text:
    Frank KERSEY, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    June 16, 1975.

      Conrad Finnell, Finnell, Thompson, Scott & Logan, Cleveland, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Richard Fisher, Dist. Atty. Gen., Cleveland, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari to take a fresh look at the “Allen” or “dynamite” charge, and to clarify certain matters incidental thereto.

I.

Petitioner was found guilty of involuntary manslaughter and sentenced to confinement in the State Penitentiary for not less than one (1) nor more than five (5) years. His conviction was upheld by the Court of Criminal Appeals.

The record reflects that after the jury had deliberated about one hour and forty-five minutes it returned to the courtroom and, in response to questions by the trial judge, announced that it had not reached a verdict but was making progress. After discussing arrangements for the evening meal the jury left the courtroom. It is not clear from the record whether the jury deliberated further or went out to eat. The record simply shows that “the jury, after deliberating further after supper”, returned and reported that it had not reached a verdict and “(i)t looks like we are not going to, your Honor.” In response to a question by the trial judge, the foreman reported that the jury was hung on the question of guilt or innocence. In response to a direct-question on the division, the foreman reported the jury to be hung eleven to one.

Immediately the trial judge, su a sponte, charged the jury as follows:

While the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of your fellows, yet you should examine the questions submitted with candor and with a proper regard and difference (sic) to the opinions of each other. It is your duty to decide the case if you can conscientiously do so. You should listen with a disposition to be convinced to each other’s arguments. If the larger number are for conviction or acquittal, a dissenting juror should consider whether his doubt was a reasonable one which made no impression on the minds of so many other men, equally honest, and equally intelligent with himself. The jury should not go contrary to their convictions, but they should properly give heed to the opinions of their fellow jurors and by reasonable concessions reach a conclusion which although not originally entertained by any of them, nevertheless, may be one to which all can scrupulously adhere. In other words, the minority should listen to the views of the majority with the disposition of being convinced. Now, with that addition we will work a few minutes longer. (Emphasis supplied).

His Honor, the trial judge, apparently had faith that this “dynamite” charge would blast the jury into a unanimous verdict. At least, he so indicated by stating “we will work a few minutes longer.”

Immediately upon the conclusion of this supplemental charge, the record reflects that counsel for the defendant tendered a special request as follows:

Defendants further request that the court charge the jury as follow (sic):
at close of 7:55 report of 11-1 deadlock Irrespective of anything I have said, each of you must believe beyond a reasonable doubt that the defendant is guilty. If any juror has a reasonable doubt he should vote for an acquittal.

This special request was denied by the trial judge.

Thereafter, the trial judge instructed the jury to return to the jury room and advised that “we will send for you in a few minutes.”

Thereafter, at a timé not disclosed by the record the jury returned and reported that it had reached a verdict.

II.

We first address the matter of the trial judge making inquiry as to the division of the jury and hold that this is not proper practice. Until the jury shall have reached a verdict, no one — not even the trial judge — has any right, reason or power to question the specifics of its deliberative efforts. We hold that such inquiry is error. Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). Where this inquiry is accompanied by the Allen charge or any of its variations, the error is compounded. For text and cases relating to an inquiry as to the division of the jury, see 76 Am.Jur.2d, Trial, Sec. 1058 and E. Ledford, Defusing the Dynamite Charge: A Critique of Allen and its Progeny, 36 Tenn.L.Rev. 749 (1969).

Under the inherent and the statutory supervisory power of this Court, we advise the trial bench that when a jury’s deliberations have not produced a verdict, and it returns to the courtroom and so reports, the presiding judge should admonish the jury, at the very outset, not to disclose their division or whether they have entertained a prevailing view. The only permissive inquiry is as to progress and the jury may be asked whether it believes it might reach a verdict after further deliberations. If the trial judge feels that further deliberations might be productive, he may give supplemental instructions in accordance' with subsequent portions of this opinion. See State v. Hutchins, 43 N.J. 85, 202 A.2d 678 (1964).

III.

The so-called Allen or dynamite charge had its origin in Commonwealth v. Tuey, 62 Mass. 1 (1851). It achieved national prominence and the name by which it is generally known through Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), wherein the court paraphrased the charge of the trial judge as follows:

. These instructions were quite lengthy, and were, in substance, that in a large proportion of cases absolute certainty could not be expected; that although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other’s arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If, upon the other hand, the majority was for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority (Emphasis supplied) 164 U.S. at 501, 17 S.Ct. at 157, 41 L.Ed. at 530.

IV.

The Tennessee version of the Allen charge originated in Simmons v. State, 198 Tenn. 587, 281 S.W.2d 487 (1955), wherein this Court approved a charge identical with that given in the case at bar, as hereinabove set forth.

The Court cited as authority for its holding, two cases. The first of these was High v. Lenow, 195 Tenn. 158, 258 S.W.2d 742 (1953). The crux of the Court’s holding in Lenow is as follows:

The jury should not go contrary to their convictions but they should properly give heed to the opinions of their fellow jurors, and by reasonable concessions reach a conclusion which although not originally entertained by any of them, nevertheless may be one to which all can scrupulously adhere. 258 S.W.2d at 745.

Lenow supports only a limited portion of the Simmons charge. Certainly, it does not provide authority for the strong admonition of Simmons that “the minority should listen to the views of the majority with the disposition of being convinced.”

The other case cited in Simmons is Allen v. United States, supra, but when Allen is analyzed in the light of the Simmons charge it is substantially less offensive in that it too, stops short of requiring, in haec verba, that the minority should listen to the views of the majority with the disposition of being convinced although this is the import of the Allen charge.

The Simmons charge was approved in principle in Hopper v. State, 205 Tenn. 246, 326 S.W.2d 448 (1959). In Weston v. State, 506 S.W.2d 946 (Tenn.Cr.App.1973), the Court of Criminal Appeals followed Simmons and approved the charge; however, it noted:

(T)here appears to be a growing body of opinion that the Allen charge itself is coercive, and that a different instruction should be given a deadlocked jury. 506 S.W.2d at 948.

V.

Reference to various text treatments will validate the assertion that the Allen charge, in one form or another, has tantalized the criminal defense bar, tortured the trial bench and tormented the appellate courts throughout the nation.

The Allen charge has come under widespread criticism. Mr. Justice Clark has stated:

Allen is dead and we do not believe in dead law. Clark, Progress of Project Effective Justice — A Report on the Joint Committee, 47 J.Am.Jud.Soc’y., 88-90 (1963).

The Fifth Circuit, in Green v. United States, 309 F.2d 852 (5th Cir. 1962) has asserted:

(t)here is small, if any, justification for its use. Id. at 854.

Judge Brown, in his dissenting opinion in Huffman v. United States, 297 F.2d 754 (5th Cir. 1962), stated in part:

I think a mistrial from a hung jury is a safeguard to liberty. In many areas it is the sole means by which one or a few may stand out against an overwhelming contemporary public sentiment. Nothing should interfere with its exercise. In the final analysis the Allen charge itself does not make sense. All it may rightfully say is that there is a duty to consider the views of others but that a conscientious person has finally the right and duty to stand by conscience. If it says that and nothing more it is a superfluous lecture on citizenship. If it says more to declare that there is a duty to decide, it is legally incorrect as an interference with that rightful independence. Id. at 759.

We concur in this statement of Judge Brown.

In an en banc hearing, the Court of Appeals for the Fifth Circuit, in United States v. Bailey, 480 F.2d 518 (5th Cir. 1978), considered the propriety of the Allen charge. Six judges of that Circuit, in a concurring opinion, referred to it as “this abusable relic” and pointed out that its use “is an invitation for perennial appellate review”.

In State v. Thomas, 86 Ariz. 161, 342 P.2d 197 (1959), the Arizona Supreme Court held:

We are convinced that the evils far outweigh the benefits and decree that its use shall no longer be tolerated and approved by this court. 342 P.2d at 200.

The Montana Supreme Court in State v. Randall, 137 Mont. 534, 353 P.2d 1054, 100 A.L.R.2d 171 (1960), in holding that a variation of the Allen charge was reversible error, stated:

The inevitable effect of the instruction would be to suggest to the minority members of the jury that they ought to surrender their own convictions and follow the majority. A vibrant, pulsating, intelligent minority is a part of our American way of life. The views of the minority, often with the passage of time, become the majority view. . . .: The majority view on any given subject is not always the correct view. 353 P.2d at 1058.

The Third Circuit, in United States v. Fioravanti, 412 F.2d 407 (3rd Cir. 1969), said in part:

Hereafter, in this circuit, trial judges are not to give instructions either in the main body of the charge or in the form of a supplement that direct a juror to distrust his own judgment if he finds a large majority of the jurors taking a view different from his. Such an instruction will be deemed error, normally reversible error. Conceivably, in very extraordinary circumstances the error may be found so inconsequential as to avoid the necessity of reversal on appeal. But hereafter this Court will not let a verdict stand which may have been influenced in any way by an Allen charge.
We predicate our decision on the basis of the potential for prejudice its future use may generate and the profound difficulty in confining its use within just and equitable bounds. Its peccancy comes from its tendency to hurt, from its tendency to erode the juror’s capacity for meaningful group deliberation with its concomitant arguing, influencing, and exchange of views. As a prophylactic device to eliminate future vexation, our prohibition shall have prospective application only in those jury trials which shall be conducted hereafter. Id. at 420.

The Seventh Circuit, in United States v. Brown, 411 F.2d 930 (7th Cir. 1969), acting pursuant to its supervisory power, in effect banned the Allen charge and required that district courts within that circuit, when faced with deadlocked juries, comply with the standards suggested by the American Bar Association’s Trial by Jury publication. (See supra). In United States v. Silvern, 484 F.2d 879 (7th Cir. 1973), this Circuit suggested a precise charge as outlined in the ABA Commentary to Sec. 5.4 of the Standards for Trial by Jury (see supra), and directed that “unless and until we suggest any further change in the future, the instruction quoted in this opinion is the only deadlocked instruction to be given”.

The District of Columbia Circuit, in United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971), banned the Allen charge and adopted the instructions recommended by the ABA.

Finally, in the case under consideration, Judge Russell, writing for the Court of Criminal Appeals, stated:

An instruction that coerces a jury into returning a verdict is bad, and we have taken note of the body of legal thought which holds that the “Allen” charge itself is coercive, (citing Weston, supra).

VI.

The right of trial by jury may not be impaired or encumbered with conditions which, in their practical operation, may embarrass or violate the free and full enjoyment of the right. Neely v. State, 63 Tenn. 174 (1874).

In our view the Allen charge and the Allen-Simmons charge operate to embarrass, impair and violate the constitutional right of trial by jury. Any undue intrusion by the trial judge into this exclusive province of the jury, is an error of the first magnitude. We recognize that the trial judge has a legitimate concern in the administration of justice and that he labors under a duty to lend guidance to the jury through instructions as to the governing principles of the law. However, when the effort to secure a verdict reaches the point that a single juror may be coerced into surrendering views conscientiously entertained, the jury’s province is invaded and the requirement of unanimity is diluted.

We view these charges as being tantamount to a judicially mandated majority verdict which is impermissible under Tennessee law.

Moreover, there is an inherent inconsistency in these charges in that the dissenters are urged to reconsider their verdict and simultaneously are reminded to make their decisions based upon their own convictions which they are cautioned not to sacrifice. They ask the dissenters to consider shifting their opinions, because the majority is of a different persuasion. We find no merit to any suggestion that might necessarily makes right. We take note of the classic lines:

NOR IS THE PEOPLE’S JUDGMENT ALWAYS TRUE. THE MOST MAY ERR AS GROSSLY AS THE FEW.

VII.

We conclude that the interests of justice demand the rejection of the “dynamite” charge. Under the statutory and inherent supervisory power of this Court, we direct that trial courts in Tennessee, when faced with deadlocked juries, comply with the ABA Standards Relating to Trial by Jury, Sec. 5.4, which are as follows:

5.4 Length of deliberations; deadlocked jury.
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i)that in order to return a verdict, each juror must agree thereto;
(ii)that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(iii)that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and
(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.

The instruction contemplated in Sec. 5.4(a) may be given as a part of the main charge and should be given in the following form:

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous.
It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict.

If given as a part of the main charge, it may be repeated should a deadlock develop.

Judicial economy and uniformity demand these results. Strict adherence is expected and variations will not be permissible.

We hold that the charge given in this case was prejudicial.

The judgment of the Court of Criminal Appeals is reversed and this case is remanded for a new trial.

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

      . The use of the word, difference as opposed to deference as is contained in the charge in Alien v. United States, infra, resulted from an error originating in Simmons v. State, infra.

      . This charge was taken verbatim from Simmons v. State, infra.

      . Trial judges should insure that court reporters indicate time intervals at appropriate places during the progress of a trial. Particularly should the movements and actions of the jury be chronicled.

      . See E. Ledford, Defusing the Dynamite Charge; Critique of Allen and Its Progeny, 36 Tenn.L.Rev. 749 (1969); ABA Standards, Trial by Jury, 5.4 (1968); 76 Am.Jur.2d, Trial, Sec. 1060 et seq.; Annotation, Instructions urging dissenting jurors in Criminal case to give due consideration to opinion of majority, 100 A.L.R.2d 177 and later case service.

      . J. Dryden, Absalom and Achitophel.


source: Caselaw Access Project

author: COOPER, Justice. FONES, Chief Justice

license: Public Domain

text:
    William H. NABORS and Landy Box, Co-Administrators, Estate of Raymond Box, Deceased, Petitioners, v. Laverne GEARHISER, Respondent.
    Supreme Court of Tennessee.
    May 19, 1975.
    Rehearing Denied July 7, 1975.

      Mark H. Collier, Waverly, Claude Calli-cott, Nashville, for petitioners.
    Frank L. Hollis, Peeler & Hollis, Camden, for respondent.
   OPINION

COOPER, Justice.

This case involves a claim against the estate of Raymond Box, deceased, upon a promissory note in the principal amount of $3500.00 given as part payment for the Big Sandy Hotel, Big Sandy, Tennessee. The County Court of Houston County denied the claim without any finding of fact or statement of reasons for the decision. Upon appeal by claimant, respondent here, the Court of Appeals reversed and remanded, holding that the estate was liable on the note. This court granted certiorari.

On October 29, 1962, Raymond Box and Laverne Gearhiser entered into a contract by which Mrs. Gearhiser agreed to sell and Box agreed to buy the Big Sandy Hotel, together with the furniture, fixtures and equipment in the building. Mr. Box paid $1500.00 in cash, assumed a mortgage indebtedness of $12,438.57 payable to Tennessee Valley Life Insurance Company in monthly installments, and executed to claimant the promissory note of $3500.00 payable in six annual installments. Payment of the $3500.00 note was secured by a chattel mortgage covering described personal property belonging to Mr. Box. Mrs. Gearhiser, in turn, agreed to execute a deed to the hotel to Mr. Box upon payment of the $3500.00 note, The contract further provided:

“That if any default be made in the payment of any of the payments on the notes above mentioned, and if any such default shall continue for sixty (60) days, all installments previously paid shall, at the option of the Seller, without notice or demand be and become forfeited, irrevocably, and be retained by the seller as liquidated damages, and thereupon this agreement shall be of no further force or effect; provided, however, that nothing herein contained shall be deemed or construed to prevent the Seller from enforcing specific performance of this agreement, in the event of any default on the part of the Purchaser in keeping, observing and performing any of the conditions, covenants and terms herein contained.”

Mr. Box took possession of the Big Sandy Hotel under the sales agreement and, for a time, made payments on the mortgage to Tennessee Valley Life Insurance Company. Exhibits in the record show that Mrs. Gear-hiser made a part payment of $17.36 on the mortgage in June, .1963, the full monthly payment of $91.36 in July, 1963, and a part payment of $41.36 in August, 1963. These payments were made by Mrs. Gearhiser to keep Tennessee Valley Life Insurance Company from foreclosing, and to keep Mr. Box from losing the property.

During this period, Mrs. Gearhiser learned that the chattel mortgage she held on personal property of Mr. Box to secure payment of the $3500.00 note was subject to a lien held by the Third National Bank in Nashville. Mrs. Gearhiser then consulted her attorney, who set up a meeting between Mrs. Gearhiser and Mr. Box in the attorney’s office. Anita Baker, Mrs. Gearhiser’s daughter, also attended the meeting.

After the meeting and on November 1, 1963, Mr. Box made a payment of $104.00 on interest due on the $3500.00 note.

In the face of objection by counsel for the estate of Mr. Box, Mrs. Gearhiser testified that in the September meeting she and Mr. Box agreed to avoid the alternatives set out in the sales contract in the event of default by Mr. Box and agreed that Mr. Box would not be relieved of the obligation to pay the $3500.00 note. On cross-examination Mrs. Gearhiser again related the details of the agreement, though not called for by questions asked her by counsel.

The Court of Appeals accepted Mrs. Gear-hiser’s version of the September meeting agreement, and concluded that the estate of Mr. Box was liable for payment of the $3500.00 note.

Petitioner contends that the testimony of Mrs. Gearhiser was inadmissible under T.C.A. § 24 — 105, the so-called Dead Man’s Statute; and, that in any event, there was no consideration for the September, 1963, agreement.

T.C.A. § 24 — 105 provides that:

“In actions or proceedings by or against executors, administrators, or guardians, in which judgments may be rendered for or against them, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate, or award, unless called to testify thereto by the opposite party.

There is no question but that the testimony of Mrs. Gearhiser concerning the agreement made with Mr. Box in September falls with the prohibition of the above statute. Mrs. Gearhiser is a party to the suit and the suit is against the administrators of Mr. Box’s estate. The Court of Appeals recognized this, but was of the opinion that petitioner had waived his objection to the testimony of Mrs. Gearhiser by not insisting on a specific ruling by the trial judge on the objections, and by cross-examining Mrs. Gearhiser and not moving to strike statements by her concerning transactions with Mr. Box.

This court did say in Shelton v. Martin, 180 Tenn. 454, 176 S.W.2d 247 (1943), that:

“Speaking generally, we think that before the Trial Court can be put in error for the admission or rejection of testimony that it must be clearly shown that the attorney who considered himself aggrieved insisted on a ruling, and that the Court failed or refused to make one, or that on such insistence, the Trial Court made a ruling and that such ruling was erroneous.”

We still adhere to this general rule, but do not believe it requires a holding in this case that petitioner waived his objection to the testimony of Mrs. Gearhiser. Counsel for petitioner objected on numerous occasions when Mrs. Gearhiser undertook to testify concerning transactions between Mr. Box and herself, and counsel specifically predicated these objections on the Dead Man’s Statute. The trial judge never ruled specifically on the objections, but, for that matter, he never ruled on any objection made by either party during the trial of the case. We can only speculate as to the reason for the failure to rule on objections, but would point out that the trial judge is a layman not skilled in conducting trials. But, whatever the reason, the continual objections by counsel were sufficient in our opinion to put the trial judge on notice that petitioner was insisting on his right to have testimony excluded from the record which was in violation of the Dead Man’s Statute. The failure of the trial court to rule directly on the objections under these circumstances was tantamount to overruling the objection and will be so treated.

As heretofore noted, Mrs. Gearhiser also related the details of the agreement on cross-examination. However, it is a general rule followed in this state, that where transactions with the decedent are first developed on direct examination over objections of representatives of the decedent, the objections are not waived by subsequent cross-examination relative to the transactions testified to on direct examination. See Bowlen v. Baker, 147 Tenn. 36, 245 S.W. 416 (1922), wherein it is stated on page 39, 245 S.W. on page 417 that:

“The complainant was not first called to testify to the alleged contract with the deceased on cross-examination, but she undertook to testify as to this contract on direct examination, as heretofore appears. Defendant merely cross-examined her as to this contract. Defendant had excepted to such testimony on the direct examination, and he did not waive these exceptions by this cross-examination. This is now settled in Tennessee by McCormick v. State, 135 Tenn. 218, 186 S.W. 95, L.R.A., 1916F, 382, . .

From our view of the record, we hold that the trial judge was in error in admitting testimony of Mrs. Gearhiser relative to an alleged agreement between her and Mr. Box entered into in September, 1963, and that the Court of Appeals was in error in basing its decision in this case on Mrs. Gear-hiser’s testimony.

Without Mrs. Gearhiser’s testimony, there is little or no evidence of any modification of the sales agreement by the parties, except for the fact that Mr. Box voluntarily made an interest payment on November 1, 1963. This is due, at least in part, to the fact that the trial judge admitted Mrs. Gearhiser’s testimony in . evidence, leaving no necessity for additional evidence on the issue. However, it is shown in the record that two witnesses were present and heard the conversation between Mrs. Gearhiser and Mr. Box that allegedly resulted in the modification to the sales agreement. These witnesses are competent to testify to the transaction, and hold the key to a just decision in this case.

Where it appears from the record, as it does here, that more satisfactory evidence can be obtained on the issues presented, and, if produced, will enable the court to come to a more satisfactory conclusion, the cause may be remanded for such additional proof, and for a decision in the trial court based thereon. T.C.A. § 27-329. Stokely v. Southern Railway Company, 57 Tenn.App. 271, 418 S.W.2d 255 (1967); Federated Mut. Imp. & Hdwe. Ins. Co. v. Anderson, 49 Tenn.App. 124, 351 S.W.2d 411 (1961).

Accordingly, the judgments entered in this case are set aside and the case is remanded to the trial court for the taking of additional proof and for the entry of a judgment based on that proof and the proof now in the record. Two-thirds of the costs are adjudged against Mrs. Gearhiser and her surety, and one-third of the costs are adjudged against the estate of Raymond Box and its surety. Costs in the trial court will await the outcome of the case on the remand.

HENRY, BROCK and HARBISON, JJ., concur.

FONES, C. J., dissents.

FONES, Chief Justice

(dissenting).

I respectfully dissent.

The original contract between Mrs. Gear-hiser and Mr. Box was a contract for the sale of land, etc., embraced by the statute of frauds. T.C.A. § 23-201(4).

While the authorities are not in agreement, and Tennessee has no decision on point, the better rule, in my opinion, is that a contract within the statute of frauds cannot be modified by a parol agreement.

Next, there is no consideration to support the parol agreement.

Further, in my opinion, this is not an appropriate case for remand pursuant to T.C.A. § 27 — 329 or the three cases cited in the majority opinion. Mrs. Gearhiser has had her day in court. The two witnesses, her sister and her lawyer testified in the trial court and I find no justification for giving claimant a second chance to prove a parol modification of a written contract, by two interested witnesses who were available at the first trial.

Otherwise, I am in accord with the opinion of the majority.


author: HENRY, Justice.

text:
    Della INMAN et al., Appellants, v. Marvin H. PATTON, Executor, et al., Appellees.
    Supreme Court of Tennessee.
    June 30, 1975.

      John D. Goodin, David R. Denny, Johnson City, for appellants.
    Hallie K. Riner, Elizabethton, for Marvin H. Patton, Executor.
    Ben K. Wexler, Greeneville, for Holston Methodist Home, Inc., and Cedar Grove Methodist Church, Residuary Beneficiaries of the Will of Adah M. Fox, Deceased.
   OPINION

HENRY, Justice.

This appeal involves the proper county of the probate of the last will of a deceased Tennessee resident.

Adah M. Fox was a long-time resident of Washington County, Tennessee. About two years prior to her death in April 1973, she moved to Carter County where she made her home with her nephew and his wife until the time of her death. The estate of her husband had been administered in Washington County; she continued to own real estate and household property in that county, and when she made her will on April 1,1973, she proclaimed herself to be a resident of Jonesboro, Tennessee, which is the county seat of Washington County.

Her last will and testament was probated in the County Court of Carter County on 23 April 1973, in common form. The appellant herein filed a claim against the estate and simultaneously filed in the County Court of Carter County, a petition maintaining that Adah Fox, at the time of her death, continued to be a citizen and resident of Washington County, Tennessee, and praying that letters testamentary issued by the Carter County Court be revoked or in the alternative, that the executor be directed to qualify and pursue an ancillary administration in Washington County.

Pursuant to appropriate pleadings, the County Judge of Carter County, held that Adah M. Fox was a resident of that county at the time of her death and that the Carter County Court had jurisdiction to administer the estate. He further held that in order that any possible creditors in Washington County have due notice that the will or a copy thereof should be registered in the Register’s Office of Washington County, and due publication to creditors made, but subject to the provisions that any claim filed would be heard in the County Court of Carter County.

On appeal the Circuit Court at Elizabeth-ton held that the will of Adah M. Fox was properly probated in Carter County; that the deceased was a resident of Carter County at the time of her death; and that the action of the County Court requiring “probate” of the will in Washington County was incorrect.

An appeal has been perfected to this Court which assumes jurisdiction on the basis of a stipulation of all of the facts.

Our consideration of these matters must start with the presumption that when the County Court exercises its jurisdiction by admitting a will to probate, it does so rightfully and on just grounds. Phillips’ Pritchard Law of Wills, Section 43.

The Trial Judge expressed some reluctance in entertaining jurisdiction of this case, apparently questioning his right to do so. His reluctance was not well-founded. Where the county court grants letters testamentary or of administration for the estate of a decedent who dies as a resident of another county, any interested party may petition the court to revoke or vacate the probate and either unsuccessful party has the right of appeal to the circuit court. Phillips’ Pritchard Law of Wills, Sec. 46; Bellenfant v. Am. Nat. Bank, 184 Tenn. 50, 195 S.W.2d 30 (1946).

Section 32 — 201 T.C.A. reads as follows:

Wills shall be proved and recorded and letters testamentary granted in the county court of the county where the testator had his usual residence at the time of his death, or, in case he had fixed places of residence in more than one (1) county, in either or any of said counties.

Section 315, Phillips’ Pritchard Law of Wills reads in part as follows:

A man may have places of residence in more than one county or more than one state, but he can have but one domicile in a legal sense; for the purpose of testamentary disposition, however, the Tennessee statute contemplates that he may have more than one fixed place of residence.

The clear import of this statute is that in a case such as this, where an elderly person left the county of her general residence and went to live with relatives in a second county where she ultimately died; and where visible indices of residence would support a holding of residence in either or both counties, that the statute comes into play and probate may be accomplished in either county absent a clear abuse of discretion on the part of the county court of the county of probate. This Court will abide the presumption in favor of the correctness of the opinion and action of the probating county judge.

We know of no requirement under Tennessee law for an ancillary administration of the estate of a Tennessee resident. If the county judge, under the circumstances of any particular case, considers it necessary or desirable that the residents of another county be notified of the issuance of letters testamentary or of administration, he has the inherent right to direct that publication be made in that county.

In summary we hold that Carter County was a proper county for the probate of the last will and testament of Adah M. Fox and the administration of her estate and that no ancillary administration need be conducted in any other county.

Affirmed and remanded for further proceedings in connection with the administration of this estate.

FONES, C. J., and COOPEE, BROCK and HARBISON, JJ., concur.


text:
    Douglas V. WHISNANT, Appellant, v. Ortha BYRD et al., Appellees.
    Supreme Court of Tennessee.
    June 30, 1975.
    Douglas V. Whisnant, pro se.
    Roy D. Sexton, Oneida, for appellees.
   OPINION

HENRY, Justice.

Appellant, a prisoner confined in the Tennessee State Penitentiary pursuant to a conviction of armed robbery, filed his pro se complaint in the Circuit Court at Huntsville seeking to recover “one (1) colored, 5" x 7" picture of the former Miss Audra Byrd, when she was approximately thirteen (13) years old and in the seventh (7th) grade,” and for the sum of $10,000.00 damages “for intense worry, grief and mental pain, caused by the defendants false dealing”. After various and sundry motions were filed by plaintiff, the trial judge entered an order reciting “that in view of the fact that the plaintiff is presently incarcerated in the state penitentiary, that this case should be continued from term to term until the release of the plaintiff from prison.”

Appellant filed his “notice of appeal” but did not perfect his appeal by taking and subscribing to the oath prescribed for poor persons or by making bond for the costs. Technically speaking, this case is not properly before the Court. However, since we deal with a prisoner who is not represented by counsel and who is obviously a pauper, we take jurisdiction for the special and limited purpose of determining the correctness of the action of the trial judge in continuing this lawsuit until the expiration of the plaintiff’s period of confinement.

At the common law, a person convicted of a felony was said to be civilly dead; could perform no legal functions; and did not have the capacity to sue. As Lord Coke phrased it:

Besides men attainted in a praemunire every person that is attainted of high treason, petit treason, or felony is disabled to bring any action, for he is extra legum positus, and is accounted in law civiliter mortuus. 1 Co. Litt. Sec. 199.

This rule of the common law however, does not obtain in this jurisdiction. Art 1, Sec. 12, of the Constitution of Tennessee provides, in part, “that no conviction shall work corruption of blood or forfeiture of estate”.

Art. 1, Section 17 provides, in part, “And every man, for an injury done him in his lands, goods, person or reputation, shall have remedy by due course of law”.

These constitutional provisions constitute clear and unequivocal declarations of the public policy of this State to the effect that no forfeiture of property rights shall follow conviction for a crime, and that every man shall have a remedy by due course of law for an injury sustained by him.

That the public policy of this State opposes forfeitures for conviction of crime is well established. Fields v. Met. Life Ins. Co., 147 Tenn. 464, 249 S.W.2d 798 (1922).

We, therefore, hold that a prisoner has a constitutional right to institute and prosecute a civil action seeking redress for injury or damage to his person or property, or for the vindication of any other legal right; however, this is a qualified and restricted right.

We quote with approval the following language from Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955):

(W)e think that the principle of the cases [relating to restraint of personal liberty] should not be extended to give them an absolute and unrestricted right to file any civil action they may desire. Otherwise, penitentiary wardens and the courts might be swamped with an endless number of unnecessary and even spurious lawsuits filed by inmates in remote jurisdictions in the hope of obtaining leave to appear at the hearing of any such case, with the consequent disruption of prison routine and concomitant hazard of escape from custody. As a matter of necessity, however regrettable the rule may be, it is well settled that, “Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356. 224 F.2d at 529.

We further quote with approval the following language from Seybold v. Milwaukee County Sheriff, 276 F.Supp. 484 (E.D.Wis.1967):

Regardless of the merit of the causes of action stated in their complaints, it must be remembered that the prisoner-plaintiffs have, by their own acts resulting in conviction, placed themselves in a position such that effective prosecution by themselves is not possible without interference by the court with their detention, and it is our opinion that absent unusual circumstances that interference is not warranted. In other words, their unavailability for hearings and trials is due to their convictions, and although the court believes that they should not therefore lose their rights of action by operation of a statute of limitations, we know of no authority compelling us under ordinary circumstances to deliver them from their self-caused restrictions and proceed with their cases as though they could appear at will. 276 F.Supp. at 488.

We note that See. 41-604 T.C.A. provides that “in no civil case can a convict be removed from the penitentiary to give personal attendance at court, but his testimony may be taken by deposition, as in other cases . .

The ensuing section provides for depositions in criminal cases and Sec. 41-606 T.C.A. authorizes the presiding judge of any court to order the warden of the penitentiary to bring a convict before the court to give testimony for the state in criminal cases, and the next section makes it the duty of the warden to produce the convict witness. There are no such provisions in our law relating to civil suits.

We hold that, absent unusual circumstances, prisoners who have filed their civil complaints, unrelated to the legality of their convictions and who have thus protected themselves against the running of any statute of limitations, will not be afforded the opportunity to appear in court to present their cases during their prison terms. Instead such matters will be held in abeyance until the prisoner shall have been released from prison and is in a position to prepare and present his case. We hold that in a proper case, and upon a proper showing of particularized need, the trial judge, in his discretion, may issue an appropriate directive requiring the attendance of the prisoner.

In the case at bar plaintiff’s complaint has been filed and the statute of limitations has been tolled. His right of action is protected. In our opinion the record does not disclose any need for immediate attention and certainly the trial judge would have been remiss had he disposed of the case in the absence of the plaintiff, and even more so had he attempted to order his presence at trial with the accompanying expense, hazard to the public, and interference with prison officials.

We will not brand plaintiff’s cause of action as frivolous, but on its face an action in detinue seeking to recover a 5 x 7 snapshot is somewhat less than substantial, involving as it does a likeness of a thirteen year old girl who has since become the wife of another man. The ad damnum is somewhat less than realistic and contributes nothing of substance to this action.

The trial judge treated plaintiff-convict with charitable consideration and his action is affirmed.

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


author: OPINION SHRIVER, Judge.

text:
    PRESTON LINCOLN-MERCURY, INC., Plaintiff-Appellee, v. Merle KILGORE, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 6, 1974.
    Certiorari Denied by Supreme Court March 31, 1975.
    M. Taylor Harris, Jr., Boult, Cummings, Conners & Berry, Nashville, for plaintiff-appellee.

      Jack J. Green, Nashville, for defendant-appellant.
   OPINION

SHRIVER, Judge.

This is a suit to recover under the terms of a lease agreement wherein defendant leased a Lincoln Continental automobile from plaintiff for a term of twenty-seven months, which said lease agreement was terminated by the plaintiff after default in payments by the defendant and said automobile was repossessed and sold by plaintiff.

The case was tried before Honorable Shelton Luton, sitting by designation in Chancery Court, Part One, in Nashville, and resulted in a judgment in favor of plaintiff for a total of $8,588.02 and the costs of the cause, from which judgment defendant duly perfected his appeal to this Court and has assigned errors.

The bill of complaint alleges that, on June 7, 1972, plaintiff and defendant executed a written agreement whereby plaintiff leased to the defendant a 1972 Lincoln Continental Town Car at the basic rate of $370.00 per month, plus sales tax, for a term of twenty-seven months.

On August 2, 1978, plaintiff notified defendant, by letter addressed to him at 812 Sixteenth Avenue South, Nashville, Tennessee, as follows:

“August 2, 1973
Mr. Merle Kilgore
Buddy Lee Attractions
812 16th Avenue South
Nashville, Tennessee
Dear Mr. Kilgore:
Be advised that the 1972 Lincoln Continental, serial number 2Y82A872822 leased to you was repossessed at the Nashville Metro Airport on August 1/ 1978. It is now in our possession.
According to the terms and conditions of the lease agreement, the lease is hereby terminated, and is, as of this date, being placed in the hands of our attorney for appropriate legal action.
Yours very truly,
PRESTON LINCOLN-MERCURY, INC.
Tony Noland, Fleet & Lease Manager”

The record does not disclose the number of months defendant was in arrears at the time of the foregoing notice of termination; however, the narrative bill of exceptions, which is very brief and meager, reflects that Mr. Tony Noland, Fleet and Lease Manager for plaintiff, testified that, as of August 1, 1973, his records indicated that the defendant, Kilgore, was in arrears on his rental payments for the automobile, including interest, sales tax and profit, in the amount of $1,581.69. He stated that because of this default plaintiff repossessed the automobile and returned same to their shop where they put it in condition to resell on a retail basis. He further testified that, in preparing the automobile for resale, it was necessary to put new tires on it and do approximately $65.00 in body repairs and that said car was sold in November, 1973, “and after deductions of all applicable expenses of the sale, there was a net to the plaintiff in the amount of $5,547.26.”

The narrative bill proceeds as follows:

“That under the terms of the agreement between the parties, there was a balance owing under the contract in the amount of $4,670.80, plus interest. That after deduction of commissions, taxes, license, and anticipated profit, the company suffered an overall loss on the 1972 Lincoln Continental in the amount of $1,131.59.”

On cross-examination, he testified that the exact total cost to the Company of the vehicle in question was $9,637.68.

According to the narrative bill, he further testified that, after deduction of all expenses, commissions, taxes and anticipated profit, plaintiff had a net loss of $1,139.59 due to defendant’s breach of the contract with resulting repossession and sale of the automobile prior to the end of the lease term. Also, in addition to the aforesaid net loss, arrearages of defendant in the amount of $1,581.69 were due and owing.

The defendant offered no evidence at the hearing.

The record shows that a judgment by default had been entered against the defendant but, on motion, said default judgment was set aside and the defendant allowed to answer, which answer, after asserting that defendant is a resident of Davidson County, Tennessee, states:

“Your defendant denies each of the allegations of the complaint heretofore filed against him and demands strict proof of same.”

The Chancellor awarded plaintiff judgment for $2,713.28, the sum of the delinquent rent of $1,581.69 and the net additional loss of $1,139.59, plus interest on said sum from August 1, 1973.

ASSIGNMENTS OF ERROR

Assignment No. 1 is to the effect that there is no evidence to support the ruling of the Court and is, obviously, without merit in view of the evidence contained in the narrative bill of exceptions, as here-inabove indicated. Hence, Assignment No. 1 is overruled.

Assignment No. 2 that the weight of the evidence preponderates against the judgment of the Court is likewise without merit in that there is material evidence to support the judgment and no evidence in the record on behalf of the defendant to refute same. Hence, Assignment No. 2 is overruled.

Assignment No. 3 states that it was error for the Court to enter a judgment in the principal amount of $2,713.28 against the defendant when the proof showed that the plaintiff’s loss was $1,131.59.

It is to be noted that the evidence, as set forth in the narrative bill of exceptions, is uneontradicted wherein it was testified by the Fleet and Lease Manager of plaintiff that its net loss by reason of defendant’s breach of the lease contract was $1,131.59, and that, in addition thereto, the defendant owed back lease payments in the amount of $1,581.69. Hence, Assignment No. 3 is overruled.

Assignment No. 4 is that it was error for the Court to award interest from August 1, 1978, the date of the breach of the lease agreement.

From the record it would appear that when defendant was notified on August 2, 1973 that the lease agreement was being terminated, he was in arrears in monthly payments due the plaintiff in the amount of $1,581.69; hence, it is evident that the Trial Judge did not award interest from the date of the breach of the lease agreement but awarded interest only from the date when the lease agreement was terminated because of the breach which had occurred several months prior to that time and continued as the monthly rental payments came due. That is, the $1,581.69 consisted of several installments which came due during several months preceding August 1, 1969; and plaintiff was entitled to interest on said installments from their respective dates, rather than the later date of August 1, 1973.

Therefore, interest which is provided for in the lease agreement upon all arrearages was not applied, as it might have been, and, of course, it would have amounted to a sum in excess of that which the Trial Judge did allow.

We find no merit in Assignment No. 4; hence, it is overruled.

Assignment No. 5 avers that it was error for the Court to enter an attorney’s fee in the amount of twenty-five percent on the interest and principal judgment without determining services rendered and that same was excessive and unreasonable.

The lease agreement simply provides for recovery of “all costs and expenses, including attorneys fees incurred by lessor in enforcing lessor’s rights hereunder.”

Since the narrative bill does not reveal what attorneys fees were charged the lessor in enforcing its rights hereunder, in the state of the record, we must presume that the amount allowed by the Trial Judge was fixed in his discretion in view of his knowledge of the case and the proceedings that had been reasonably necessary in Court in enforcing plaintiff’s rights.

Even if it should be considered that the fee allowed below was somewhat excessive for proceedings through the Trial Court, it could hardly be successfully maintained that it is excessive since the litigation has been pursued by appeal through this Court.

As to the attorney’s fee, as well as' the items of expense which plaintiff’s witnesses testified were necessary in enforcing its rights under the contract, there is much to be desired in this record. Nevertheless, when appellant brought the case to this Court, it was his responsibility to furnish the Court with a bill of exceptions that would reveal any rights that he may have been denied and any deficiencies in the evidence offered by the plaintiff, if such existed. In the absence of any such evidence in the record, it is our duty to affirm the judgment of the Trial Court under the statute, T.C.A. § 27-303, and decisions thereunder to the effect that the ease comes to us for a trial de novo with a presumption of correctness of the decision below.

As bearing on the question raised by Assignment No. 5, the following authorities shed some light.

In Harriman Welding Supply Co. v. Lake City Lightweight Aggregate Corp., 46 Tenn.App. 529, 330 S.W.2d 564,,it was held:

“Allowance of attorneys’ fees should be the exercise of judicial discretion, founded upon court’s knowledge of the real value of the services performed, and should not be rested upon testimony of experts as to the general value of professional services.”

In Hail v. Nashville Trust Co., 31 Tenn.App. 39, 212 S.W.2d 51, it was held:

“In determining reasonable compensation for legal services, each case must depend upon its own peculiar facts, and same principles apply in the case of minors as in the case of adults.”

In Fiedler v. Potter, 180 Tenn. 176, 172 S.W.2d 1007, it was held that, in determining reasonable allowance of attorneys’ fees, the Court was not bound by expert opinion of attorneys who testified and that the Court can wholly disregard such testimony if in its judgment the fees suggested were excessive or inequitable. Also see State v. Delinquent Taxpayers, 26 Tenn.App. 62,167 S.W.2d 690.

In Noone v. Fisher, D.C., 45 F.Supp. 653, it was said that the amount of an attorney’s fee recoverable for services rendered is peculiarly within the discretion of the Court because an attorney is an officer of the Court.

Also see Carmack v. Fidelity Bankers Trust Co., 180 Tenn. 571, 177 S.W.2d 351.

We have carefully examined the lease agreement on which this suit is predicated and we find that it, among other things, provides in Section 17 thereof:

“. . . Lessor also shall be entitled to recover from Lessee all rentals, sums, and reimbursements then past due or to become due under this lease with respect to each vehicle up to the end of the lease term herein stated therefor, together with interest at the highest legal rate and all costs and expenses (including attorney’s fees) incurred by Lessor in enforcing Lessor’s rights hereunder.” [Emphasis supplied]

If the Trial Judge had awarded judgment under the terms above quoted, the amount due under the contract to the end thereof would have been $4,670.80 rent, plus interest, rather than the lesser amount of $1,139.59 rent which was awarded.

From all of the foregoing, it would appear that the defendant was dealt with rather leniently by the Court in the enforcement of plaintiff’s rights under the contract and that there is no error in the judgment and decree of the Court. It, therefore, results that the judgment of the Trial Court is affirmed.

Affirmed.

TODD, J., and ALFRED T. ADAMS, Sr., Special Judge, concur.


author: SAM D. JOHNSON, Justice.

text:
    Arcenio GARCIA, Relator, v. George CARPENTER, Sr., et al., Respondents.
    No. B-5156.
    Supreme Court of Texas.
    April 9, 1975.
    Gabriel Gutierrez, Jr., Austin, for relator.
    Harvey L. Hardy, San Antonio, for respondents.
   MANDAMUS PROCEEDING

SAM D. JOHNSON, Justice.

This is an original mandamus proceeding by the relator Arcenio Garcia against the Mayor and City Councilmen for the City of Cotulla, La Salle County, Texas. By this action the relator sought to compel respondents to place and print his name on the official ballot as a candidate for the office of mayor of the City of Cotulla.

The absentee balloting for the primary election for such office was to begin almost immediately, on March 17, 1975, and the election itself was set to be held on April 5, 1975. The application was presented on March 12, 1975. This court heard oral arguments from the parties on the following day and promptly thereafter, on March 13, 1975, announced its judgment from the bench with no motion for rehearing being entertained. Based upon representations of immediate compliance with the court’s judgment by the respondents, issuance of the writ of mandamus was withheld. The court’s judgment ordering respondents to place relator’s name on the ballot was predicated on the following.

The respondents are empowered to conduct the city election by virtue of Articles 977 through 992, Vernon’s Texas Revised Civil Statutes Annotated, and Article 4.06 of the Texas Election Code, V.A.T.S. On March 4, 1975 the relator made timely sworn application to the Mayor and City Council to have his name placed on the ballot for the position he sought. The application, accompanied by a loyalty oath, recited, “ . . .1 hereby certify that I am qualified to make this application and that I am legally qualified to hold such an office if elected. Also that I am above the age of 21, and a qualified elector, and have resided 12 months next preceeding the Election within the City limits of Cotulla, Texas.” The sufficiency of the application is not questioned and, from what is therein recited, it appears that the relator was duly qualified to have his name placed upon the ballot for the upcoming election.

Thereafter, however, on March 6, 1975 an emergency meeting of the City Council was held and the determination was made that the relator Arcenio Garcia was ineligible to run for the position of mayor. This determination was based on the fact that the relator did not, in the opinion of the Mayor and City Council, meet the one-year residence requirement applicable to candidates for the office of mayor. In its order the Mayor and City Council recited that relator Arcenio Garcia had testified in a case in the district court that he had not completely moved into the city limits until after April 5, 1974, a fact which would show he had not met the one-year residence requirement. It was by virtue of this information and recital that the Mayor and City Council made the unanimous determination that the relator was ineligible to run for the office of mayor.

There is little clarity concerning the district court case in which the testimony of the relator was alleged to have been given. From the response of counsel for the respondents and the relator, however, at least one salient fact about such case appears to be undisputed: no judicial determination was made in such action which related specifically to the residence of this relator.

There is authority for the proposition that the disqualification of a candidate may be shown by public records. McClelland v. Sharp, 430 S.W.2d 518 (Tex.Civ.App. — Houston [14th Dist.] 1968, no writ). In that case the “uncontroverted admitted facts” consisted of public records indicating the relator’s disqualification by reason of his residence in a different precinct from that in which he sought election. The “records” consisted of the relator’s voter’s registration, the relator’s record of successive votes and the relator’s candidacy for political office — all in the different precinct. There are, of course, no such similar “records” before the court in the instant case.

In Ferris v. Carlson, 158 Tex. 546, 314 S.W.2d 577 (1958), this court had before it a case in which the relator was attempting by mandamus to have his name placed upon the ballot at a forthcoming election. The question was whether the relator met the constitutional requirement that he must have been a practicing lawyer for a period of four years preceding his election. One of the undenied recitals was “a statement in a recent lawsuit” that his occupation was the investment brokerage business, a fact which — if true — would be inconsistent with the requirement that he be a practicing lawyer. This court clearly stated that election officials might look to other records or recitals which were conclusive in nature, but accorded no effect to the testimony described.

Election officials, charged with the duty of certifying names to properly appear on the ballot, have no authority to inquire into facts dehors the record. Weatherly v. Fulgham, 153 Tex. 481, 271 S.W.2d 938 (1954). As the rule established in Weatherly is applied to the instant case, election officials have no authority to attach credence to asserted facts which are not conclusively established by public documents or recitations. While no attempt is made to enumerate the public documents or recitals which may comprise the record, it is clear that reliance may not be properly placed on the asserted testimony here. Absent other records clearly establishing relator’s nonresidence, the respondents had no power to go behind the recitals in relator’s sworn application and make determinations contrary thereto. Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594 (1960).


author: DALLY, Commissioner.

text:
    Warren K. STEFFEN, II, Appellant, v. The STATE of Texas, Appellee.
    No. 50673.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    No atty. on appeal.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for felony theft; the punishment assessed by the jury is imprisonment for five years. The imposition of sentence was suspended and the appellant was granted probation on the recommendation of the jury. This appeal will be dismissed because notice of appeal was not timely given.

The jury verdict assessing punishment and the judgment were entered on October 17, 1974. Appellant timely filed a motion for new trial on October 21,1974. The trial court overruled appellant’s motion for new trial on December 13, 1974, and the appellant gave notice of appeal on the same date. No amended motion for new trial appears in the record.

Article 40.05, Vernon’s Ann.C.C.P., requires that a motion or an amended motion for new trial shall be determined by the court within twenty days after it is filed. This provision has been held to be mandatory. Grimes v. State, 171 Tex.Cr.R. 298, 349 S.W.2d 598 (1961); Steward v. State, 422 S.W.2d 733 (Tex.Cr.App.1968); Cranfil v. State, 525 S.W.2d 518 (Tex.Cr.App., delivered July 16, 1975). In the instant case the motion for new trial was overruled by operation of law on Monday, November 11, 1974. See Cranfil v. State, supra; McDaniel v. State, 461 S.W.2d 603 (Tex.Cr.App.1971); Steward v. State, supra.

Article 44.08, V.A.C.C.P., provides that in probation cases where imposition of sentence is suspended, notice of appeal shall be given or filed within ten days after the overruling of the motion or amended motion for new trial and if there is no motion or amended motion for new trial, then within ten days after entry of judgment on the verdict. In the instant case, notice of appeal was not given within ten days after the appellant’s motion for new trial was overruled by operation of law; notice of appeal was untimely. See Perez v. State, 496 S.W.2d 627 (Tex.Cr.App.1973), and cases there cited.

The record does not show that timely notice of appeal was given; therefore, the appeal must be dismissed. Perez v. State, supra.

The appeal is dismissed.

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Ex parte Joseph Manuel VIDUARI
    No. 50364.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    Eduardo Roberto Rodriguez, Brownsville, for appellant.
    Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

MORRISON, Judge.

This is an appeal from an order entered in the 107th District Court of Cameron County remanding petitioner for extradition to the state of Missouri to answer a charge of burglary.

The State made out a prima facie case by introduction of the governor’s warrant and duly authenticated supporting documents.

Petitioner filed his affidavit in which he denied under oath “that he is the same Joseph Manuel Viduari charged in the state of Missouri.”

The assistant district attorney testified that he sent a letter together with a photograph of petitioner to the office of the prosecuting attorney in Clayton, Missouri, requesting identification of the man in custody in Cameron County as the same Joseph Manuel Viduari wanted by St. Louis County, Missouri. He received from them an affidavit of Detective John Ried stating that the man depicted in the picture was the same person as Joseph Viduari who was in St. Louis County on December 26, 1973, and who was the defendant in cause # 351688 in the Circuit Court of St. Louis County, Missouri. Petitioner was also identified by the assistant district attorney in open court as the same person depicted in the photograph accompanying the identifying affidavit. This is the same procedure as was approved by this Court in Ex Parte Mackerman, Tex.Cr.App., 376 S.W.2d 350; Ex Parte Landers, Tex.Cr.App., 366 S.W.2d 567; Ex Parte Green, 170 Tex.Cr.R. 311, 340 S.W.2d 821; Ex Parte O’Connor, 169 Tex.Cr.R. 579, 336 S.W.2d 152, and the State has sufficiently met the issue raised.

The judgment is affirmed.


text:
    Mary Bessie OWEN, Appellant, v. The STATE of Texas, Appellee.
    No. 50241.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    E. D. Forbes, Dallas, for appellant.
    Henry Wade, Dist. Atty., Maridell Tem-pleton, Brady Sparks, and Tom Clayton, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from a conviction for the misdemeanor offense of driving and operating a motor vehicle on a public highway while intoxicated, which the proof shows was committed on February 1, 1974. The punishment assessed was confinement in the county jail for thirty days and a fine of fifty dollars.

The appellant urges that this conviction is void because the pleadings do not allege and the proof does not show that the appellant either intentionally, knowingly, recklessly or with criminal negligence committed the offense of driving and operating a motor vehicle on a public highway while intoxicated. She argues that V.T.C.A., Penal Code, Sections 1.03(b) and 6.02 now require that the state allege and prove that an accused had one of these culpable mental states when committing the offense of driving while intoxicated. The contention made here by the appellant is the same as was made by the petitioner in Ex parte Ross, 522 S.W.2d 214 (Tex.Cr.App.1975). This Court in that case rejected the petitioner’s contention with a well reasoned explanation which need not be repeated here. The holding in that appeal was that the Legislature by enactment of Sections 1.03(b) and 6.02 of the new Penal Code did not intend to require proof of a culpable mental state in prosecutions for driving while intoxicated. The appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.


author: GREEN, Commissioner.

text:
    William Ernest HOLLOWAY, Appellant, v. The STATE of Texas, Appellee.
    No. 50138.
    Court of Criminal Appeals of Texas.
    July 16, 1975.

      Dan J. Anderson, Dallas, Court appointed on appeal, for appellant.
    Henry Wade, Dist. Atty., Richard W. Wilhelm, E. X. Martin and Charles Yett, Asst.
    Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., David S. McAngu's, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This is an appeal from a conviction for robbery by firearms; the punishment, assessed by the jury, is twenty-five years.

In his first ground of error, appellant contends the evidence is insufficient to sustain his conviction as a principal to robbery by firearms.

Considering the evidence in the light most favorable to the judgment, the record reflects the following:

At about 5:30 P.M. on December 5, 1973, Anita Davis, cashier of a Kroeger’s Food Store in Dallas, was robbed of a sum of money by a white man who used and exhibited a pistol, placing her in fear of death or serious bodily harm. The man took three white bags, two containing money and the other trading stamps. During the robbery, Davis noticed the white robber nervously looking toward a black man who was talking to a package clerk and a checker in another part of the store.

Gary Lederman and Libby Jones were the two employees approached by the black man. Both identified appellant as that man, saying that he asked about getting a job in the store. Jones testified this was unusual, as job-seekers generally talked to the manager. Later, as Lederman was taking some groceries out of the store for a customer, he saw appellant walking fast across a parking lot to catch up with a white man, and then saw these two running across a field. Lederman went back into the store, learned of the robbery, and ran outside and saw the white man and appellant running in the area of a creek. He saw Powdrill, another store clerk, catch up with the white man, who at that time was hiding in some bushes. This man pulled a pistol on Powdrill, and escaped. He was identified as the man who had robbed Davis and had taken the three white bags. Two of these bags, identified as Kroeger bags, were found in the bushes where the white man was found.

A customer testified that she saw appellant in the store on this occasion pick up a can of spray deodorant. Fingerprints from this can were identified as those of appellant.

Kathy Castro, a checker in the store, upon learning of the robbery, ran outside in time to see a black man and a white man rapidly walking together away from the store. When they saw her, they started running across the store’s parking lot. Lynn Reynolds, a mechanic in a nearby fix-it shop, at about this same time saw a black man fitting appellant’s description running “down the creek back there” carrying a white bag in his hand.

Amador Castro, assistant store manager and husband of Kathy, ran out of the store when he learned from Davis of the robbery. He saw the two men running together and stop at a big rock where they appeared to pick up something. They then separated, and he saw the black man run into the creek and run through a vacant field. The next afternoon, Castro went to the place near the rock where he had seen the two men stop, and found a bundle of fifty one dollar bills and some quarters and other loose change, and “two prints, you know, like a knee had dropped on the ground, you know.”

Mrs. James Carlson testified that she lived across the creek and directly behind the shopping center where the Kroeger store was located. About a month after the robbery, appellant came to her home and told her that on the previous day he had lost his wallet when officers had chased him and picked him up for loitering in the area of the creek. He asked her permission to cross her yard so that he could search for his wallet. She consented for him to do so.

Appellant as a witness testified that the only time he was in Dallas during the month of December, 1973, was around Christmas, and that he spent the rest of that month in Austin. He denied being in the Kroeger store on December 5, and denied having participated in the robbery. A fact issue was raised, which the jury decided contrary to appellant’s testimony.

Considering the evidence favorable to the verdict and the reasonable deductions to be drawn therefrom, the record reflects that the unidentified white man robbed the cashier at gun point of three white bags of money and trading stamps. During the robbery, appellant was in the store, and he left with the robber. Together they ran from the store and were seen to stop and pick up something. At the spot where they stopped, a part of the stolen money was found the next day. Two of the three bags were found with the white man shortly after the robbery, and appellant was observed running in the creek area carrying a white bag similar to the other two. A month later, he was arrested for loitering in this area where the bills and change were found, and on the next day, having been released from arrest, went back to the same place to search “for his wallet.”

In determining whether a party was acting as a principal, the trial court may look to events before, during, and after the offense. Reliance may be had on the actions of the parties which show an understanding and common design to do a certain act. Bush v. State, Tex.Cr.App., 506 S.W.2d 603; Everett v. State, 153 Tex.Cr.R. 79, 216 S.W.2d 281.

While flight alone will not support a guilty verdict, evidence of flight from the scene of a crime is a circumstance from which an inference of guilt may be drawn. Green v. State, Tex.Cr.App., 505 S.W.2d 292; Mitchell v. State, Tex.Cr.App., 517 S.W.2d 282; Ysasaga v. State, Tex.Cr.App., 444 S.W.2d 305.

The jury was instructed on the law of principles. We conclude that the evidence is sufficient to support the conviction. Coronado v. State, Tex.Cr.App., 508 S.W.2d 373.

The first ground of error is overruled.

Appellant next contends that the in-court identification of appellant by the witness Libby Jones was tainted by an impermissi-bly suggestive out-of-court photographic identification procedure.

Prior to permitting evidence of identification of appellant, the court conducted a separate hearing in the absence of the jury to determine its admissibility. See Martinez v. State, Tex.Cr.App., 437 S.W.2d 842. Three witnesses, Janie Hancock, Libby Jones, and Gary Lederman, definitely identified appellant as the black man in the store during the robbery under the circumstances above summarized. After hearing the testimony of these witnesses, the court made the following findings and conclusions:

“I.
“That the witnesses, Janie Hancock, Libby Jones and Gary Lederman, have identified the defendant in this cause as being connected with the commission of the offense alleged in the indictment.
“II.
“That the said in court identification of the defendant by the said Janie Hancock, Libby Jones and Gary Lederman was not influenced by the witnesses having seen photographs of the defendant, if they did.
“HI.
“That the said in court identification was based solely on the witnesses, Janie Hancock, Libby Jones and Gary Lederman, having viewed the defendant on December 5, 1973, at the time and place alleged in the indictment.
“IV.
“The evidence moving the Court to so find is so clear, convincing, explicit and unequivical (sic) as to leave no substantial or reasonable doubt in the mind of the Court.
“V.
“Based on the foregoing findings, the Court concludes that, as a matter of law, the in court identification testimony of the said three (3) witnesses is admissible and the Court therefore overrules the defendant’s objections thereto.”

The record fully supports these findings and the conclusion of the trial court. Appellant attacks only the identification of appellant by the witness Libby Jones. We find no error in the admission of her testimony. Pizzalato v. State, Tex.Cr.App., 513 S.W.2d 566; Atkinson v. State, Tex.Cr.App., 511 S.W.2d 293; Navajar v. State, Tex.Cr.App., 496 S.W.3d 61.

In his third ground, appellant contends that due to his pretrial motion for discovery, which the trial court granted, the offense report of the witness Police Officer Epting describing a suspect as “a colored man, 20s — late 30s, 6 feet 3 to 4 inches, and weighing 190 pounds.” should have been tendered herein before trial, since it contained exculpatory matters material to the defense. He relies on Means v. State, Tex. Cr.App., 429 S.W.2d 490; Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215.

After Officer Epting had testified on direct examination, his report was handed to defense counsel, who proceeded to cross-examine him at length on the information given him at the time of his investigation concerning appellant’s appearance at the time of the robbery.

Appellant then took the stand. He testified that he was twenty-five years old, 6 feet 1 inch tall, and weighed 160 pounds. He did not refute the report’s description of how he may have looked at the time of the offense.

It was only at the close of the day after the State had started its rebuttal testimony that appellant raised any objection to the failure of the State to furnish this report before the start of the trial and moved for a mistrial. The court, in overruling his motion, offered to give appellant additional time for preparation. No such time was requested.

Police reports generally are not subject to pre-trial discovery, and the State isu not required to exhibit them to the defendant prior to the officer taking the stand. See Article 39.14, Vernon’s Ann.C.C.P.; Gutierrez v. State, Tex.Cr.App., 502 S.W.2d 746; Bradshaw v. State, Tex.Cr.App., 482 S.W.2d 233. However, if the facts reflect that the prosecutor actively or negligently suppresses or fails to disclose evidence which may exonerate the accused or be of material importance to the defense, reversible error is committed. Crutcher v. State, Tex.Cr.App., 481 S.W.2d 113 and authorities cited.

The report of Officer Epting, which was delivered to appellant when the witness testified, is included in the record. No identification witness testified contrary to the description given in the report. The record does not reflect any suppression of exculpatory evidence or evidence which might have exonerated appellant.

Reversible error is not shown.

In his fourth ground, appellant complains of the following argument of the State at the guilt stage:

“I feel that incumbent upon a member or representative of the District Attorney’s Office, a representative of Mr. Wade, to give you some of the experience that we have gained in dealing with people such as William Erneat (sic) Holloway with respect to making a recommendation, and our recommendation will be a term of years, and I ask you not to assess (sic) punishment lower than sixty years confinement in the Texas Department of Corrections. That, in essence, will give the experts at the Texas Department of

Corrections an opportunity to determine for themselves whether they think William Ernest Holloway has been rehabilitated.

“MR. ELLIS: Your Honor, we would object to that as being a consideration of the Board of Pardons & Paroles and something that this jury is not to consider.
“THE COURT: Sustained.
“MR. ELLIS: And we would move at this time for a mistrial.
“THE COURT: The jury is to disregard it, not to consider it for any purpose.
“The Court has charged the jury, all the law they can be concerned with is contained in the charge.
“MR. ELLIS: And we would move for a mistrial.
“THE COURT: Denied.”

Error, if any, was cured by the court’s instruction to the jury to disregard. Pearce v. State, Tex.Cr.App., 513 S.W.2d 539; Boykin v. State, Tex.Cr.App., 504 S.W.2d 855; Overstreet v. State, Tex.Cr.App., 470 S.W.2d 653.

Furthermore, the matter of rehabilitation was first argued by the defense attorney, when he stated:

“I simply say this: that the range is from five years in that penitentiary to ninety-nine or life. I ask that you consider a punishment that this man can go down there and, under the supervision and direction and control of the Texas Department of Corrections, can be rehabilitated, and can return to society and live a life, live his life.”

Reversible error is not shown. See Parish v. State, Tex.Cr.App., 523 S.W.2d 665, (1975); Hartman v. State, Tex.Cr.App., 496 S.W.2d 582; Hughes v. State, Tex.Cr.App., 493 S.W.2d 166; Graham v. State, Tex.Cr.App., 422 S.W.2d 922.

In his fifth ground of error, appellant again complains of improper argument.

The record reflects the prosecutor argued that as a result of a defense motion Officer Sewell could not get on the stand and testify that “Yes, these witnesses identified a picture of this man right here.”

The record reflects the following prior argument by appellant’s counsel:

“ . . . I’m telling you, you try to get somebody, somebody that has told Officer Sewell, whom I will speak of later, Investigator Sewell, Detective Sewell, Dallas Police Officer Sewell, who have told him, ‘Yes, that’s the man,’ back in January, who told him, ‘Yes, that’s the man’,
“ . . . and I believe they identified the photograph when it was taken to them by Detective Sewell, and we didn’t have Detective Sewell; we couldn’t ask him about showing these photographs and whether or not he tainted their identification with these photographs because we didn’t have him, they didn’t call him, but I do know this, . . . ”

The prosecutor was entitled to explain why Sewell did not so testify since the inquiry was opened by appellant. Sifford v. State, Tex.Cr.App., 505 S.W.2d 866; Howard v. State, Tex.Cr.App., 505 S.W.2d 306.

In ground of error number six, appellant complains of the following statement by the prosecutor:

“What should be done with him in this case? And certainly you can consider what many people call ‘a war on crime,’ and, in essence, it is a war, except the battlefields are different.
“[MR. ELLIS, Defense Counsel]: Now, your Honor, I am going to object to him referring to a war on crime in reference to this case.
“THE COURT: Stay within the testimony in the record.”

Error, if any, in the prosecutor’s argument was not properly preserved for review since there was no ruling on his objection, nor was a request made that the jury be instructed to disregard the statement. Nichols v. State, Tex.Cr.App., 504 S.W.2d 462; Verret v. State, Tex.Cr.App., 470 S.W.2d 883.

Furthermore, the argument was a proper plea for law enforcement. Cunningham v. State, Tex.Cr.App., 484 S.W.2d 906, 911.

In ground of error number seven, appellant complains of the following argument:

“ . . . but I think there’s another reason,. he went in that store and he participated in that robbery, not because he was hungry or desperate for money, he did it because it was his pleasure — . . . ”

The objection was that the argument was not based on evidence. There was evidence that appellant had been engaged in several jobs, that he had a savings account, and that he spent the Christmas holidays in Dallas. The argument is not manifestly improper, harmful or prejudicial. See Magee v. State, Tex.Cr.App., 504 S.W.2d 849; Thompson v. State, Tex.Cr.App., 480 S.W.2d 624.

The judgment of the trial court is affirmed.

Opinion approved by the Court.


author: BROWN, Commissioner.

text:
    Donald Gene JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 50183.
    Court of Criminal Appeals of Texas.
    July 23, 1975.

      Andrew McCulloch, Jr., Dallas, for appellant.
    Henry Wade, Dist. Atty., John H. Hagler, Robert Whaley and Jay Ethington, Asst. Dist. Attys., Dallas, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was found guilty by a jury of the offense of robbery by a firearm and his punishment was assessed by the court at ninety-nine (99) years.

Mrs. McManus, the operator of a cleaning establishment in Dallas identified appellant as the man who robbed her at gunpoint and removed money from the cash drawer. She testified that as manager she had the care, custody and control of the money in the cash drawer. Her grandson, who was helping her that day, also identified appellant as the robber.

Jury selection was completed rather late in the day. The jury was sworn and instructed to return the next morning. During the intervening time, one of the jurors was struck by an automobile and rushed to a hospital. The trial judge, over the objection of appellant, ordered the trial to proceed with the eleven remaining jurors. Appellant contends that since he had not pled to the indictment before the jury, the court reversibly erred in refusing to require a jury of twelve persons before proceeding with the trial.

The applicable portion of'Art. 36.29, Vernon’s Ann.C.C.P., provides as follows:

“. . . provided, however, when pending the trial of any felony case, one juror may die or be disabled from sitting at any time before the charge of the court is read to the jury, the remainder of the jury shall have the power to render the verdict; but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it.”

In this case, all of the eleven remaining jurors signed the verdict.

At issue is the interpretation of the phrase “when pending the trial of any felony case.”

The authority for Art. 36.29, V.A.C.C.P., enacted in 1965, is Article 5, Section 13, of the Constitution of Texas, Vernon’s Ann. St., which became effective April 18, 1876. The phrase above referred to has not been interpreted by this Court in the context here involved. However, Article 2204, Vernon’s Ann.Civ.St., adopted in 1876 and carried forward as Rule 292, Vernon’s Texas Rules of Civil Procedure Ann., uses the phrase “pending a trial.” See and compare Cuellar v. State, Tex.Cr.App., 521 S.W.2d 277. The phrase was interpreted in Thomas v. Billingsley, 173 S.W.2d 199 (Tex.Civ.App., Dallas, 1943, error refused), wherein the Court said:

“The point raised is that, the trial of the case had not begun when the juror was excused, hence the ‘trial’ was not ‘pending,’ so as to give rise to the power of the court in compelling defendant to proceed with the trial before eleven jurors. We think the ‘trial was pending’ when the parties announced ready and the jury was selected and sworn to try the. cause.”

We see no reason to adopt a different interpretation of the Constitution merely because its provision is now applicable to criminal as well as civil cases.

Appellant next contends that the court erred in permitting the witness McManus to identify appellant because her identification was tainted by a photographic lineup. The trial court held a pretrial hearing on this issue and filed his findings of fact and conclusions of law. We have examined the record of the hearing and find that his findings and conclusions are supported by the evidence adduced during the hearing. Gleffe v. State, Tex.Cr.App., 509 S.W.2d 323; Thompson v. State, Tex.Cr.App., 480 S.W.2d 624.

Finally, by means of a supplemental brief filed only in this Court on July 1,1975, appellant for the first time asserts that the admission of testimony by the arresting officers concerning the arrest of appellant was prejudicial to appellant. No objection was made by appellant at the time this testimony was elicited. In fact, some of the details were brought out by appellant on cross-examination of the officers. Under the circumstances, nothing is preserved for review.

The judgment is affirmed.


author: DAVIS, Commissioner.

text:
    Freddie Ray THOMAS, Appellant, v. The STATE of Texas, Appellee.
    No. 50478.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    Charles M. Burdeaux, Houston, for appellant.

      Carol S. Vance, Dist. Atty., James C. Brough, Alvin M. Titus and Ned Morris, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DAVIS, Commissioner.

Appeal is taken from an order revoking probation.

On August 5, 1970, appellant entered a plea of guilty to an indictment charging him with the offense of burglary of a private residence at night with the intent to commit a felony. Punishment was assessed at five years, but the imposition of sentence was suspended and appellant was placed on probation.

The record reflects that after a hearing on the State’s motion on May 24, 1974, the court entered an order revoking appellant’s probation finding that appellant had violated the terms of his probation by committing the offense of theft on March 2, 1974.

At the outset, we are confronted with the problem of whether the primary conviction was void. Appellant entered a plea of guilty to an indictment charging him with burglary of a private residence at night with intent to commit a felony, “to-wit, felony injuring property, to-wit, with the intent then and there to wilfully injure certain personal property belonging to the said Glenda Thomas, without the consent of the said Glenda Thomas, the extent of injury so inflicted being then and there of the value of one hundred dollars.” See Arts. 1391 and 1350, Vernon’s Ann.P.C. (1925).

The judgment recited that appellant was charged by indictment with the “felony offense of Night Time Burglary with intent to injure personal property” and found that appellant was guilty of “the offense of Night Time Burglary with intent to commit personal property a felony.”

Clearly, the judgment does not reflect a conviction for the crime charged in the indictment. If it be urged that the judgment reflects a conviction for the offense of burglary, this Court has held that a conviction for burglary as defined in Arts. 1389 and 1390, V.A.P.C. cannot be supported by an indictment charging burglary of a private residence at night, the offenses being separáte and distinct. Bowie v. State, Tex.Cr.App., 401 S.W.2d 829; Pierce v. State, Tex.Cr.App., 401 S.W.2d 238.

We next look to see if the judgment may be reformed and corrected to reflect a conviction supported by the record. See Art. 44.24, Vernon’s Ann.C.C.P. The record before us does not contain a transcription of the court reporter’s notes of the evidence at the trial of the primary offense; however, there is a “stipulation of evidence” in the record sworn to by appellant, bearing the signature of his counsel and approved by the court. It recites that appellant on the occasion in question “. . . did by force, threats and fraud, and at night, enter a house, it being the private residence of Glenda Thomas and being occupied and actually used by him as a place of residence with the intent to fraudulently take from said house personal property belonging to him from his possession without his consent and with the intent to deprive him of the value of the same and to appropriate it to my own use and benefit.” Assuming that the stipulation was introduced into evidence, it is noted that it recites the elements of burglary of a private residence at night with intent to commit theft while the indictment charges burglary of a private residence at night with the intent to wilfully injure personal property of the value of one hundred dollars. The docket sheet reflects that the offense is “night time burglary with intent to injure personal property.”

The judgment does not reflect a conviction for an offense charged in the indictment, nor will the record support a reformation of the judgment to conform to the indictment. We find the conviction in the primary offense to be void.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.

      . Under Arts. 1389, 1390 and 1391, V.A.P.C. (1925), it should be noted that the entry denounced in the burglary statutes is with the intent to commit a felony or the crime of theft. Under Art. 1350, V.A.P.C. (1925), wilful injury of property or attempt to injure or destroy property is not a felony unless the property “is of the value of Fifty ($50.00) Dollars, or over.”


text:
    Floyd G. MANN, Appellant, v. The STATE of Texas, Appellee.
    No. 50342.
    Court of Criminal Appeals of Texas.
    July 23, 1975.
    Richard F. Halter and Patrick A. Cullen, San Antonio, for appellant.
    Ted Butler, Dist. Atty., Gus E. Wilcox, John W. Harris, Jr., and Alan E. Battaglia, Asst. Dist. Attys., San Antonio, Jim D. Vol-lers, 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 robbery. See V.T.C.A. Penal Code, Sec. 29.02. Punishment was assessed by the court at 16 years.

Considering the evidence in the light most favorable to the conviction, the record reflects the following:

During the early morning hours of March 3,1974, in San Antonio, John H. Carter was robbed by appellant and two others. Carter’s 1963 model cream colored four door Chevrolet car and some money were taken. On March 6, 1974, appellant and the other two men were arrested in or near Morgan City, Louisiana, in possession of Carter’s car. A confession executed by appellant was introduced.

The sufficiency of the evidence is not challenged.

Appellant in two grounds of error contends that the court erred in admitting in evidence over objections appellant’s written confession and a checkbook taken from appellant because these items were the fruits of an illegal arrest and detention.

On June 25, 1974, the same day that this case went to trial, a hearing was conducted by the court on appellant’s motion to suppress evidence to determine the admissibility of the confession. Donald Price and Jay Morell, two police officers from Morgan City, Louisiana, and appellant testified. The record of such hearing reflects the following:

About midnight on March 5, 1974, or shortly thereafter in the morning of March 6, the police department of Morgan City received a phone call from two hitchhikers to the effect that while they were riding with three men in a 1963 four door white Chevrolet they overheard the men saying that they were going to burglarize “a place in town.” Officers Price and Broussard went out to find the car and the men and investigate the report. About 1:00 o’clock A.M., they saw a 1963 white four door Chevrolet parked at an intersection with three men, one being appellant, assisting another man whose van had “broken down.” This man called to the officers, asking if they would take him to work. Price and Broussard went to the men, and asked to whom the car belonged and who had been driving it. Appellant gave his name as John Carter, and stated it was his car, and he was the driver. Price asked to see his driver’s license and the car registration papers. Appellant handed Price his driver’s license, made out to John Carter, and took some papers from the panel pocket, handing them to Price. Among these papers were a car insurance policy listing Esta Carter as the owner and a check on a San Antonio bank for $100.00 payable to John Carter and signed “Esta S. Carter,” which check was numbered 599. A checkbook with blank checks, the first being No. 600, was also in the papers. Officer Price became suspicious when he noted that, although appellant had told him that his wife had mailed him this check, No. 599, he had the checkbook, and that the next check was 600, and also because appellant had told him the car belonged to him, although the insurance policy was in the name of Esta Carter. Because of these facts, and the similarity of the Chevrolet and the men to the report of the hitchhikers, the officers asked the men if they would accompany the officers to the police station. The men agreed to go, and went in their car, with a police car ahead and another behind them.

At the station, the Miranda warning was read to appellant and he executed a waiver of his rights of counsel and silence. Detective Morell took over the investigation. Appellant testified that he asked Mo-rell “to call San Antonio, call my wife, as I was still pretending I was John Carter at the time. And I asked them to call San Antonio, call my wife and find out; and so I could get on out, you know. So he called.”

Morell testified that he called the San Antonio Police Department and gave them the information about the check and car. About 20 minutes later, Detective Mencha-ca of San Antonio called back, telling Mo-rell: “I don’t know who you have there, but I have Mr. John Carter sitting here on the side of me in San Antonio.” Morell testified further:

“Well, when I hung up the phone, I turned to Donald Price and told him that Menchaca had just told me that John Carter was in San Antonio, that he didn’t know who we had here; and then Mr. Mann (appellant) advised me that ‘Okay, I’ll tell you what happened.’ ”

Appellant then revealed his true name, and proceeded to give his confession, which was transcribed, read over by him and, signed and witnessed.

Appellant’s sole complaint is that the confession was the “product of an illegal arrest” in that it was “the ‘fruits’ of evidence discovered during an arrest without warrant and without probable cause,” and also that it was the “fruits” of custodial interrogation conducted without adequate warning of his rights. For such reasons, appellant contends that the court committed reversible error in permitting in evidence the checkbook and the confession.

The contentions are without merit.

The anonymous telephone call did not constitute probable cause for an arrest or a search of appellant or his car. However, circumstances falling short of probable cause for an arrest may justify temporary detention for purposes of investigation, since an investigation is considered to be a lesser intrusion upon the personal security of an individual than is an arrest. See Hernandez v. State, Tex.Cr.App., 523 S.W.2d 410; Brown v. State, Tex.Cr.App., 481 S.W.2d 106 (f. n., page 110), citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889; Baity v. State, Tex.Cr.App., 455 S.W.2d 305. See also Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.

Officers Price and Broussard, upon receiving the anonymous call, were justified in initiating an investigation by proceeding to hunt for a car and occupants fitting the description given over the phone. See George v. State, Tex.Cr.App., 509 S.W.2d 347; Onofre v. State, Tex.Cr.App., 474 S.W.2d 699; Moses v. State, Tex.Cr.App., 464 S.W.2d 116; Baity v. State, supra. Upon locating a car fitting the description given them, with three men helping another whose vehicle had broken down, proper police work called for them to continue their investigation. The officers were called to the car by the driver of the injured vehicle, who sought a ride to work. Officer Price testified that the officers did not search the car; the identification papers were voluntarily handed to him by appellant, who was not at the time under arrest. The remainder of the officers’ proceedings, as summarized above, was proper police work under the circumstances. See Terry v. Ohio, supra; George v. State, supra; Brown v. State, supra; Baity v. State, supra; Onofre v. State, supra; Moses v. State, supra.

Under the circumstances developed in the record, the officers had probable cause to detain appellant during this investigation. A confession otherwise shown to be voluntary is not rendered inadmissible by the fact that the accused is in custody at the time. Simmons v. State, Tex.Cr.App., 504 S.W.2d 465, 471; Morgan v. State, Tex.Cr.App., 502 S.W.2d 722; Murray v. State, Tex.Cr.App., 505 S.W.2d 589. The record reflects and the trial court found that appellant had been properly advised of his rights, and that he had voluntarily and knowingly waived those rights prior to making his written confession.

The court did not err in admitting the confession and checkbook in evidence.

The judgment is affirmed.

Opinion approved by the Court.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The warning and waiver are included in the record.