738.
    Supreme Court of Texas.
    July 7, 1976.
    Rehearing Denied Sept. 29, 1976.

      Ramey, Flock, Hutchins, Garinger & Jef-fus, Mike Hatchell, Tyler, for petitioner.
    Prappas, Caldwell & Moncure, Brantly Harris and Tommy D. Solomon, Houston, for respondent.
   McGEE, Justice.

Cinco Exploration Company brought this suit against Citizens First National Bank of Tyler for the sum of $30,000 which Citizens Bank allegedly wrongfully disbursed contrary to Cinco’s written instructions. Both Cinco and Citizens filed motions for summary judgment. The trial court granted Citizens’ motion and rendered judgment that Cinco take nothing. The court of civil appeals reversed and remanded the case for a trial on the merits. 529 S.W.2d 852. Both Citizens National Bank and Cinco Exploration Company filed applications for writ of error. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

On November 9, 1973 Cinco Exploration Company entered into a letter agreement with Paul B. Goodgame and S. Harry Bergman by which Goodgame and Bergman agreed to assign an oil and gas lease to Cinco. The pertinent provisions of this letter agreement read as follows:

“1. Messrs. Paul B. Goodgame and S. Harry Bergman are the owners of a certain Oil, Gas and Liquid Hydrocarbon Lease dated June 15, 1973. .
“2. Goodgame and Bergman agree to assign to Cinco Exploration Company the lease described in Article 1 of this agreement, .
“3. Messrs. Goodgame and Bergman will exercise their best efforts on or before Nov. 18, 1973, to obtain full execution of the amendments shown as Exhibits ‘A’ and ‘B’ of this agreement and made a part hereof, to an Oil, Gas and Liquid Hydrocarbon Lease.
“4. Upon delivery of the assignment referred to in Article 2 of this agreement, and upon the receipt of satisfactory evidence by Cinco Exploration Company of acceptance by the Cameron Minerals Group of the lease amendments shown as Exhibit ‘A’ and ‘B’ of this agreement, Cinco shall pay to Paul B. Goodgame and S. Harry Bergman, jointly, the cash sum of $30,000.00.” [Emphasis added].

In essence, this agreement provided that Goodgame and Bergman would use their best efforts to obtain two amendments to the lease to be executed by the lessors. Upon receipt by Cinco of satisfactory evidence that the lessors had agreed to the two amendments, Cinco was to pay Bergman and Goodgame $30,000. On November 16, 1973 Goodgame and Bergman executed the lease assignment assigning the lease to Cin-co and attached to the assignment a documentary draft upon Cinco for $30,000 which they placed for collection with Citizens First National Bank of Tyler. Citizens forwarded the draft to its correspondent American Bank of Commerce of Victoria for presentment and collection. On November 19, 1973 American Bank received the documentary draft and presented it to Cin-co for payment. Cinco informed American Bank that the draft was not in compliance with the letter agreement Cinco had entered into with Bergman and Goodgame. Cinco told American that the two lease amendments were not enclosed with the documentary draft and that Cinco had not yet received any other evidence that the lessors had accepted the two lease amendments. On November 20, 1973, acting pursuant to Cinco’s instructions with funds supplied by Cinco, American Bank wrote a letter to Citizens Bank. Enclosed with the letter was a cashier’s check payable to Citizens in the sum of $30,000 together with a copy of the November 9, 1973 letter agreement entered into between Cinco, Bergman, and Goodgame. The letter from American Bank addressed to Citizens stated as follows:

“Citizens First National Bank
P.O. Box 2020
Tyler, Texas 75701
Gentlemen:
Enclosed is a Cashier’s Check for payment of your site (sic) draft dated November 16, 1973 payable to Mr. Paul B. Goodgame and Mr. S. Harry Bergman pursuant to article eight of the letter agreement dated November 9, 1973 between Mr. Goodgame, Mr. Bergman and Cinco Exploration Company (copy enclosed). Your payment is contigent (sic) upon performance of all other articles of the letter agreement and will constitute an unreserved acceptance of the lease assignment upon performance of all articles in the subject letter agreement, including, but not limited to the execution of the lease amendments A and B indicated in article four of the letter.” [Emphasis added].

Upon receiving this letter and the cashier’s check from American Bank, Citizens inquired of Bergman whether he had done everything that he was supposed to do under his letter agreement with Cinco. Upon receiving an affirmative answer, Citizens deposited the $30,000 to the account of Goodgame and Bergman. On January 18, 1974 American Bank’s attorney wrote Citizens stating that Bergman and Goodgame had failed to furnish Cinco with the two lease amendments as required under the November 9,1973 letter agreement. American’s attorney returned the lease assignment executed by Bergman and Goodgame and demanded the return of the $30,000 Citizens had paid to the account of Bergman and Goodgame. When Citizens refused, Cinco instituted the present suit against Citizens on March 27, 1974.

Before us, Citizens asserts that we should uphold the trial court’s action in granting a summary judgment in its favor. Conversely, Cinco argues that its own motion for summary judgment should have been granted. Cinco contends that when Citizens accepted the $30,000 cashier’s check and undertook disbursement in accordance with American’s letter of transmittal, Citizens became an agent of Cinco as a matter of law. As a result, Cinco asserts that Citizens had a duty to follow all of the instructions contained in American’s letter of November 20, 1973. Thus, Cinco argues that by its failure to require Bergman and Goodgame to furnish the two lease amendments or satisfactory evidence that the amendments were accepted by the lessor, Citizens breached its duty as Cinco’s agent and became liable to Cinco as a matter of law. On the other hand, Citizens contends that summary judgment was properly rendered in its favor. Citizens argues that no agency relationship existed between it and Cinco; therefore, it owed no duty, and breached no duty, to Cinco. Alternatively, Citizens has also argued that if it owed a duty, the summary judgment proof shows it discharged, its obligation to Cinco. The summary judgment entered in favor of Citizens is appropriate only if the record establishes a right thereto as a matter of law. It is well established that a defendant moving for a summary judgment assumes the burden of showing as a matter of law that the plaintiff had no cause of action against him. Gaddis v. Smith, 417 S.W.2d 577 (Tex.1967). Thus, the question becomes whether Citizens’ summary judgment proof established as a matter of law that there was no genuine issue of material fact as to one or more of the essential elements of Cinco’s cause of action. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.1970); Torres v. Western Casualty and Surety Company, 457 S.W.2d 50 (Tex.1970).

The court of civil appeals found the creation of a “special deposit” between Cinco and Citizens. A “special deposit” is the traditional designation of the bailment or agency or trust whereby the bank keeps or transmits identical property or funds entrusted to it. The usual creditor-debtor relationship does not arise. Hudnall v. Tyler Bank and Trust Company, 458 S.W.2d 183 (Tex.1970). In order for a “special deposit” situation to exist, there must be an agreement between the depositor and the bank upon the use of deposited funds for a specific purpose. See, First State Bank & Trust Co. v. First Bank of Truscott, 32 S.W.2d 494 (Tex.Civ.App.-Eastland 1930, writ ref’d). It must be shown that the bank agreed to the obligation. However, if the agreement of the bank is to be implied by its acceptance of a deposit accompanied by written limitations imposed by the depositor, “the writing should set forth by clear direction what the bank is required to do.” Citizens National Bank v. Hill, 505 S.W.2d 246, 248 (Tex.1974) [Emphasis added]. In the case now before us, the court of civil appeals stated:

“[I]t is without dispute that Citizens accepted Cinco’s funds and disbursed the same to Bergman and Goodgame. Therefore, Citizens will be held to have impliedly consented to Cinco’s proposal as set forth in American’s letter of November 23, 1973 (sic).” 529 S.W.2d 852, 856. [Emphasis added].

The court of civil appeals also concluded that the terms of the letter of November 20,1973 which American forwarded to Citizens were ambiguous and that fact questions were presented as to the intention of the parties. Thus, the court held that summary judgment had been improperly rendered in favor of Citizens.

We do not agree that this controversy involved the creation of a “special deposit.” It was not Cinco who instituted the collection process which ultimately culminated in this lawsuit. The action taken by Cinco in forwarding the $30,000 cashier’s check to Citizens was in response to the collection effort earlier initiated by Bergman and Goodgame. It was these two individuals who mounted the initial collection effort by placing a documentary draft with Citizens Bank for collection. However, we do believe that the fact situation presently before us is, in certain respects, so closely analogous to the creation of a “special deposit” as to call for the application of similar tests. Assuming the November 20, 1973 instructions from Cinco were intended to be controlling of Citizens’ actions, there is nevertheless no evidence of any express agreement on the part of Citizens to comply with Cinco’s directives. As a result, if we are to imply the existence of Citizens’ agreement by virtue of its acceptance of the $30,000 along with the written instructions, the instructions must set forth by clear direction what Citizens was required to do. See, Citizens National Bank v. Hill, supra. Assuming Cinco’s instructions were intended to govern Citizens’ disbursement actions, did the letter “set forth by clear direction” what Citizens was required to do? We think not.

A documentary draft is defined as “any negotiable or non-negotiable draft with accompanying documents, securities or other papers to be delivered against honor of the draft.” Tex.Bus. & Comm.Code Ann. Sec. 4.104(a)(6) (Tex. UCC 1968). Upon receipt of Bergman and Goodgame’s documentary draft, Citizens’ status became that of a collecting bank. Sec. 4.105(4). Unless a contrary intent clearly appears, a collecting bank is the agent or sub-agent of the owner of the item prior to the time that a settlement given by the collecting bank is or becomes final. Sec. 4.201(a). Thus, from the inception of this controversy, Citizens was the agent of Bergman and Goodgame. By virtue of its status as a collecting bank, Citizens was subject to the requirements of ordinary care and good faith. Thus, the bank must have used ordinary care and diligence in taking the steps necessary to accomplish the collection. It was bound to do all reasonable acts to procure payment and was required to observe such instructions as were given it by the owner of the item as to the manner in which the collection was to be made. Sec. 4.204(a). However, the law does not impose upon a collecting bank extraordinary duties. See, Waggoner Bank & Trust Co. v. Gamer Co., 113 Tex. 5, 213 S.W. 927 (1919).

As a collecting bank of a documentary draft, the role of Citizens was largely governed by Subchapter E of Article IV of the Texas Business and Commerce Code. Pursuant to Section 4.501, Citizens forwarded the draft and accompanying documents to American Bank. See, Sec. 4.105(5). Thereafter, American informed Cinco of the arrival of the documentary draft which placed the burden upon Cinco to respond to American’s notification if the draft was not to be considered dishonored. Sec. 4.210(a) and (b). See, See. 3.503(a)(2). However, after considering whether the draft was properly payable, Cinco did not simply allow the draft to be treated as dishonored, but forwarded a $30,000 cashier’s check and simultaneously attempted to convey written instructions which imposed uncertain conditions upon final payment. See Sec. 3.505.

Because American forwarded Cin-co’s instructions to Citizens, Cinco urges that Citizens owed it a duty to see to it that Bergman and Goodgame had complied with all of the requirements contained in Cinco’s November 9, 1973 letter agreement with these two individuals. Cinco’s rationale would place the burden on Citizens to ascertain whether or not Bergman and Good-game had used their “best efforts” to obtain full execution of the two lease amendments. Further, Cinco’s reasoning would place the duty upon Citizens, as a collecting bank, to determine that point in time at which Cinco was in receipt of “satisfactory evidence” that the lessors had agreed to the two lease amendments. The latter contention would evidently require Citizens to maintain continual communications with Cinco. Nowhere does the Code provide that a collecting bank must comply with numerous nebulous instructions given it by a non-bank payor. In the absence of instructions clearly establishing the required conduct on the part of Citizens, we cannot say that Cinco’s transmittal by mail of intangible conditions created a duty on the part of Citizens to be certain that Bergman and Goodgame had fully complied with all of the requirements set out in the November 9, 1973 letter agreement. A collecting bank should not be placed in a position where it must assume the role of a final arbiter in discerning whether one party to a complex contract has fulfilled such requirements as “best efforts,” or has furnished “satisfactory evidence” to another contracting party. In the instant case, what constituted “best efforts” or “satisfactory evidence” in Citizens view might be considerably divergent from Cinco’s ideas as to what it intended these two phrases to mean.

Finally, the terms of the crucial November 20, 1973 letter from American addressed to Citizens stated that “[e]nclosed is a Cashier’s Check for payment of your site [sic] draft dated November 16,1973 payable to Mr. Paul B. Goodgame and Mr. S. Harry Bergman pursuant to article eight of the letter agreement dated November 9, 1973 between Mr. Goodgame, Mr. Bergman and Cinco Exploration Company (copy enclosed). Your payment is contigent [sic] upon performance of all other articles of the letter agreement . . . including, but not limited to the execution of the lease amendments . . .” [Emphasis added]. The only basis for charging Citizens with liability to Cinco is the above quoted letter. It is not clear whether these written instructions were intended to guide the disbursement conduct of Citizens as opposed to the future actions of Bergman and Goodgame. However, even if we assume as we have for summary judgment purposes, that these instructions were intended to be controlling of Citizens’ actions, such an interpretation avails Cinco nothing. As a matter of law, the written instructions did not set forth by clear direction what Citizens would have been required to do. What is meant by “best efforts” or “satisfactory evidence” is certainly susceptible to a variety of interpretations and we could not imply Citizens’ acceptance of such vague conditions under these facts. Thus, even if these instructions were intended to control Citizens’ behavior, Citizens was not bound to do any mere than it did with reference to such nebulous conditions. Citizens did inquire of Bergman whether he had done all that he was required to do under his agreement with Cinco. Only after receiving an affirmative response from its principal did Citizens deposit the $30,000 to the account of Bergman and Goodgame. We hold that Citizens discharged its summary judgment burden and accordingly, the judgment of the court of civil appeals is reversed and the judgment of the trial court is hereby affirmed.

STEAKLEY, J., concurs in the result.

DANIEL, J., notes his dissent.

      . All section citations will be to the Texas Business and Commerce Code in Vernon’s Annotated Texas Civil Statutes unless otherwise indicated.

      . The status of American Bank as an intermediary-collecting-presenting bank was also that of an agent for Bergman and Goodgame. See Sec. 4.201; Sec. 4.105.

      . In the typical commercial transaction, the duty of the presenting bank is to present the documentary draft for payment. If the sight draft is not timely paid, the presenting bank is required to endeavor with diligence to ascertain the reason for the dishonor, notify its transfer- or of the dishonor, and request further instructions. See, Sec. 4.503(1) and (2); Sec. 4.210(b); Sec. 2.514. Thus, subsequent to the dishonor, the presenting bank would seek further instructions from its transferor and ultimately, from the owners of the item. In the event of nonpayment or nonacceptance, the Code also speaks to the duty of a collecting bank to seasonably notify its customer of the dishonor. This duty is imposed even when the bank has bought the draft, so that the seller may know promptly whether or not his underlying contract is going through as planned. Sec. 4.501.

      .In order to maintain a degree of flexibility, the Code preserves the efficacy of agreements between the parties. See, Sec. 4.103(a); Sec. 4.201(a).


author: STEAKLEY, Justice. GREENHILL, Chief Justice

text:
    Andy LOWE, Petitioner, v. TEXAS TECH UNIVERSITY, Respondent.
    No. B-5756.
    Supreme Court of Texas.
    July 14, 1976.
    Rehearing Denied Sept. 29, 1976.

      Garner, Vickers, Purdom & Nelson, Robert E. Garner, Lubbock, and Paul Spillman, Wellington, for petitioner.
    John Hill, Atty. Gen., Jack Sparks, Asst. Atty. Gen., Austin, for respondent.
   STEAKLEY, Justice.

We are required to determine if the allegations of Andy Lowe in his suit against Texas Tech University for personal injuries invoked the waiver of governmental immunity provisions of the Texas Tort Claims Act, Tex.Rev.Civ.Stat.Ann. art. 6252-19 (1970), and entitle him to a trial. The trial court held that they do not, sustaining pleas to the jurisdiction and in abatement filed by Texas Tech; this action was affirmed by the Court of Civil Appeals, 530 S.W.2d 337. Our view is otherwise and we accordingly reverse the judgments below and remand the cause to the trial court.

Lowe alleged that he sustained an injury to his left knee while playing varsity football for Texas Tech; and that on a later occasion the knee was reinjured, the result of which was total and permanent disablement. He further alleged, as pertinent here, that “the coaching staff, management, and trainers” of Texas Tech were negligent in these respects:

In failing to furnish proper equipment, braces, and/or supporting devices to Plaintiff;
In failing to permit Plaintiff to wear proper equipment, braces and supporting devices available;
In furnishing equipment, uniforms and pads which were defective;
In refusing to permit Plaintiff to wear proper and correctly prescribed equipment, braces and supporting devices.

Texas Tech correctly states that the State is not liable for torts of its officers or agents in the absence of a constitutional or statutory provision therefor. Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949); and that a State agency such as Texas Tech shares this governmental immunity. Walsh v. University of Texas, 169 S.W.2d 993 (Tex.Civ.App.-El Paso 1942, writ ref’d); Texas Technological College v. Fry, 278 S.W.2d 480 (Tex.Civ.App.-Amarillo 1954, no writ). See also Greenhill & Murto, Governmental Immunity, 49 Tex.L.Rev. 462 (1971). We adhere to our decisions in the past that the waiver of governmental immunity is a matter addressed to the Legislature.

The Texas Tort Claims Act was enacted by the Legislature in 1970. The statute provided for waiver of governmental immunity in three general areas: use of publicly owned automobiles, premises defects, and injuries arising out of conditions or use of property. The statute calls for liberal construction to effectuate its purposes (Section 13). The problem before us for determination at this stage of the proceeding is whether Lowe’s allegations of negligence state a case within the waiver of immunity provided in the following provision of the statute:

Sec. 3. Each unit of government in the state shall be liable for money damages for property damage or personal injuries or death when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office arising from the operation or use of a motor-driven vehicle and motor-driven equipment, other than motor-driven equipment used in connection with the operation of floodgates or water release equipment by river authorities created under the laws of this state, under circumstances where such officer or employee would be personally liable to the claimant in accordance with the law of this state, or death or personal injuries so caused from some condition or some use of tangible property, real or personal, under circumstances where such unit of government, if a private person, would be liable to the claimant in accordance with the law of this state. Such liability is subject to the exceptions contained herein, and it shall not extend to punitive or exemplary damages. Liability hereunder shall be limited to $100,000 per person and $300,000 for any single occurrence for bodily injury or death and to $10,000 for any single occurrence for injury to or destruction of property.

We paraphrase that portion of Section 3 pertinent here as follows:

Each unit of government in the state shall be liable for money damages for death or personal injuries so caused (i. e., when proximately caused by the negligence or wrongful act or omission of any officer or employee acting within the scope of his employment or office) from some condition or some use of tangible property under circumstances where there would be private liability.

If the above quoted allegations of Lowe state a case for recovery within these waiver of immunity provisions, the abatement and dismissal of Lowe’s suit was in error, and he is entitled to a trial.

We have heretofore considered this legislative language in Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974); McGuire v. Overton Memorial Hospital, 514 S.W.2d 79 (Tex.Civ.App-Tyler), writ ref’d n. r. e. by per curiam, 518 S.W.2d 528 (Tex.1975); Mokry v. University of Texas Health Science Center at Dallas, 529 S.W.2d 802 (Tex.Civ.App.-Dallas 1975, writ ref’d n. r. e.); and Beggs v. Texas Dept. of Mental Health and Mental Retardation, 496 S.W.2d 252 (Tex.Civ.App.-San Antonio 1973, writ ref’d).

Herring ruled that an allegation that the state agency failed “to provide adequate medical care and treatment” does not allege a “use of tangible property” within the ambit of the Texas Tort Claims Act. We approved the holding in Beggs to the same effect, i. e., that an alleged negligent act in transferring a patient from a state hospital to a private nursing home did not involve the use of tangible property.

In McGuire, we let stand a judgment of reversal of a summary judgment in favor of a municipally operated hospital, and a remand for trial, of a suit for personal injuries caused when a patient fell while attempting to get out of bed. The allegations of negligence were the failure to provide a bed with side boards or guard rails, the failure to take proper cognizance of the condition of the patient and to anticipate and guard against the accident, the failure to exercise the care and proper attention toward the patient, and the failure to provide adequate nurses and attendants. We said:

“. . . We believe that injuries proximately caused by negligently providing a bed without bed rails are proximately caused from some condition or some use of tangible property under circumstances where a private person would be liable. Therefore, if the Hospital is found negligent in providing a bed without guard rails, it may not assert governmental immunity . . . .” (518 S.W.2d 528)

Also to the point in the light of the writing by the Court of Civil Appeals was our action of approval in Mokry. Mokry brought suit under the Tort Claims Act for personal injuries resulting from the negligent loss of his left eyeball after it had been surgically removed and while it was being prepared for laboratory examination at the University of Texas Health Science Center. The negligence alleged against the State agency was the failure to provide for use certain items of laboratory equipment, together with the failure to properly use the facilities that were employed. It was specifically held by the Court of Civil Appeals that the allegations to such effect stated a cause of action arising from some condition or use of tangible property within the purview of the Texas Tort Claims Act:

. We hold that these pleadings adequately allege a cause of action for damages from negligent acts or omissions of an employee of the state, acting within the scope of his employment, arising from some condition or use of tangible property under circumstances which the state, if it were a private person, would be liable to the plaintiff.

Gonzales v. Lubbock State School, 487 S.W.2d 815 (Tex.Civ.App.-Amarillo 1972, no writ), prominently cited by Texas Tech in support of its position, did not reach this Court for review; even so, the specific holding is not in point here, i. e., that allegations of negligence against the State agency in hiring incapable employees, in failing to maintain adequate supervision, and in failing to have a sufficient number of qualified employees, do not constitute allegations of negligence arising from some condition or use of tangible property.

The allegations in the case at bar require a construction of the statutory language of the Tort Claims Act in two respects: whether the waiver of immunity is invoked by allegations that Texas Tech through its authorized personnel was negligent in affirmatively furnishing “equipment, uniforms and pads which were defective”; and, whether the waiver is also invoked by the allegations of negligent acts of failure to furnish proper equipment and failure or refusal to permit the wearing of proper equipment. Neither the brief of Texas Tech nor the opinion of the Court of Civil Appeals speaks to the former; as to the latter, Texas Tech argues in its brief, and the Court of Civil Appeals has held, that Lowe’s allegations of negligent failure to furnish the proper equipment, or to permit his wearing of proper equipment, do not state a cause of action under the waiver of immunity provisions of the statute. The rationale is that allegations to such effect do not state a case arising from some condition or some use of tangible property.

As to the first, we hold that the affirmative allegation of furnishing defective equipment to Lowe states a case within the statutory waiver of immunity arising from some condition or some use of tangible property. It is further apparent that a failure to furnish proper protective equipment for Lowe’s injured knee, if such was the case, is not distinguishable, in so far as the problem at hand is concerned, from the failure to provide bed rails for a hospital bed in McGuire, or from the failure to provide protective items of laboratory equipment in Mokry. A football uniform is composed of various items of individualized equipment and the protective equipment furnished players may vary with the individual because of his physical characteristics and the hazards of the particular position he plays. Football uniforms are designed to protect players from injury and players who have suffered a previous injury are commonly furnished special protective devices and equipment. Both the standard and specially designed protective devices are integral parts of the football uniform, e. g., special taping or knee braces furnished a player with an injured knee are as much a part of his uniform as his helmet, or shoulder pads, or whatever. So we also hold that Lowe’s allegations of a negligent failure to furnish him proper protective items of personal property, to be used as a part of the uniform furnished him, bring his case within the statutory waiver of immunity arising from some condition or some use of personal property.

A collateral problem raised by the points of error and counterpoints relates to “Lowe’s request for admissions and interrogatories” served upon Texas Tech with the recitation that such requests were made pursuant to the Texas Rules of Civil Procedure, Rules 168, 169 and 170. The request was stricken by the trial court but this was held to be error as to the interrogatories by the Court of Civil Appeals, citing Texas Dept. of Corrections v. Herring, supra. The Attorney General, representing Texas Tech, appears to argue in support of the trial court action that it was not required to respond to the interrogatories because they were based, at least in part, upon the answers to requests for admissions that are impermissible by reason of Tex.Rev.Civ.Stat.Ann. art. 4411 (1966), which provides:

No admission, agreement or waiver, made by the Attorney General, in any action or suit in which the State is a party, shall prejudice the rights of the State.

In Herring, we made clear that the State is not exempt from these rules of procedure but is subject to them as any other litigant. We reasoned that Rule 168 of the procedural rules operates to clarify facts; that the State will not be prejudiced by a revelation of the facts involved in a case; and that the Attorney General in responding to interrogatories seeking to elicit such facts will not be called upon to make admissions, agreements or waivers contrary to art. 4411. Of course, the State enjoys the same procedural rights under these rules as any other litigant with respect to the filing and hearing of written objections to interrogatories upon whatever basis; in addition, the Attorney General may raise for ruling the further objection that any called for admission, if made, would prejudice the rights of the State and hence would be ineffective under the provisions of art. 4411.

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

Concurring opinion by GREENHILL, C. J., in which McGEE and DOUGHTY, JJ., join.

GREENHILL, Chief Justice

(concurring).

The purpose of this concurring opinion is to encourage the Legislature to take another look at the Tort Claims Act, and to express more clearly its intent as to when it directs that governmental immunity is waived. Speaking at least for myself, it is difficult to understand the language of the present statute and to apply it. I am not concerned with the broadness or the narrowness of the waiver. I was among those who encouraged the passage of the Act. Our problem is trying to determine what the Legislature meant.

The language of Section 3 is particularly difficult to apply. As set out in the Court’s opinion, the language of Section 3, as I understand it, waives immunity where there is personal injury or death caused “from some condition or use” of tangible personal property or real property.

If the words “caused from some condition or use” of property are intended as words of a limited waiver of immunity, and if the waiver is intended to be confined to cases involving injury proximately caused by some condition or use of property which is owned or furnished by the State, we reach certain results.

But if they mean that the Legislature intended for the State to be liable in every tort case in which personal property was either used or not used, then we reach different results. This construction would amount to a general waiver in virtually all tort eases. That is not necessarily bad, but I do not think this is what the Legislature intended. It is difficult to imagine a tort case which does not involve the use, or nonuse, of some item of real or personal property; and to me, if there is a waiver in all cases where some item of personal property is either used or not used, there is virtually an unrestricted waiver of immunity-

The original version of the bill which enacted the Tort Claims Act did call for such an unrestricted waiver of immunity. That version, however, was substantially modified prior to passage. It was passed only after Governor Smith had vetoed an earlier bill which provided a somewhat limited waiver. The Governor’s veto message makes clear that the Governor felt that even this limited version was too broad and all-encompassing. Under these circumstances, I think it is clear that the bill which was finally passed by the Legislature and approved by the Governor did not contain a broad, general waiver of governmental immunity. By its express provisions, it waives immunity only in particular instances.

Coming to this case, what did the Legislature intend to waive with regard to the furnishing of, or failure to furnish, athletic equipment? The statute, paraphrased, says “some condition or use” of the uniform which was furnished. I can understand a waiver for the furnishing of a defective or broken helmet. That would be the furnishing for use of personal property in a defective condition. The statutory language “condition or use” of property implies that such property was furnished, was in bad or defective condition or was wrongly used.

We were told in the oral argument of this case by plaintiff’s counsel that the plaintiff entered the game with a knee brace. There is no suggestion that it was a defective brace. Then, we were told, a coach considered that the plaintiff was not moving fast enough, or “cutting” well enough. The coach took the plaintiff out, had him remove the brace, and put the plaintiff back in. Then the plaintiff’s knee was injured. It may be that the action of the coach constituted negligent conduct; but I fail to see how the condition of the knee brace which was furnished had anything to do with the plaintiff’s injury.

Similarly, it is argued in the plaintiff’s brief in this Court that there was a negligent failure by the trainer to tape, or properly tape, the plaintiff’s knee. The allegation is that the tape was available but not used, or properly used. So here we go again: Texas Tech did furnish tape (an item of personal property), and there is no allegation that there was anything wrong with the tape. The personal property was furnished and was not in defective condition for use. The negligence, if any, was the failure of the trainer to do an act,— tape the knee. I do not think the Legislature intended its “condition or use of property” waiver to include the alleged negligent conduct of the trainer or coach.

Carried to its logical conclusion, as I understand the Court’s opinion, it might be construed to find a waiver of immunity because the injury grew out of the nonuse (the removal) of a nondefective knee brace which was furnished; i. e., some condition or use [nonuse] of personal property. I do not think the Legislature intended this general sort of waiver.

A hypothetical example will point up the problem: assume that in a State-operated hospital, one of its doctors negligently removed the wrong kidney. In so doing, he uses tangible personal property, — a scalpel. There is no defect in the scalpel, but there is injury in the use of tangible personal property. The Legislature could provide a waiver for the negligent conduct of the doctor, but it has not. Did it intend a waiver based on the condition or use of tangible personal property, — the scalpel? I do not think so.

In any event, the Legislature will be in session in the near future; and it would be very helpful if it would give litigants and the courts guidelines which are easier to follow.

The facts of the case set out above,— about the coach’s having taken the plaintiff out to remove the brace, and the failure of the trainer to tape, are not in the pleadings; and our decision cannot turn on such a factual situation. But because these matters were made known to us in oral argument and in the plaintiff’s brief, they are subject to comment in view of a remand for trial. Among the allegations pleaded is a count that Texas Tech furnished equipment and uniforms which were defective. Taking this to be true, as we must at this stage of the game, it was error for the trial court to sustain the State’s plea in abatement. I, therefore, concur in the judgment of the Court.

McGEE and DOUGHTY, JJ., join in this concurring opinion.

      . The Attorney General also argues that the point of error relevant to the action of the trial court in striking Lowe’s request for admissions and interrogatories is not properly before the Appellate Courts. The argument is that a supplemental transcript containing the request and the motion to strike the request was not requested or obtained by Lowe, or filed until a date out of time. The Attorney General recognizes that the original transcript was filed in time; and that his objection to the filing of the supplemental transcript, together with his motion to strike its filing, were overruled by the Court of Civil Appeals. We regard the action of the Court of Civil Appeals as a direction to file the supplement transcript within the reasonable contemplation of Rule 428 of the Rules of Civil Procedure. Cf. Warner Const. Co. v. Blue Diamond Co., 429 S.W.2d 912 (Tex.Civ.App.-Dallas 1968, writ ref'd n. r. e.). And see Tucker, Preliminary Motions in the Appellate Courts, in STATE BAR OF TEXAS, APPELLATE PROCEDURE IN TEXAS § 15.6 (1964).

      . Greenhill, Should Governmental Immunity for Torts Be Reexamined, and If So, by Whom? 31 Texas B.J. 1036 at 1072 (1968). See also, Greenhill and Murto, Governmental Immunity, 49 Texas L.Rev. 462 at 472-3 (1971).

      .House Bill 456, as originally introduced in the 61st Legislature, contained the following provisions:
      Sec. 5. Insofar as the purposes of this Act are concerned, the distinction heretofore known to the common law between governmental and proprietary functions of government is hereby abolished in the State of Texas, and all functions of government, regardless of the nature thereof, are hereby declared to be proprietary in nature, it being the intent of the Legislature that no activity of any unit of government, of whatever nature or location or at whatever level, shall be exempt from the provisions of this Act.

      . House Bill 117.

      . Message from Governor Smith, Tex.H.R.J. 1921 (1969).


author: STEAKLEY, Justice. McGEE, Justice

text:
    Lewis WAGNER, Petitioner, v. CAPROCK BEEF PACKERS COMPANY, Respondent.
    No. B-5781.
    Supreme Court of Texas.
    July 21, 1976.
    Rehearing Denied Sept. 29, 1976.

      Lemon, Close, Atkinson & Shearer, Otis C. Shearer, Booker, for petitioner.
    Gibson, Ochsner, Adkins, Harlan & Han-kins, A. B. Hankins, Amarillo, for respondent.
   STEAKLEY, Justice.

The question before us is whether the record supports a jury finding that the manager of a meat packing plant was acting in the course and scope of his employment when he slandered a former employee. The trial court ruled that it did; the Court of Civil Appeals held that it did not. 531 S.W.2d 194. We agree with the Court of Civil Appeals.

The facts and procedural situation are these. Lewis Wagner, plaintiff below and Petitioner here, is a former employee of Caprock Beef Packers Company, a corporation engaged in the meat packing business. It has a plant located at Booker, Texas. Elmer Rabin was the general manager of the Booker plant. Wagner voluntarily left his employment at the Booker plant and later applied for employment at three other packing plants in no way connected with Caprock Beef Packers, and located elsewhere. Rabin learned of these applications for employment and on his own initiative, and not in response to any inquiries from Wagner’s prospective employers, telephoned the personnel manager at each plant and stated that Wagner was an alcoholic.

Wagner sued Caprock Beef Packers and Rabin for slander. Upon trial the jury found that Rabin’s remarks were false and that they were made while Rabin was “acting within the course and scope of his employment for Caprock Beef Packers Co.” Caprock made a motion to disregard the jury’s finding on course and scope of employment and to render judgment non ob-stante veredicto in its favor. The trial court overruled Caprock’s motion and rendered a joint and several judgment against Caprock Beef Packers and Rabin for actual and exemplary damages in the sum of $35,-000.00. Caprock appealed; Rabin did not appeal and the judgment as to him has become final.

The Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Wagner take nothing against Caprock. It held there was no evidence in the record to support the finding of the jury that Rabin was acting within the course and scope of his employment when he made the slanderous telephone calls.

Both parties agree that the governing rule is stated in Texam Oil Corp. v. Poynor, 436 S.W.2d 129 (Tex.1968):

“An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty. Neither express authorization nor subsequent ratification is necessary to establish liability.”

In response to Wagner’s requests for admissions, Caprock admitted that Rabin’s duties “included the hiring, firing and directing the work of Caprock’s employees at the Booker, Texas, facility.” A witness testified that Rabin “ran” the plant at Booker and that he did not let anyone else have any authority at the plant. Other than this, the record is silent with respect to the scope of the duties of Rabin, and as to the custom and practice in the meat packing business pertaining to the duties of the general manager of a meat packing plant. There is no evidence that Caprock charged Rabin with the duty of voluntarily assisting other meat packing plant employers in the hiring of employees generally, or in the hiring of any former employees of Caprock; nor is there any evidence of any custom or practice of such unsolicited assistance on the part of one meat packing plant to another such plant, or of any benefit to Caprock in thus. prejudicing the opportunity of Wagner for employment elsewhere.

Notwithstanding, Wagner argues that the showing that Rabin was in charge of Caprock’s plant, and that his duties included the hiring and firing of personnel, support an inference the jury was entitled to draw that Rabin’s unsolicited communication defaming Wagner was referable to and in discharge of a duty Rabin owed Caprock; and, further, that in any event, such showing, standing alone, established that Rabin was a vice-principal for whose defamatory acts Caprock was responsible. We disagree. Whether or not other plants employed Wagner was not shown by the record to involve, or have any relation to, the personnel activities or decisions of Rabin as manager of Caprock’s Booker plant. Nor was there any evidence that the personnel policies of Caprock, or the quality of its products, or the operation of its plant, would be affected in any wise by the employment decisions of other plants having no connection with Caprock’s Booker plant. Moreover, Wagner had voluntarily left his employment with Caprock and there is no evidence that Caprock had any further interest in where he went or for whom he worked; or that Caprock owed any duty to furnish information concerning Wagner to third persons. This no doubt explains the testimony of Rabin when called as an adverse witness by Wagner, and who was interrogated on direct examination concerning his telephone calls to Wagner’s prospective employers:

Q. Isn’t it true that you don’t make it a practice of calling up other Packing Companies about employees? That is not your practice?
A. That’s right.
Q. And if anyone would ever do that, that would be rather unusual in the Packing Industry, would it not?
A. Yes.

We have reviewed the evidence, and all permissible inferences therefrom, in the light most favorable to Wagner, see Biggers v. Continental Bus System, 157 Tex. 351, 303 S.W.2d 359 (1957). In so doing, we hold there is no factual basis for the inference that Rabin’s unsolicited calls were referable to or in discharge of any duty he owed Caprock, or that Caprock had conferred on Rabin such comprehensive and general power as to make Rabin its alter ego whose acts were the acts of the corporation. See Great Atlantic & Pacific Tea Co. v. Majure, 176 Miss. 356, 167 So. 637 (1936), where under an analogous review of the evidence, the court concluded that the manager of a local store of the corporate employer was not about his employer’s business when he uttered the slanderous words imputed to him. And cf. Producers’ Refining Co. v. Frazier, 283 S.W. 880 (Tex.Civ.App.1926, no writ) where the evidence established that an auditor for the corporate employer was engaged in the work committed to him when he uttered the slanderous words; as the court there said, the slander was referable to the manner in which the auditor performed an authorized duty. See also Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 70 S.W.2d 397 (1934) and Raney v. H. B. Zachry Co., 285 S.W.2d 955 (Tex.Civ.App.1956, no writ). It can only be concluded under the evidence here that Rabin was acting independently and outside the scope of any duty he owed Caprock.

The judgment of the Court of Civil Appeals is affirmed.

Dissenting opinion by McGEE, J., joined by SAM D. JOHNSON, J.

McGEE, Justice

(dissenting).

I respectfully dissent.

Upon reviewing the case now before us we must determine whether there is any evidence to support the jury’s finding that Elmer Rabin’s slanderous remarks were made while Rabin was acting within the course and scope of his employment for Caprock Beef Packers Company. Under a “no evidence” assignment of error we may consider only that evidence, if any, which, when viewed in its most favorable light, supports the finding, and we must disregard all evidence and inferences which would lead to a contrary result. Garza v. Alviar, 395 S.W .2d 821 (Tex.1965). In sustaining Caprock’s no evidence point, the majority has held that “there is no factual basis for the inference that Rabin’s unsolicited calls were referable to or in discharge of any duty he owed Caprock . . . .” The majority announces that it can only be concluded under the evidence here that Rabin was acting independently and outside of any duty he owed Caprock in his unsolicited slander of Wagner. I would not concede that this is the only conclusion that can be reached.

In the instant case, both the majority of this court and the court of civil appeals have erroneously relied upon Rabin’s testimony, when called as an adverse witness by Wagner, as being supportive of their holding. Rabin testified that he did not make a practice of contacting other packing companies about employees and that such a procedure would be unusual in the meat packing industry. This testimony, which must not be considered by us, is the only evidence in the record which would indicate that Rabin did not make these calls within the course of his employment. In Cartwright v. Canode, 106 Tex. 502, 171 S.W. 696, 698 (1914), this court stated that in passing upon the question of whether there was any evidence to sustain a verdict for the plaintiff, the Supreme Court must reject all evidence favorable to the defendants, and consider only that evidence sustaining the verdict. In Cartwright, when considering whether there was any evidence to support a jury finding favorable to the plaintiff the court also held that “[t]his court must pass upon that issue as if the evidence favorable to the defendants had not been before the jury.” By considering Rabin’s testimony which is adverse to Wagner’s position, the majority has assumed the role of a fact finder and has improperly weighed the evidence on both sides of the issue. Obviously, by taking cognizance of Rabin’s testimony, the majority in the instant case has not properly followed the applicable “no evidence” appellate review standard in reaching its final determination.

However, I am in agreement that the rule governing this case is that set out in Texam Oil Corporation v. Poynor, 436 S.W.2d 129, 130 (Tex.1968):

“An action is sustainable against a corporation for defamation by its agent, if such defamation is referable to the duty owing by the agent to the corporation, and was made while in the discharge of that duty.”

On the other hand, I disagree with the majority’s application of this broad rule to the factual situation presently before us. Is there any evidence in this record that will support the jury’s finding that Rabin’s defamatory remarks were made within the course and scope of his employment? I believe that there is. It is undisputed that Rabin was the general manager or executive officer of Caprock’s plant in Booker, and that he also served as its treasurer. We have frequently spoken of the broad powers possessed by a general manager. In Sealy Oil Mill & Mfg. Co. v. Bishop Mfg. Co., 235 S.W. 850 at 852 (Tex.Comm’n App. 1921, opinion adopted), the Court stated that:

“The general manager of a corporation occupies the position of a general agent. As a corporation can only act through its agents, the general manager, or general agent, is virtually the corporation itself.”

Thus, the general manager is often an extremely powerful individual clothed with substantial authority. See, Helms v. Home Owners’ Loan Corporation, 129 Tex. 121, 103 S.W.2d 128 (1937). By virtue of his position, Rabin was empowered and obligated to hire and fire employees on behalf of Caprock and he alone controlled matters involving personnel. Mr. Abel testified that “Mr. Rabin didn’t let anyone else have any authority at the Packing House,” and that Mr. Rabin alone ran the plant. Further, Rabin made not one, but three telephone calls to the personnel managers at the various plants where Wagner was seeking employment falsely informing them that Wagner was an alcoholic. These calls were made only a few weeks after Wagner had voluntarily terminated his position with Caprock. Additionally, it is clear that Rabin made all three of these calls on company time, on a work day, and from his own office at the Booker plant. Finally, Rabin personally knew, and requested to speak with, each of the personnel managers at the three meat packing plants he contacted. It is inconceivable that a corporation could operate a packing plant which obviously would require that employees be hired and fired and not have a supervisor or manager with authority to give and receive personnel references.

It is evident to me that the jury was at liberty to conclude that the telephone calls in question were referable to the manner in which Rabin performed his authorized duty as Caprock’s personnel manager, and that they were not referable to acts wholly independent and outside of the scope of such duty. The jury was entitled to infer that the slanderous statements were uttered within the scope of Rabin’s broad authority as general manager of Caprock’s principal place of business. I would not hold that there is no evidence to support the jury’s findings partly due to the fact that the record is silent as to the custom and practices of general managers in the meat packing industry as a whole. The jury should be allowed to decide this case on its merits and base its findings upon the particular authority granted to Rabin alone, regardless of the practice adopted by other general managers in the meat packing business.

In Woods v. Townsend, 144 Tex. 594, 192 S.W.2d 884 (1946), this court stated that if reasonable minds cannot differ from the conclusion that the evidence lacks probative force, it will be held to be the legal equivalent of no evidence. I fail to understand how one can assert that in the instant case, reasonable minds could not differ as to whether or not the evidence reflected in this record lacks probative force. The majority has held that the evidence offered in this case to prove that Elmer Rabin made these slanderous statements while in the course and scope of his employment is so weak as to do no more than create a mere surmise or suspicion. Under this record, I have difficulty understanding how the majority reached the conclusion that “there is no factual basis for the inference that Rabin’s unsolicited calls were referable to or in discharge of any duty he owed Caprock.” [Emphasis added].

In his excellent article discussing “no evidence points of error,” Justice Calvert stated that “[i]f the inference is not a reasonable one a ‘no evidence’ point should be sustained.” Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Texas L.Rev. 361, 363 (1960). See also, Western Telephone Corporation of Texas v. McCann, 128 Tex. 582, 99 S.W.2d 895 (1937); Texas & N. O. R. Co. v. Warden, 125 Tex. 193, 78 S.W.2d 164 (1935). Certainly the inference drawn by the jury is a reasonable one. I would uphold the findings of the jury. Accordingly, I would reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

SAM D. JOHNSON, J., joins in this dissent.

      . In connection with this issue, the trial court instructed the jury that the phrase “course and scope of his employment” meant “conduct that is referable to the duty owing by an employee to the corporation and made while in the discharge of that duty.”