id
string | source
string | added
string | created
string | metadata
dict | text
string |
|---|---|---|---|---|---|
sw2d_482/html/0179-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Charlie Carlos LOPEZ, Appellant, v. The STATE of Texas, Appellee. Gregory JIMENEZ, Jr., Appellant, v. The STATE of Texas, Appellee.
Nos. 45097, 45098.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied in No. 45098 July 28, 1972.
Robert M. Jones (Court Appointed on Appeal), and Shelton W. Booth, Dallas (Court Appointed on Appeal), for Charlie Carlos Lopez, and Melvyn Carson Bruder, Dallas, (Court Appointed on Appeal) for Gregory Jimenez, Jr.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
These are appeals from convictions for murder, both obtained in a joint trial. The jury assessed the punishment for each at 250 years.
The appellants contend that the evidence is insufficient to support the conviction and that the pistol shown to have been used in the homicide was improperly introduced into evidence. Complaint is made by Jimenez because an improper question was asked by the prosecutor.
Dean Jenkins, a designer and builder, occupied a building at 3121 South Routh Street in Dallas. At approximately 4:45 p. m., on June 20, 1970, he heard what he first thought were two backfires. After realizing that the sounds were quite loud, he investigated their source. Outside his window, from a distance of approximately twenty feet, he saw the appellants Lopez and Jimenez in the back yard of the adjoining vacant house scuffling with a third person. Either Lopez or Jimenez had money in his hand. The third man was hurt badly and was leaning. The two shoved him face down on the steps of the house. Jenkins saw the pockets of the third man turned “wrong side out.” Jenkins then went upstairs to a telephone and called the police. When the two saw Jenkins, they appeared to be startled and ran. They got in a car which was red with black stripes. The license plate contained the letter “L”. They had difficulty in starting the car.
Mary Taylor testified that at approximately 4:00 p. m. on the date in question Charlie Lopez came to her house at 3123 South Routh Street to visit her sister. When she told Lopez that the sister was bathing, he said that he would go to a lounge and come back later. Lopez left his car which was red with black stripes parked in front of her house. Approximately thirty minutes later he returned to the car and then walked up the street. Within ten minutes, he returned to her house, got in his car, and it “clicked” three or four times before he was able to start it. Shortly after that she received a telephone call from Lopez and he laughingly asked Mary to tell her sister that it was pretty hot on South Routh Street, because he had shot a man. She thought he was in a lounge at the time of the call because she could hear music in the background.
Officer G. W. Bolling of the Dallas Police Department testified that on the day in question he went to 3119 South Routh Street and saw Jenkins standing at the rear of the house. Guadalupe Flores Garcia was on the rear doorstep with bullet wounds in the front of the body.
The back yard was grown up with high grass and weeds. The officers who investigated at the scene got feathery-type stickers from the weeds on their clothing. The deceased had feathery-type stickers on his trousers and socks. His pockets were turned inside out. Two partially filled Schlitz beer cans were found in the back yard.
After an ambulance took the body away, Officer Bolling talked to Mary Taylor. He then went to La Capita Bar looking for the car. Outside the bar, he saw a red Chevelle which had a black stripe. The first letter on the license plate was “L” as had been described to him. On the passenger side, he saw a Schlitz beer can. On the floorboard and on both sides of the car there were stickers like those in the back yard at the South Routh Street address.
Officer Bolling and others then went inside. They saw three men, two of them fitting the description that had been given them. These two had stickers all over their socks, the same type that the officers got on their clothing. Officer Bolling took from the pocket of Lopez the keys to the vehicle he had seen outside and found a .38 caliber snub-nose revolver in the glove compartment.
A pathologist testified that death was caused by two gunshot wounds in the abdominal area. Two projectiles were recovered from the body. There were no other marks or injuries on the body. The blood in the body contained 0.234% alcohol which reflected that Garcia, the deceased, was intoxicated at the time of the homicide.
A firearms examiner testified that in his opinion the two bullets or projectiles which were shown to have been taken from the body of the deceased had been fired in the gun found in the car.
Neither of the appellants testified nor offered any evidence.
In summary, the evidence shows that shortly after what was apparently two gunshots the appellants were scuffling with the deceased. One of them had cash in his hand. Upon seeing Jenkins, both of them fled. When two or more persons agree to commit robbery with a deadly weapon and the victim is killed, both are guilty of murder with malice. See Article 42, Vernon’s Ann.P.C. There was sufficient evidence, if not direct at least circumstantially, to show an attempt, if not robbery.
Officer Bolling testified without objection that the name of the deceased was Guadalupe Flores Garcia. Again, without objection, he testified that he learned that the deceased was a Mexican National named Guadalupe Flores Garcia. The contention that the deceased was not identified is overruled.
We find that the jury had sufficient evidence to conclude that both the appellants were guilty of the homicide.
Next, it is contended that reversible error was committed on direct examination of Officer Bolling when he was testifying about finding the three men in the lounge. He had just testified, “The third subject objected pretty strenuously that he did not know anything about the situation.” He was then asked, “All right. Did either of these deny it or object to it?” During the discussion that followed counsel for the appellants objected. The question should not have been asked. It was withdrawn. There was no request that the jury be instructed not to consider the question. A motion for mistrial was overruled.
Ordinarily, the mere asking of a question which is not answered does not constitute reversible error. See Mirowitz v. State, Tex.Cr.App., 449 S.W.2d 475.
The answer of Officer Bolling that the third man protested his innocence was not responsive. There was no request that the jury be instructed not to consider it.
Counsel for the State should not have attempted to carry the matter further and show silence of one under arrest as evidence of guilt. Under different circumstances such conduct would call for a reversal.
Lastly, it is contended that reversible error was committed because the pistol was taken from the car of Lopez as a result of an illegal search. It is not necessary to determine the legality of the search, because no objection was made when the pistol was offered into evidence. When testimony about the taking of bullets from the gun and the result of the ballistics tests was admitted, no objection was made. When the bullets were offered into evidence, counsel for both appellants stated they had no objections.
In Milligan v. State, Tex.Cr.App., 465 S.W.2d 157, a gun was introduced into evidence without objection. This Court held there must be a timely objection to preserve error of illegally obtained evidence. See Slaughter v. State, Tex.Cr.App., 439 S.W.2d 836.
Absent objections or a showing that one did not have an opportunity to object at the time the evidence was offered, nothing is presented for review. Brown v. State, Tex.Cr.App., 460 S.W.2d 925. See United States v. Lazarus, 425 F.2d 638 (9th Cir. 1970), for a discussion of waiver of constitutional questions for failure to object, and United States v. Thomas, 429 F.2d 407 (5th Cir. 1970).
The record contains no reversible error. The judgments are affirmed.
. At the penalty stage of the trial, it was shown that Lopez had been convicted for the felony offense of carrying a pistol after having been convicted for assault with intent to murder with malice as denounced by Article 489c, Section 1, Y.A.P.C. In 1965, he had been convicted for felony theft. Also, he had been convicted for possessing marihuana and for burglary, both in 1961.
.Timincz had been convicted for murder with malice in 1966.
|
sw2d_482/html/0183-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
William Allen HAWK, Appellant, v. The STATE of Texas, Appellee. J. C. VANCE, Appellant, v. The STATE of Texas, Appellee. Howard Don HAMMONDS, Appellant, v. The STATE of Texas, Appellee.
Nos. 45160, 45162, 45163.
Court of Criminal Appeals of Texas.
June 28, 1972.
Emmett Colvin, Jr., Dallas (On Appeal Only), for appellants.
Henry Wade, Dist. Atty., and W. T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
These are appeals from convictions for possession of marihuana where these appellants and two others were tried jointly. The court assessed the punishment in each case as follows :
William Allen Hawk Five years, probated
J. C. Vance Two years,
Howard Don Hammonds Four years, probated
The appellants and the two others were arrested when narcotics agents of the Department of Public Safety executed a search warrant upon an apartment in Dallas at around 2:00 a. m. on February 20, 1970. Upon entering the room the agents placed all of the occupants under arrest. Marihuana was found at several places on the premises. None was found on the person of anyone.
Each of the appellants testified. Each denied knowing anything about the marihuana found by the officers until it was found.
The appellants challenge the sufficiency of the evidence, the classification of marihuana as a narcotic drug, denial of a motion to sever, the denial of motions by some of the appellants to impeach others regarding prior criminal records, and the prosecutor’s comment on their silence while under arrest made during his argument to the jury. Due to the disposition of these appeals, only the last ground of error mentioned will be discussed.
During the prosecutor’s argument, the following took place:
“MR. SCHWILLE: * * * There was silence out there that night of that arrest because nobody denied—
“MR. HENDLEY: We will object to the use of silence as being an inference of guilt, Your Honor, and we would ask the jury be instructed on that point.
“THE COURT: I overrule the motion.
“MR. HENDLEY: It is also a comment on the failure of our client to testify.
“THE COURT: I overrule the objection.
“MR. COLVIN: I would further obj ect, Your Honor, on the grounds that there was no question asked at' that time giving cause to bring about silence • into play.
“THE COURT: I overrule your objection.
“MR. COLVIN: Note our exception.”
Comment about the silence of the accused during arrest violates Article 38.22, Vernon’s Ann.C.C.P. (1972 Supp.), and the Fifth Amendment of the United States Constitution.
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of an accusation.” Miranda v. Arizona, 384 U.S. 436, 468, n. 37, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).
For the above reason the judgments must be reversed and the causes remanded.
. Because of multiple defendants and multiple lawyers the trial court agreed that each defendant would have the benefit of any exception or ruling as to any other defendant if lie desired.
|
sw2d_482/html/0184-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DAVIS, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James Donald JONES, Appellant, v. The STATE of Texas, Appellee.
No. 45058.
Court of Criminal Appeals of Texas.
June 28, 1972.
Rehearing- Denied July 28, 1972.
Melvyn Carson Bruder, Dallas (Court-appointed on appeal), for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for rape. After the jury returned a verdict of guilty, punishment was assessed by the court at 65 years.
Appellant first challenges the sufficiency of the evidence to sustain a conviction for rape. The prosecutrix testified that she and her two children were in their apartment in Dallas, on June 11, 1970, and that her husband was working in Houston. About 11:30 P.M., she awoke to find a man (whom she identified in court as the appellant) standing beside her bed. The man put his hand over her mouth and told her if she fought him he would kill her. Nevertheless, she testified that she did fight him until he again told her that he would kill her. When he climbed upon the bed, the prosecutrix again struggled with the appellant, and he then began choking her with one hand while fondling her with the other. She ceased struggling when he again threatened to kill her, and was then forced to have sexual intercourse with the appellant. Prosecutrix specifically testified that the appellant achieved penetration. Before the appellant left the apartment, he told the prosecutrix that he had her son and would kill him if .she followed them. A few minutes after the appellant left the apartment, the prosecutrix checked the living room and discovered that her child was still sleeping on the couch. She then woke her son and went to the apartment manager’s apartment to call the police.
Detective Livingston, of the Dallas Police Department, testified that, upon an investigation of the prosecutrix’s apartment, he discovered four fingerprints on the outside glass of a sliding front window from which the screen had been removed, and one palm print on the inside sill of the same window. Livingston stated that, in his opinion, the prints were fresh and that a palm print found on a painted surface like the window sill would not be identifiable after three months as it would tend to fade out. J. C. Day, of the Dallas Police Department’s Identification Bureau, testified that the prints found on the window were the same as those taken from the appellant.
Appellant presented an alibi defense to show that he was at a poker game with a group of friends during the time of the alleged rape and presented witnesses who testified that appellant was present at the game on the night in question. Appellant also stated that he had stolen a television from the prosecutrix’s apartment some three months prior to the date of the alleged rape. He said he gained entry to the apartment through the front door and had leaned against a front window while he was in the apartment before stealing the television.
Appellant urges that a conviction cannot be sustained where the uncorroborated testimony of prosecutrix is improbable. Unlike Logan v. State, 66 Tex.Cr.R. 506, 148 S.W. 713, relied upon by appellant, there is nothing about the nature of prosecutrix’s testimony as of itself to create a doubt as to its reasonableness and probable truth in the instant case. Corroboration of the prosecutrix in a rape case is required only where a belated outcry had been made. Ferrell v. State, Tex.Cr.App., 464 S.W.2d 851; Wright v. State, Tex.Cr.App., 364 S.W.2d 384. Further, appellant’s argument ignores the testimony relative to finding appellant’s fingerprints at prosecutrix’s apartment. We find the evidence áuffi-cient to support the conviction.
In appellant’s second and third contentions, he urges that the court erred when it permitted testimony concerning an extraneous offense to be introduced into evidence. The court granted a motion in lim-ine to prevent the State from mentioning any extraneous offense concerning an alleged attempted rape of a Randy Waers. A careful examination of the record fails to disclose any mention of this person (other than in the motion in limine) or any allusion to an attempted rape of such a person.
The testimony complained of for the first time on appeal is that of Officer Foster who testified that as a result of a call, he was looking for a described suspect on a criminal assault charge who was reported driving a black Volkswagen with a given license number. Foster testified he stopped such vehicle and arrested appellant. No objection having been made to this testimony, nothing is presented for review. Grant v. State, Tex.Cr.App., 472 S.W.2d 531; Verret v. State, Tex.Cr.App., 470 S.W.2d 883. Further, we fail to find an extraneous offense in the complained of testimony. There is nothing to indicate that the offense for which appellant was arrested was different from that on trial. We perceive no error.
Appellant contends that the court erred in overruling his motion for continuance. Appellant urges that had the motion been granted, all the witnesses would have testified as to his whereabouts at the time in question.
In response to the cour’s inquiry, it appeared that all persons named in appellant’s motion for continuance were present during the trial with the exception of one Dean Fisher. The motion for new trial does not contain an affidavit of the witness Fisher named in the motion for continuance that he would testify as alleged in the motion. A requisite is that an affidavit of a missing witness is necessary to establish abuse of judicial discretion in overruling the motion for new trial. Kelly v. State, Tex.Cr.App., 471 S.W.2d 65; Robinson v. State, Tex.Cr.App., 454 S.W.2d 747; Thames v. State, Tex.Cr.App., 453 S.W.2d 495. No error is shown.
We have reviewed appellant’s contentions set forth in his pro se briefs and find them to be wholly without merit.
The judgment is affirmed.
Opinion approved by the Court. |
sw2d_482/html/0186-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Fredrick Lee HICKS, Appellant, v. The STATE of Texas, Appellee.
No. 45057.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
James P. Finstrom, Dallas, for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of robbery by assault; punishment was assessed by the court at 20 years.
Appellant’s first ground of error asserts that “The evidence is insufficient to establish the offense of robbery.”
The evidence shows that two Dallas police officers were patrolling in that city on the evening in question and at approximately 10:45 P.M. their police squad car was unable to pass a vehicle that was blocking traffic on a street. They observed the complaining witness alight from that vehicle and remove his wallet from his pocket. The complaining witness took a bill from his wallet, at which time the officers observed the driver of the vehicle snatch the wallet from the complaining witness and a passenger who was seated in the rear seat of that vehicle strike the complaining witness, knocking him to the ground. The vehicle sped away and the officers pursued it, stopping such vehicle approximately four or five blocks from the location where they observed the incidents heretofore described. The officers arrested the appellant and recovered the complaining witness’ wallet from the vehicle.
The complaining witness testified that he asked the appellant and Mitchell to give him a ride home. After getting within the area of his house he told the driver to stop, got out of the vehicle and took his wallet from his pocket to give them a dollar for the ride. He stated that when he “went to give them some money — that’s when I got it, the lights went out, I don’t know.”
Appellant argues that the proof shows theft from the person and not robbery.
In Jones v. State, 467 S.W.2d 453, 454, this court stated:
"It is well settled that to constitute the offense of robbery, there must be actual or threatened violence to the person antecedent to the robbery, or intimidation of such character that the injured party is put in fear. . . .
“The mere snatching of money from another’s hand is not robbery, but is theft from the person.”
Jones v. State, supra, was reversed by this court because there was no showing that the actual or threatened violence to the victim was prior to the taking of the property in question. Not so in the instant case. The witness in the case at bar did not remember the actual snatching of the purse; therefore, the evidence is sufficient for the jury to conclude that the actual violence to his person was antecedent to the robbery.
Appellant’s first ground of error is overruled.
Appellant’s second ground of error complains of the failure of the trial court to provide him with a transcript of the grand jury proceedings.
Appellant’s brief has attempted to point out some inconsistencies between the grand jury testimony and some witnesses’ testimony. We were confronted with this same contention in Brown v. State, 475 S.W.2d 938, and therein, as in the case at bar, we fail to see how harm was shown. In Brown v. State, supra, at page 948, this court stated:
“An accused is not ordinarily entitled to the inspection of grand jury minutes or testimony for the purpose of ascertaining evidence in the prosecutor’s hands or for the purpose of discovery in general, regardless of whether the request therefor is made before or during trial. Garcia v. State, Tex.Cr.App., 454 S.W.2d 400, 403, and cases there cited.
“The production of the grand jury testimony, of course, lies within the sound discretion of the trial court and the accused may be permitted to inspect such testimony where ‘some special reason’ exists or where a ‘particularized need’ is shown so as to outweigh the traditional policy of grand jury secrecy. Garcia v. State, supra; Smith v. State, Tex.Cr.App., 455 S.W.2d 748.”
We cannot agree that the inconsistencies, if any, in the instant case were such as to reflect error in the trial court’s action in refusing to make the grand jury testimony available for cross-examination. Therefore, we hold that no “special reason” or “particularized need” for the production of such has been shown. See Polk v. State, Tex.Cr.App., 476 S.W.2d 330, and cases cited therein.
Appellant’s second ground of error is overruled.
By his third ground of error appellant contends that he should have been allowed to “question the state’s witnesses in an effort to rebut the state’s evidence of flight from the scene of the alleged offense.”
THe police officers testified that after they witnessed the robbery they began to pursue the fleeing automobile. One of the officers testified that he turned on his light and siren and stopped the vehicle some four or five blocks later.
On cross-examination, defense counsel asked whether the officer had written many traffic tickets and then began to ask: “Have you on occasion in your experience —,” whereupon an objection was sustained. Appellant contends that he should have been permitted to show that “The mere fact that these people—allegedly went four blocks is not evidence of any form of flight.” We conclude, in light of the testimony as to what the officers had witnessed, that appellant has failed to show the materiality of such cross-examination. Clearly no error is shown.
Further, the appellant has not shown what the answer to the question would have been. Therefore, the alleged error is not preserved. Johnson v. State, Tex.Cr.App., 462 S.W.2d 955.
Appellant’s third ground of error is overruled.
Appellant’s fourth ground of error is that: “The trial court erred when it allowed into evidence penitentiary records al'egedly pertaining to appellant, Frederick Lee Hicks, when the records are certified to be records of Frederick Lee Hicks but show on their face to relate one Fredrick Hicks.”
At the punishment stage of the trial, appellant’s prior conviction was proved by the introduction of his papers from the Department of Corrections and by expert testimony that his fingerprints were the same as those on such records. Further, appellant testified in his own behalf and admitted the conviction. No error is shown. See e. g. Blake v. State, Tex.Cr.App., 468 S.W.2d 400.
Ground of error number four is overruled.
Appellant’s fifth and final ground of error asserts that “The trial court erred when it refused to permit the defendant to re-call Officer Smith to explain notes on his offense report pertaining to the complainant’s sobriety.”
The record reflects that after both sides rested, appellant moved the court to allow him to re-call one of the officers to question him concerning why he entered “No” beside the space in his police report which was designated “Sobriety”. The officer had testified that the complaining witness had been drinking but he did not form an opinion concerning his state of intoxication or sobriety. The police report in question does not appear in the record.
Article 36.02, Vernon’s Ann.C.C.P., provides that:
“The court shall allow testimony to be introduced at any time before the argument of a cause is concluded, if it appears that it is necessary to a due administration of justice.”
In Perry v. State, 464 S.W.2d 660, at 662, this court, interpreting this provision, stated:
“The court in its sound discretion can admit evidence at any time before argument closes and such discretion will be reversed only when abused.”
No abuse of discretion has been shown by the trial court’s ruling herein.
Appellant’s fifth ground of error is overruled.
Finding no reversible error, the judgment is affirmed. |
sw2d_482/html/0190-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Columbus Jackson RAND, Appellant, v. The STATE of Texas, Appellee.
No. 45118.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
Melvyn Carson Bruder, Dallas (Court Appointed on Appeal), for appellant.
Henry Wade, Dist. Atty., George O. Washington, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
The conviction was for possession of heroin; the punishment, 99 years.
At the outset, appellant contends the evidence is insufficient to sustain the jury’s verdict of guilty.
C. R. Hemby, Dallas City Police Officer assigned to the Narcotics Section, received information from an unidentified informant concerning the address of 1900 Pennsylvania Avenue in Dallas on February 2, 1970. Acting upon such information, a search warrant was obtained. Then, with Officers Akridge, Zapata, Nowell and Hamer, Hemby proceeded to the address in question. Hamer knocked on a side or rear door and announced, “It’s the police.” Following a “rumble” inside, the officers forced the door and entered a bedroom. People in that room ran into other parts of the house. Visible on the coffee table in the bedroom were some capsules, needles, syringes, and a stack of money. The officers pursued the fleeing persons, finally cornering them in other parts of the house. Eight persons were arrested, including the appellant. Officer Hemby testified he patted the appellant down and found a pistol and a syringe and needles. Officer Zapata testified he later searched the appellant and found in his left front shirt pocket four capsules of brownish powder which was marked for identification as State’s Exhibit #1L. A chain of custody was established and the chemical analysis of one of the four capsules found in appellant’s possession was shown to contain heroin, morphine, procaine and methapyrilene. Evidence seized from the coffee table and from other individuals present was shown to contain heroin.
The court charged the jury on the law of principals. Understandably, the court did not charge on the law of circumstantial evidence nor was such a charge requested.
Viewing the evidence in the light most favorable to the jury’s verdict, we conclude it is sufficient to support the verdict.
Next, appellant contends the trial court erred in denying, on its own motion, appellant’s application to subpoena the co-defendants as witnesses in his behalf, in violation of the Sixth and Fourteenth Amendments, United States Constitution.
The State contends the record fails to reflect a compliance with Article 24.03, Vernon’s Ann.C.C.P.
Further, we note that during the trial, the court observed that the appellant had made application to subpoena the co-defendants. Thereafter, the record reflects:
“MR. HALSEY (defense counsel): Yes, the attorneys for co-defendants do not wish their clients, their respective clients, to testify in this matter and therefore they have advised me that their clients would take the Fifth Amendment when called to the witness stand. Therefore, if the State wishes to quash the motion or the Court wishes to quash the motion or the Court wishes to dismiss the subpoena, it would be all right, understanding, of course, that these witnesses would not be able to testify.’’ (Emphasis supplied.)
Thereafter, the trial judge assured counsel that he stood ready “to subpoena anyone who could and would testify to anything in your client’s behalf,” but further stated that since defense counsel was satisfied that the co-defendants would claim their privilege against self-incrimination by virtue of the Fifth Amendment, he would “under the circumstances,” deny the application for subpoenas. To such action there was no objection.
It would appear that appellant waived his right to call such witnesses. Thus, there is no merit in appellant’s contention.
The judgment is affirmed, |
sw2d_482/html/0191-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ROBERTS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Johnny HAYNES, Appellant, v. The STATE of Texas, Appellee.
No. 45143.
Court of Criminal Appeals of Texas.
June 28, 1972.
Rehearing Denied July 28, 1972.
John K. Coil, Dallas (Court-appointed), for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for murder, with the punishment assessed by the court at 60 years.
Appellant’s first ground of error complains that the court erred in allowing the district attorney to display a weapon to the jury that was not in evidence. Appellant argues that: “The question is not if the gun could be admitted, the question here is should this case be reversed because the District attorney displayed an object which was never admitted into evidence.” The gun complained about was identified by the witnesses as being similar to the gun used in the shooting herein. It was further shown that this gun was recovered from appellant. Appellant’s common-law wife testified that it was the gun that he had at the scene on the night in question. There was no showing that there was prosecutorial misconduct. In Ortega v. State, 462 S.W.2d 296 (Tex.Cr.App.1970), this Court found that there was no reversible error or a lack of good faith by the prosecutor who had exhibited before the jury a knife which the prosecutrix testified was identical to the knife with which defendant had threatened her. In Brito v. State, 459 S.W.2d 834 (Tex.Cr.App.1970), this Court concluded that it could not hold “that the State was guilty of misconduct or acted in bad faith” when a witness testified that a flashlight “appeared to be the same or similar” to the flashlight with which she had been beaten. This ground of error is without merit.
Appellant’s ground of error number two complains that “The trial judge erred in allowing a conversation outside the presence of the accused into testimony.” The conversation relates to a statement made by one eye-witness to another to the effect “Johnny had no reason to shoot that man.” The defense objected and the court overruled the objection, but no motion for mistrial was made.
There was other testimony from various witnesses as to the shooting incident and as to difficulty between the parties hereto. Even though this remark is to be classified as hearsay, it would not be so prejudicial as to require a new trial. In 24 Tex.Jur.2d Evidence, § 573, we find as follows: “ . . .if the fact to which the hearsay admitted relates is sufficiently proved by other and competent evidence, the admission of the hearsay objected to may properly be deemed harmless.” In Harrod v. State, 93 Tex.Cr.R. 518, 247 S.W. 1091 (Tex.Cr.App.1923), this Court said as follows : “ . . . The mere fact that hearsay testimony is admitted does not necessitate a reversal of the case. It must be harmful.” There was no showing of material injury in any matter. See Hickox v. State, 104 Tex.Cr.R. 649, 285 S.W. 621 (Tex.Cr.App.1926).
Appellant’s third ground of error complaints that “The trial Judge erred in commenting upon the weight of the testimony.” The complained of errors are as follows: Attorney for appellant was inquiring into the arrest of the State’s witnesses for the crime in question and after an objection by the State, the court stated, “It is not important whether they were or were not under arrest, actually.” Appellant’s counsel was inquiring as to direction of a street at the scene and the court stated, “You have already established all of that at the scene.” After this statement, the court instructed the jury to disregard the statement and then commented that the position of the trucks at the scene had no probative force. While the trial judge should not have made the comments herein, we do not see that reversible error was committed thereby. In Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121 (Tex.Cr.App.1953), this Court stated: “Unless there may be found in the remarks of the court a benefit to the state or an injury to the defendant which would not have been present had the court simply overruled the objection, we would not, under the rule stated, be authorized to reverse . . ..” See Hackett v. State, 172 Tex.Cr.R. 414, 357 S.W.2d 391 (Tex.Cr.App.1962); Phelper v. State, 396 S.W.2d 396 (Tex.Cr.App.1965); Minor v. State, 469 S.W.2d 579 (Tex.Cr.App.1971).
Appellant’s fourth ground of error relates to the argument of the State’s Attorney. Complained of argument is as follows : “This man has created the facts. He is as guilty, as guilty as any human being I have ever seen in the court.” And the further argument as follows: “Well, he was going for his old hip pocket. That’s the old story we hear all the time, this hip pocket move.” This Court has held remarks such as “a cold-blooded murderer” not to be improper. Marshall v. State, 104 Tex.Cr.R. 619, 286 S.W. 214 (Tex.Cr.App.1926). Viewed from the totality of the evidence presented to the jury, the argument complained of was not reversible error.
The judgment is affirmed. |
sw2d_482/html/0193-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Dolan BOYD, Appellant, v. The STATE of Texas, Appellee.
No. 45074.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 28, 1972.
W. S. Carpenter, Jr., Dallas, for appellant.
Henry Wade, Dist. Atty., John B. Tolle, Asst. Dist. Atty., Dallas, and Jim D. Voll-ers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Ausitn, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the possession of marihuana. The jury assessed the punishment at two years.
The sufficiency of the evidence is challenged.
An officer saw two men pushing a car at approximately seven o’clock on a Sunday morning. He stopped to see if the car was stolen. Another officer arrived. Upon further investigation, the officers ascertained that the appellant was wanted on a traffic ticket. A search revealed that appellant had a small marihuana cigarette in his overcoat pocket. The appellant testified that the officers found the cigarette in his pocket but he did not know it was there. The jury chose not to believe the appellant’s version.
The evidence is sufficient to support the verdict.
The contention that the State failed to prove that the substance found was a narcotic drug is overruled. Article 725b, Vernon’s Ann.P.C., classifies marihuana as a narcotic drug. We have previously held in many cases that such a classification is not unreasonable. See, e. g., Willoughby v. State, 481 S.W.2d 893 (1972); Reyna v. State, 434 S.W.2d 362.
We perceive no error in the contention that the marihuana cigarette was not shown to be of such a quantity and quality to be susceptible to use as a narcotic. It could have been smoked in the cigarette or in a pipe. See Alaniz v. State, 458 S.W.2d 813. No proof of the purity of marihuana is required.
No error has been shown. The judgment is affirmed.
. At the penalty stage of the trial it was shown that the appellant had received probation for felony theft.
|
sw2d_482/html/0194-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James Wains JONES, Appellant, v. The STATE of Texas, Appellee.
Nos. 45039 and 45040.
Court of Criminal Appeals of Texas.
May 31, 1972.
Lawrence R. Green, Dallas (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., Catharine T. Hill, Asst. Dist. Atty., Dallas, Jim D. Voll-ers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
These are appeals from convictions for possession of heroin and marihuana. Two indictments were returned. By agreement, the cases were tried together before the same jury who returned the verdicts assessing the punishment at thirty years in each case.
The sufficiency of the evidence is not challenged.
On June 15, 1970, postal inspectors had the Preston Station Post Office in Dallas under surveillance. At approximately 7:30 a. m., a car was driven into an alley and parked by the dock. The driver, later ascertained to be Jim Wells, went to the dock, took two packages and returned with them to the car. The officers converged on the car and arrested Wells and the appellant who was seated in the right front seat of the car which belonged to him.
In the glove compartment of the car, the officers found five “penny” matchboxes filled with marihuana and a box containing 19 empty gelatin capsules. On the dash, the officers found another matchbox containing three handrolled marihuana cigarettes and 19 gelatin capsules filled with heroin. In the left pocket of appellant’s shirt, the officers found a matchbox containing a capsule of heroin.
The appellant testified that he did not know the narcotics were in the car. Wells testified that he possessed the narcotics in question and had placed the box containing the heroin in appellant’s pocket just before they were arrested.
If there was ever a question concerning the legality of the arrest of the appellant and the search of the car, it was resolved when Wells, a defense witness, and the appellant testified that the narcotics were in the car and on appellant’s person.
The appellant, in the main issue of the case, contends: “It was fundamental error to place appellant twice in jeopardy and inflict multiple punishment for offenses growing out of the same transaction.”
This is not a case of former conviction, because the cases were tried at the same time. As a practical matter, the two sentences of thirty years are not double punishment. The court did not cumulate the sentences or make one commence at the expiration of the other, therefore, they are concurrent. Article 42.08, Vernon’s Ann. C.C.P. See 1 Branch’s Ann.P.C.2d, Section 685, page 655.
May one be convicted for two offenses for the possession of narcotics at the same time and place ?
Article 725b, section 2(a) Vernon’s Ann.P.C., provides that it shall be unlawful to possess narcotic drugs. Heroin and marihuana, among others, are classified as narcotic drugs. This Court has held that such a classification of marihuana is not unreasonable. E. g. Reyna v. State, Tex.Cr.App., 434 S.W.2d 362. See Garcia v. State, 135 Tex.Cr.R. 667, 122 S.W.2d 631.
The prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once. 1 Branch’s Ann.P.C.2d, Section 654, page 625, and the cases there cited.
A similar situation arose in Fleming v. State, 168 Tex.Cr.R. 595, 330 S.W.2d 457. There the prosecution was for misdemean- or offenses for the illegal practice of medicine under Article 741, V.A.P.C. The information contained two counts, one for publicly professing to be a physician and the other for diagnosing and treating a disorder. Convictions were had on both counts.
Judge Dice, speaking for the Court, noted that the record was clear that Fleming’s conviction upon both counts of the information was based on the same transaction with the prosecuting witness and then wrote:
“While the state had the right to charge in separate counts of the information the two ways named in the statute Art. 741, supra, by which it was alleged that appellant did unlawfully practice medicine, only one offense was actually charged against the appellant.
It was also noted that the statute provided two ways by which a person may be regarded as practicing medicine, did not create separate and distinct offenses but only prescribed different ways of committing the same offense. There the Court held that both counts were properly submitted to the jury, but the court should have instructed the jury that a conviction could be had only on one count and that the accused was improperly convicted twice for the same offense and both could not stand.
The Court had before it a somewhat analogous case in Abston v. State, 158 Tex.Cr.R. 88, 253 S.W.2d 41. Convictions were obtained for the sale of liquor in a dry area and for the possession of the same whiskey. This Court held that convictions for both could not stand and reversed the conviction for the offense of possession of the liquor.
In Long v. State, 158 Tex.Cr.R. 651, 258 S.W.2d 818, this Court held that where four loads of whiskey had been delivered to a house for the accused and one of those loads had been moved to another place near a lake, the State did not have to elect what whiskey was relied upon for the conviction.
In Sikes v. State, 169 Tex.Cr.R. 443, 334 S.W.2d 440, the conviction was for the possession of marihuana. The Court held that the State did not have to elect where officers had found marihuana on appellant’s person and then in his apartment some fifteen to twenty blocks away. See also Glaze v. State, 165 Tex.Cr.R. 626, 310 S.W.2d 88.
Under the fact situation of the present case, we hold that the possession of the heroin and the possession of marihuana constitute the same offense and only one conviction can stand. The court should have limited the jury to a conviction under one of the indictments for either the possession of heroin or the possession of marihuana but not both.
The appellant next insists that both cases must be reversed because it cannot be ascertained which verdict was first reached by the jury. He cites the recent case of Price v. State, Tex.Cr.App., 475 S.W.2d 742, where convictions were for the offenses of false imprisonment and aggravated assault upon a female. The evidence showed that Price got in the car with the complaining witness and held a knife to her throat and made a continuous assault for a short time. This Court held that only one conviction could stand. Since it was shown that the verdict was returned first in the false imprisonment case, it was affirmed and the aggravated assault conviction was reversed.
Here, as the appellant contends, the record does not show if one verdict was returned prior to the other one. It is of little or no consequence which verdict was returned first. In Price, supra, we had separate and distinct offenses, and in the present case we have only one offense alleged in separate indictments to have been committed in different ways, that is, for the possession of different narcotic drugs. The possession of both drugs could have been alleged in one count of an indictment or in separate counts of the same indictment, but in either event, only one conviction based upon the same transaction could be had.
The evidence for the possession of marihuana is sufficient but there is more proof for the possession of heroin because part of it was in his shirt pocket.
The conviction for the possession of heroin is affirmed. The conviction for the possession of marihuana is reversed and the prosecution is ordered dismissed.
It is so ordered.
. Article 21.24, Y.A.C.C.P., has been amended. Only one conviction may be had for separate misdemeanor offenses under one information.
|
sw2d_482/html/0197-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DAVIS, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Ex parte Ron HARRY.
No. 45801.
Court of Criminal Appeals of Texas.
July 12, 1972.
Charles Kaufman, Big Spring, for appellant.
Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from an order entered in a habeas corpus hearing, remanding appellant to custody for extradition to the State of Oregon.
The State introduced into evidence the Executive Warrant of the Governor of this State. The Warrant recites that the appellant “stands charged by affidavit made before a magistrate with a warrant before the proper authorities, with the crime of Grand Larceny — in violation of O.R.S. 164.310.”
The Executive Warrant of the Governor of Texas, which appears regular on its face, made out a prima facie case authorizing remand of appellant to custody for extradition. Ex parte Jackson, Tex.Cr.App., 470 S.W.2d 679; Ex parte Rhodes, Tex.Cr.App., 467 S.W.2d 425; Ex parte Slavin, Tex.Cr.App., 461 S.W.2d 421.
Appellant’s first contention is directed to the use of the word accused rather than the word charged in the complaint accompanying the papers.
The pertinent portion of the complaint recites that, “The above named defendant is accused by this complaint of the crime of Grand Larceny committed as follows, to-wit: The said defendant Ronald E. Harry on or about August 8, 1969, in Linn County, Oregon, then and there being, did then and there unlawfully and feloniously take, steal and carry away certain personal property, to-wit: a C. B. radio, Knight, Transceiver No. SR 23D123D, then and there being the property of Linn County, a political subdivision of the State of Oregon, and of the value of more than $75.00, with intent then and there on the part of the said defendant to permanently deprive the said Linn County of such property.” A copy of the larceny statute from Oregon accompanies the papers.
Appellant further complains that the date the affidavit was shown to have been signed was August 19, 1969, and the jurat reflects that it was subscribed and sworn to on July 7, 1971.
The question for our determination is whether appellant is substantially charged with a crime as required by Art. 51.13, Sec. 3, Vernon’s Ann.C.C.P. An affidavit or indictment upon which a demand for extradition is based and its sufficiency as a criminal pleading, unless clearly void, will be left to the courts of the demanding state. Ex parte Corley, Tex.Cr.App., 439 S.W.2d 668; Ex parte Gesek, Tex.Cr.App., 302 S.W.2d 417. We find that appellant was substantially charged with a crime in the State of Oregon.
Appellant’s complaint that the affidavit was sworn to before a district judg is clearly without merit. Article 51.13, Sec. 3, V.A.C.C.P.; Ex parte Mungia, Tex.Cr.App., 478 S.W.2d 440.
Appellant contends that there is no showing that he can be tried for the offense charged, a felony, by information.
In Ex parte Clubb, 447 S.W.2d 185, this Court said, “A person charged in the demanding state with a felony may be extradited from Texas upon the basis of an affidavit and warrant issued thereon. Whether upon his return to the demanding state, he is to be prosecuted upon an indictment or information is not a question for the courts of Texas to decide in extradition proceedings, but a question for the courts of the demanding state. See Ex parte Mungia, supra.
In his last contention, appellant contends that while the clerk certifies to the correctness of the complaint in the supporting papers from Oregon, that there is in fact no complaint since the word accused rather than the word charged is used in the document in question. This argument has been answered adversely to appellant in our disposition of his first contention.
No error has been shown. The order remanding appellant to custody for extradition is affirmed.
No motion for rehearing will be entertained or filed by the clerk except by leave of this court after good cause has been shown.
Opinion approved by the Court. |
sw2d_482/html/0199-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Jessie Hayward JOHNSON, Appellant, v. The STATE of Texas, Appellee.
No. 40566.
Court of Criminal Appeals of Texas.
June 28, 1972.
Rehearing Denied July 28, 1972.
Melvyn Carson Bruder, Dallas (Court Appointed on Appeal), for appellant.
Henry Wade, Dist. Atty., and Mike G. McCollum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This is an out of time appeal. The conviction was for the offense of burglary; punishment, 12 years.
The evidence shows that Joe Emmett, the owner of Emmett’s Grocery Store in Dallas, secured his place of business on June 5, 1966. The following day his father, Paul Emmett, opened the grocery store for business and observed that a door had been pried open and a check protector and some money orders were missing. The missing money orders were numerically identified as “DA 702321194 through 199.” On June 6, 1966, the appellant entered a grocery store operated by Mrs. Ma-delon Scottino, an aunt of Joe Emmett. He presented money order No. DA 702321197 to one of the employees therein for payment. The money order was handed to Mrs. Scottino for approval and she recognized the draft as one having been previously stolen from her nephew’s store. She engaged the appellant in conversation for some time and he became suspicious and fled from the store; whereupon, Mrs. Scottino shot him, wounding him sufficiently to halt his flight. The police arrived and arrested the appellant, who denied taking the money orders.
Carol Miller testified that on June 10, 1966, the appellant came to the International Super Stores where she was employed and presented her with one of the stolen money orders. No objection was addressed to this testimony.
Appellant’s first ground of error complains of the admission into evidence of an extraneous offense.
As heretofore pointed out, there was no objection to the events testified about by Witness Miller. Therefore, no reversible error is shown, e. g. Martinez v. State, Tex.Cr.App., 473 S.W.2d 520; Fausett v. State, Tex.Cr.App., 468 S.W.2d 92.
Appellant’s second ground of error complains of “admitting into evidence hearsay testimony.”
Mrs. Scottino testified that she received information concerning a burglary at her nephew’s store. An objection to this hearsay testimony was overruled, and the appellant argues that such ruling constitutes reversible error. We do not agree. It is undisputed that a burglary was committed at the store. In fact, the complaining witness, Joe Emmett, (Mrs. Scottino’s nephew) testified concerning the burglary, as did other witnesses. The appellant has failed to show how he was prejudiced or harmed by the court’s ruling and we conclude that the admission of such evidence was harmless error, e. g. Linebarger v. State, Tex.Cr.App., 469 S.W.2d 165; Glass v. State, Tex.Cr.App., 402 S.W.2d 173.
The third ground of error asserts that “appellant was deprived of a fair trial when the state introduced evidence that appellant refused to be searched at the time of his arrest, thereby violating the appellant’s right to remain silent and not have his silence used as evidence against him as guaranteed by the 5th Amendment to the Constitution of the United States.”
Appellant testified that Mrs. Scottino shot him down in the store and that she did not have good cause to do so. He admitted that “me and the officers had an argument. They were trying to search me and one of them went to put his hands in my pockets and I asked him to open his hands so I could see that there wasn’t anything in them. I didn’t want him to put anything in my pockets.” He also admitted seven prior felony convictions.
The circumstances surrounding an arrest of an accused have long been held admissible. See Article 38.22, Sec. 1(f), Vernon’s Ann. C.C.P.; Jones v. State, Tex.Cr.App., 471 S.W.2d 413; Thomas v. State, Tex.Cr.App., 468 S.W.2d 418.
Appellant’s grounds of error four and five complain of an alleged variance in his middle name. This claim is predicated upon his motion to quash the indictment on the basis that, while he was indicted under the name Jessie Hay ward Johnson, his name was actually Jessie Hay wood Johnson. :
Article 26.08, V.A.C.C.P., provides:
“If the defendant, or his counsel for him, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant suggested by himself or his counsel for him, the style of the case changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.”
Under this statute, the misspelling of appellant’s middle name does not vitiate the indictment; instead, the statute permits the court upon proper request, to correct the spelling error. The court, therefore, did not err in refusing to quash this indictment. See, e. g., Younger v. State, Tex.Cr.App., 457 S.W.2d 67; Williams v. State, 115 Tex.Cr.R. 574, 27 S.W.2d 217; Guajardo v. State, 96 Tex.Cr.R. 230, 257 S.W. 247. See also, Thomason v. State, 105 Tex.Cr.R. 119, 286 S.W. 1104.
Moreover, the record reflects that appellant used the name Hayward and was convicted in 1961 under the name Jessie Hayward Johnson. (Appellant testified that he was the same Jessie Hay ward Johnson so convicted.) No error is shown. Fernandez v. State, 172 Tex.Cr.R. 68, 353 S.W.2d 434.
The judgment is affirmed.
DOUGLAS, J., not participating.
. See 420 S.W.2d 728.
|
sw2d_482/html/0201-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MORRISON, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
N. L. JEMMERSON, Appellant, v. The STATE of Texas, Appellee.
No. 45110.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
Melvyn Carson Bruder, Dallas (Court appointed on Appeal), for appellant.
Henry Wade, Dist. Atty., Robert T. Bas-kett, Asst. Dist. Atty., Dallas, Jim D. Vod-ers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is robbery; the punishment, life.
Appellant challenges the sufficiency of the evidence to support his conviction. He contends that the evidence reflects the offense of theft, not robbery.
The complaining witness testified that on the day in question he heard a knock on the door of his office, opened it and saw the appellant standing there with his hand in his pocket. He stated the appellant told him to “get on in there,” grabbed his shoulder and pushed him back after which the two wrestled for a few seconds before the complaining witness broke free and ran out of his office. The complaining witness further testified that he was in fear of his life or serious bodily harm and that “a little over $700.” was taken during his absence from the office.
The foregoing testimony clearly establishes antecedent violence which distinguishes the offense of robbery from that of theft from the person. See Van Arsdale v. State, 148 Tex.Cr.R. 639, 198 S.W.2d 270. Cf. Jones v. State, Tex.Cr.App., 467 S.W.2d 453.
Appellant’s reliance on the dissent, Rayford v. State, Tex.Cr.App., 423 S.W.2d 300, is misplaced. In Rayford, supra, the dissent concluded that the evidence did not show that any actual or threatened violence had been inflicted on the complaining witness prior to the robbery. Such is not the situation in the case at bar.
Appellant also contends that the money which was introduced at his trial was seized as the result of an illegal search. Specifically, he claims that his wife did not voluntarily consent to the search of their home since the officers failed to advise her she did not have to consent to the search, that she could require a search warrant and that any evidence found might be used against her husband in a criminal prosecution.
At the hearing on the motion to suppress the evidence, Dallas Police Detective H. M. Moore testified that he went to the Jemmerson home on the day of the offense and after searching the premises found $671. Moore also testified that Mrs. Jem-merson invited him in before he asked permission to search and that he informed her that her husband, who was not at home at the time, was a robbery suspect and that he (Moore) was looking for some money and clothes in connection with that offense.
At that hearing Mrs. Jemmerson testified in response to questions by appellant’s counsel:
“Q did they identify themselves as Dallas police officers?
“A Yes.
“Q All right. And did you invite them in the house ?
“A Yes.
“Q All right. Did they ask you if they could look around and search the house ?
“A Yes.
“Did you tell them they could ?
“A Yes.”
She also stated that she signed a written consent to search after the search had taken place. Detective Moore testified the written consent was executed prior to the search. The written consent was not introduced into evidence.
The court found that the search of the premises was voluntary and executed with Mrs. Jemmerson’s consent which she freely gave after being informed that the searchers were law enforcement officers and were searching for matters in connection with a robbery in which her husband was a suspect.
We have examined the record and conclude the trial court was justified in its findings.
In DeVoyle v. State, Tex.Cr.App., 471 S.W.2d 77, this Court said:
“. . . even though good police practice, we hold that it is not a requirement that the validity of consent to search is dependent upon giving of the ‘Miranda’ warnings. Compare Barnett v. State, Tex.Cr.App., 447 S.W.2d 684, cert. denied, 396 U.S. 910, 90 S.Ct. 216, 24 L.Ed.2d 185. See also Gorman v. United States, 380 F.2d 158 (1st Cir., 1967); State v. McCarty, 199 Kan. 116, 427 P.2d 616 (1967).”
Further, the record reflects Mrs. Jem-merson freely and voluntarily consented to the search of her home. There is nothing in the record to indicate deceit, duress or coercion. Cf. Paprskar v. State, Tex.Cr.App., (No. 44,447, June 7, 1972).
Finding no reversible error, the judgment is affirmed. |
sw2d_482/html/0203-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MORRISON, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Emiliano M. LAMAS, Appellant, v. The STATE of Texas, Appellee.
No. 45421.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Quinn Brackett, Tom West, Lubbock, for appellant.
Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
This is an appeal from a revocation of probation.
Appellant was convicted for possession of heroin in Floyd County on February 16, 1969, assessed a penalty of ten (10) years and placed on probation. One of the conditions of his probation was that he “. . . (2) Commit no offenses against the laws of this or any other State in the United States. . . .”
On July 27, 1971, the State filed a motion to revoke probation alleging “that on or about the 2nd of July 1971, defendant was convicted upon his plea of guilty for the offense; of operating a motor vehicle while under the influence of intoxicating liquor subsequent offense which occurred on or about the 7th day of November, 1970, in Deaf Smith County, Texas. . . .”
Appellant’s first contention is that the court abused its discretion in revoking his probation because there was no evidence that the offense upon which the revocation was based occurred during the term of probation.
A Deaf Smith County Deputy Sheriff testified that the appellant was convicted for “DWI charged on a second offense” on July 22, 1971, in the 69th District Court.
Appellant’s probation officer testified that he was placed on probation on February 10, 1969.
The judgment of conviction from the Deaf Smith County case was also introduced into evidence, without objection, together with the indictment and sentence in that case. The judgment recited that the offense occurred on November 7, 1970. In Espinosa v. State, 463 S.W.2d 8, this Court held that a judgment which recited that a defendant was found guilty of an offense committed on a specific date constituted a judicial finding that the offense occurred on that date. Since the judgment was introduced into evidence and contained such a recitation, the court could conclude that the offense occurred on November 7, 1970 during the term of probation which began on February 10, 1969.
The appellant cites Mason v. State, Tex.Cr.App., 438 S.W.2d 556, as authority. However, that case is inapplicable under the circumstances of this case. In Mason, supra, the State relied exclusively on the testimony of the judge who tried the case which was the basis for revocation. He did not state the date on which the offense occurred but only recited the date of the conviction. Additionally, in that case, the State did not introduce the complaint or the judgment of conviction.
Appellant’s second contention is that the court abused its discretion by revoking his probation because the sentence in the Deaf Smith County case is not an indeterminate sentence and, therefore, not in compliance with Art. 42.09, Vernon’s Ann.C.C.P. The record reflects that the sentence in question is not in compliance with the Statute. However, appellant’s contention is a collateral attack upon the Deaf Smith County judgment which may not be raised at this late date. A revocation of probation may be based on a finding by the trial court that the terms of probation have been violated and it is not necessary that there first be a valid trial on conviction for the offense charged. Mitchell v. State, Tex.Cr.App., 483 S.W.2d 481 (1972); Hall v. State, Tex.Cr.App., 452 S.W.2d 490; Ex parte Bruinsma v. State, 164 Tex.Cr.R. 358, 298 S.W.2d 838; Seymore v. Beto, 383 F.2d 384.
Finding no reversible error, the judgment is affirmed. |
sw2d_482/html/0205-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ROBERTS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Glenn JOINES, Appellant, v. The STATE of Texas, Appellee.
No. 44997.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
Zimmerman & Rugeley by Rodger M. Zimmerman, San Marcos, for appellant.
Wiley Cheatham, Dist. Atty., Cuero, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for burglary. Trial was held before a jury, which assessed punishment at confinement for two years.
In his brief, appellant asserts ten grounds of error. In his first and fourth grounds of error, appellant contends that the court erred in overruling his motion for continuance which was filed on the day of trial, April 19, 1971. Appellant states that there were two other indictments pending against him and that on March 19, 1971, he received notice that all three cases were set for jury trial on April 19, 1971. The record reflects that a motion was filed by appellant on March 22, 1971, in which he moved that the State be required to elect the indictment upon which it would proceed. Appellant states that he was not notified until April IS, 1971, that the State would proceed to trial upon the case at bar, and that he therefore lacked sufficient time for preparation.
The record reflects that the indictment in the present case was returned on February 26, 1971, and that his counsel at trial was entered as attorney of record on that date. In light of the fact that appellant, with the assistance of counsel, had almost two months in which to prepare for trial, we find no abuse of discretion by the trial court in overruling his motion. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972). Appellant’s first and fourth grounds of error are overruled.
In his second and fifth grounds of error, appellant contends that the court erred in granting a severance as to his co-indictee, Ricky Walpole. Appellant does not contend that the court erred in refusing to grant him a severance, but rather, that the court erred in granting his co-in-dictee’s motion for severance. He maintains that Walpole’s motion was inadequate under Art. 36.09, Vernon’s Ann.C.C.P., and therefore, the granting of severance was an abuse of discretion.
We do not find that the trial court abused its discretion in granting the severance. Art. 36.09, V.A.C.C.P., provides:
“Two or more defendants who are jointly or separately indicted or complained against for the same offense or any offense growing out of the same transaction may be, in the discretion of the court, tried jointly or separately as to one or more defendants; provided that in any event either defendant may testify for the other or on behalf of the state; and provided further, that in cases in which, upon timely motion to sever, and evidence introduced thereon, it is made known to the court that there is a previous admissible conviction against one defendant or that a joint trial would be prejudicial to any defendant, the court shall order a severance as to the defendant whose joint trial would prejudice the other defendant or defendants.”
The statute is composed of two parts. The first part grants the trial court the authority to grant a severance, in its discretion. The second part makes the granting of a severance mandatory under certain circumstances. Appellant would have us construe the mandatory provision of the statute as limiting the court’s discretionary authority to grant a severance. Such a construction would render the first part of the statute a nullity. Cf. Satillan v. State, 470 S.W.2d 677 (Tex.Cr.App.1971). Appellant’s second and fifth grounds of error are overruled.
In his third ground of error, appellant contends that the court erred in permitting Walpole, his co-indictee, to testify on behalf of the State. He contends that because he did not know that he and Walpole would not be tried jointly until the day of trial, he was unfairly surprised by Walpole’s testimony. This contention is without merit. Even if he had been tried jointly with Walpole, Walpole would have been a competent witness for the State. Art. 36.09, V.A.C.C.P. The record further reflects that Walpole testified that he had informed appellant’s counsel that he was going to testify for the State. Thus, there was evidence that appellant was not unfairly surprised. Appellant’s third ground of error is overruled.
In his sixth ground of error, appellant contends that the court erred in overruling his motion for mistrial which was made in response to a comment by the prosecutor, at summation upon appellant’s failure to call a certain witness.
The record reflects that appellant’s mother testified that he had made a certain telephone call on the date of the offense to a girl (in support of a defense of alibi), and on cross-examination, named the girl. In argument, the prosecutor commented on the failure of appellant to call the girl as a witness.
It is well settled that the State may comment upon the accused’s failure to call a certain witness to support his defensive evidence, e. g., Batiste v. State, 462 S.W.2d 30 (Tex.Cr.App.1971); Miller v. State, 458 S.W.2d 680 (Tex.Cr.App.1970). In light of appellant’s evidence that he had talked with a particular person, the State’s comment upon the failure to call that person was proper. Appellant’s sixth ground of error is overruled.
In his seventh ground of error, appellant contends that the court erred in overruling his motion for mistrial which was made following an argument in which he contends the prosecutor was permitted “to compare your Appellant to his Co-In-dictee Walpole in such a manner as to constitute a criticism or dare to the appellant for making a defense rather than coming forward with an admission of guilt as did Walpole on the witness stand.” The argument to which he refers is set forth below:
“. . . You have got one of them that did wrong but he came in here and admitted to you his mistake, and that he did wrong and that another man did it along with him. You have got another one that did wrong and walked in here and told you he didn’t do it. He wants you just to turn him loose and walk him scot loose free, let him beat the rap, let a merchant down there at LaWard be jeopardized, his building broken into, knocked holes m the wall and take the money, and he asks you to turn him loose, free.”
The record reflects that the motion for mistrial was not made until considerably later in the course of the argument.
An objection to improper argument must be made at the time of the argument, in order to preserve the error for review. e. g.j Archer v. State, 474 S.W.2d 484 (Tex.Cr.App.1971); Davis v. State, 463 S.W.2d 434 (Tex.Cr.App.1971); Van Bibber v. State, 371 S.W.2d 880 (Tex.Cr.App.1963). Therefore, the error in the argument, if any, is not properly before this Court for review. Appellant’s seventh ground of error is overruled.
In his eighth ground of error, appellant asserts as error the substitution of judges on the second day of trial. The record reflects that on April 19, 1971, the Hon. Frank H. Crain presided over the proceedings, which included hearings on several motions, and the voir dire examination of the veniremen. On April 20, 1971, trial on the merits commenced, the Hon. Joe E. Kelly presiding. Although appellant contends in his brief that he objected to the change, no objection appears in the record. In light of appellant’s failure to object, we perceive no error. Even if objection had been made, however, the substitution would not have been error, absent an abuse of discretion. Art. 1916, Vernon’s Ann.Civ.St. See also Lavallas v. State, 444 S.W.2d 931 (Tex.Cr.App.1969). Appellant’s eighth ground of error is overruled.
In his ninth ground of error, appellant contends that the court erred in permitting the State to read the entire indictment to the jury, after a severance had been granted as to Walpole. This ground of error is without merit for three reasons. (1) No objection was made. (2) The court instructed the jury that appellant only was on trial at the time. (3) Walpole testified for the State, and admitted his guilt before the jury.
In his tenth ground of error, appellant states “[T]he trial court committed a material error injuring the rights of Defendant Joines in this case in that the Court did not instruct the jury as to the law of incrimination by evidence from an admitted co-principal until the ‘charge of the court’ was read to the jury on the third day of trial.”
No such instruction is required to be given at the time the accomplice testifies. The testimony of the accomplice is not limited in the sense that it is admissible only for a limited purpose. It is fully competent evidence. However, it is not sufficient to support a verdict of guilt unless corroborated. Art. 38.14, V.A.C.C.P. That being the case, the jury is unable to determine the sufficiency of the corroboration until after all evidence has been presented. Therefore, an instruction prior to the close of evidence would be premature. Appellant’s tenth ground of error is overruled.
The judgment is affirmed. |
sw2d_482/html/0208-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
William E. SANDERS, Appellant, v. The STATE of Texas, Appellee.
No. 44755.
Court of Criminal Appeals of Texas.
May 31, 1972.
Michael N. Buckley, Dallas, for appellant.
Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
Appellant was tried before the court and found guilty of knowingly exhibiting an obscene film in violation of Article 527, Vernon’s Ann.P.C., a misdemeanor since it was his first conviction under said statute. Sentence was pronounced at 90 days in jail and a $200 fine. Imposition of sentence and judgment were suspended and appellant was placed on misdemeanor probation. Article 42.13, Vernon’s Ann.C.C.P.
No briefs were filed, but there is fundamental error which requires reversal “in the interest of justice.” Article 40.09 § 13, Vernon’s Ann.C.C.P.
The State’s case consisted of the testimony of a Dallas detective and police photographer who had paid admission to a local theater and the admission into evidence of sixteen black and white photographs of frames taken during the exhibition of the film. The photographs portray various kinds of heterosexual activity.
The allegedly obscene film appellant was found guilty of exhibiting was not introduced into evidence before the court as the trier of fact nor is it included in the appellate record. This omission compels reversal. Bryers v. State, 480 S.W.2d 712 (Tex.Cr.App.1972); Longoria v. State, 479 S.W.2d 689 (Tex.Cr.App.1972).
The judgment is reversed and the cause remanded. |
sw2d_482/html/0209-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ROBERTS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Wallace Martin JOHNIGAN, Appellant, v. The STATE of Texas, Appellee.
No. 45044.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 28, 1972.
Saunders, Caldwell & Schmidt by J. Byron Saunders, Tyler, for appellant.
Curtis L. Owen, Dist. Atty., Tom T. Tatum, Asst. Dist. Atty., Tyler, Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for the offense of assault with intent to murder without malice upon Robert Louis McCloud. Trial was held before a jury, which assessed punishment at confinement for three years.
In his second ground of error, appellant contends that the court erred in allowing the prosecutor to call appellant’s wife as a witness at the punishment stage of the trial.
The record reflects that at the hearing on punishment the appellant testified that he did not live at home with his wife and children but that he did support them. The prosecutor then asked for “a moment” and after consulting appellant’s wife, Shirley, who had been identified earlier, said: “The State would call Shirley Johnigan.” Counsel for both sides then approached the bench and thereafter appellant’s wife was not mentioned again. She did not testify and she did not take the stand.
Appellant’s wife did not actually testify against him, but appellant contends that the prosecutor’s action of conferring with her and then calling her as a witness had the effect of conveying to the jury the impression that she would rebut her husband’s testimony if she were allowed to testify.
It is elementary that a wife may not testify against her husband. Art. 38.11, Vernon’s Ann.C.C.P., provides in part:
“The husband and wife may, in all criminal actions, be witnesses for each other, but except as hereinafter provided, they shall in no case testify against each other in a criminal prosecution.”
The State contends that the action of the prosecutor in calling appellant’s wife, if error, was not reversible error because no objection was made at the time and because she did not actually testify against appellant. We disagree.
The disqualification of a spouse as an adverse witness cannot be waived. Rogers v. State, 368 S.W.2d 772 (Tex.Cr.App.1963); Krzesinski v. State, 169 Tex.Cr.R. 178, 333 S.W.2d 149 (1960); Johnson v. State, 95 Tex.Cr.R. 483, 255 S.W. 416 (1923); Eads v. State, 74 Tex.Cr.R. 628, 170 S.W. 145 (1914); Johnson v. State, 66 Tex.Cr.R. 586, 148 S.W. 328 (1912); Brock v. State, 44 Tex.Cr.R. 335, 71 S.W. 20 (1902).
Further, this Court has held that the State commits reversible error by calling the defendant’s wife, thereby forcing him to object in the presence of the jury, when such action is done in such a manner as to convey to the jury the impression that the wife, if allowed to testify, would rebut defensive testimony previously given in the case. Wall v. State, 417 S.W.2d 59 (Tex.Cr.App.1967); Hignett v. State, 168 Tex.Cr.R. 380, 328 S.W.2d 300 (1959); Caldwell v. State, 162 Tex.Cr.R. 486, 287 S.W.2d 176 (1956); Lynn v. State, 113 Tex.Cr.R. 637, 21 S.W.2d 1042 (1929); Moore v. State, 45 Tex.Cr.R. 234, 75 S.W. 497 (1903). Therefore, appellant’s failure to obj ect cannot constitute a waiver.
The State attempts to distinguish the circumstances of the instant case from these holdings on the ground that appellant was not forced to object in the presence of the jury. We do not feel that this is a realistic distinction. Immediately after the prosecutor conferred with appellant’s wife and called her, a conference occurred at the bench, out of the hearing of the jury. Thereafter, appellant’s wife did not take the stand. It seems fairly certain that the impression was conveyed to the jury, by the combined effect of the conference with the wife and the subsequent calling, which was not followed by testimony, that the wife’s testimony would have been adverse to appellant’s testimony which had been heard immediately before.
This Court has held that it is reversible error for the State to show that the defendant’s wife is assisting in the prosecution of the case, even though she has not testified. Davis v. State, 160 Tex.Cr.R. 138, 268 S.W.2d 152 (1954); Davis v. State, 140 Tex.Cr.R. 597, 146 S.W.2d 994 (1940). Therefore, we are of the opinion that the fact that appellant was not forced to object in the presence of the jury does not render the error harmless, for it is doubtful that the jury, especially in light of the conference with the wife, received any impression other than that the wife’s testimony would have been harmful to appellant and that she was assisting in the prosecution. Therefore, we feel that the State’s action constitutes reversible error. In light of our disposition of this ground of error, we need not consider appellant’s remaining ground of error.
For the reason stated, the judgment is reversed and the cause remanded.
. In Clayton v. State, 465 S.W.2d 769 (Tex.Cr.App.1971), it was held that the action of the State in asking that the defendant’s wife be sworn, aparently before testimony had been taken in the case, while error, was not reversible error, because the effect of the State’s action was not to convey the impression of rebuttal to the jury since no testimony had been taken at that point in the case.
|
sw2d_482/html/0211-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Arthur PARHAM, Appellant, v. The STATE of Texas. Arthur Blackshear PARHAM, Appellant, v. The STATE of Texas, Appellee.
Nos. 45521, 45522.
Court of Criminal Appeals of Texas.
July 12, 1972.
John Mustachio, Houston (by appointment on appeal), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Roland G. Woods, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
These are appeals from orders revoking probation.
On November 12, 1970, appellant waived trial by jury and entered pleas of guilty before the court to two offenses of felony shoplifting. The punishment was assessed at 5 years in each case, but the imposition of the sentences was suspended and the appellant placed on probation in each case. Among the conditions of probation in each case was the requirement that the appellant “(a) commit no offense against the laws of this or any other state or the United States.”
On January 20, 1971, the State filed a motion to revoke probation in each case, alleging that the appellant had violated his probationary conditions in that on November 19, 1970, he had committed the offense of felony shoplifting in the City of Houston.
On April 23, 1971, the court conducted a hearing on the motion to revoke probation. The evidence reflects that an employee of a Montgomery Ward’s store in Houston saw the appellant and another man take women’s coats off the rack and flee the store on November 19, 1970. Another employee, along with a security officer, gave chase. Such employee identified the appellant as one of the men who got into a car and fled the scene. He related that during the chase, coats were thrown from the car and that shots were fired at the automobile in which he and the security officer were riding. The appellant and his companion escaped. The value of the coats and lack of consent were also shown. Still another employee of the store identified appellant as the man who had taken women’s coats from the same store on the day before, November 18, 1970.
The appellant testified as to an alibi and was supported by the testimony of his girl friend.
The court revoked probation in each case.
On appeal, court-appointed appellate counsel candidly states that the appeals are wholly without merit and of a frivolous nature. Aware of his duties under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the procedure recommended in Gainous v. State, 436 S.W.2d 137 (Tex.Cr.App.1969), counsel has filed briefs in which he questions the sufficiency of the evidence to support the revocations as arguably supporting the appeals. A copy of such briefs was served upon the appellant and he has filed a pro se brief urging basically the same contention as counsel.
The contention advanced is that the alleged violation of probation occurred only seven days after probation had been granted and that “it is unlikely that a man would so soon risk his newly obtained freedom and the evidence is not actually conclusive.”
The contention is without merit.
The judgments are affirmed.
ODOM, J., not participating. |
sw2d_482/html/0213-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Aubrey Gerald THRASH, Appellant, v. The STATE of Texas, Appellee.
No. 45054.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Melvyn Carson Bruder, Dallas, for appellant.
Henry Wade, Dist. Atty., Catharine T. Hill, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for the offense of robbery. After a guilty verdict by the jury, the court assessed the punishment at twenty-five years.
The sufficiency of the evidence is not challenged.
The appellant contends that the court erred in refusing to let him impeach one of the State’s witnesses; that a prior conviction used at the penalty stage of the trial was void; and,- that the court erred by instructing the jury in the correct procedure to have the testimony of a witness repeated.
The record reflects that shortly after 9:00 p. m. on January 2, 1970, the appellant, who was wearing sunglasses and a hooded grey sweatshirt, went into a liquor store in Dallas and robbed the owner, John Vogel. Fred Broadwater, who was in the store, positively identified the appellant as the robber. Vogel, an elderly man, was less positive in his identification of the appellant.
While in the store, appellant ordered Vo-gel to hand over the money from the cash register and cautioned Broadwater not to make a move or his friend would be killed. Vogel gave the robber $120.00 in cash. The appellant forced Vogel and Broadwa-ter to lie down in a storage room while he made his escape.
The appellant’s defense was alibi supported by his mother and a family friend. A jail mate also testified that he committed the robbery and not the appellant. The jury chose to believe the witnesses for the State.
Two witnesses testified that the appellant came to their apartment and told them he was going to rob a store. He left and later returned with money and a revolver, changed clothes and left.
The first complaint is that the court erred in refusing to permit him to prove the two witnesses were homosexuals. Outside the presence of the jury, it was shown that one of the witnesses had been discharged from the service because he was a homosexual and had relations with the other witness. The appellant asked the court for this testimony to go before the jury because this would bear on the credibility of their testimony about the robbery. The trial court ascertained that the two witnesses had never been convicted for any offense and refused the proffered impeachment testimony.
There was no contention of any bias or animosity of the witnesses toward appellant.
Evidence of specific acts of misconduct against a witness is not admissible for impeachment purposes. Garcia v. State, Tex.Cr.App., 454 S.W.2d 400. Article 38.29, Vernon’s Ann.C.C.P., provides that a witness in a criminal case may not be impeached if he had been charged by an indictment, information or complaint unless such charge has resulted in a conviction.
In Brown v. State, 168 Tex.Cr.R. 67, 323 S.W.2d 954, a conviction for the possession of barbiturates was reversed because of the prosecutor’s sustained efforts to impeach a defense witness with his alleged homosexual relationship with the defendant.
We hold that the trial court did not err in refusing to permit the impeachment of the witnesses with proof of prior acts of homosexuality.
Next, complaint is made that the court erred at the punishment stage of the trial in admitting into evidence proof of a 1966 embezzlement conviction in the State of Nevada. When this was offered appellant’s retained counsel stated that he had no objection. There was no claim then and no claim now that he was indigent and did not waive counsel or that he was deprived of counsel in any manner. He does not complain now that he did not have counsel. No error is shown. See Taylor v. State, Tex.Cr.App., 470 S.W.2d 663.
Lastly, appellant complains of the judge’s answer to the jury’s request that they be furnished the testimony of a defense witness and the statements of two of the witnesses for the State. The court instructed the court reporter to deliver to the jury the statements of the two witnesses for the State. With reference to the testimony of the defense witness, the court instructed the jury that the law did not permit a general rereading of the testimony of any witness and instructed them in the terms of Article 36.28, V.A.C.C.P., which provides for repetition of testimony on points of disagreement. The answer given by the judge was correct. Vasquez v. State, Tex.Cr.App., 415 S.W.2d 188. See 56 Tex.Jur.2d, Section 343, page 708.
There was no objection to the judge’s answer. Even if an objection had been made, no error would be shown.
The judgment is affirmed. |
sw2d_482/html/0215-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MORRISON, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Roy Lee NEWTON, Appellant, v. The STATE of Texas, Appellee.
No. 45840.
Court of Criminal Appeals of Texas.
July 19, 1972.
Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is felony theft; the punishment, five (5) years.
The record reflects the appellant was sentenced on November 15, 1971, at which time he waived his right to appeal after being advised of such right and his right to have an attorney appointed to represent him on appeal.
On December 13, 1971, the appellant filed a motion for permission to file an untimely notice of appeal. The record does not re-fleet the court’s action on the motion.
This Court does not have jurisdiction to entertain an appeal where there is no timely motion for appeal or leave of the court for good cause shown to file such notice after ten days. Art. 44.08(c), (e), Vernon’s Ann.GC.P. Caldwell v. State, Tex.Cr.App., 383 S.W.2d 590, and Nix v. State, Tex.Cr.App., 433 S.W.2d 710.
The appeal is dismissed. |
sw2d_482/html/0215-02.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DALLY, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
J. U. HOLLIDAY, Jr., Appellant, v. The STATE of Texas, Appellee. Dyer PARKER, Jr., Appellant, v. The STATE of Texas, Appellee.
Nos. 45240, 45556.
Court of Criminal Appeals of Texas.
July 12, 1972.
John Eaton, San Angelo (Court Appointed on Appeal), for appellant.
Royal Hart, Dist. Atty., San Angelo, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction of J. U. Holliday, Jr., is for the sale of marihuana; the punishment, fifteen years imprisonment. The conviction of Dyer Parker, Jr., is for the sale of marihuana; the punishment, twenty-seven years imprisonment.
The State has filed a motion to dismiss the appeal in each of these cases and the motions are supported by the affidavits of Odell Wagoner, the Sheriff of Tom Green County. The uncontroverted affidavits show that after the records on appeal were filed in this court each of the appellants escaped from custody on April 22, 1972, and were at large until April 24, 1972, when they were captured and returned to the custody of Sheriff Wagoner. This court is without jurisdiction except to dismiss the appeals. Articles 44.09 and 44.10, Vernon’s Ann.C.C.P.; Hearn v. State, 478 S.W.2d 467 (Tex.Cr.App.1972); Cuevas v. State, 467 S.W.2d 421 (Tex.Cr.App.1971); Rinehart v. State, 456 S.W.2d 396 (Tex.Cr.App.1970); Vaughn v. State, 456 S.W.2d 141 (Tex.Cr.App.1970); Forder v. State, 456 S.W.2d 378 (Tex.Cr.App.1970) and Fonseca v. State, 455 S.W.2d 244 (Tex.Cr.App.1970).
When an appellant escapes after he has been sentenced and pending his appeal, this court’s jurisdiction of such appeal is terminated. Jurisdiction can be reinvested only by the voluntary return of the appellant into the custody of the officer from whom he escaped within ten days. If the appellant is recaptured before the lapse of ten days, his escape nevertheless divests this court of jurisdiction of the appeal. A recapture of an appellant within ten days, even though it prevents his voluntary return into custody will not restore jurisdiction of the appeal. Gilbert v. State, 83 Tex.Cr.R. 348, 203 S.W. 892 (Tex.Cr.App.1918); Lunsford v. State, 10 Tex.App. 118 (1881); Ex Parte Wood, 19 Tex.App. 46 (1885); Loyd v. State, 19 Tex.App. 137 (1885); Maugia v. State, 90 Tex.Cr.R. 539, 236 S.W. 740 (Tex.Cr.App. 1922); Pendergrass v. State, 92 Tex.Cr.R. 467, 244 S.W. 513 (Tex.Cr.App.1922); Reeves v. State, 109 Tex.Cr.R. 649, 7 S.W.2d 87 (Tex.Cr.App.1928); Woodson v. State, 8 S.W.2d 121 (Tex.Cr.App.1928); Gribble v. State, 115 Tex.Cr.R. 90, 29 S.W.2d 391 (Tex.Cr.App.1930); Forsom v. State, 118 Tex.Cr.R. 66, 38 S.W.2d 804 (Tex.Cr.App.1931); Clark v. State, 396 S.W.2d 886 (Tex.Cr.App.1965); and Vaughn v. State, supra.
The State’s motion to dismiss the appeal in each case is granted and the appeals are dismissed.
Opinion approved by the court.
. Article 44.09, V.A.C.C.P., provides:
“If the defendant, pending an appeal in the felony case, makes his escape from custody, the jurisdiction of the Court of Criminal Appeals shall no longer attach in the case. Upon the fact of such escape being made to appear, the court shall, on motion of the State’s attorney, dismiss the appeal; but the order dismissing the appeal shall be set aside if it is made to appear that the defendant has voluntarily returned within ten days to the custody of the officer from whom he escaped; and in cases where the punishment inflicted by the jury is death or confinement in an institution operated by the Department of Corrections for life, the court may in its discretion reinstate the appeal if the defendant is recaptured or voluntarily surrenders within thirty days after such escape.”
. Article 44.10, V.A.C.C.P., provides:
“When any such escape occurs, the sheriff who had the prisoner in custody shall immediately report the fact under oath to the district or county attorney of the county in which the conviction was had, who shall forthwith forward such report to the State prosecuting attorney. Such report shall be sufficient evidence of the fact of such escape to authorize the dismissal of the appeal.”
|
sw2d_482/html/0217-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Ross Hurley HUNT, Appellant, v. The STATE of Texas, Appellee.
Nos. 45512, 45513.
Court of Criminal Appeals of Texas.
July 12, 1972.
Jerry D. Birdwell, Dallas, for appellant.
Henry Wade, Dist. Atty., and James B. Scott, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
These appeals are from convictions for the offense of unlawful delivery of a dangerous drug [Article 726d, Sec. 3(a), Vernon’s Ann.P.C.] to-wit: Methamphetamine. The punishment was assessed at five years in each case.
Appellant’s sole ground of error attacks the sufficiency of the evidence.
The record shows that appellant entered a plea of guilty before the jury to both offenses herein, after he had agreed to try said causes together. He testified and confessed his guilt from the witness stand.
This court has consistently held that a plea of guilty to a felony charge before a jury admits the existence of all facts necessary to establish guilt, and in such cases the introduction of evidence is to aid the jury in assessing punishment. See, e. g., Alexander v. State, Tex.Cr.App., 479 S.W.2d 44; Maldonado v. State, Tex.Cr.App., 467 S.W.2d 468.
The judgments are affirmed. |
sw2d_482/html/0218-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Earnest Lee THOMAS, Appellant, v. The STATE of Texas, Appellee.
No. 45083.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Melvyn Carson Bruder, Dallas (On appeal only), for appellant.
Henry Wade, Dist. Atty., Robert T. Baskett, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from a conviction for the offense of robbery; the punishment was assessed by a jury at 99 years.
Appellant initially contends that his request for discovery of the “criminal records in possession of the prosecutor regarding the State’s witnesses,” should have been granted.
There is no showing that the prosecuting attorney had any “criminal records” regarding the State’s witnesses in his possession. No error is shown by the refusal of such request. Elliott v. State, Tex.Cr.App., 475 S.W.2d 239; Hardin v. State, Tex.Cr.App., 453 S.W.2d 156.
Next, appellant asserts that “The trial court erred in sustaining the prosecutor’s objection to appellant’s attempted impeachment of the complaining witness.”
The complaining witness was asked on cross-examination whether he had been convicted of carrying weapons and using those weapons. Appellant argues that the objection to such questions should not have been sustained because “the use of the prohibited weapon constitutes a felony, and a conviction therefor may be used for impeachment.” He argues that Article 38.29, Vernon’s Ann.C.C.P., allows impeachment of any witness by proof of final felony convictions, and that since carrying a prohibited weapon may be a felony under certain circumstances, he was entitled to obtain the details from the witness as to whether or not this was a misdemeanor or a felony. The record was not developed to show that such examination would have revealed facts that would have been admissible, therefore, it would be only speculative conjecture to say what may be. No error is shown.
White v. State, Tex.Cr.App., 362 S.W.2d 650.
Lastly, appellant contends he “was denied due process and equal protection of the law when the prosecution introduced before the jury a prior conviction wherein appellant was given a suspended sentence, which suspended sentence had not been set aside.”
Such conviction was introduced into evidence before the jury at the punishment phase of the trial and no objection was addressed to the introduction thereof. No error is shown. Taylor v. State, Tex.Cr.App., 470 S.W.2d 663; Macias v. State, Tex.Cr.App., 451 S.W.2d 489. See also, Article 37.07, Sec. 3(a), V.A.C.C.P.
There being no reversible error, the judgment is affirmed.
. Convictions for misdemeanors involving moral turpitude are also admissible for such purpose. Cf. Johnson v. State, Tex.Cr.App., 453 S.W.2d 828. However, the misdemeanor offense of unlawfully carrying arms is not an offense involving moral turpitude.
|
sw2d_482/html/0219-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Robert Lee ROSE, Appellant, v. The STATE of Texas, Appellee.
No. 45081.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 26, 1972.
Dan R. McCormack, Dallas, for appellant.
Henry Wade, Dist. Atty., and James B. Scott, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for robbery by assault. The jury assessed the punishment at twenty-five years.
The sufficiency of the evidence is not challenged.
The first complaint is that a gun which was later introduced into evidence was found as a result of an illegal arrest and subsequent search.
Charles Davis testified that he was working as night manager at a service station in Dallas on April 11, 1970. At about 1:45 a. m., the appellant came into the station, held a .22 caliber pistol in Davis’ side and had him open the cash register. The appellant removed about $175.00 and then left. Davis got a gun, went outside and exchanged gunshots with the appellant. Appellant ran alongside a white 1964 Chevrolet and jumped in. At least two others were already in the car when appellant entered. Davis called the police and reported the robbery, but the appellant made his escape.
On April 14, 1970, Davis saw the same car at the service station with three or four people in it. When the car sped off, one of Davis’ brothers-in-law followed the car while Davis called the police.
Officer Levy McQuietor, Jr., of the Dallas Police Department testified that he and another officer were on radio patrol on April 14, 1970. They received a call around 1:00 a. m. to be on the lookout for three robbery suspects in a 1962 (later corrected to 1964) Chevrolet with a blue top and white body. He had received a call with the same description on April 11 but failed to locate the suspects. On the 14th, he spotted the car driven by the appellant about six or seven blocks from the service station. While he held a shotgun on the occupants, the other officer searched them. Nothing was found on their persons, but Officer McQuietor did find a .22 caliber pistol “stuffed in between the bottom and back cushion” of the front seat on the driver’s side.
The State contends the arrest was authorized under Article 14.04, Vernon’s Ann.C. C.P., which provides:
“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”
In the present case probable cause arose on April 11th to arrest someone who the manager reported to the police had robbed a service station and was seen getting into a 1964 Chevrolet with a blue top and white body. There is nothing to indicate that the police had any further information regarding the identity or location of the offender. He successfully escaped on the date of the robbery. When he was again spotted on April 14, the appellant was about to escape again.
In Rodgers v. State, Tex.Cr.App., 448 S.W.2d 465, arresting officers
“ . . . received a radio report of a robbery, a description of the automobile in which the robber was riding, a description of the robber, and the fact that he was accompanied by two other white males.” Id., at 469.
Within minutes after the call the officers saw the vehicle, brought it to a halt, arrested the occupants, and recovered a pistol from the front seat. The arrest and search were both upheld. Except that the robbery in the present case occurred three days prior to the radio call received by Officer McQuietor, the facts are strikingly similar to Rodgers v. State, supra.
We do not believe this time difference under the facts and circumstances of this case invalidates the arrest. It is not clear from the record whether Officer Mc-Quietor understood the radio call on the 14th to refer to the robbery on the 11th or to be a new offense. Assuming he understood that the call was about the earlier date, a felony had been committed, the true name and identity of the offender were still unknown at the time of the arrest, and the offender would have escaped had he not been arrested when he was.
Hence, the arrest was legal and the search for weapons was permissible as incident to that arrest.
Secondly, the appellant complains of the prosecutor’s reference to him as an “outlaw” in the closing argument at the punishment stage. The prosecutor stated:
“There are three types of people. The people who obey the law, like yourself, because it is the right thing to do and the second type, who obey the law because they fear the consequences. The third type is like this man over here who is above the law, below the law, who the law just doesn’t apply to. He is an outlaw.”
The appellant objected and the court sustained the objection but asked the prosecutor to explain what he meant by an “outlaw.” He explained that he meant one who “violates the law.” While under the circumstances it is not clear whether the effect of the court’s action was to sustain or overrule the objection, no further action was taken by the appellant either to request an instruction to disregard or to renew his objection. See generally Powell v. State, Tex.Cr.App., 475 S.W.2d 934.
Further, since this took place after a determination of guilty by the jury the use of the term “outlaw” as explained by the prosecutor was accurate.
No error is shown. The judgment is affirmed. |
sw2d_482/html/0221-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Andrew P. MITCHELL, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45228.
Court of Criminal Appeals of Texas.
April 26, 1972.
Rehearing Denied July 12, 1972.
John D. Wennermark, San Antonio, for appellant.
Ted Butler, Dist. Atty., John Quilan and Arthur Estefan, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from an order revoking probation.
The record reflects that on October 31, 1968, the appellant entered a plea of guilty before the court to the offense of robbery by assault. The court found him guilty and assessed his punishment at confinement in the Department of Corrections for a term of five years. Imposition of sentence was suspended and appellant was placed on probation. One of the terms and conditions of probation was that he commit no offense against the laws of this or any other state, or of the United States; another term being that he pay supervisory fee in an amount set by the court.
On August 25, 1970, the state filed a motion to revoke probation alleging a violation of both of the above conditions in that appellant unlawfully possessed marihuana on August 23, 1970, and had failed to pay the designated supervisory fee from January 7, 1969, through June 7, 1969.
On January 27, 1971, the appellant was found guilty by a jury on an indictment (Cause No. 70-1749) charging him with the offense of unlawfully possessing marihuana on or about August 23, 1970. After the jury’s verdict of guilty was received, the court assessed punishment on February 19, 1971, at seven years. This was the subject of the appeal in Mitchell v. State, 482 S.W.2d 223 (No. 45, 229 4-19-72). The trial judge at this bifurcated trial took into consideration, in assessing punishment, the evidence produced before the jury at the guilt or innocence phase of the trial at which he presided.
Immediately thereafter, without pronouncing the judgment in that cause, the court “took up” the motion to revoke in the instant case. He inquired if the appellant desired to contest such motion and asked counsel to explain the inquiry to the appellant who thereafter stated he did not desire to contest the motion. After the appellant stated to the court that he was the same individual who had been found guilty in Cause No. 70-1749, the court revoked probation on both grounds alleged in the motion. Judgment was then pronounced in Cause No. 70-1749 and sentence was imposed following the waiver of the time in which to file a motion for new trial or in arrest of judgment. Sentence was then imposed in the instant case, both sentences being allowed to run concurrently.
On appeal, appellant contends the court abused its discretion in revoking probation since no evidence was offered at the hearing on the motion to revoke.
Article 42.12, Vernon’s Ann.C.C.P., Sec. 8, provides that “after a hearing” the court “may either continue or revoke the probation” but this court has never held that it was absolutely mandatory that the court hear evidence where at such hearing the defendant states to the court that the allegations of the motion to revoke are “true”, or that he is “guilty” as alleged or that he does not desire to contest the motion (nolo contendere), particularly where he is represented by counsel, has been served with a copy of the motion and indicates to the court he understands the allegations.
Undoubtedly it is by far the safer practice to always hear evidence regardless of the plea. Many a later question may be avoided. Where the plea is “true” or “guilty” the evidence is often stipulated, or the state’s testimony on direct examination on a former trial may be offered by agreement or the defendant may take the witness stand and make a judicial confession.
Nevertheless, given the particular circumstances of this case, the fact that appellant did not desire to contest the revocation motion and did not object to the failure of the court to hear evidence, reversible error is not presented.
Appellant relies upon Harris v. State, 169 Tex.Cr.R. 71, 331 S.W.2d 941 (a pre-1965 Code of Criminal Procedure case). It is distinguishable. After the return of the verdict in a unitary trial before a jury the trial judge immediately, without hearing any evidence and using only the verdict which had not become the basis of a final conviction, revoked probation. Further, unlike the instant case, there was no statement that Harris did not desire to contest the revocation motion. See also Hilton v. State, Tex.Cr.App., 443 S.W.2d 844, where Harris was distinguished.
Finding that the court did not abuse its discretion, the judgment is affirmed.
.In Campbell v. State, 456 S.W.2d 918 (Tex.Cr.App.1970) it was suggested that more appropriate plea to a motion to revoke probation would be “true” or “not true”.
|
sw2d_482/html/0223-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Andrew P. MITCHELL, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45229.
Court of Criminal Appeals of Texas.
July 12, 1972.
John D. Wennermark, San Antonio, for appellant.
Ted Butler, Dist. Atty., Arthur Estefan, John Quinlan and Antonio G. Cantu, Asst. Dist. Attys., San Antonio, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ON APPELLANT’S MOTION FOR REHEARING
ODOM, Judge.
Our opinion on original submission is withdrawn and the following is substituted in lieu thereof.
This appeal is from a conviction for the offense of unlawful possession of a narcotic drug, to-wit: marihuana. Punishment was assessed by the court at seven years.
First, appellant contends that the marihuana was obtained as a result of an illegal search and seizure.
The record reveals that on August 23, 1970, the appellant committed a traffic violation while driving his automobile within the city limits of San Antonio. Officer Harrison stopped appellant to issue a citation for disregarding a red traffic light at the intersection of Hoefgen and East Commerce Streets.
While Officer Harrison was writing out a citation, Officer Spannagel drove up and parked his patrol car behind Officer Harrison’s car and walked up to the appellant. Suddenly, appellant leveled a barrage of abusive language upon Officer Spannagel, whereupon the officer placed him under arrest. Contemporaneous with the arrest, a search was conducted which revealed a matchbox in appellant’s pocket which contained the marihuana in question.
The record further reveals that immediately upon stopping the appellant’s vehicle, a crowd gathered upon the sidewalk at that vicinity and it appeared to the officers that there was a considerable amount of hostility toward them. One of the persons that gathered around identified himself as being appellant’s cousin.
Officer Spannagel testified that he stopped to assist Officer Harrison and that it was a common practice for a policeman to cover his fellow officers in the field in case some problem should arise.
The verbal assault on the officer by appellant, coupled with the milling of the crowd, was sufficient for the officer to feel fear for his own safety and have reasonable grounds to believe that he was in danger of bodily harm or injury and authorized him to search appellant for “weapons and other things to effect an escape from custody.” e. g. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). See also Fry v. State, (No. 44,537, 2-23-72).
Next, the contention is asserted that there was an “insufficiency of amount of marihuana introduced in evidence for conviction.”
The appellant argues that the transcription of the testimony shows that “.74 hundredths” gram of marihuana was introduced into evidence. He contends that such testimony shows that .0074 gram of marihuana was introduced and that such amount is insufficient.
From this state of the record, it is unclear whether the chemist was testifying concerning .74 gram or .0074 gram of marihuana. However, even accepting appellant’s interpretation of the record, we hold that such amount is sufficient to support the conviction. Cf. Johnson v. State, 165 Tex.Cr.R. 158, 305 S.W.2d 361. Moreover, State’s Exhibit No. 1 was introduced into evidence. The Exhibit is a matchbox which is over one-half full of marihuana. (Both the arresting officer and the chemist identified this substance as marihuana.) Such amount is clearly sufficient to support the conviction. See Buntion v. State, Tex.Cr.App., 476 S.W.2d 317, and cases cited therein. See also, Williams v. State, Tex.Cr.App., 476 S.W.2d 300.
The next ground of error asserts that testimony should have been admitted “concerning bias of arresting officers.”
Appellant testified, out of the presence of the jury, concerning bias and prejudice on the part of Sgt. Billy Cockrell of the San Antonio Police Department. However, the record does not support his contention of bias or prejudice on the part of the arresting officers in this case and the trial court so found. Since Sgt. Cock-rell was not a fact witness and did not testify on the merits of this case, no reversible error is shown.
Appellant’s reliance on Campbell v. State, 167 Tex.Cr.R. 321, 320 S.W.2d 361, and Parsons v. State, 102 Tex.Cr.R. 524, 278 S.W. 444, is misplaced. In Campbell v. State, supra, a witness testified that she had been offered $10.00 to testify favorably to the defendant. The trial court therein instructed the jury that they could consider such testimony as it might show interest on the part of the person making the offer. This court held that such instruction to the jury was not error in that the evidence was admissible to show motive, bias, or interest of the witness.
In Parsons v. State, supra, evidence was admitted against the defendant, over his objection, as to his motive in making wine which he was charged with possessing, against his contention that such wine was only for his own use.
In both cases the witnesses’ testimony had to do with the trial of the case on its merits; whereas, as heretofore stated, Sgt. Cockrell was not a fact witness. See Lansdale v. State, 143 Tex.Cr.R. 167, 158 S.W.2d 75; Gilson v. State, 140 Tex.Cr.R. 345, 145 S.W.2d 182; Barr v. State, 128 Tex.Cr.R. 652, 83 S.W.2d 998; Kissinger v. State, 126 Tex.Cr.R. 182, 70 S.W.2d 740; Earle v. State, 64 Tex.Cr.R. 537, 142 S.W. 1181.
Appellant contends that Article 38.29, Vernon’s Ann.C.C.P., was violated when the state questioned a witness regarding his residency. Defense Witness Haywood was asked: “Where do you live, Haywood ?
“A. 105 Brown.
“Q. Where do you live right now ?
“A. I live in the Bexar County Jailhouse now.
“MR. BAIN: I object, your Honor.
“THE COURT: Sustained.
“MR. BAIN: We would move that the Court instruct the Jury to disregard the statement altogether.
“THE COURT: That will be granted.”
A motion for mistrial was overruled. The court’s ruling cured the error, if any. See, e. g., Hill v. State, Tex.Cr.App., 466 S.W.2d 791; Smith v. State, Tex.Cr.App., 457 S.W.2d 58.
Also, appellant complains of “undue pressure on the jury”.
The record reflects that after the jury had been deliberating for some time the trial court ascertained from them that they were “temporarily stuck”; after a bench conference with counsel for appellant and the state, they were instructed to return to the jury room for further deliberations. Subsequently, the court inquired of the jury if a verdict was possible that same evening by further deliberations, to which an affirmative answer was given. It is shown that the jury returned a verdict at 7:02 P. M. on that date, after approximately four hours and twenty-five minutes deliberation.
No undue coercion on the part of the trial court has been shown. The inquiries concerning further deliberations do not show that the jury was influenced, “by fear of continued confinement”, into arriving at a verdict. See Dixon v. State, 159 Tex.Cr.R. 258, 262 S.W.2d 488.
Finally, appellant complains that the trial court erred in overruling his objections to questions propounded to him by the state concerning a loaded shotgun taken from his car. His argument on this point consists of a conclusory statement that error was committed. He does not elaborate on this claim and does not cite any authority. This contention is not properly before this court under Article 40.09, Sec. 9, V.A.C.C.P.
There being no reversible error, appellant’s motion for rehearing is overruled and the judgment is affirmed.
. This quantity would seem to indicate that there was, in fact, .74 gram instead of .0074 gram of marihuana introduced into evidence.
. The record shows that Sgt. Cockrell was at the police station when appellant was brought in after his arrest in this case.
|
sw2d_482/html/0226-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Ray Otis STRADER, Appellant, v. The STATE of Texas, Appellee.
No. 45084.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Robert B. Maloney, Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This is an appeal from a conviction for robbery by assault where the punishment, enhanced under Article 62, Vernon’s Ann. P.C., was assessed at life imprisonment.
Initially, appellant complains that the court erred in admitting into evidence fruits of the search of his automobile, contending such evidence had been obtained by virtue of a warrantless search incident to an illegal arrest. The items apparently referred to were a money folder (or clip), and two billfolds.
Gary Ross Jordan testified that about 11:20 p. m. on September 2, 1969, the appellant and another man forced their way into his apartment in the City of Dallas and, at gun point, took from him approximately $41.00, a money clip, and two billfolds. Without objection, in the jury’s presence, he identified the three exhibits as being the ones taken. When the exhibits were offered, the only objection was that “there was no showing of any chain of custody of these items.” The exhibits were then admitted.
Jordan related that he gave to Dallas City Police a full description of the two men and the property taken.
Detective Sewell testified that the following day an informant came to the police department about 4 p. m. and gave him and other officers information about this particular robbery; that he did not know this informant, and had not previously received information from her; that the officers questioned her for more than one hour in an effort to establish her credibility; that the informant told the officers one of the robbers was known as “Ray”, gave a description of the car used by “Ray” and offered to take the officers to the apartment house frequented by “Ray”. Thereafter, in company of the informant, Sewell and two other officers went to the apartment house in question and the informant pointed out the car in question on the parking lot and then the informant left. The officers kept the car under surveillance and about 6:45 p. m., saw the appellant and another man get into the car. They matched the descriptions available to the police. The officers also observed that the back seat of the car was filled with suitcases and clothing and “was packed for traveling.” The officers followed the car driven by the appellant and stopped it a short time later. A search of the car for weapons revealed Jordan’s money clip and the billfolds in the glove compartment. The items matched the description earlier given the police.
Sewell explained that when they went to the location, they did not know there was to be a search, and, after the unraveling events, there was no time to get a warrant when the appellant and his companion got in the car “packed for traveling” and departed.
Testifying in his own behalf, the appellant denied the robbery and claimed an alibi by relating that he was at the Hearts Club up until 11 p. m. on the date in question. He acknowledged that the club, the place he lived and Jordan’s apartment were within a radius of three or four blocks of each other.
He related that he and his companion were on their way to Phoenix, Arizona, and disclaimed any knowledge of how the money clip and billfolds came to be in the glove compartment of his car, which, on direct examination, he admitted were found by the officers.
First, when the items were admitted into evidence, the only objection was as to “chain of custody.” We know of no requirement that a victim of a robbery may not identify items taken from him and the same be introduced unless the prosecution traces the chain of custody from the time of the robbery to the time of the trial.
Second, appellant’s complaint is directed to the testimony of Officer Sewell that the items were found in the car appellant was driving. We call attention to Article 14.04, Vernon’s Ann.C.C.P., which provides :
“Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused.”
In the instant case, the officers knew that a robbery had been reported by Jordan, a private investigator, who had given a full description of the men involved and the property taken. Additional information had been received from an informant. In the course of the investigation, the officers observed the appellant leaving in a car, “packed for traveling.”
We conclude the officers had probable cause for the arrest and the right to search incident thereto, and had authority to search the glove compartment of the automobile appellant was driving when arrested.
Therefore, we need not decide whether appellant waived any objection to the war-rantless search by his own testimony as to the finding of the items by the officers, even though he disclaimed any knowledge of them. Cf. Brown v. State, 457 S.W.2d 917 (Tex.Cr.App.1970).
The appellant next contends the court “erred in admitting the in-court identification of appellant because the identification was the product of a line-up held in the absence of counsel, and said identification was the product of a line-up which was the fruit of an illegal arrest.”
Prior to admitting Jordan’s in-court identification, the court conducted a separate hearing in the absence of the jury. Jordan testified he observed the appellant in a lineup but that his identification was based on his observations at the time of the alleged offense; and the lineup did not influence his ability to identify the appellant. No effort was made to show that appellant was without counsel at the time of the lineup. The court held the in-court identification to be “based solely on what the witness saw at time of offense.”
Jordan then made an in-court identification of the appellant in the presence of the jury.
Subsequently, in the absence of the jury, appellant called Officer Poe, who related that appellant had no counsel at the lineup, but testified the appellant had been given his “Miranda” warnings twice at the scene and once at the station and had been carried before a magistrate prior to the lineup. He further testified the appellant had signed a written waiver of counsel before the lineup was conducted, although the written waiver had been lost or misplaced.
Under the circumstances, we find no merit in appellant’s contention.
Still further, appellant complains of the admission of the record of appellant’s prior convictions into evidence, claiming such exhibits were not properly certified. On direct and cross examination, the appellant admitted certain prior convictions. The State then offered the exhibits complained of. Upon objection, the State urged their admission only to show its good faith in questioning the appellant about the same and for that limited purpose. As to two of the five exhibits, appellant’s counsel withdrew his objection as to “certification.” In light of appellant’s testimony as to the prior convictions, we perceive no reversible error.
Appellant also complains that the prior conviction of breaking and entering a coin-operated machine was not a like offense to robbery by assault and was not available for enhancement of punishment under the provisions of Article 62, supra. Cherry v. State, 447 S.W.2d 154 (Tex.Cr.App.1969), has been decided contrary to his contention.
Appellant’s remaining grounds of error are not briefed, nor is argument advanced, nor is our attention called to any portion of the record which might support the same. Such grounds of error are not in compliance with Article 40.09, § 9, Vernon’s Ann.C.C.P. Nothing is presented for review.
The judgment is affirmed.
. After the introduction of the items, Jordan testified that he had recovered the items from the police station.
|
sw2d_482/html/0229-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MORRISON, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Gary Donald LOGAN, Appellant, v. The STATE of Texas, Appellee.
No. 45403.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Melvyn Carson Bruder, Dallas (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
The offense is robbery; the punishment, forty (40) years.
The record reflects that three men robbed the Village Food Store in Dallas on June 29, 1969 and escaped with $6,630. Ann Johnson, the cashier at the store, testified, unequivocally, that the appellant was the person who assaulted her with a sawed-off shotgun and demanded the money in the cash register. Wilma Jean Graham, another cashier, also positively identified the appellant as one of the robbers.
Appellant’s first and seconds grounds of error relate to the argument of the prosecutor which he contends was in violation of the holding of the Supreme Court of the United States in Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and of this Court in Schepps v. State, 432 S.W.2d 926, in that it constituted the use of a confession by Monroe Harvey, appellant’s companion in crime, against him. We quote from the argument:
“PROSECUTOR: . . . Harvey comes in about a day or two later and confesses.
“in his confession, he implicates,—
“DEFENSE ATTORNEY: We object to this.
“THE COURT: Counsel, I don’t believe there is anything (sic)
“DEFENSE ATTORNEY: Clearly outside the record.
“THE COURT: Sustain the objection.
“DEFENSE ATTORNEY: Ask for a mistrial.
“THE COURT: The Court overrules your mistrial. Jury disregard statement of counsel about Harvey’s confession. It is not in the record.
“PROSECUTOR: All right. Harvey comes into the police station and talked with the officers, tells them about the crime, tells them who was involved with him.
“DEFENSE ATTORNEY: Judge, we object to this.
“THE COURT: Counsel, I don’t believe that’s in the record either. I sustain.
“DEFENSE ATTORNEY: I renew motion for mistrial.
“THE COURT: I sustain the objection to argument, but not to motion for mistrial.
“DEFENSE ATTORNEY: Can I have a ruling on my motion?
“THE COURT: Go ahead, that’s not in the record as I remember it.
“PROSECUTOR: Well.
“THE COURT: They talked to this man but what they got out of him is not in the record.
“PROSECUTOR: Right. If I am going into facts outside of the record, I apologize.”
The record reflects that Officer J. W. Johnson testified that the car seen leaving the scene of the robbery was later identified as one belonging to Monroe Harvey. Officer Johnson then testified:
“PROSECUTOR: All right. How long after that [the robbery] was it before you talked to Monroe Harvey, the owner of that car ?
“WITNESS: Two days.
“Q Two days later you talked to Monroe Harvey ?
“A Yes, sir. He came to our office.
“Q Did he turn himself in ?
“A Yes, sir.
“Q All right. Did he talk to you about this offense?
“A Yes, sir.
“Q All right, sir. Did you obtain more information from him at that time.
Yes, sir. >
Did you find out the name of the other men at this time. id
Yes, sir. >
Connected with the robbery ? <o
Yes, sir. >
And did you pursue an investigation of these other men named? ¡ó
“A That s correct.
“Q All right, sir. I will ask you if one of them is seated in the courtroom here today?
“DEFENSE ATTORNEY: We object to that. That’s clearly a statement made outside of the presence of the defendant. It is hearsay.
“PROSECUTOR: Your Honor, I withdraw that.”
We decline to decide whether Bruton v. United States, supra, or whether the recent opinion of the Supreme Court of the United States in Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, which limits Bruton under certain circumstances, are applicable in the case at bar since the prosecutor’s remarks during argument concerned facts which were part of the record. Further, the appellant testified Monroe Harvey was named with him in the indictment. We also note that the appellant received all the relief he requested and may not now complain of a matter he did not pursue until he received an adverse ruling. Burks v. State, Tex.Cr.App., 432 S.W.2d 925, and the cases cited therein.
Appellant’s third ground of error is that the prosecutor “was guilty of bad faith in asking prejudicial questions for hearsay, inadmissible answers of the highly incriminatory nature, and withdrawing the questions upon appellant’s objection.” In support of his contention, he cites the following excerpt from Officer Johnson’s testimony as well as the one cited in grounds of error one and two:
“PROSECUTOR: Do you recall who you talked to [at the place where the getaway car was found] ?
“WITNESS: We talked to Monroe Harvey’s mother.
“PROSECUTOR: Okay. Did she tell you anything about the people Monroe Harvey was running around with?
“MR. MORROW: We object to that question, it’s clearly hearsay. What she said, its guilt by association.
“PROSECUTOR: I will withdraw the question.
“THE COURT: The officer is not going to testify about anything said out of the presence of the defendant.”
The appellant did not request any further relief. He did not ask to have the jury instructed not to consider the questions and answers or request the court to declare a mistrial. It is axiomatic that an accused must pursue the matter until he secures an adverse ruling from the trial court. Burks v. State, supra.
Appellant’s fourth ground of errort is that the court erred in admitting the fruits of the search of appellant’s person at the time of his arrest. He claims that since the State did not produce the arrest warrant under which they took appellant into custody, they are relegated to a warrantless arrest for which probable cause was not shown. Officer E. L. Boyd testified, without objection, that he was armed with an arrest warrant at the time he arrested appellant. Haynes v. State, Tex.Cr.App., 468 S.W.2d 375, holds that if an accused desires to attack a warrant, it is incumbent upon him to see that the affidavit is in the appellate record. If he fails to do so, it is presumed that the warrant is valid. Appellant cites Texas v. Grundstrom, 404 F.2d 644 (5th Cir. 1967) and Barnett v. United States, 384 F.2d 848 (5th Cir. 1967) in support of his contention. However, we are unable to determine how these cases limit Haynes, supra, under the circumstances of the «ase at bar,
Appellant’s fifth ground of error relates to the proof of prior convictions of appellant at the punishment stage of the trial. At the time the instruments were offered in evidence, appellant’s counsel stated, “Judge, we have no objection to any of these exhibits.” In the absence of an objection, any error is waived. Nicholson v. State, Tex.Cr.App., 475 S.W.2d 773, and Chaney v. State, Tex.Cr.App., 464 S.W.2d 653.
Appellant’s remaining grounds of error do not reflect error and will not be discussed.
Finding no reversible error, the judgment is affirmed. |
sw2d_482/html/0233-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Willie Earl BRADSHAW, Appellant, v. The STATE of Texas, Appellee.
No. 44955.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 26, 1972.
Douglas R. Bergen, Waco, for appellant.
Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a conviction for receiving and concealing stolen property. The jury assessed the punishment at ten years.
The sufficiency of the evidence is challenged.
Durwood B. Inmon, owner of Inmon’s Motor Shop, testified that on August 24, 1970, he noticed four motorcycles and five helmets missing from his shop.
Harold F. Denton of the Waco Police Department testified that on September 1, 1970, a rainy night, around 2:30 a. m., he went to 1609 Austin in Waco and looked into a small garage off the alley. There he saw two motorcycles inside the garage. He entered the garage to compare the serial numbers with those of four motorcycles reportedly stolen from Inmon’s ■ Motor Shop and found that they matched two of the four numbers. Officer Denton also noticed that one motorcycle was repainted black and saw a can of black paint in the garage. He then joined another officer and they set up a surveillance about 100 feet from the garage. Around 6:00 a. m., while it was dark, a truck with four persons inside went directly to the garage. The officers watched as the four moved the motorcycles from the garage through a window, loaded them on the truck, and covered them with a tarpaulin. The window was between one and two feet off the ground and opened on hinges like a door. The door of the garage was locked. The two officers thought it best not to arrest the four persons in the alley until help arrived. The two followed the truck out of the alley until they were joined by a patrol car. They then arrested the persons in the truck. Later Inmon identified the two motorcycles as stolen from his shop.
The appellant testified that he and four other persons were together at the Auction Barn, a cafe, sometime after 2:30 a.m. on the day in question. Richard Saenz, appellant’s co-defendant, mentioned that someone “asked him if he would pick up some motorcycles for him while he was getting his car fixed.” At about 5:00 a.m., they went to Alton Glenn’s house and drank coffee until around 5:30 when they went to Charlie Long’s house. At Long’s house the appellant, Richard Saenz, Alton Glenn and Charlie Long got in the latter’s truck. They drove to 1609 Austin where they loaded the motorcycles on the truck, covered them because of the rain, and left. The appellant testified that there was no conversation about the motorcycles being stolen, and he never thought for a minute that they were stolen.
Charlie Long, after immunity was granted him, testified that around 4:00 a.m. on the date in question he went to the Auction Barn and found Alton Glenn, the appellant and Richard Saenz. Glenn asked Long if he would keep some motorcycles for him which were to be sold the next morning. Long was to receive $100.00 for hiding the motorcycles; the others, including appellant, were to split the remainder when they were sold. On cross-examination, Long said he knew nothing about the theft until he was arrested.
The trial court instructed the jury that Long was an accomplice witness and charged them on the law in this regard; namely, that there must be “other evidence in the case, outside the evidence of said Charlie Long, tending first, to show the commission of the alleged theft of the property by persons unknown from Dur-wood Inmon, and tending second, to connect the defendant with the commission of the offense charged against him in the indictment, that is, fraudulently receiving or concealing stolen property, knowing it to have been so acquired . . . .”
This Court stated in Odom v. State, 438 S.W.2d 912:
“The test of the sufficiency of corroboration of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect the accused with the commission of the offense.”
Appellant was convicted pursuant to Article 1430, Vernon’s Ann.P.C., which provides :
“Whoever shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, shall be punished in the same manner as if he had stolen the property.”
An essential element of the crime of receiving or the crime of concealing stolen property is knowledge on the part of the accused that the property received or concealed by him is stolen. See 5 Branch’s Ann.P.C.2d, Section 2724, page 168.
In the present case appellant was arrested while possessing without explanation recently stolen property. This alone is not sufficient to show that he knew it was stolen. Hochman v. State, 146 Tex.Cr.R. 23, 170 S.W.2d 756. It is a circumstance which must be coupled with other significant circumstances to justify an inference of knowledge that the property was stolen. Pollan v. State, 157 Tex.Cr.R. 178, 247 S.W.2d 889; Grant v. State, 87 Tex.Cr.R. 19, 218 S.W. 1062. In Sears v. State, 106 Tex.Cr.R. 219, 291 S.W. 547, this Court held:
“ . . . Such knowledge may be implied from facts showing the property to have been received by the accused under circumstances such as would satisfy a man of ordinary intelligence and caution that the property was stolen . . . .”
This circumstance plus the others surrounding the removal of the motorcycles through the garage window testified to by Officer Denton are sufficient to tend to connect the appellant to the commission of the offense with which he was charged, including the element of guilty knowledge that they were stolen.
We overrule the contentions on the sufficiency of the evidence.
Complaint is made that the trial court erred in failing to grant his motion for a continuance after the trial had begun and when the co-defendant Long was granted immunity. His contention is that this was a “surprise” and required the granting of a continuance under Article 29.13, Vernon’s Ann.C.C.P. Such a motion during the trial is addressed to the sound discretion of the court. See 1 Branch’s Ann.P.C.2d, Section 361, and cases there cited. Since Long was a co-defendant in the case, appellant knew or should have known that, even if immunity was not granted, Long could have testified in his own behalf and equally have implicated the appellant. The present case does not present the kind of surprise which could not have been anticipated. No abuse of discretion is shown.
In his third ground of error, appellant complains of the trial court’s refusal to grant his pretrial motion for discovery regarding police reports. Police reports have been held to be excepted by the discovery statute, Article 39.14, V.A.C.C.P. Feehery v. State, Tex.Cr.App., 480 S.W.2d 649 (May 9, 1972); Hart v. State, Tex.Cr.App., 447 S.W.2d 944.
No error is shown. The judgment is affirmed. |
sw2d_482/html/0236-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DAVIS, Commissioner. DOUGLAS, Judge ONION, Presiding Justice",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Thomas Lorenzo LUCAS, Appellant, v. The STATE of Texas, Appellee.
No. 44684.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Dalton C. Gandy, Fort Worth, for appellant.
Frank Coffey, Dist. Atty., Timothy E. Thompson and John Garrett Hill, Asst. Dist. Attys., Fort Worth, and Jim D. Vol-lers, State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
This is an appeal from a conviction for felony theft. Punishment was assessed by the jury at ten years.
At the outset, appellant contends that the evidence is insufficient to corroborate the testimony of the accomplice witness.
The record reflects that one Hamon Shaw was an employee of Spartan’s Department Store, in Fort Worth, on September 13, 1970, with the duty of cleaning the store after closing hours. On this date, he asked Store Manager Weaver if he could have help with his job. It was the custom to let Shaw inside the store after closing hours, lock him inside the store and .let him out the next morning. Weaver testified that on the night of September 14, 1970, he locked Shaw and one Aurelious Singleton in the store about 9:45 P.M. At about 4:30 A.M., the next morning, Weaver received a call from the store burglary alarm system and, upon going to the store, he found the police had already arrived and was told by Shaw that Singleton had held a gun on him and tied him up. An inventory revealed “fifty some” cartons of cigarettes were missing. Pin ball and juke boxes had been broken into. Later in the day, it was discovered that 200 packages of spark plugs, with six to eight spark plugs in a package, were missing. Weaver testified that the value of the spark plugs taken was sixty-nine cents each.
Officer Weilbacher, of the San Antonio Police Department, testified that on September 15, 1970, after receiving a tip from an informant, he stopped a car driven by Singleton in which appellant was seated in the front seat. A search of the car revealed nine sets of spark plugs in a blue overnight case in the back seat and about two hundred individual spark plugs were found in the trunk.
Singleton testified that appellant told him that Shaw was employed at Spartan’s and introduced him to Shaw. Shaw told him that Spartan’s was a “good set-up” and that they could make some easy money out there. Prior to the night in question, Singleton went with Shaw to the store to look things over. According to Singleton, a plan was formulated whereby Shaw and Singleton would go to the store and Shaw was to be taped up and left there and appellant was going to bring the car after four in the morning and park it around to the side, where the “stuff” was to be placed in the car. On the night in question, appellant drove the car to the store, let Shaw and Singleton out, and took the car back to the apartment. Singleton testified that he and Shaw broke into the coin operated machine and took money therefrom, took some suit cases and loaded them with cigarettes and spark plugs. Singleton called appellant to come to the store about 4:15 A.M. and, upon arrival, they put the stolen goods in the car and left Shaw tied to the chair. Singleton said appellant had suggested that around four o’clock in the morning was a good time to leave the store, since there were not as many patrols on the street at this time. Singleton testified further that he and appellant abandoned a plan to meet Shaw at nine that morning and drove to San Antonia fearing that Shaw might not stick with his story. Before they left Fort Worth, they purchased heroin with money obtained from the coin operated machines and after selling some of the cigarettes in San Antonio, they were on their way to purchase more heroin with a girl companion when they were arrested.
Article 38.14, Vernon’s Ann.C.C.P., provides :
“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”
This Court said in Odom v. State, Tex.Cr.App., 438 S.W.2d 912:
“The test of the sufficiency of corroboration of an accomplice witness is to eliminate the evidence of the accomplice from consideration and then examine evidence of other witnesses to ascertain if there be inculpatory evidence or evidence of incriminating character which tends to connect accused with the commission of offense. Edwards v. State, Tex.Cr.App., 427 S.W.2d 629.”
Appellant cites Umsted v. State, Tex.Cr.App., 435 S.W.2d 156; McKnight v. State, Tex.Cr.App., 399 S.W.2d 552; Nolley v. State, Tex.Cr.App., 368 S.W.2d 218; Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311; McCain v. State, 168 Tex.Cr.R. 407, 328 S.W.2d 295.
In Umsted, there was no evidence, excluding testimony of accomplice that appellant and accomplice had been seen together, that appellant or his car was seen in town, where store burned; or that accomplice and appellant had communicated with each other. The State offered testimony that the appellant’s business, located in the building that burned, was failing; that appellant had recently taken out $20,-000 insurance on the contents of the building and appellant was in serious financial condition. This Court held such testimony to be insufficient to corroborate the testimony of accomplice.
In McKnight, discounting the accomplice’s testimony, the evidence showed that accused exercised joint control of the premises where the stolen property was temporarily stored, and there was no showing that appellant asserted any control over the stolen property or that he was even aware that the motor was stolen. This Court held that the State had failed to sufficiently corroborate the testimony of the accomplice witness.
In McCain, the testimony was held insufficient to corroborate accomplice where it was shown that accuse4 had rented a room for two nights at the same house where the accomplice stayed, and had been seen leaving the house with accomplice and one Williams, who was also accused of the offense. In addition, the manager of the insurance company that was burglarized testified that accused came to the office the morning before the burglary and purchased an insurance policy. This Court said it could find no criminative facts which would connect accused with burglary of the building aside from the testimony of the accomplice.
In Thomas, the corroboration relied on by the State came from the operators of a tavern who testified that the accused and the accomplice were drinking in their club on the night in question, when the deceased came in the tavern and after the deceased left, the accomplice also left and still later, the accused left, and they saw accused get in accomplice’s truck and drive away. A witness seated outside an adjacent cafe testified he saw two people leave in a truck and the deceased follow in his automobile. This Court said, “At best, these circumstances merely raise a suspicion that the appellant participated in the homicide, but do not meet the requirements of the law.”
In Nolley, it was said, “The proof of appellant’s apprehension in Oklahoma, standing alone, while indicative of flight, is insufficient to corroborate the accomplice.”
The State relies on Edwards v. State, supra, in which this Court said:
“The corroborating testimony clearly places appellant in the presence of the accomplice near the scene of the crime at or about the time of its commission in the early morning hours of July 4, 1966, without any reasonable explanation therefor. Appellant’s immediate journey to Hamilton and then on to San Antonio may reasonably be considered as flight. Further, appellant, along with the accomplice witness and other companion, were witnessed in the possession of the .380 caliber automatic pistol belonging to the murder victim in the pawn shop the day after the commission of the crime.
We hold that the evidence amply corroborates the accomplice witness’s testimony and is sufficient to sustain the jury’s conclusion of appellant’s guilt.”
We find the case of Alexander v. State, 170 Tex.Cr.R. 282, 340 S.W.2d 493, to be more nearly in point than the cases cited by either the appellant or the State. In Alexander, a drive-in grocery was broken into sometime after the 11 P.M. closing hour. At 6 A.M., the next morning, it was determined that 33 cases of beer were missing. The accused and accomplice were found asleep in the accomplice’s car around 7:45 A.M. Twenty-one cases of beer were found in the automobile and the assistant manager of the drive-in was able to identify one of the cases of beer as belonging to the store burglarized. This Court said, “The evidence of appellant’s possession of the recent stolen property was sufficient to corroborate the testimony of his accomplice .”
Eliminating the testimony of the accomplice in the instant case, we find other incriminating evidence which tends to connect the accused with the offense. Weaver’s testimony places Singleton in the store the night the burglary was committed. In Alexander, neither the accomplice nor the accused was placed at or about the scene of the burglary. The appellant was in the car with Singleton, in San Antonio, the following afternoon, when they were arrested and a bag containing nine sets of spark plugs was found on the back seat of the car and about two hundred plugs were found in the trunk. Identification was made of the stolen merchandise by Store Manager Weaver as follows:
“Q Could you identify these spark plugs by the tag on them?
“A I knew they were the Spartan tickets and they were in a piece of luggage which had our ticket on it, too.”
* * * * * *
“Q You can’t tell the jury beyond a reasonable doubt that those are the same plugs that had previously been in your store on November 15?
“A All I can say, they were, had our ticket on it.”
⅜ * ⅜ * * *
“Q But in particular, you did recover these two hundred packages of spark plugs?
“A We received some back. I don’t remember the exact amount, how many I got back from the police department.
“Q But it was well over two hundred individual spark plugs?
“A Yes.
“Q And it had your tag on it?
“A It had my ticket on the package.”
A Fort Worth police officer testified he went to San Antonio and returned appellant, Singleton and the articles found in the car to Fort Worth. Many pages of the record are devoted to examination of witness Weaver regarding identification of the spark plugs. We find that the foregoing testimony sufficiently identifies the stolen merchandise.
Appellant urges McKnight, supra, for the proposition that appellant did not exercise exclusive control over the stolen merchandise. In McKnight, there was joint control of a building where the stolen goods were temporarily stored. In the instant case, there was a piece of stolen luggage on the back seat of the car with a Spartan tag on it filled with stolen spark plugs. The fact that Singleton claimed ownership of the stolen merchandise and the car in which they were riding at the time of the arrest does not bring this case within the holding in McKnight. In Alexander, the accomplice was shown to be the owner of the car.
This Court held, in Rogers v. State, Tex.Cr.App., 461 S.W.2d 399:
“The corroborating testimony need not be sufficient in itself to establish the guilt of the accused, for if this were true the testimony of the accomplice would be of no value. The evidence is sufficient if it tends to connect the defendant with the offense.”
The arrest of appellant with accomplice the afternon following the early morning theft, the placing of the accomplice in the store where the crime took place the night before, the presence of stolen merchandise on the back seat of the car as well as in the trunk of the car in which appellant was arrested provide the combined and cumulative weight sufficient to provide facts tending to connect the appellant with the commission of the crime. See Cherb v. State, Tex.Cr.App., 472 S.W.2d 273. We find the evidence sufficient to corroborate the testimony of accomplice.
Appellant contends that the proof shows, as a matter of law, that appellant was an accomplice and the verdict shows him to be guilty as a principal.
According to Singleton, appellant was in on the planning of the theft, drove Shaw and Singleton to the store on the night in question, and returned to the store at a designated time and picked up Singleton and the stolen merchandise Singleton further testified that the crime was committed to raise money to buy heroin for appellant and Singleton.
Article 65, Vernon’s Ann.P.C., provides: “All persons are principals who are guilty of acting together in the commission of an offense.”
Article 69, V.A.P.C., provides: “Any person who advises or agrees to the commission of an offense and who is present when the same is committed is a principal whether he aid or not in the illegal act.”
The appellant not only participated in the planning of the crime, but aided in the commission of the offense by picking up the stolen goods and Singleton at the scene.
We find the evidence sufficient for the jury to conclude that appellant was a principal in the theft. See Fantroy v. State, Tex.Cr.App., 474 S.W.2d 490; Bowers v. State, Tex.Cr.App., 473 S.W.2d 491; Puentes v. State, Tex.Cr.App., 463 S.W.2d 730.
Appellant next contends that the evidence is insufficient to show a theft of personal property as alleged in the indictment.
The indictment charges appellant with theft of two hundred spark plugs of the value of thirty cents each, of the total value of Sixty Dollars. The testimony of Store Manager Weaver, as heretofore set out under appellant’s first contention, reflects that over two hundred of the recovered spark plugs were identified by Weaver as having been taken from the store. Singleton testified that about 368 spark plugs were taken in the theft. Weaver further testified that the reasonable cash market value of each spark plug in Tarrant County, Texas, on September 15, 1970, was sixty-nine cents. An allegation as to value is not descriptive further than to show whether the offense is a felony or misdemeanor. S Branch’s Ann.P.C., 2 ed., Sec. 2675. No error is shown.
Appellant contends the court erred in admitting hearsay testimony. Complaint is made to the following testimony admitted over objection:
“Q Mr. Weaver, when did you get notified by the police department that the spark plugs were available ?
“A I believe it was on the day that same day.”
Weaver had earlier testified without objection that the spark plugs were brought from the police department to the store. Officer Hawkins, of the Fort Worth Police Department, testified that he picked up the spark plugs in San Antonio and returned them to Fort Worth and that the manager of Spartan’s picked them up. If the complained of testimony is hearsay, no error is shown in that ample evidence to the same effect is in the record. See Botello v. State, 172 Tex.Cr.R. 634, 362 S.W.2d 318.
Appellant contends that the State committed reversible error in its jury argument. The argument complained of is as follows:
“And every time one of these piddling old Mickey Mouse thefts occurs and every time they go into Spartan’s store and they go into some other store, our piddling old Mickey Mouse insurance goes up and the piddling old Mickey Mouse price we pay for merchandise goes up and we encourage more piddling old Mickey Mouse criminals to go out and do the same thing because it’s a real easy way to make money and real easy way to . . .”
Appellant objected “to his inference to the jury that what they do will increase insurance premiums, . . . ”
The court sustained the objection and instructed the jury to disregard the statement, but denied appellant’s motion for a mistrial.
Appellant had previously argued to the jury, “I think you’ve wasted enough of your time on this kind of Mickey Mouse deal, . . .”
Error, if any, was cured by the court’s prompt instruction. Wrenn v. State, Tex.Cr.App., 478 S.W.2d 98; Dunlap v. State, Tex.Cr.App., 477 S.W.2d 605; Ward v. State, Tex.Cr.App., 474 S.W.2d 47.
In his final contention, appellant complains of the State introducing evidence of an extraneous offense. Appellant does not specify what testimony his complaint is made to; the contention is neither briefed nor discussed by appellant, and, therefore, presents nothing for review. Art. 40.09, Sec. 9, V.A.C.C.P.
Finding no reversible error, the judgment is affirmed.
Opinion Approved by the Court.
DOUGLAS, Judge
(concurring).
The dissenting opinion discusses how many times the accomplice witness had been convicted and arrested. He was an admitted participant in the offense charged in the present case and that is the reason that the trial court charged that he was an accomplice witness as a matter of law. His testimony alone is insufficient to support the conviction under Article 38.14, V.A.C.C.P. It is immaterial whether we, as appellate judges, would believe him had we heard him under oath for his credibility was a matter for the jury, not this Court, to decide. We should not penalize the State for offering the testimony of an accomplice witness, but merely should see if there is sufficient evidence, excluding that of the accomplice witness, which tends to connect the accused with the commission of the offense.
In addition to the testimony set out in the original and in the dissenting opinion, Officer Weilbacher testified that a small overnight bag containing spark plugs in the rear seat had what he was almost positive a Spartan’s tag on it. The bag in the trunk also had a Spartan’s tag on the outside.
There is no testimony by Officer Weil-bacher in the record or anyone else that shows that a passenger in the front seat in the daytime, when the arrest was made, could not see the spark plugs, which also contained Spartan tags, in the rear seat. The accomplice witness Singleton testified that he poured the spark plugs in the bag. From what this record shows, the spark plugs with Spartan tags on them could have been visible as well as the bag with the tag on it.
If the rule of Article 38.14, supra, required that there be sufficient evidence over and above that of an accomplice witness to convict an accused, it would be useless and foolish to use such a witness and have him impeached and weaken the case for the prosecution. However, such is not the rule. What evidence in the present case tends to incriminate the appellant? He was in the car with Singleton with stolen property. They were arrested in the daytime. The officer saw the bag in the rear seat and it had, in the officer’s almost positive recollection, a Spartan’s tag on the outside of it. Also, the large number of spark plugs had Spartan’s tags on the packages.
In the present case we have direct testimony from the accomplice and in addition sufficient evidence, in my opinion, to tend to connect the appellant with the commission of the offense.
For the above reasons, I concur with the original opinion affirming this cause.
ONION, Presiding Justice
(dissenting).
I simply cannot bring myself to agree with the majority’s position that the evidence is sufficient to corroborate the testimony of the accomplice witness Aurelious Singleton, who was shown to have been convicted of seven criminal charges (four felonies and three misdemeanor thefts); who had been arrested 40 or 50 times, and who was admittedly a narcotic addict.
The Legislature has clearly provided in Article 38.14, Vernon’s Ann.C.C.P., that
“A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”
“Under the express terms of the corroboration statute, however, evidence offered to corroborate the testimony of an accomplice must do more than merely show that the crime charged was committed. The statute is also construed as requiring more than a mere showing that the offense might have been committed by the accused. To be sufficient under the statute, the corroborative evidence offered must tend, directly and with some degree of cogency, to connect the accused with the commission of the offense. ...” 24 Tex.Jur.2d, Evidence, Sec. 694, p. 326.
In Edwards v. State, 427 S.W.2d 629, 632 (Tex.Cr.App.1968), this court stated:
“The test as to the sufficiency of the corroboration is to eliminate from consideration the evidence of the accomplice witness and then to examine the evidence of other witnesses with the view to ascertain if there be inculpatory evidence, that is evidence of incriminating character which tends to connect the defendant with the commission of the offense. If there is such evidence, the corroboration is sufficient; otherwise, it is not. Dalrymple v. State, Tex.Cr.App., 366 S.W.2d 576; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.”
“The sufficiency of the corroboration of an accomplice’s testimony is determined in the first instance by the jury under the facts of the particular case. On appeal, the sufficiency of the corroboration is tested by the appellate court by examining the record, eliminating from consideration the testimony of the accomplice, and then ascertaining whether any other evidence in the record tends to incriminate the accused and connect him with the offense committed. If other evidence in the record apart from the accomplice’s testimony tends to inculpate the accused, corroboration of the accomplice’s testimony will be deemed to be sufficient. But if such other evidence fails to connect the accused with the commission of the crime, the corroboration is insufficient and the conviction of the accused may be reversed.” 24 Tex.Jur.2d, Evidence, Sec. 694, pp. 329-331.
Applying the above described test and bearing in mind that the corroboration is not sufficient if it merely shows the commission of the alleged offense, it is observed that the only independent inculpatory evidence tending to connect the appellant with the crime is that of Officer Weilbacher of the San Antonio Police Department. Is it sufficient? I think not.
Weilbacher testified that, acting on the tip of an informer to the effect that Singleton and an unidentified companion were in possession of heroin, he stopped Singleton’s car in the City of San Antonio around 2:00 or 2:15 p.m. on September 15, 1970. Singleton was driving the car, the appellant Lucas was in the front passenger seat and Sarah Houston occupied the rear seat. A search of these individuals failed to reveal any heroin. With Singleton’s consent, the car, which was shown to belong to Singleton, was searched. A bag, once described as a flight bag and subsequently as an overnight bag, was found on the rear seat near where Sarah Houston was seated. Inside the bag were nine sets of spark plugs and approximately 200 more such plugs were found in the trunk. None of the plugs was shown to have been visible to a mere passenger in the car.
Thus, the State relies upon testimony that shows the appellant was in the company of the accomplice witness some ten hours or so after the alleged offense several hundred miles away. While such evidence might indicate flight on the part of the accomplice witness Singleton, the same does not indicate flight on the part of the appellant. There was no corroborative evidence showing that appellant was seen at or near the scene of the burglarized premises before or after the alleged offense. No evidence was offered to show that the appellant associated with Singleton or the co-defendant Shaw or had ever been with either of them prior to the arrest. In fact, there was no independent evidence that the appellant lived in Tarrant County or had ever been in that county in his life.
With all due respect to the majority, the store manager’s testimony placing Singleton in the store the night the alleged offense occurred has no place in assessing the sufficiency of the corroboration. It was not incriminating evidence which tended to connect the appellant with the crime charged. It may tend to corroborate that portion of Singleton’s testimony that he (Singleton) was present and participated in the crime but it is in no way related to the appellant. It simply does not meet the test.
If the evidence here is sufficient to corroborate the accomplice witness, who had yet to be tried for the alleged offense, then it would be sufficient to convict every passenger found in any accomplice witness’ car hours after the alleged offense and hundreds of miles from the scene of the crime where property supposedly stolen is also found, though not visible to the naked eye, without any showing- as to the length of time the passenger had been in the car or that he had ever in his life been near the scene of the crime or in the county in which it occurred, etc. In the instant case, the accomplice witness could, if he desired and it served his purposes, also have implicated Sarah Houston and, under the majority’s view, the evidence would be sufficient to support her conviction.
I would say as did Judge Morrison in Thomas v. State, 166 Tex.Cr.R. 331, 313 S.W.2d 311, 313 (1958),
“After mature consideration, we have concluded that the evidence offered in corroboration of the accomplice was not sufficient to meet the rule set out. At best, these circumstances merely raise a suspicion that the appellant participated in the homicide, but do not meet the requirements of the law.”
See also Carter v. State, 104 Tex.Cr.R. 163, 283 S.W. 174 (1926); Almazan v. State, 140 Tex.Cr.R. 432, 145 S.W.2d 576 (1940).
For the reasons stated, I dissent.
MORRISON, J., joins in this dissent.
. It was also referred to as a flight bag.
. Although the accomplice witness may state any number of facts that are corroborated by evidence of other witnesses, still, if the facts thus corroborated do not tend to connect the accused with the crime, the corroboration is insufficient. Odneal v. State, 117 Tex.Cr.R. 97, 34 S.W.2d 595 (1931); Umsted v. State, 435 S.W.2d 156 (Tex.Cr.App.1968).
. None of the sparkplugs allegedly stolen and supposedly found in Singleton’s car was introduced into evidence. Weilbacher was not asked to identify the overnight bag or sparkplugs as being the ones he found. He related he turned the items over to the San Antonio Police property room. Port Worth City Police Officer Hawkins testified he returned Singleton and the appellant to Port Worth from San Antonio and that he brought “ . back some sparkplugs and two suitcases” with “Spartan” written on the tags on such items which had been obtained from the San Antonio Police Department; that after the items were placed in the property room of the Port Worth Police Department the “Manager of Spartans picked them up.”
Weaver, the Manager, testified “they were brought in the police department up here back to the store.”
The record also reflects the following on cross examination of Weaver:
“Q. And would it be possible that a portion, or possibly all of those spark-plugs had been sold by someone other than yourself?
“A. No, yes.
“Q. So you can’t tell the jury beyond a reasonable doubt that these spark-plugs were taken by anybody on November 14 or November 15, can you?
“A. No, sir.”
“Q. You can’t tell the jury beyond a reasonable doubt that those are the same plugs that had previously been in your store on November 15?
“A. All I can say, they were, had our ticket on it.”
|
sw2d_482/html/0244-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ODOM, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Jose Casanova TIJERINA, Jr., Appellant, v. The STATE of Texas, Appellee.
No. 45359.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 26, 1972.
Gowdy & Hall by Billy Hall, Littlefield, for appellant.
Andy Shuval, Dist. Atty., Hereford, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ODOM, Judge.
This appeal is from an order revoking probation.
On April 6, 1970, appellant entered a plea of guilty to the offense of driving while intoxicated, subsequent offense, and punishment was assessed at three years. The imposition of sentence was suspended and appellant was placed on probation. One of the terms and conditions of probation was that he commit no offense against the laws of this or any other state or of the United States.
On August 8, 1971, a motion to revoke probation was filed. On August 19, 1971, an amended motion was filed alleging that appellant violated the terms of his probation “by violating the laws of the State of Texas in that the defendant was driving while intoxicated on a public highway in Randall County, Texas, on or about August 1, 1971.”
A hearing was held on August 19, 1971, and upon completion of said hearing, the court found that appellant “did violate such terms of your probation in that you were in an intoxicated condition on or about August 1, 1971, in Randall County, Texas, and that you were driving an automobile upon a public highway in Randall County, Texas, on or about August 1, 1971, while intoxicated or under the influence of intoxicating liquor, and therefore, the Court finds that your probation should be revoked and it is so ordered.”
First, appellant contends that the trial court abused its discretion in revoking the probation, alleging that the evidence is insufficient.
Highway Patrolman Ronald E. Boyter testified that he observed the manner in which appellant was driving his automobile; after the car was stopped, he observed appellant’s walk, smelled his breath, heard him talk, and was in his presence approximately three minutes. He testified that in his opinion the appellant was intoxicated. Patrolman Boyter was shown to be qualified to testify and give his opinion as to the intoxication of a person. We conclude that the evidence is sufficient. See, e. g., Day v. State, Tex.Cr.App., 474 S.W.2d 246.
Finally, appellant contends that the trial judge committed reversible error when he stated: “Suppose we just don’t hear it. I don’t believe it is needed. I sustain the objection.” The comments referred to were made by the court when appellant objected to testimony relating to a breathalyzer test. We overrule appellant’s contention that such was reversible error. There is no showing that the appellant was prevented from presenting any evidence on his behalf. Further, no objection was made to the court’s remarks and the error, if any, was waived. See Lipscomb v. State, Tex.Cr.App., 467 S.W.2d 417, and cases cited therein.
There being no abuse of discretion, the judgment is affirmed. |
sw2d_482/html/0246-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MORRISON, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Alvin Ray TAYLOR, Appellant, v. The STATE of Texas, Appellee.
No. 45524.
Court of Criminal Appeals of Texas.
July 12, 1972.
Tipton, Bishop & Company by William D. Tipton, Houston (appointed counsel on appeal), for appellant.
Carol S. Vance, Dist. Atty., James C. Brough and Jim Skelton, Asst. Dist. Attys., Houston, and Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
MORRISON, Judge.
This is an appeal from an order revoking probation.
The record reflects that appellant entered a plea of guilty to the offense of Sodomy on April 7, 1969; his punishment was assessed at five (5) years, and he was placed on probation. No appeal was taken from that convictiqn. See Article 42.12, Vernon’s Ann.C.C.P.
One of the conditions of probation was that he “commit no offenses against the laws of this or any other State or the United States.”
At a hearing on March 26, 1970, the appellant’s probation was revoked on proof in support of the State’s motion which alleged that appellant committed the offense of shoplifting.
Appellant’s two contentions on appeal are that the original conviction for Sodomy is void because the statute is unconstitutional and that the second count of the indictment charging the said offense was vague and indefinite.
This is a collateral attack on the judgment on which probation was granted and is without merit. It has long been the rule in this State that the appellant may not rely upon errors which allegedly occurred at his original trial on an appeal from his revocation of probation. Carnes v. State, 478 S.W.2d 940 (Tex.Cr.App.1972); Hungerford v. State, 474 S.W.2d 242 (Tex.Cr.App.1971); McAlpine v. State, 462 S.W.2d 315 (Tex.Cr.App.1971); Higdon v. State, 436 S.W.2d 541 (Tex.Cr.App.1968); Hoskins v. State, 425 S.W.2d 825 (Tex.Cr.App.1967); Campbell v. State, 420 S.W.2d 715 (Tex.Cr.App.1967).
The judgment is affirmed.
. This Court has held that Article 524, Vernon’s Ann.P.C. is not unconstitutional. Pruett v. State, 463 S.W.2d 191.
|
sw2d_482/html/0247-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Fred ADAIR, Appellant, v. The STATE of Texas, Appellee. John VIA, Appellant, v. The STATE of Texas, Appellee.
Nos. 43666, 43667.
Court of Criminal Appeals of Texas.
July 19, 1972.
David J. Nagle, of Nagle & Barr, Houston, for appellants.
Bob Smith, Dist. Atty., Phillip A. Nelson, Jr., and Lawrence Wells, Asst. Dist. Attys., Austin, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
OPINION ON APPELLANTS’ MOTION FOR REHEARING
Our opinion on original submission is hereby withdrawn and the following is substituted in lieu thereof.
These appeals arise out of convictions for possession of marihuana with the punishment being assessed at 10 years in each case. The imposition of the sentences was suspended and each appellant was placed on probation.
Appellants Adair and Via were jointly indicted with co-defendants Lawrence Cear-ley, Mary Kinslow, Terance O’Neil, Linda Roberts and Edwin Mark Stanton who were charged with “acting together” in possession of a narcotic drug, to wit: marihuana.
After severance appellants were jointly tried before the court upon their pleas of not guilty after waivers of a jury trial were executed.
This case presents the question of what showing must be made to the magistrate issuing search warrants in order that there may be a substantial basis for crediting the report of a first time informer, known to the police but unidentified to the magistrate, who purports to describe personal knowledge of criminal activity but who has not previously given accurate information to the police.
The instant case also challenges the sufficiency of the evidence to show possession of the narcotics in either appellant.
I. Search and Seizure
At the outset appellants particularly contend the trial court erred in overruling a motion to suppress on the ground that the affidavit underlying the search warrant was insufficient to reflect probable cause, arguing that the second prong of the two prong Aguilar test is not satisfied by the affidavit. Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).
The record reflects that at approximately 2:20 a. m. on October 8, 1969, Austin police officer Jerry L. Spain sought a search warrant to search the premises of “Linda Roberts, WF-18, and other person or persons unknown to affiant by name, identity, or description” at “700 West 10th, Austin, Travis County, Texas.”
The relevant portion of the affidavit presented to the magistrate and. upon which the search warrant issued is as follows :
“Affiant has received information from a credible and reliable informatn [sic] that the above named subject Linda Roberts is keeping and using marijuana in her apartment located at 700 West 10th, Austin, Travis County, Texas. Informant has observed marijuana in the apartment within the past 24 hours and further states the marijuana is being kept in a match box, the type that kitchen matches come in and is in the front room of the apartment. Although the informant has not given information in the past, their [iic] reliability, and credibility has been established by the fact of their [jtc] lack of a criminal record, the reputation in the neighborhood, and are [jic] well thought of by their [jí'c] fel-lozv associates.” (Emphasis supplied)
A search warrant may rest upon any one of three types of information. First, it may rest entirely upon an informer’s tip which is hearsay provided, of course, there is a sufficient basis to credit the hearsay. Secondly, it may be based entirely upon facts within the personal knowledge of the affiant. Thirdly, it may be based upon a combination of the first two — that is a combination of hearsay and the personal knowledge of the affiant. It should be observed, however, that the search warrant affidavit must contain allegations that go beyond the affiant’s mere suspicion or his repetition of another person’s mere suspicion. See Gonzales v. Beto, 425 F.2d 963, 968 (5th Cir. 1970); Ruiz v. State, 457 S.W.2d 894, 896 (Tex.Cr.App.1970) (concurring opinion).
It is clear from an examination of the affidavit in the instant case that it fits within the first category discussed above —the probable cause being based entirely upon the informer’s tip. See Kemp v. State, 464 S.W.2d 141, 147 (Tex.Cr.App.1970) (dissenting opinion adopted in part as opinion of the court on the motion for rehearing).
In determining the sufficiency of such affidavit to reflect probable cause for the issuance of the search warrant, we are bound by the four corners thereof. Article I, Sec. 9, Tex.Const. Vernon’s Ann.St., Article 18.01, Vernon’s Ann.C.C.P.; McLennan v. State, 109 Tex.Cr.R. 83, 3 S.W.2d 447, 448 (1928); Hall v. State, 394 S.W.2d 659 (Tex.Cr.App.1965); Gaston v. State, 440 S.W.2d 297 (Tex.Cr.App.) (concurring opinion); Ruiz v. State, supra, 457 S.W.2d at 896 (concurring opinion).
Since the affidavit in question considered from its four corners reflects that it is based solely upon hearsay unaided by independent police investigation or other corroboration, we must determine whether it meets the two-pronged Aguilar test (378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723).
In Aguilar the Supreme Court wrote:
“Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, 376 U.S. 528, 84 S.Ct. 825, 11 L.Ed.2d 887, was ‘credible’ or his information ‘reliable.’ ” (Emphasis supplied) 378 U.S. at 114-115, 84 S.Ct. at 1514.
A study of the affidavit in question reveals that it is sufficient to satisfy the first prong of the Aguilar test. The informer declared he had personally observed the narcotic in the apartment and revealed where it was kept and the type of container. These “underlying circumstances” are full enough to meet the first part of the Aguilar test. We concern ourselves then with the honesty of the informer and whether the second prong of the Aguilar test has been satisfied, particularly since the unidentified informer is shown to be of unknown or untested reliability.
In most cases dealing with a search warrant affidavit based solely upon hearsay without independent corroboration, surveillance, etc., with which this court has had to deal, the unidentified informer has been described as one of proven reliability by having previously given true and correct information leading to the discovery of narcotics, arrests and convictions, etc. These allegations or type of description of the usual police informer undoubtedly stemmed from Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, 78 A.L.R.2d 233 (1960).
The absence of an allegation of prior reliability is not, ipso facto, a fatal defect in the affidavit. As Chief Justice Burger only recently said, speaking for himself and three other justices, “. . . this Court in Jones never suggested that an averment of previous reliability was necessary.” United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 2081, 29 L.Ed.2d 723 (1971). Actually, as he noted, the inquiry in determining probable cause should be whether the informer’s present information is truthful and reliable.
The police are often confronted with the first time informer or citizen informer sometimes referred to as a “walk in” who is unknown to the police and with whom the police have had no previous experience. When they give information as to criminal activity their information should not become unusable because there has not been a previous instance of reliability. When citizens are involved it cannot be expected that they would have had past transactions or dealings with the police. See People v. MacDonald, 480 P.2d 555 (Colo.1971). And while in many such cases less reason may exist for failing to disclose the informer’s identity to the magistrate than where the ordinary police informer is involved, nevertheless, many citizens prefer to cooperate in anonymity with the police or fear possible retribution by the accused. Certainly where sufficient “underlying circumstances” are presented to the magistrate so he can make an independent determination as to the credibility of the informer, the use of such informers is not to be excluded.
The problem confronting law enforcement officers is how to supply to the magistrate sufficient “underlying circumstances” so there will be a “substantial basis” for accepting the reliability of the first time informer. Jones v. United States, supra.
In the instant case the officer-af-fiant clearly realized that since days of the Aguilar decision his conclusory statement that the informer was “credible and reliable” was not sufficient standing alone. He thus sought to give “underlying circumstances” in support of such conclusion. He put the magistrate on notice that the informer had not previously given information and was thus a first time informer. He offered to the magistrate the fact that the informer’s “reliability and credibility” was established by
(1) lack of a criminal record
(2) the reputation in the neighborhood
(3) well thought of by fellow associates.
Is the lack of a criminal record entitled to be given any weight by the magistrate in the determination of the credibility of the first time informer? At first blush it would certainly seem so. We permit the impeachment of witnesses by the use of certain final convictions. See Article 38.29, V.A.C.C.P.; Bustillos v. State, 464 S.W.2d 118 (Tex.Cr.App.1971). And we held that the absence of a criminal record was entitled to some weight in determining probable cause in Yantis v. State, Doughty v. State, 476 S.W.2d 24 (Tex.Cr.App.1972).
We also know, though, that some courts have given weight to the fact that the unidentified informer with no prior history of reliability makes a declaration against his penal interest in revealing information as to criminal activity. Chief Justice Burger and three other justices relied upon such a declaration in United States v. Harris, supra, although Mr. Justice Harlan took issue with such reliance in his dissent. See also United States v. Viggiano, 433 F.2d 716 (2nd Cir. 1970); United States ex rel. DiRienzo v. Yeager, 443 F.2d 228 (3rd Cir. 1971); Commonwealth v. Stewart, 267 N.E.2d 213 (Mass.1971); United States v. Woodring, 444 F.2d 749 (9th Cir. 1971).
And we are also aware that the existence of a criminal record does not render an informer unreliable, particularly where his previous tips have proven trustworthy.
In discussing the task of the magistrate “of assessing the probable credibility of unidentified informants who purport to describe criminal activity of which they have personal knowledge, and where it does not appear that such informants have previously supplied accurate information to law enforcement officers,” the late Mr. Justice Harlan in his dissent in United States v. Harris, 403 U.S. at 600, 91 S.Ct. at 2090, said:
“Without violating the confidences of his source, the agent surely could describe for the magistrate such things as the informer’s general background, employment, personal attributes that enable him to observe and relate accurately, position in the community, reputation with others, personal connection with the suspect, any circumstances which suggest the probable absence of any motivation to falsify, the apparent motivation for supplying the information, the presence or absence of a criminal record or association with known criminals, and the like.” (Emphasis supplied)
In writing the opinion for the court in Harris, Chief Justice Burger however stated:
“Indeed, when the inquiry is, as it always must be in determining probable cause, whether the informant’s present information is truthful or reliable, it is curious, at the very least, that Mr. Justice Harlan would place such stress on vague attributes of ‘general background, employment . . . position in the community. . . . ’ ” 91 S.Ct. at 2081.
It would thus appear to be no unanimity on the subject. The difficulty with the mere statement that the informer has no criminal record is that it does not inform the magistrate of the extent of the af-fiant’s investigation. The statement does not reflect whether the affiant relied only upon a check of local police files, or if he went furAier and sought information from the State Department of Public Safety, the FBI or other sources. The age of the informer was not given the magistrate. If the informer was a male barely 17 years of age or a female barely 18 years of age there may well exist a reason why such an informer would not have a criminal record. See Article 2338-1, Vernon’s Ann.Civ.St. Further, the term “criminal record” may have one meaning for one officer-affiant and an entirely different interpretation may be given by another such affiant. One may include arrests and the other may rely only upon final convictions or a statutory definition. Cf. Article 37.07, V.A.C. C.P.
Of course, we should not be hypertechnical and should remember that a policeman’s affidavit “should not be judged as an entry in an essay contest.” Spinelli v. United States, 393 U.S. 410, 438, 89 S.Ct. 584, 600, 21 L.Ed.2d 637 (1969) (Fortas, J., dissenting). Nevertheless, officer-affiants should be encouraged to furnish to the magistrate as specific “underlying circumstances” as possible.
We conclude as we did in Yantis and Doughty, supra, that the informer’s lack of criminal record was entitled to be given some weight by the magistrate in the assessment of probable cause.
Next, the affiant asserts the unidentified informer’s “credibility and reliability” was established by “the reputation in the neighborhood.” The phrase is somewhat vague. Only by reading the same in conjunction with the earlier assertion as to credibility and reliability is it entitled to any weight. This is perhaps the commonsense and realistic approach as recommended in United States v. Vantresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Otherwise, “the reputation” could have numerous meanings. And “the neighborhood” is not identified. It could be the area in which the informer resides as in Yantis and Doughty or the area where the criminal activity was observed. Greater specificity again would be more desirable.
Lastly, the affiant asserts the informer is well thought of by his “fellow associates.” Without any information about the informer’s general background, occupation, general position in the community, information about those with whom he associates, etc., it is difficult to assign any real meaning to “fellow associates” or the statement in which words are included. It appears little more than a repetition of the statement which preceded it in the affidavit.
We realize the reluctancy of officer-af-fiants from being more specific than absolutely necessary for fear of giving away the identity of the informer which for one reason or another they may feel the need to protect. Unless there is a real necessity for doing so they may well compound the problems of the probable cause assessing magistrate, the trial court and this court.
It is true that in appraising an affidavit as to whether its allegations constitute sufficient “underlying circumstances” to insure the reliability of the informer some courts have taken into consideration the fact that the information furnished from personal knowledge was given in such detail that it would indicate that the only way he could have obtained it was through a reliable method. See People v. MacDonald, 480 P.2d 555 (Colo.1971); United States v. Viggiano, 433 F.2d 716 (2nd Cir. 1970); Ludwig v. Wainwright, 434 F.2d 1104 (5th Cir. 1970); People v. Clark, 488 P.2d 565 (Colo.1971).
Few of these courts have set forth any guidelines for police officers or magistrates as to just how detailed the facts must be to authorize this consideration. This writer’s views as to establishing the reliability of previously unknown informer by reference to the particularity of the informer’s story were set forth in the concurring opinion in Gaston v. State, 440 S.W.2d 297. These views parallel in some measure the views stated by Mr. Justice Harlan in his dissent in Harris:
“It is not possible to argue that since certain information, if true, would be trustworthy, therefore, it must be true. The possibility remains that the information might have been fabricated. This is why our cases require that there be a reasonable basis for crediting the accuracy of the observation related in the tip. In short, the requirement that the magistrate independently assess the probable credibility of the informant does not vanish where the source of the tip indicates that, if true, it is trustworthy.” 91 S.Ct. at 2086.
Mr. Justice Harlan did concede there might be two ways in which asserted personal observations could play a role in a determination of whether the observations took place. One way he described in part as follows:
“Additionally, it might be of significance that the informant had given a more than ordinarily detailed description of the suspect’s criminal activities. Although this would be more probative of the reliability of the information, it might also permissibly lead a magistrate, in an otherwise close case, to credit the accuracy of the account as well. I do not believe, however, that in this instance the relatively meager allegations of this character are, standing alone, enough to satisfy the credibility requirement essential to the sufficiency of this probable cause affidavit. Reading this aspect of the affidavit in a not unduly circumspect manner, the allegations are of a character that would readily occur to a person prone to fabricate. To hold that this aspect of the affidavit, without more, would enable ‘a man of reasonable caution,’ Berger v. New York, 388 U.S. 41, 55, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967), to conclude that there was adequate reason to believe the informant credible would open the door to the acceptance of little more than florid affidavits as justifying the issuance of search warrants.” 91 S.Ct. at 2086-2087.
We need not in the instant case determine whether the asserted personal observations are “more than ordinarily detailed” so as to authorize their consideration in the assessment of the informer’s reliability. We conclude, without such consideration, that the other “underlying circumstances” when considered together are sufficient to satisfy the second prong of the Aguilar test when the affidavit is given a commonsense and realistic reading. United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).
II. Sufficiency of the Evidence
At approximately 2:40 a. m., shortly after the issuance of the search warrant, Sgt. Spain and two other Austin police officers knocked at the door of the downstairs apartment described in the affidavit. Hearing a “person running,” Sgt. Spain opened the unlocked door and walked into the dimly lit front or living room of the apartment. He testified that he could see smoke in the air and he smelled what, in his opinion, was the aroma of marihuana.
Five persons were in the living room when the officers entered. Co-defendant Mary Kinslow walked towards the officers from the other side of the room, took the warrant and commenced to read it. Co-defendant O’Neil was in a sleeping bag next to the south wall with his eyes closed. Co-defendant Cearley was seated on the north end of a large couch located on the west side of the room. Appellant Via was seated on a stool located in front of approximately the middle of said couch, while appellant Adair was sitting in a chair against the north wall.
Sgt. Spain testified that he found what appeared to be a marihuana cigarette butt or “roach” in an ashtray situated on the north end of the couch where Cearley was sitting. Another “roach” was obtained when co-defendant O’Neil picked it up from the floor and handed it to Spain saying, “Don’t forget this one.” It is difficult to determine from the record where in the living room O’Neil picked up the “roach,” but Officer Spain testified that it was situated on the floor between the north end of the couch and the chair in which appellant Adair had been seated.
When the police first entered the apartment Sgt. Robert Jones crossed the living room, entered a hallway and opened the closed door to the bathroom. There he .discovered co-defendant Stanton in a pair of shorts, his trousers on the floor beside him and on top of the trousers a plastic baggie filled with a substance later shown to be marihuana. Linda Roberts was also present, putting on a dress. She was wet or damp as if she had just taken a bath.
No other contraband was found. A search of the person and clothing of the appellants Via and Adair and all of the co-defendants failed to reveal any marihuana, or cigarette papers, etc.
However, Spain, who had been in the narcotics detail for approximately a year, testified that both appellants’ eyes were in a more or less fixed position, their speech was “slurred” and “mumbly”; that they answered the officer’s questions with matters not relevant to the questions, and that they moved rather slowly, taking “deliberate steps.” He also expressed the opinion without objection that he had “just walked into a pot party” based on what he saw and smelled. He testified that he “checked quite closely” and did not smell intoxicating beverages on the breath of the appellants. On the other hand, he admitted the physical condition of the appellants could have resulted from the use of alcohol, heroin, other drugs or barbiturates. No tests were administered to determine alcohol or drug intoxication. There was testimony that vodka produced no breath odors. The officer also admitted that a somewhat similar appearance could have resulted from physical exhaustion and that he had no idea how long the appellants had been awake prior to the arrest. Moreover, within his police experience he had encountered many persons who became so nervous upon their arrest they could not coherently give their names.
Spain acknowledged that he did not know nor had ever heard of any of the people in the apartment except Linda Roberts. No surveillance of the premises had been conducted prior to the execution of the search warrant and the officers did not know how long the appellants, who neither rented nor leased the apartment, had been present before they arrived. It was shown by other evidence that the appellants were both transients, Via from Virginia and Adair from Ohio, who had been in Austin less than two days prior to their arrest.
Sgt. Robert Jones testified that, in his opinion based on five years of narcotics specialization in law enforcement, the aroma he had smelled on the night in question was marihuana.
Chemical analysis revealed that the cigarette butts contained .11 of a gram of marihuana and that the substance in the baggie was marihuana.
Appellants did not testify, but they called two expert witnesses whose employment was related to drug abuse programs of the State. The thrust of this expert testimony was the ingestion of ordinary amounts of marihuana does not usually produce symptoms which can be detected by gross observation. One of these experts, a doctoral psychologist specializing in the pharmacology of drugs, mentioned leading empirical research in controlled experiments which suggest that rather strong doses of the active agent in marihuana produce only slight physical changes, most of which were measurable only with medical instruments. However, this witness testified that a “sufficient dose” of marihuana could produce a “glaze, that loss of attention.”
Appellants had earlier cross-examined Sgt. Spain on these questions. The officer said that he “more or less agree [d]” with the conclusion that in controlled conditions an observer cannot determine by gross, external observation whether a person has been smoking marihuana; however, he did not necessarily accept that assertion where the subject was not in “controlled condition [s].”
Is the foregoing evidence sufficient to prove that the appellants were in possession of marihuana, either jointly or individually? It is settled that possession in a narcotics case need not be exclusive. Evans v. State, 456 S.W.2d 911 (Tex.Cr.App.1970); Gomez v. State, 365 S.W.2d 165 (Tex.Cr.App.1963); King v. State, 169 Tex.Cr.R. 34, 335 S.W.2d 378 (1960); Perry v. State, 164 Tex.Cr.R. 122, 297 S.W.2d 187 (1957). Facts and circumstances may be sufficient to show the accused and others acted together in possessing a narcotic. Ochoa v. State, 444 S.W.2d 763 (Tex.Cr.App.1969) and cases there cited. 30A Tex. Digest, Poisons ®=>9. The term “possess” as used in Article 725b, Vernon’s Ann.P.C., has been held to mean “actual control, care and management of the narcotic drug.” Cuellar v. State, 169 Tex.Cr.R. 604, 336 S.W.2d 159, 161 (1960) (2nd headnote) and cases there cited; Massiate v. State, 365 S.W.2d 802 (Tex.Cr.App.1963). See also State v. Callahan, 77 Wash.2d 27, 459 P.2d 400 (1969) noted in 46 Wash.L.Rev. 541 (1971); Annot. “What Constitutes ‘Possession’ Of a Narcotic Drug Proscribed by Sec. 2 Of the Uniform Narcotic Drug Act,” 91 A.L.R.2d 810 (1963).
First, then, we turn our attention to the marihuana found in the bathroom. Clearly this contraband was not in the exclusive possession of either of the appellants and further there is nothing to show that the appellants had ever been in such room or had knowledge that Stanton had possession of any marihuana in the room the door to which was closed when the officers entered the apartment. The evidence is insufficient to reflect an “acting together” with regard to such marihuana. Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). Thus, such contraband is eliminated from further consideration in disposing of the question before us.
There remains, of course, the two cigarette butts found in the room where the appellants were discovered in company with three other people. Neither appellant was shown to have been in exclusive possession of such “roaches” either before or at the time of the officers’ arrival. The possession, if any, must then be joint or constructive, and a circumstantial evidence case is thus presented.
The general rule in such cases was stated in Brock v. State, 162 Tex.Cr.R. 339, 285 S.W.2d 745 (1956) as follows:
“A conviction on circumstantial evidence cannot be sustained if the circumstances proven do not exclude every other reasonable hypothesis except that of the guilt of the accused; and proof amounting only'to a strong suspicion or mere probability is insufficient.”
And it is well established that the mere presence of the accused at the scene of the crime does not, of itself, justify drawing an inference that he participated therein. Culmore v. State, supra, see footnote # 1; Commonwealth v. Florida, 272 A.2d 476 (Pa.1971).
Only recently in Brown v. State, 481 P. 2d 475, 477 (1971), the Oklahoma Court of Criminal Appeals wrote:
“Possession means more than being where the action is; it involves the exercise of dominion and control over the thing allegedly possessed. United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965); Fitzpatrick v. United States, 410 F.2d 513 (5th Cir. 1969). Mere proximity is insufficient. By its very nature, possession is unique to the possessor and it is not enough to place him in the presence of other persons having possession to impart possession to him. Commonwealth v. Reece, 437 Pa. 422, 263 A.2d 463, 466 (1970).
“It is true that exclusive possession is not necessary where the parties jointly possess a drug and possession may be proven by circumstantial evidence. Patterson v. State, Okl.Cr., 403 P.2d 515 (1965). However, it cannot be inferred from merely being present in a place where marihuana is found that the defendant had knowledge of its presence and had dominion and control. There must be additional evidence of knowledge and control to sustain a conviction.”
In State v. Carr, 8 Ariz.App. 300, 445 P.2d 857, 859 (1968), the Arizona Court wrote:
“The crime of possession of narcotics requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance. Carroll v. State, 90 Ariz. 411, 368 P.2d 649 (1962). Although possession may be shown by direct or circumstantial evidence, the evidence must link the defendant to the narcotics in such a manner and to such an extent that a reasonable inference may arise that the defendant knew of the narcotics’ existence and of its whereabouts. Carroll v. State, supra.” See also State v. Oare, 249 Or. 597, 439 P.2d 885 (1968); Haynes v. State, 475 S.W.2d 739 (Tex.Cr.App.1971).
In Sturgeon v. State, 483 P.2d 335 (Okl.Cr.1971), it was held that where a person is present on premises where an “unlawful drug” is found but does not have exclusive access, use, or possession of the premises, it may not be inferred that he had knowledge and had control of it unless there are additional independent factors showing his knowledge and control.
Thus it is clear that the mere presence of the appellants at the searched premises at which they were apparent visitors and their close proximity to the marihuana “roaches” is not enough alone to establish guilt. There were, however, the independent factors of the marihuana smoke and its aroma in the room, where the appellants and the “roaches” were found, as well as the condition of the appellants which the experienced officers testified resulted from being under the influence of marihuana.
The trial judge was the trier of the facts, the judge of the credibility of the witnesses and the weight to be given to their testimony. Considering the evidence in the light most favorable to the judgments entered, as we are required to do, we conclude the evidence is sufficient to sustain the convictions.
The judgments are affirmed. The motions for rehearing are overruled.
MORRISON, J., not participating.
. It appears that some courts do not feel that the same tests applied to the ordinary police informer should in determining probable cause be applied to citizen-informer who acts openly to see that laws are enforced, at least where the citizen informer’s name and address are set forth in the search warrant affidavit and he is an eye witness to the criminal activity. This along with other underlying circumstances is often sufficient. People v. Glaubman, 485 P.2d 711 (Colo.1971). In Dishman v. State, 460 S.W.2d 855 (Tenn.Cr.App.1970), the informer was an eye witness to the criminal activity and was described as a responsible and reliable citizen and his name was disclosed to the magistrate and the fact of disclosure noted in affidavit. Mr. Justice Harlan suggested in his dissent in United States v. Harris, supra, that perhaps the citizen informer could “be brought before the magistrate where he could assess their credibility for himself.” 91 S.Ct. at 2090.
. The affidavit nevertheless is not a model and should not be used as such in future cases, as is so often done in eases where this court has upheld the sufficiency of a certain affidavit. See Brown v. State, 437 S.W.2d 828 (Tex.Cr.App.1968). What we said in footnote #1 of Yantis and Doughty, supra, applies with equal force here.
. The name of this co-defendant is spelled O’Neil in the indictment but O’Neal throughout the transcription of the court reporter’s notes.
. It was the officer’s testimony that the occupants of the living room did not move about the room until the officers were ready to leave the premises.
. At the examining trial Sgt. Spain testified and expressed the opinion that the appellants and others in the house were under the influence of marihuana. The transcription of such proceedings was introduced by the appellants at the hearing on their motion to suppress. At the trial on the merits, before the same judge, it does not appear that the witness Spain was asked the same question and he did not expressly testify the appellants were under the influence of marihuana, though that was the import of his testimony.
|
sw2d_482/html/0256-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DALLY, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Forrest Nelson MOSBY, Appellant, v. The STATE of Texas, Appellee.
No. 45094.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
Allie L. Peyton, Houston, for appellant.
Carl S. Vance, Dist. Atty., James C. Brough and Thomas C. Dunn, Asst. Dist. Atty., Houston, and Jim D. Vollers, State’s Atty., and Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction was for murder; the punishment, ten years imprisonment.
On the afternoon of May 13, 1970, appellant’s twenty-four year old girlfriend, Marion Waldon, was with appellant at his duplex, watching television. Between 3:00 p. m. and 4:00 p. m., Marion Waldon’s mother, Roxie Kilgore, and older sister, Johnnie Chase, the deceased, walked from their home to appellant’s apartment. The mother and the deceased went to appellant’s residence to discuss Marion Wal-don’s pregnancy and to determine whether appellant intended to marry her. Roxie Kilgore testified that after appellant had invited her inside,
“ • . . I told him he knew that Marion was pregnant, and I wanted to know what they were going to do about it, were they going to get married or was he going to marry her to give the baby a name. So he says to me that she was grown and how did I know that the baby was his. I said, Well, you know she hasn’t been having any relationship with anyone but you.’ So he said, Well, if that’s the case, I will wait until after the baby is born and I will give the baby a name.’ . . . [I]t made me feel bad then, kind of hurt my feelings.
When Roxie Kilgore left appellant’s apartment by way of the front door, Johnnie Chase, who was also pregnant, was sitting on the porch in front of the duplex at the entrance to the other apartment. As Roxie Kilgore and the older daughter walked to the street in front of appellant’s residence, she told Johnnie of her conversation with the appellant. Marion Waldon, who was still inside the apartment, stated that appellant went out the back door, quickly returned with the pistol he kept in the glove compartment of his automobile, and went again to the front of the apartment. Marion Waldon said that appellant then called to her older sister, who thereupon returned to appellant’s apartment. Marion Waldon testified that as she went into the room appellant said, “I am going to kill you,” to the older sister, and that Johnnie replied, “You will have to shoot me, because I am not doing anything to you.” Marion Waldon said that appellant then shot Johnnie Chase in the chest.
Appellant first complains that the trial court erred in admitting testimony showing the “decedent’s pregnant condition.”
Appellant’s pretrial motion to suppress evidence of the fact that the deceased was in the seventh month of pregnancy was granted, subject to the reservation that if, at the time the evidence was offered, it was determined to be admissible the trial court would allow its introduction.
The appellant, testifying in his own behalf, said the deceased, wielding a knife, had threatened to kill him and that he was acting in self-defense when he shot her. During appellant’s cross-examination by the State he was asked, over objection, whether he was aware that the decedent was seven months pregnant at the time of the offense. Appellant contends that it was reversible error for the trial court to allow such question to be asked. He argues that “it is evident that any evidence of the physical condition of the deceased at the time of the difficulty is irrelevant . ” We do not agree.
“On the issue of self-defense, it is relevant to give testimony as to the relative size, strength, and other physical characteristics showing the disparity between the accused and the deceased, as ground for apprehension, and also upon the question as to which party was the aggressor.
“ . . . [T]he physical characteristics of the deceased and the relative size of the accused and the deceased may be shown by a photograph.” 1 Wharton’s Criminal Evidence § 218 at 448-449 (12th ed. 1955).
The appellant having interposed a claim of self-defense, the condition of the deceased was a proper subject of inquiry. We perceive no error in the trial court’s ruling thereupon. Cf. Schuler v. State, 170 Tex.Cr.R. 612, 342 S.W.2d 765 (Tex.Cr.App.1961).
Further, in Washington v. State, 46 Tex.Cr.R. 184, 79 S.W. 811 (Tex.Cr.App.1904), the trial court allowed the State to show that Washington’s wife, the deceased, was “more than seven months advanced in pregnancy.” The appellant raised the defense of accident and alleged that he had “discovered a negro man in bed with his wife; that he immediately began shooting at said negro, and accidentally killed his wife.” On original submission this court held the evidence had been properly admitted to “refute appellant’s defense.”
On rehearing the court said:
“ . . . But whether pregnancy is admissible as a circumstance to show the improbability that deceased did have carnal knowledge with a third party at the time defendant killed her, we hold that said testimony was admissible as an original circumstance, being part and parcel of the facts and condition of the parties at the time of the homicide; that is to say, it is proper to prove the physical condition of the deceased, and hence the testimony would be admissible as original evidence.’’ 79 S.W. at 814. (Emphasis supplied.)
Appellant’s first ground of error is overruled.
In appellant’s second ground of error he alleges reversible error was committed by the State in its argument before the jury. The remarks of which complaint is now made are two references to the decedent’s having been pregnant. Testimony to the effect that Johnnie Chase was pregnant was in evidence and we see no error in the reference to that fact in the record before us. Further, the record reflects no attempt to preserve error was made as no objections were raised at the time of trial. See Schreiner v. State, 478 S.W.2d 460 (Tex.Cr.App.1972); Cole v. State, 475 S.W.2d 263 (Tex.Cr.App.1971); Witt v. State, 475 S.W.2d 259 (Tex.Cr.App.1971); Verret v. State, 470 S.W.2d 883 (Tex.Cr.App.1971).
The judgment is affirmed.
Opinion approved by the Court. |
sw2d_482/html/0259-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ROBERTS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Antonio SIERRA, Appellant, v. The STATE of Texas, Appellee.
No. 44869.
Court of Criminal Appeals of Texas.
May 31, 1972.
Rehearing Denied July 26, 1972.
Morehead, Sharp & Tisdel by Charles G. White, Plainview, for appellant.
Tom Hamilton, Dist. Atty., Plainview, Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for assault with intent to rape. Appellant was found guilty by a jury and his punishment was assessed by the court at confinement for seventy years.
The evidence reflects that early in the morning of October 25, 1970, appellant forced his way at gunpoint into the home of Mr. and Mrs. Dale Worthan, located near Abernathy, in Hale County. After robbing Worthan and forcing him and his children into a bedroom of the house, appellant took Mrs. Worthan into the living-room of the house and there attempted to rape her, but did not succeed because Mrs. Worthan grabbed his pistol and threw it to her husband. A fight ensued between Worthan and appellant, with Worthan pursuing appellant into the yard. Appellant fled in a pickup truck.
In his brief, appellant raises three grounds of error. In his first two grounds, he contends that the trial court erred in admitting evidence of an out-of-court identification of appellant by Mrs. Worthan.
The evidence reflects that on the Monday following the assault, Mr. and Mrs. Wor-than went to the sheriff’s office in Lubbock where they were shown a group of photographs but were unable to identify any of them as being a photograph of the assailant.
The Worthans returned to Lubbock on Wednesday, where they again viewed an array of photographs. Deputy Sheriff Russell testified that on the morning before the Worthans returned to Lubbock, he received a telephone call from an anonymous caller who told him to investigate appellant, because appellant had a black eye and a bandaged left hand. Thereafter, Russell included a photograph of appellant in the array.
Dale Worthan testified that he had identified a photograph of appellant from the array which he was shown on the second visit to Lubbock. He further testified in the presence of the jury thusly:
“Q All right, sir. After you looked at these pictures, did you have occasion to see the Defendant in person?
“A Yes, sir.
“Q When did you see him?
“A Approximately two hours later.
“Q After looking at this person, did you form an opinion as to whether or not he was the individual that accosted you and your wife and family that night?
“A Yes, sir.
⅜ ⅜ * ⅝ ⅜
“Q Where did you identify this person, or where did you see Mr. Sierra in person?
“A I saw him in the sheriff’s office as he came in the door.
“Q And when was he brought in?
“A Approximately two hours after we had looked at the photographs.”
No objection was made to this testimony.
Gayle Worthan likewise testified that she selected appellant’s photograph and further testified in the presence of the jury:
“Q All right. After you picked out this picture, what happened?
“A Well, Charlie Bowman, captain of the sheriff’s office, he got on the phone and tried to find the whereabouts of him, and the bond — they was holding his bond across the street at the bonding office, and they had sent out a guy to get him. He was behind on his bond payment, and they sent out a guy to pick him up, and so they had me to come across—
“MR. WHITE: Your Honor, object to the part of this about the bond as hearsay part.
“THE COURT: Yes, sir, I think I’ll sustain that.
“Q Don’t testify to anything that you don’t know about from your personal knowledge. If it’s something somebody else told yon, don’t testify to that.
“A I waited in the bail bond office, and they brought him in, and I identified him.
“Q When they brought him in, where were you?
“A I was over in another part, and the girls that work there was kind of hiding me, so he couldn’t see me. And then I left out a side door.
“Q What did you do then?
“A I went back over across the street and told them that that was the man, and—
“MR. WHITE: Your Honor, at this point, I have a question of law that I need to discuss with the Court at this point.” (At this point, the jury was removed from the courtroom.)
Appellant’s objection, which was made at this point, was as follows:
“MR. WHITE: Your Honor, I submit that this was a so-called one-man lineup, which would be in contravention of the case of Wade versus United States. And my basis for this is that since the police officers had already centered the investigation around this point and that they knew she was there, had planted her in that office, and then they subsequently arranged to have this man sent over there, that it was certainly the equivalent of a one-man lineup. And I feel like this is a — I didn’t know this was coming up at this point, or I could have mentioned it in pretrial. I think much of the damage has already been done, and—
“THE COURT: Do I understand, then, that you are objecting to the testimony and making motion for mistrial at this time?
“MR. WHITE: I am making a motion for mistrial, Your Honor, on the basis I was not informed this was going to come up. I had inquired in pretrial whether or not there was going to be a lineup. Now, I, realize this is not per se the formal style, but it certainly fits the principle for one.
“THE COURT: All right. The record will show your objection and motion for mistrial which was made as soon as you learned of this testimony and your first opportunity. The record will show the overruling of this motion and objection, Mr. White, and the exception of the Defendant to the ruling of the Court.
Have you any additional matter to present?
“MR. WHITE: None.
“THE COURT: All right. Bring in the jury.”
Deputy Russell testified, in part, as follows, in the jury’s presence :
“Q Officer, what happened after these pictures were picked out ? This picture was picked out?
“A All right. Mrs. Worthan said that she would like, if possible, to see this person in person, so arrangements were made for her to view this person.
“Q What kind of arrangements were made?
“A All right. Captain Bowman, of the Lubbock sheriff’s office, called the bail bond agency to ascertain where this person might be found.
“MR. WHITE: Your Honor, I object for the reason that was previously stated on this Wade versus United States.
“THE COURT: I’ll overrule that objection, Mr. White.
“Q Will you please proceed.
“A All right. As I said, Captain Bowman contacted the Lubbock Bail Bond Service and talked to the people over there, attempting to ascertain the whereabouts of the subject, the person in the photograph. They at that time advised him that he would be in in a short while; that they were bringing him in. Therefore, Mrs. Worthan went over to the bail bond office, and she was over there approximately an hour or hour and a half, and she came back to the sheriff’s office, and I met her at the door, and she advised me that that was the person, definitely.”
In his first two grounds of error, appellant contends that the admission of Mrs. Worthan’s and Deputy Russell’s testimony concerning the bond office identification of him by Mrs. Worthan was error. He contends that the bond office confrontation was a one-to-one lineup or “showup” which was illegally conducted because he was without counsel at the time. He contends that the admission of evidence concerning the confrontation was error per se by virtue of Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
Before deciding the merits of appellant’s contention, we must first determine whether the error in the admission of the testimony, if any, was properly preserved. The general rule is that an objection must be made as soon as the ground of objection becomes apparent. 1 McCormick & Ray, Texas Law of Evidence, § 23 (2nd Ed. 1956) ; e. g., Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). It is also fundamental that an objection to the admission of evidence is ineffective if the same evidence has previously been admitted without objection. McCormick & Ray, supra, § 27.
The first problem to be resolved is whether appellant’s failure to object to Dale Worthan’s testimony concerning the confrontation with appellant at the sheriff’s office (set forth above) precludes his later objection to Gayle Worthan’s testimony. We believe that it did not. A mere chance encounter between a suspect and a witness is not within the purview of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Gilbert v. California, supra. The testimony did not indicate on its face that appellant was brought into the office for the purpose of identification by Dale Worthan, or that he was pointed out to Worthan. From the state of the record at that time, it cannot be determined that appellant was even brought to the office in connection with this particular case. The facts surrounding the investigation and subsequent bond office confrontation were not brought out until later in the course of the trial. An additional circumstance which leads us to conclude that the nature of the confrontation was not apparent from the testimony presented up to that point, or that appellant did not have reason to believe that the testimony was inadmissible (assuming that the confrontation was illegal), is the transcript of the hearing on appellant’s motion to suppress evidence.
Prior to trial, appellant filed a “Motion to Suppress Evidence” in which he requested that the court suppress “Any evidence of identification of the Accused by means of a ‘lineup’ as conducted by the Sheriff’s Department and/or Police Department of Lubbock County, Texas, or other agencies of the State of Texas.” A hearing was held on the motion, at which time the following transpired between the court and counsel for the State:
“(THE COURT) All right. Now, the next motion is a motion to suppress evidence arising out of a lineup.
Mr. Hamilton, was there any identification through a lineup in connection with—
“MR. HAMILTON (Counsel for the State) : Yes, Your Honor, there was. There was a series of pictures that was presented to the complaining witnesses which was identified by both the husband and the wife as being the Defendant. He picked out the particular pictures and I did plan to introduce those pictures into evidence.
“THE COURT: But there was no lineup as such prior to the submission of the photographs?
“MR. HAMILTON (Counsel for the State): No. There’s just a series of photographs that was submitted. And the person picked out of the photographs and was then later identified by the wife and the husband.
“THE COURT: Mr. White, then the record having shown that there was no lineup preliminary to the showing of these pictures, I’ll rule on the admissa-bility of the pictures at the time that comes up in the course of the trial.”
Therefore, this occurrence, when coupled with the fact that the testimony, on its face, did not readily appear to be inadmissible, leads us to conclude that appellant’s failure to object did not preclude his later objection.
We further express doubt as to whether the failure to object to evidence of a confrontation between the accused and one witness will preclude objection to the admission of evidence of a confrontation between the accused and another witness. The reason behind the holding of Gilbert v. California, supra, is that “[T]he witness’ testimony of his lineup identification will enhance the impact of his in-court identification on the jury and seriously aggravate whatever derogation exists of the accused’s right to a fair trial.” 388 U.S. 273, 87 S.Ct. 1957. Therefore, it would appear that the failure to object to a bolstering of one witness by evidence of a lineup identification should not preclude a valid objection to the bolstering of another witness, although the earlier admission may render the later admission harmless, depending upon the circumstances of the particular case. For this reason, we do not feel that appellant’s failure to object to Dale Worthan’s testimony precludes his later objection to Gayle Worthan’s and Frank Russell’s testimony.
We are thus faced with the question of whether or not appellant’s objection to Mrs. Worthan’s testimony was timely made. We believe that it was not. The record (the relevant portion of which is set forth earlier in this opinion) reflects that, before objection upon the ground that the confrontation was illegal, Mrs. Worthan testified that it was arranged for appellant to come to the bond office, and that she went there for the purpose of identifying her assailant. She further testified that she identified appellant, and testified that she was hidden from his view. She then stated that she returned and “told them that that was the man.” Only at this point was objection made on the ground that the confrontation was illegal. Objection to testimony must be made as soon as the ground of objection becomes apparent, e. g., Jones v. State, 471 S.W.2d 413 (Tex.Cr.App.1971); Crestfield v. State, 471 S.W.2d 50 (Tex.Cr.App.1971); Martinez v. State, 437 S.W.2d 842 (Tex.Cr.App.1969). Therefore, the objection in the present case was made too late. See Jones v. State, supra; Martinez v. State, supra.
Although the court stated that the record should show that objection was made at the first opportunity, apparently because appellant had not been informed of the confrontation, the record does not support this statement, as discussed earlier. Therefore, the error, if any, was not properly preserved.
Likewise, the admission of Deputy Russell’s testimony describing Mrs. Worth-an’s confrontation with appellant was not error, in light of the failure to make a timely objection to the earlier testimony concerning the same confrontation. The same evidence having earlier been admitted without objection, the overruling of appellant’s second objection does not warrant a reversal, e. g., Younger v. State, 457 S.W.2d 67 (Tex.Cr.App.1970); Merx v. State, 450 S.W.2d 658 (Tex.Cr.App.1970). Appellant’s first and second grounds of error are overruled.
In his third ground of error, appellant further contends that Deputy Russell’s testimony concerning Gayle Worthan’s bond office identification was improperly admitted, as being a violation of the rule, as stated in Lyons v. State, 388 S.W.2d 950 (Tex.Cr.App.1965), which prohibits a third party from corroborating a witness’ testimony of an out-of-court identification. Where such testimony is undisputed, the record reflects that no objection on this ground was made to the admission of the testimony. It is elementary that an appellant may not rely upon a ground of objection on appeal which he has not raised in the trial court. Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1971); Hinkle v. State, 442 S.W.2d 728 (Tex.Cr.App.1969); Cork v. State, 362 S.W.2d 314 (Tex.Cr.App.1962).
The judgment is affirmed.
. Mr. Worthan testified that he fought with the assailant and that he struck him in the eye with his fist and struck him on the left wrist with a crowbar.
. Appellant does not challenge the in-court identification by the Worthans. See United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). He objects only to the admission of evidence of the confrontation.
. Dale Worthan testified that on the occasion of his second visit to the sheriff’s office, he picked appellant’s photograph from the array, but that he was only “reasonably sure” that it was a photograph of appellant, and that he “didn’t want to make a positive identification until I could see the person that the picture belonged to,” and that, “I really wanted to see him in person, to make a positive identification.” However, the testimony set forth earlier in the opinion is the only testimony in the case, up to that point, as to any confrontation. There was no testimony, up to that point, that appellant was brought to the sheriff’s office in response to Worthan’s request.
|
sw2d_482/html/0264-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOUGLAS, Judge. MORRISON, Judge",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Elias B. CRUZ, Appellant, v. The STATE of Texas, Appellee.
No. 44898.
Court of Criminal Appeals of Texas.
May 24, 1972.
Rehearing Denied July 26, 1972.
Garland G. Wier, San Antonio, for appellant.
Ted Butler, Dist. Atty. and Antonio G. Cantu, Asst. Dist. Atty., San Antonio, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
DOUGLAS, Judge.
This is an appeal from a jury conviction of murder with malice. The court assessed the punishment at fifteen years.
The sufficiency of the evidence is challenged.
Rodolfo Donias and Onesimo Guerra, the deceased, were walking down San Fernando Street in San Antonio sometime after midnight on August 16, 1969. They walked in front of a small brown house with a 1959 Chevrolet parked near it. Three persons at the house called to Don-ias and the deceased. Two of the three (including the appellant) approached and started cursing. The appellant cursed Guerra and Donias cursed the appellant. Guerra appeared not to understand what was going on, and appellant’s companion finally told appellant “to go back and forget it.” The appellant and his companion did leave and Donias and Guerra began walking again. They talked briefly to two young boys they met. Then the car that was parked in front of the brown house came toward them “going fast.” Guerra crossed the street, which placed him nearest the passenger side of the car. The car stopped and someone jumped out of the back seat and started fighting Donias. Donias then heard some shots and Guerra came back across the street saying he had been shot. Donias’ assailant went back to the car and someone said, “Let’s finish him off.” Donias testified that only three people were in the car: the driver who never got out, the appellant who was in the front on the passenger side, and whoever got out of the back and fought him. While Don-ias was kneeling near the deceased awaiting the police, he saw three men running toward him. He hid until the police arrived.
Joe John Gonzales testified that he and Paul Guerra were walking down the street at the time in question and saw four people, two of whom were arguing. He identified Donias as being one of the two. Shortly after the argument broke up a car came up, the people inside called to Gonzales, but he refused to go because the person on the front passenger side had a gun. Gonzales later testified that the gun was a .22 caliber pistol. He was asked where the other two boys went, then the car left, stopped and Gonzales heard some shots. He did not identify the appellant as being either present or involved.
Manuel Lopez, appellant’s cousin, testified that he was the driver of a blue Chevrolet at the time in question. He said the appellant was sitting next to him on the passenger side and his brother, Jurado (or Gerando) Lopez, was in the back seat. He testified that neither he nor his brother had a gun, but the appellant did have one. He heard some shots.
Officer Paul Pete Hernandez of the San Antonio Police Department received a call about a shooting and arrived on the scene a few minutes afterwards. After talking with Guerra who was still alive, Hernandez put out a call for a 1959 white and blue Chevrolet with “three Latin American male occupants.” He found no weapons on the deceased or at the scene.
Dr. Lopez, assistant pathologist, testified that the deceased died from a gunshot wound. He sent the bullet causing that wound to the San Antonio police. Lt. Joe Morales of the San Antonio Police Department identified the bullet received from Dr. Lopez as a .22 caliber bullet.
In his first ground of error, appellant contends the evidence was insufficient to connect him with the commission of the crime. The trial court properly charged the jury on circumstantial evidence regarding the appellant’s commission of the offense.
The rule in this State is expressed in 4 Branch’s Ann.P.C.2d, Section 2053, page 363:
“To sustain a conviction [on circumstantial evidence] it should not only appear that an offense as charged has been committed, but there should also be proof to a degree of certainty greater than a mere probability or strong suspicion tending to establish that the party charged was the person who committed it or was a participant in its commission. There must be legal and competent evidence pertinently identifying the defendant with the transaction constituting the offense charged against him.”
The record shows that the appellant cursed the deceased shortly prior to the offense, was identified as the only one in the car possessing a gun (a .22 pistol), and was the only person in the car on the side where the deceased was located when shot. Besides the appellant and the driver of the car (on the opposite side from the deceased) the only other occupant was outside the car fighting with Donias when shots were heard. We find the evidence sufficient to exclude every other reasonable hypothesis except that of appellant’s guilt and to allow the jury to conclude to a reasonable and moral certainty that the appellant did the shooting.
Appellant’s second ground of error is closely related to the first. He contends this Court should treat the present case as one showing reasonable doubt as a matter of law. His contention is based on the following rule:
“Where circumstantial evidence relied on by the prosecution is obviously weak, and where the record on appeal affirmatively shows not only that other testimony which would have cast additional light on the facts was available to the prosecution, but also that the prosecution did not introduce such other evidence or satisfactorily account for its failure to do so, the appellate court will treat the case as one showing reasonable doubt of the sufficiency of the evidence to support the conviction.” 24 Tex.Jur.2d, Evidence, Section 745, page 427 (1961). See also Anders v. State, Tex.Cr.App., 445 S.W.2d 167; Williams v. State, Tex.Cr.App., 429 S.W.2d 503; Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251.
Appellant claims other witnesses were available to the State whose testimony would have shed additional light upon the facts. The State said it could not vouch for the credibility of these witnesses and moved to have the trial court call them as its witnesses. While the motion was overruled, we believe the State satisfactorily accounted for, if needed, its failure to call these witnesses.
Appellant further claims that the State did not sufficiently question one of its witnesses, Manuel Lopez, appellant’s cousin, apparently as to whether the appellant was the person who shot the deceased. Two prior written statements by Lopez said that appellant did shoot the pistol. These statements were introduced by the State at the hearing- on appellant’s motion for a new trial. The State only attempted to establish and did establish by Lopez’s testimony that the appellant was in the front passenger side of the car, that appellant had a gun, that no one else had a gun, and that Lopez heard shots. While to establish the corpus delicti in a murder case the State must show the defendant’s agency in the commission of the act, see generally 4 Branch’s Ann.P.C.2d, Section 2066, page 376, it was not necessary for the State to try to establish this by direct rather than circumstantial evidence under the facts and circumstances of this case. The rule that the appellate court will treat the case as one showing reasonable doubt where the State has failed to introduce available evidence which would have cast additional light on the facts applies only where the State’s circumstantial evidence case is “obviously weak.” Nilsson v. State, Tex.Cr.App., 477 S.W.2d 592, 597, n. 1. The circumstantial evidence in the present case is not obviously weak.
No error is shown. The judgment is affirmed.
MORRISON, Judge
(concurring).
I have concluded that this was not a weak circumstantial evidence case and, therefore, agree with the majority opinion affirming the conviction. However, out of deference to the trial theory upon which appellant’s studious counsel tried this case, I will attempt to distinguish this holding from the one reached by the majority on rehearing in Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251, upon which he relies.
In Ramirez, the crucial contested issue was whether the defendant was intoxicated at the time of an automobile accident. A toxicologist testified that in his opinion an analysis of accused’s blood showed that the accused was intoxicated. A physician, who examined appellant at the hospital, stated that in his opinion the accused was not intoxicated. This conflicting testimony, together with other conflicting evidence concerning the collision, made Ramirez an obviously weak case. It was upon the background of these facts that this Court on rehearing reversed the conviction because the State failed to question two highway patrolmen who were also in close proximity to the defendant shortly after the accident about the appellant’s state of intoxication, their testimony being other available testimony which would have cast additional light on the facts.
However, in the case at bar, unlike Ramirez, supra, the appellant was the only one placed at the scene of the crime with a gun and is shown to be the only one in a position to shoot the deceased. There is no seriously inconsistent testimony on these crucial points.
If this was a weak case, additional testimony by Manuel Lopez may have been valuable but since there was sufficient evidence to connect the appellant with the crime, his testimony, as given, was sufficient.
Likewise, the testimony of the other witnesses who were subpoenaed and not called was unnecessary since there was sufficient other inculpatory evidence. Additionally, Ramirez becomes operable only when there is a weak case and there is a showing in the record that there is “other testimony [available] which would have cast additional light on the facts. In Ramirez it was evident that the testimony of the highway patrolmen was relevant. In the case at bar, there is no showing what vital information these witnesses could have contributed. We note that at the motion for new trial it was shown that Jurado (or Gerando) Lopez, who was in the back seat of the car at the time of the shooting, was knocked unconscious prior to the homicide and, therefore, could not have testified to the circumstances surrounding the actual shooting.
For the reasons stated, the rule on which appellant relies is inapplicable to the case before us and I concur in the affirmance. |
sw2d_482/html/0268-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DALLY, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James FLOWERS, Appellant, v. The STATE of Texas, Appellee.
No. 45093.
Court of Criminal Appeals of Texas.
June 14, 1972.
Rehearing Denied July 26, 1972.
Melvyn Carson Bruder, Barry P. Helft (Court appointed on appeal), for appellant.
Henry Wade, Dist. Atty., James B. Scott, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., and Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction is for robbery by assault; the punishment, sixty years imprisonment.
The sufficiency of the evidence is not challenged.
The appellant first urges that he “was prejudiced by the use of an alleged prior conviction against him at his punishment (hearing) when such alleged prior conviction could not be established by the State.”
As the appellant did not elect to have the jury assess punishment, it was assessed by the court. During the hearing on punishment, the State introduced proof that the appellant had been convicted of felony theft in a prior case in which probation had been granted and revoked.
The appellant then took the stand and denied that he committed the offense for which the jury had just found him guilty. He also stated “This is the first time I ever got into any kind of trouble and I would like for you to be light on my punishment if you would.” Reminded by the court of his prior conviction and revocation of probation, the appellant responded, “I said the first time I ever been in a case like this.” During the appellant’s cross-examination by the State he was asked if he had been convicted for grand larceny in Greenville, Mississippi. The appellant answered he could not remember being convicted of a felony, but he had been convicted of a misdemeanor; for fighting. In response to interrogation by the court, the appellant said, “I was convicted of stealing but I proved to the people that I wasn’t the one that stole it.” The State then had marked for identification an F.B.I. identification sheet. The record is not clear but it appears that the identification sheet showed the appellant had been convicted for grand larceny in Greenville, Mississippi on March 17, 1963. The trial judge then stated that the document was plainly hearsay and that he would disregard its contents. Court was then recessed in order that the State might ascertain whether or not the appellant had been convicted for theft in Mississippi. When the hearing was reconvened at a later date, the State rested without offering any proof of a prior conviction of the appellant in the State of Mississippi.
The court, when it is the trier of the facts, is presumed to disregard inadmissible evidence. However, we need not rely upon such presumption. The appellant admitted to a conviction for theft in Greenville, Mississippi, and even so, the trial judge stated in the record that he would disregard the matter about which complaint is made.
The appellant’s reliance upon United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) is misplaced. In that case, Tucker was assessed the maximum punishment for bank robbery after he acknowledged three previous felony convictions. A number of years later, it was shown that two of the prior convictions were constitutionally invalid because the appellant did not have counsel in such cases. The Supreme Court of the United States affirmed the order remanding the case to the trial court for reconsideration of the sentence, taking into account that two of the prior convictions were constitutionally invalid. In the case at bar the trial judge specifically stated that he was not considering the complained of matter.
The appellant’s next contention is that he “was prejudiced by the District Attorney’s questions as to whether he and his companions had been in the victimized store earlier in order to ‘case’ the place.”
The question asked of one of the State’s witnesses was “Did they (appellant and his companions) appear to be looking around the store and when they were — .” A general objection was sustained and no further relief was requested. No error is shown. Dunlap v. State, 477 S.W.2d 605 (Tex.Crim.App.1971); Williams v. State, 427 S.W.2d 868 (Tex.Crim.App.1967) and Burks v. State, 432 S.W.2d 925 (Tex.Crim.App.1968).
The appellant also complains that “The trial court erred in permitting the prosecutor to rephrase his questions in order to secure testimony positively identifying the appellant.” The witness Cole identified the appellant and thereafter, on cross-examination, his identification was seriously challenged. On redirect examination the State was permitted to ask further questions concerning the identification of the appellant. The matter complained of here is wholly within the discretion of the trial court. A review of the record reveals that the trial court’s rulings were entirely correct.
The appellant’s fourth ground of error is that “The trial court erred in permitting the prosecutor over objection to infer that a defense witness had been told what to testify to on the witness stand.”
The question asked was “And he just wanted you to come down here and try to tell this jury that somebody was someplace on a certain day, is that right?” It would appear that this was not an improper question on cross-examination. In any event, if it was error to ask this question, the appellant’s objection at the time of trial “to this line of testimony” was not specific enough to preserve error. Russell v. State, 468 S.W.2d 373 (Tex.Crim.App.1971); Hinkle v. State, 442 S.W.2d 728 (Tex.Crim.App.1969).
The appellant’s fifth ground of error is that “The trial court erred in permitting the prosecutor to inquire as to who the appellant’s friends were, establishing guilt by association.”
No objection was made at the time of trial and no error is preserved. Had a timely objection been made, it appears the questions asked were entirely legitimate.
The judgment is affirmed.
Opinion approved by the Court. |
sw2d_482/html/0270-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ROBERTS, Judge. ODOM, Judge",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Robert BRYANT, Appellant, v. The STATE of Texas, Appellee.
No. 44920.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 26, 1972.
Bradbury, Tippen & Cross, by Jim M. Cross, Abilene, for appellant.
Ed Payntor, Dist. Atty., and Lynn In-galsbe, Asst. Dist. Atty., Abilene, and Jim D. Vollers, State’s Atty., Austin, for the State.
OPINION
ROBERTS, Judge.
This is an appeal from a conviction for assault with intent to murder with malice aforethought. Trial was held before a jury, which assessed punishment at confinement for five years.
In his brief, appellant raises only one ground of error. He contends that the court erred in failing to define murder without malice in the charge to the jury.
The evidence reflects that appellant shot the victim of the assault with a pistol while the victim was seated upon a pool table which was located in a cafe in the city of Abilene. The witnesses to the shooting testified that there was no altercation between appellant and the victim immediately prior to the occurrence, although there was evidence of a disagreement sometime in the past.
The appellant testified in his own behalf. He stated that he had a disagreement with the victim earlier in the evening, in another part of the cafe. He admitted shooting the victim, but stated that he did so believing that the victim was preparing to receive a gun from one of his (the victim’s) friends. He testified that he asked the victim if the friend had given him “what he wanted” (referring to a gun) and that the victim did not answer but rather, “sit (sic) there a little while and jumped around” and that “when he jumped around, I just shot him, because . I have been shot before, and I wouldn’t want to walk out the door and let him shoot first, because it is liable to be too late then.” He also testified, “I just didn’t want him to shoot me. If you had been shot like I have been, you wouldn’t want to take a chance on him shooting first.” There was no testimony by any of the witnesses to the shooting that appellant was excited or that he appeared to be in a rage or in a state of terror, etc., at the time of the shooting. Likewise, appellant did not testify that he was in an excited state of mind, or that he was motivated by terror. Rather, his testimony was that he killed as a preventative measure.
Art. 1160, Vernon’s Ann.P.C., provides:
“If any person shall assault another with intent to murder, he shall be confined in the penitentiary for not less than two (2) nor more than twenty-five (25) years, provided that if the jury finds that the assault was committed without malice, the penalty assessed shall be not less than one nor more than three (3) years confinement in the penitentiary .
“Sec. 2. Upon the trial of any person for assault with intent to murder, the Court, in its charge to the jury, shall define malice aforethought and in a proper case murder without malice, and instruct the jury touching the application of the law to the facts.”
Article 1257c, V.A.P.C., provides:
“In all cases tried under the provisions of this Act it shall be the duty of the Court, where the facts present the issue of murder without malice, to instruct the jury that murder without malice is a voluntary homicide committed without justification or excuse under the immediate influence of a sudden passion arising from an adequate cause, by which it is meant such cause as would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper sufficient to render the mind incapable of cool reflection, and in appropriate terms in the charge to apply the law to the facts as developed from the evidence.”
After examining the record, we have concluded that there is simply no evidence that the shooting was committed “under the immediate influence of a sudden passion.” The witnesses to the event did not so testify, and appellant’s own testimony likewise indicates an assault committed as a preventative measure, and not as the result of a sudden passion. The trial court is under no obligation to charge on the law of murder without malice unless the evidence raises the issue. Brown v. State, 475 S.W.2d 938 (Tex.Cr.App.1971); Ortegon v. State, 459 S.W.2d 646 (Tex.Cr.App.1970); Guerra v. State, 145 Tex.Cr.R. 339, 168 S.W.2d 247 (1943).
In his brief, appellant contends that the issue of murder without malice was raised by his denial of intent to kill the victim. The absence of an intent to kill does not raise the issue of murder without malice, although it does raise the issue of whether the assault was merely an aggravated assault or a simple assault. Hall v. State, 402 S.W.2d 752 (Tex.Cr.App.1966); cf. Gay v. State, 134 Tex.Cr.R. 356, 115 S.W.2d 929 (1938). Assault to murder without malice is an assault committed with an intent to kill, but done “under the immediate influence of a sudden passion,” by reason of which the penalty is reduced. If the intent to kill is present, the fact that the assault was committed under the influence of passion reduces the punishment, but does not change the offense to aggravated assault. Gay v. State, supra. Likewise, an assault committed without an intent to kill cannot be an assault with intent to commit murder without malice. Hernandez v. State, 375 S.W.2d 285 (Tex.Cr.App.1963). Therefore, appellant’s denial of an intent to kill did not raise the issue of assault with intent to murder without malice, and the court did not err in refusing to define murder without malice in the charge.
The judgment is affirmed.
ODOM, Judge
(dissenting).
I dissent to the affirmance of this case for the reasons stated in my dissenting opinion in McGee v. State, Tex.Cr.App., 473 S.W.2d 11, at page 15.
I would reverse and remand.
ONION, P. J., joins in this dissent.
. The court charged on self-defense.
. No request was made that the court charge on aggravated assault, and appellant does not assign the absence of such a charge as error.
|
sw2d_482/html/0273-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Otis MINAFEE, Appellant, v. The STATE of Texas, Appellee.
No. 45082.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearing Denied July 28, 1972.
Charles W. Tessmer, Ronald L. Goran-son, Dallas, for appellant.
Henry Wade, Dist. Atty., William T. Westmoreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a conviction for robbery by assault where the punishment was assessed by the jury at 45 years.
At the outset, appellant challenges the sufficiency of the evidence to sustain the conviction.
Chris George, Manager of the Fair Park Liquor Store in the City of Dallas, testified that on the morning of May 28, 1968, he was robbed at gunpoint, tied up and placed in a back room; that the money taken from the cash register was in his care, custody and control, etc. On direct examination, he testified that two men participated in the robbery, but later admitted he saw only one of the men, whom he identified as the appellant. He based his belief that there were two on the noise and conversation he heard while in the back room.
George, who was 76 years of age at the time of the second trial of this case on April 7 and 8, 1970, related that at a previous trial of this cause (which resulted in a hung jury), he had identified one Bernard Robertson, appellant’s brother-in-law, as the robber he saw in the store on the date in question.
Upon being recalled by the appellant, George stated: “I have always made — I’m not positive. Sure, I thought, and I believe, it was Minafee, but I — in clear conscience, I can’t say yes or no.”
William Gentry, owner of a store across the street from the liquor store, testified that at 10 a. m. on May 28, 1968, he walked to the liquor store to buy a package of cigarettes. He related that the appellant was standing behind the counter. When he inquired where “Pop” (George) was, the appellant stated that he had gone to get change and asked if he could help Gentry. As the appellant turned to get the cigarettes requested, Gentry noticed a revolver in the appellant’s rear pocket. Returning to his store, he answered a phone call and before he finished, he observed police cars at the liquor store.
Officers testified that George had identified photographs of both the appellant and Robertson and that Gentry had selected appellant’s photograph as a picture of the man he saw in the liquor store.
Testifying in his own behalf, appellant claimed alibi stating that he was working in his mother’s cafe, where he normally went to work, between 9 and 9:30 a. m. He denied the offense, but admitted he had been previously convicted of murder without malice.
Appellant’s mother testified that the appellant worked at her cafe from April until he was arrested in June, 1968, and while she could not particularly remember May 28th, she recalled that appellant worked every day (except Sunday) from 9 or 9:30 a. m. until closing time. Lois Minafee, appellant’s wife, corroborated the fact that he usually went to work at 9 or 9:30 a. m. Henry Armstrong and Reuben McNeeley testified they ate lunch every day during May, 1968, at the cafe operated by appellant’s mother, and the appellant was there every day about noontime.
Considering the evidence in the light most favorable to the jury’s verdict, we conclude it sufficient to support the verdict.
Next, appellant contends the trial court erred in excluding evidence that impeached the testimony of William Gentry. He relies upon the rule that a witness may be impeached by prior inconsistent statements.
At the first trial, Gentry testified the man he saw behind the counter was 5' 9" or 5' 10" tall. At the instant trial, he testified that he was 5' 6" or S' 6½" tall, and that he knew by observation that the appellant was shorter than he was. Gentry further testified he would have known “the robber” was shorter unless he was standing on something behind the counter.
The cross examination of Gentry reveals the following:
“Q Now, let me ask you this: When you went in and bought this package of cigarettes, were you standing face to face with the person behind the counter ?
“A Yes, I was.
“Q Do you recall telling Officer Trammell shortly after the robbery that the man you saw behind the counter was six feet one or six feet?
“A I don’t recall that.
“Q Are you saying that you didn’t tell Mr. Trammell that?
“A I told him — as well as I remember —I don’t remember what height I told him. I was rather excited at that time.
“Q Okay. It’s possible that you did tell him that?
“A It’s possible. That has been some time ago.”
Officer Trammell was subsequently called by the appellant and testified he made a general offense report in which he made a notation as to Gentry’s description as to the height of the suspect that Gentry had seen. He identified the report and when asked what it reflected as to the height description given by Gentry, the State’s objection of “hearsay” was sustained. The report was proffered for “the jury’s benefit” but such offer was denied, to which action the appellant excepted, but the court permitted it to be introduced “for the purposes of the record.” The informal bill of exception was not perfected by having Officer Trammell testify as to what description as to height was actually given by Gentry.
An extremely poor reproduction of the offense report is in the record before us. It reflects that Trammell talked to both George and Gentry. The description contained therein is of two suspects unidentified as to name and does not reflect the source of the height description in either case. There is no way that this court can determine which height description can be attributed to Gentry.
The appellant failed to elicit from Tram-mell, for the purpose of perfecting his bill of exception, a clarification of the report.
Under these circumstances, we perceive no error.
Next, appellant complains of the prosecutor’s closing jury argument during the guilt stage of the trial. There, he argued,
“ . . . If you find this Defendant not guilty over here, you will be, in effect, saying that it’s all right to go out and find you an old man and one that can’t remember and one that will get confused, and rob him.”
The record then reflects,
“MR. LAW: I object. I think he is twisting the meaning of the verdict—
“THE COURT: I’ll sustain that. Sustained.
“MR. LAW: Ask to disregard his remarks.
“THE COURT: Disregard it.
“MR. LAW: Move for a mistrial.
“THE COURT: Overruled.”
Such argument followed on the heels of the defense argument in great detail that the complaining witness’s testimony had “no credibility” and “it’s difficult to begin with to get a clear picture of what he did tell you or what he can tell you.
It would, thus, appear that the argument was invited in part, at least. In light of the objection offered and the court’s prompt action in sustaining the objection and instructing the jury to disregard, we cannot conclude that reversible error is reflected by the overruling of the mistrial motion.
Still further, appellant urges that the court erred in permitting the State to argue outside the record during the penalty stage of the trial. After arguing that neither “the facts of this case” nor the appellant had advanced any reason for leniency, the prosecuting attorney stated:
. . . Now, I’m sure that you have had occasion to sit back in your living room and say, ‘why don’t they do something about it?’ You’ve read the newspapers. ‘Why don’t they do something about this crime here in our country?’ Well, you’re ‘they’ and now’s the time you can do something about it.”
The general objection that the argument was “improper” was sustained and the jury was instructed to disregard the argument. The mistrial motion was denied. The argument appears to be a proper plea for law enforcement. See Langham v. State, 473 S.W.2d 515, 518 (Tex.Cr.App.1971). It does not appear to rest, as appellant contends, upon such an allusion of fact outside the record as to call for reversal. Further, in light of the court’s action in sustaining the objection and instructing the jury to disregard, the remark was not so prejudicial as to warrant reversal.
Lastly, appellant contends the court committed reversible error in denying his motions to have him arraigned in the absence of the jury and having him arraigned in the presence of the jurors.
The 1965 Code of Criminal Procedure extended the requirement of arraignment to all felony cases and all misdemeanor cases punishable by imprisonment. Article 26.01, Vernon’s Ann.C.C.P. It formerly was required only in capital cases. See former Article 491, Vernon’s Ann.C.C.P. (1925). The legislative amendment was thought necessary since arraignment would be the first proceeding after formal accusation and the last point beyond which an indigent defendant should not advance without counsel or the waiver of the right to counsel. See Articles 26.04 and 28.01 § 1(1), Vernon’s Ann.C.C.P.
It was one of the proceedings that the code provided could be disposed of by a pre-trial hearing. See Article 28.01, supra.
' In discussing arraignment, this court in Boening v. State, 422 S.W.2d 469, 473, said:
“ . . . Such arraignment, not being a part of trial by jury, is for the purpose of reading the indictment to the accused, hearing his plea thereto and fixing his identity. Article 26.02, V.A.C.C.P.; Steen v. State, 92 Tex.Cr.R. 99, 242 S.W. 1047. The time for such arraignment is prescribed by Article 26.03, V.A.C.C.P.” (Emphasis supplied.)
Normally, unless arraignment is waived, it is the practice of most courts to see that arraignment occurs as early in the proceedings as possible.
The same contention raised by appellant was raised in Thompson v. State, 447 S.W.2d 920, 922 (Tex.Cr.App.1969), and in Stewart v. State, 473 S.W.2d 495, 496-497 (Tex.Cr.App.1971). In Thompson, the record did not support the claim that arraignment occurred in the jury’s presence and in Stewart, there was no objection and the contention was raised for the first time on appeal. In both cases, the court found no error presented.
In the instant case, the question was raised by written motions requesting the arraignment in the jury’s absence. Both motions were overruled. The indictment was then read in the presence of the jury for the purpose of arraignment and immediately thereafter read again to satisfy the requirements of Article 36.01, Vernon’s Ann.C.C.P.
The court erred in overruling appellant’s motions. If the arraignment, not being a part of the trial by jury, had been delayed until a jury was sworn and impaneled, it should have been conducted in the jury’s absence, particularly where the matter was called to the trial court’s attention.
In light, however, of the totality of the circumstances and the court’s instructions in its charge at the guilt stage of the proceedings that the indictment was not to be considered as any evidence of the appellant’s guilt, we conclude that no reversible error is presented by the double reading of the indictment and the entry of the same plea.
The practice of delaying arraignment and conducting such proceedings in the jury’s presence should not be condoned. Trial judges should be careful to avoid such practice.
Finding no reversible error, the judgment is affirmed.
. The alleged offense was shown to have occurred on May 28, 1968. The indictment was, returned on July 8, 1968. The first trial was conducted on March 12, 1969. The second trial was not conducted until April 7 and 8, 1970. The transcription of the court reporter’s notes was not filed until April 9, 1971, a year later. A number of extensions were granted for filing briefs and the record was not received by this court until December 14, 1971. The first submission of this case was on June 7, 1972, over four years after the alleged offense. Surely some of the delay involved was avoidable.
. The appellant was jointly indicted with Robertson, but only the appellant was on trial in the instant case.
|
sw2d_482/html/0277-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "ONION, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Ervin Phillip TURNER, Appellant, v. The STATE of Texas, Appellee.
No. 45021.
Court of Criminal Appeals of Texas.
June 7, 1972.
Rehearing Denied July 26, 1972.
Melvyn Carson Bruder, Dallas (on appeal only), for appellant.
Henry Wade, Dist. Atty., and Robert T. Baskett, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Hut-tash, Asst. State’s Atty., Austin, for the State.
OPINION
ONION, Presiding Judge.
This appeal arises out of a robbery conviction where the punishment was assessed at 40 years.
Initially, the appellant challenges the sufficiency of the evidence to sustain the conviction.
Edward L. Loyd, an employee of the Pinkerton International Detective Agency, was working as an undercover agent with the Dallas Transit Company posing as a bus driver. In that capacity, on the night of September 30, 1969, he was driving a bus on its regular route in the City of Dallas. He testified that the appellant got on the bus between 9:30 and 10 p. m. and rode the bus for approximately three and a half hours on its runs and, then, around 1:30 a. m. on October 1, 1969, when there was only one other passenger on the bus, the appellant pulled a pistol and took from him $40 or $50, including the money changer. Mrs. Gladys Carson, a passenger, testified she saw the appellant approach the bus driver and then flee from the bus with the money changer. She related that she could not hear the conversation between the two men and did not see a gun as appellant’s body was positioned in such a way as to block her view of what was transpiring in the front of the bus.
Loyd testified that he was in fear of his life, that the money was taken from his custody without his consent.
The appellant did not testify nor offer any evidence.
Viewed in the light most favorable to the jury’s verdict, the evidence is sufficient to support the same. Appellant’s contention that the evidence shows theft rather than the robbery charged is without merit.
Next, appellant complains that the court erred in overruling his motion for mistrial when the State introduced “evidence of an extraneous offense having no relation to the offense charged in the indictment.”
David Stromile testified that on October 1, 1969 (approximately 20 hours after the alleged offense), he drove to a drug store in Dallas to pick up his sister who worked there. Upon arrival, he observed the appellant standing near a pole in front of the store. The appellant walked to the Stro-mile car and stated to him, “You messed me up.” Upon Stromile’s inquiry as to appellant’s meaning, appellant stated, “I’m going to get some money.”
The only objection to such testimony was that it was “hearsay.” It was properly overruled. Thereafter, upon request, the jury was retired and the mistrial motion was made on the basis that the State was attempting to show an extraneous offense. It was overruled. Then, in the presence of the jury, Stromile testified he asked the appellant, “Do you want me to leave?” and the appellant answered, “Yes.” Stromile left and then called the police. Upon returning, he saw the appellant under arrest at a different location. On cross examination, he related that as far as he knew “nothing happened” at the drug store.
While it appears that the State was skating on thin ice since there was no basis for the admission of an extraneous offense, we conclude that, in light of the testimony offered, and that such evidence reflected the fact of appellant’s arrest, no reversible error is presented. See Chambers v. State, 462 S.W.2d 313 (Tex.Cr.App.1971).
In Chambers, the witness reported the suspicious conduct of a group of men to the police along with the license number of their vehicle. He did not testify the group had engaged in any criminal activity and their acts were not shown to relate to any offense. The evidence was offered to show the steps eventually leading to appellant’s arrest.
Next, appellant contends the error was compounded when the prosecutor made reference to Stromile’s testimony during “the arguments on the appellant’s guilt or innocence.”
The prosecutor argued that the appellant’s “last mistake” was in talking to Stromile or “[w]e might still be looking for him,” and then submitted that it was “a reasonable deduction from the evidence that you know what was about to take place there.” The only objection was, “I object to that, Your Honor,” which was overruled.
Earlier, appellant’s counsel had first broached the subject matter in his argument and accused the State of trying to “backhandedly” involve the appellant in some other offense. He then asked, “Don’t you know if anything happened out there, they would have been glad to blurt it out to you when we asked those questions ?”
It would appear the argument complained of was clearly invited and does not present reversible error.
Appellant also complains of the prosecutor’s argument at the penalty stage of the trial that there was “a crisis in this country.” Appellant’s objection was properly sustained and the jury was instructed to disregard the argument. Apparently being satisfied, no further relief was requested.
Joyner v. State, 436 S.W.2d 141 (Tex.Cr.App.1969), relied upon by the appellant is not in point. Not only are the arguments different when considered in the context in which they were made, but in Joyner, the court noted in the opinion on rehearing that the defendant had requested further relief in the form of a mistrial motion.
Further, appellant complains he was deprived of his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution when the State introduced a prior misdemeanor conviction against him at the penalty stage of the trial when he did not have counsel at the time of such conviction.
Appellant’s complaint relates to a conviction in 1969 in Dallas County for unlawfully carrying a knife. On direct examination, appellant first admitted that he had been so convicted. On cross examination, without objection, the conviction was pinned down to cause number, court, etc. Thereafter, the State offered certified copies of the judgment and sentence into evidence. The only objection was “. I proved it up. Now he’s proved it up. Now he wants to prove up the same thing, three different times.”
For the first time, in his appellate brief, appellant contends that he “was not represented by counsel” and that the formal judgment and sentence are silent as to counsel. No other claim is advanced.
In Taylor v. State, 470 S.W.2d 663 (Tex.Cr.App.1971), this court said:
“First, it is observed that no objection was urged at the time these documents were introduced, and no claim is ad vanced even now that at the time of such conviction the appellant was indigent, without counsel and did not waive the right of counsel, or that he was deprived of counsel in any manner.” (Emphasis supplied.).
We conclude Taylor is here controlling.
The judgment is affirmed. |
sw2d_482/html/0280-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DAVIS, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Billy Joe NORRIS, Appellant, v. The STATE of Texas, Appellee. Virgil Gilbert LAWSON, Appellant, v. The STATE of Texas, Appellee.
Nos. 45091, 45100.
Court of Criminal Appeals of Texas.
June 21, 1972.
Rehearings Denied July 28, 1972.
Melvyn Carson Bruder, Dallas, for appellant.
Henry Wade, Dist. Atty., W. T. West-moreland, Jr., Asst. Dist. Atty., Dallas, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DAVIS, Commissioner.
These are appeals from convictions of burglary with intent to commit theft. The appellants were tried jointly and punishment, enhanced under the provisions of Article 63, Vernon’s Ann.P.C., was assessed at life for each of them.
At the outset, appellants contend that the court erred in admitting into evidence the fruits of the search of the suitcase found in the automobile trunk, the same being fruits of a search and seizure condemned by the Fifth and Fourteenth Amendments to the United States Constitution.
The record reflects that, upon arriving at his grocery store in Dallas on the morning of August 1, 1970, Henry Janek discovered that the store had been burglarized and bags containing approximately $940, a display card of cigarette lighters and tools had been taken.
In the early morning hours of August 1, 1970, a group of officers went to an apartment house at 508 South Marsalis Street, Dallas, for the purpose of effecting a warrant of arrest for one Judy Patterson on a narcotic violation charge. After contacting the apartment manager, the officers entered Apartment 211, where two women other than Judy Patterson were found and arrested for narcotic violations. All of the officers remained in the apartment house with the exception of Agent Kellner who was positioned in the parking lot of the apartment house to await the arrival of Judy Patterson. Officer Kellner testified that at about dawn, a car pulled into the parking lot, two men identified as the appellants got out and according to Kellner, the following occurred, “After they opened the trunk of the car, they opened a piece of luggage or a suitcase and got something out of the car and one of them reached up to close the trunk and the other one said, ‘Leave it open just a second. We will come back and get the rest of the stuff.’ ” Kellner further testified that the trunk lid was not closed and he was able to see tools in a suitcase that was open in the trunk.
The appellants entered the apartment building and, upon approaching the upstairs apartment where officers were waiting for Judy Patterson, the two women who had been previously arrested, screamed “Police.” Appellants fled, appellant Norris throwing away a sack of money later identified as fruits of the burglary from Janek’s grocery store. The officers pursued appellants on foot. Appellant Lawson was not apprehended until an officer had fired a shot in the air. Officer Kellner, who was still in the parking lot, heard the commotion and after appellants were apprehended, he advised the other officer of his observation of the contents of the car trunk.
A screwdriver and a chisel found in the suitcase in the trunk of appellants’ car were identified by Janek as having been taken from his store, the screwdriver having Janek’s name on it.
On a motion to suppress, heard out of the presence of the jury, appellant Lawson testified the trunk was shut and was not opened by the officers until after they were arrested. The officers who went to appellants’ car after the arrest of appellants testified that the trunk of the car and the suitcase therein were open. The court overruled appellants’ motion to suppress and made findings that the trunk lid was open and the contents found in the suitcase and other items offered into evidence were in plain view of Officer Kellner; that such items were not seized until after the arrest of appellants and that the seizure of such items was lawful.
Appellant urges that the searching officers had no knowledge of the commission of the crime which bore the fruits of this search; that the officer had no probable cause to believe the contents of the automobile offended against the laws and that the search was not incidental to appellants’ arrest, nor a self-protective search.
In Holman v. State, Tex.Cr.App., 474 S.W.2d 247, bottles of pills and a syringe were observed by the officer on the front seat of defendant’s pickup when defendant got out and left the door to said vehicle open. This Court held the bottles of pills and syringe were not fruits of illegal search and were admissible as evidence in plain view.
In Elliott v. State, Tex.Cr.App., 450 S.W.2d 863, defendant was stopped for a traffic violation. While the officer was talking to defendant after defendant got out of his vehicle, the officer observed amplifiers and other equipment in plain view inside the automobile which were found to be the fruits of a burglary. This Court said, “The officer having a right to be where he was could testify as to what he observed and saw in plain view or open sight. See Jackson v. State, Tex.Cr.App., 449 S.W.2d 279 and cases there cited. Such evidence is thus not acquired by reason of search.”
In the instant case, we find that the evidence supports the court’s finding that the items seized in the trunk of appellants’ car were in plain view of the officers. The officers having a right to be where they were when they made the observation of the contents of the trunk, the seized items were not fruits of an illegal search but were admissible as evidence in plain view.
Appellants remaining grounds of error are not briefed nor is argument advanced. Such grounds of error are not in compliance with Article 40.09, § 9, Vernon’s Ann.C.C.P. Thus, nothing is presented for review.
We have examined appellants’ pro se briefs and find the contentions raised therein to be wholly without merit.
The judgments are affirmed.
Opinion approved by the Court. |
sw2d_482/html/0282-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DALLY, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Earl PORTER, Appellant, v. The STATE of Texas, Appellee.
No. 45390.
Court of Criminal Appeals of Texas.
June 7, 1972.
James Sparks, Jr., Beaumont (On Appeal Only), for appellant.
Tom Hanna, Dist. Atty., and John R. DeWitt, Asst. Dist. Atty., Beaumont, and Jim D. Vollers, State’s Atty., Robert A. Huttash, Asst. State’s Atty., Austin, for the State.
OPINION
DALLY, Commissioner.
The conviction is for robbery by firearms ; the punishment, twelve years imprisonment.
The State did not file notice that it would seek the death penalty and the appellant waived a jury trial and entered a plea of guilty before the court.
The appellant’s first ground of error is that “The evidence is insufficient to warrant a conviction.” This contention is without merit. The evidence in the record is ample to support the conviction. The record includes a recitation by the Assistant District Attorney of the following facts:
“The file indicates that the defendant entered the Jif-E-Mart Drive In Grocery Store, 600 West Gulfway, Port Arthur, Jefferson County, Texas, on December 6, 1969, and an employee, Lottie Johnson, attempted to assist the defendant in making a purchase. The defendant left and a short while later returned and handed Lottie Johnson a holdup note and pulled a pistol. The victim put approximately $200.00 in a paper bag and the defendant left. The victim and the defendant attended Lincoln High School together. Thus, she knew who he was although she did not know his name. The victim, Lottie Johnson, picked his picture out of a mug book and the defendant was arrested the next day. School records were checked and they showed that the victim and the defendant had been in school at the same time.”
The appellant, under oath, stated that the summary of facts, above quoted, was basically true and correct. On cross-examination he stated he was pleading guilty because he was guilty and for no other reason. This ground of error is overruled.
Ground of error number 2 is that “The Honorable Court failed to properly admonish the appellant as to the ranges of punishment of his plea.”
The court admonished the appellant of the consequences of his plea as follows:
“THE COURT: Well, the law provides that the punishment is confinement in the Department of Corrections for any term of years not less than five, so, if the Court finds you guilty on a plea of guilty, punishment within that range of punishment will be required of the Court, do you understand that ?”
The indictment alleged robbery by firearms; however, since the State did not seek the death penalty, this is not a capital case. Malone v. State, 476 S.W.2d 691 (Tex.Crim.App.1972) and Smith v. State, 455 S.W.2d 748 (Tex.Crim.App.1970). Death was not a possible punishment in this case, but the State did not move for the dismissal or abandonment of that portion of the indictment which charges the use or exhibition of a firearm. Therefore, the case remained one of robbery by firearms.
The trial judge did correctly admonish the appellant as to the range of punishment possible under the statute. Article 1408, Vernon’s Ann. P.C.
The third ground of error is that “Both the trial court and appellant’s retained counsel failed to properly ascertain if the appellant understood the consequences of his act/plea.” The appellant here argues that the court did not comply with the requirements of portions of Arti-ele 26.13, Vernon’s Ann.C.C.P., which provide, “. . . and neither of such plea shall be received unless it plainly appears that he is sane, and uninfluenced by any consideration of fear, or by any persuasion, or delusive hope of pardon, prompting him to confess his guilt.” Where, as in this case, a recitation in the judgment, substantially in the wording of the statute just quoted is made, it has been held to be insufficient if the record shows that the defendant had not been so admonished. Ex parte Chavez, 482 S.W.2d 175 (1972); Rogers v. State, 479 S.W.2d 42 (1972); Ex parte Battenfield, 466 S.W.2d 569 (Tex.Crim.App.1971); Wilson v. State, 456 S.W.2d 941 (Tex.Crim.App.1970); Miller v. State, 424 S.W.2d 430 (Tex.Crim.App.1968); Williams v. State, 415 S.W.2d 917 (Tex.Crim.App.1967); Braggs v. State, 169 Tex.Cr.R. 405, 334 S.W.2d 793 (1960); Alexander v. State, 163 Tex.Cr.R. 53, 288 S.W.2d 779 (1956) and May v. State, 151 Tex.Cr.R. 534 ,209 S.W.2d 606 (1948).
The transcript of the testimony in this case does not show that the appellant was admonished in the exact words of the above quoted statute. However, in separate instruments included with the written waiver of jury trial and stipulations made by the appellant is an instrument signed on the date of the trial by the trial judge, which states:
. . The Court:
“5. Asked the Defendant if he had been abused or mistreated in any manner, or promised any favors or hope of pardon or parole as an inducement to enter his plea of guilty, and the Defendant stated that he had not been abused nor mistreated nor promised anything to induce his plea, but that he was entering a plea of guilty because he was guilty and for no other reason;”
The record is sufficient to support the recitation in the judgment meeting the requirement of the statute. Article 26.13, V. A.C.C.P. This ground of error is overruled.
Ground of error number 4 is that “The State erred in the introduction of its entire file without any exclusions, even on a plea of guilty, the exculpatory statements of the appellant recognized in part by two separate writings of the State’s counsel.”
Although the practice is not commended by this court, the State introduced into evidence the entire file concerning this offense.
There do not appear to be any exculpatory statements of the appellant in the file. The “two separate writings” referred to in appellant’s ground of error are actually a letter to one of the appellant’s defense counsel and a memorandum to the district judge concerning the status of the case. These communications indicate that personnel of the District Attorney’s Office believed the appellant was going to interpose a defense of alibi and that a jury trial would be requested. Neither the communications nor any other part of the file indicate any basis for a defense of alibi. The communications merely reveal the defense which it was expected the appellant might employ. The appellant’s argument that the rule applicable here is the same as that requiring the State to disprove exculpatory portions of a confession introduced by the State, is wholly without merit.
The judgment is affirmed.
Opinion Approved by the Court.
. Article 1408, V.A.P.C. provides:
“If any person by assault, or violence, or by putting in fear of life or bodily injury, shall fraudulently take from the person or possession of another any property with intent to appropriate the same to his own use, he shall be punished by confinement in the penitentiary for life, or for a term of not less than five years; and when a firearm or other deadly weapon is used or exhibited in the commission of the offense, the punishment shall be death or by confinement in the penitentiary for any term not less than five years.”
Life imprisonment is not a possible punishment where the offense is robbery by firearms. See Presiding Judge Onion’s concurring opinion in Valdez v. State, 479 S.W.2d 927 (1972).
|
sw2d_482/html/0285-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STEPHENSON, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Joseph Edwin DOYLE, Appellant, v. Emma Mae DOYLE, Appellee.
No. 7302.
Court of Civil Appeals of Texas, Beaumont.
Feb. 3, 1972.
Rehearing Denied Feb. 24, 1972.
Motion to Stay Proceedings Denied April 6, 1972.
Bowen C. Tatum, Jr., Huntsville, W. R. Sessions, Dallas, for appellant.
Boyd & Killough, Dallas, for appellee.
STEPHENSON, Justice.
This is an appeal from a judgment entered upon a jury verdict awarding the wife (plaintiff) a divorce and custody of the minor child. The parties will be referred to here as they were in the trial court.
Defendant’s three points of error are all based upon the premise that it was error for the trial court to hear this case in defendant’s absence. Defendant was an inmate in the Texas Department of Corrections at the time of trial. His motion for a continuance on that ground was denied, as was his motion that the trial judge issue a bench warrant for him to appear.
Defendant filed an asnwer in his own behalf. The motions mentioned above were filed by the firm of attorneys representing defendant in this appeal, who also participated in the jury trial from which this appeal was taken. Defendant argues that he had a fundamental constitutional right to appear personally and defend this divorce action. Apparently, this is a question of first impression in this state.
We have found no provision in the law of this state authorizing a trial judge to issue a bench warrant in a civil case. Art. 275, Vernon’s Ann.Civ.St., provides for the issuance of attachments in specific instances in civil cases, none of which pertain to the situation before us. Art. 24.13, Vernon’s Ann.Code of Criminal Procedure, provides for the attachment of a convict witness in a criminal case. Such latter article makes provision for a hearing before the trial judge in which he must find the ends of justice require the presence of a witness before an attachment is issued. We have been cited no Texas case supporting defendant’s contention. We have concluded the questions as to whether it was error on the part of the trial court to overrule defendant’s motions to continue the case, and to issue a bench warrant, are controlled by the usual “abuse of discretion” rule. As written by Justice Norvell in Hernandez v. Heldenfels, 374 S.W.2d 196, 202 (Tex.Sup.1963):
“The matter of granting a continuance rests within the sound discretion of the trial judge.”
Some of the most recent cases following this rule are: Linton v. Jones, 462 S.W.2d 636 (Tex.Civ.App., Tyler, 1971, no writ), and Estes v. Republic National Bank of Dallas, 450 S.W.2d 397 (Tex.Civ.App., Dallas, 1969), affirmed 462 S.W.2d 273 (Tex.Sup.1970).
The motion for continuance in our record states only that defendant, because of his incarceration, is unable to appear and defend his rights. There is no attempt to show what matters he would testify to if he took the stand as a witness, as provided for in Rule 252. Further, we have no statement of facts and have no way of knowing what testimony the trial court heard as to the ground for divorce and custody of the minor child. Under these circumstances, the defendant has not demonstrated to this court that the trial court abused its discretion in overruling either the motion for continuance or the motion to issue a bench warrant. In any event, defendant has not discharged the burden placed upon him by Rule 434.
Judgment affirmed. |
sw2d_482/html/0287-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "COLEMAN, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Rayburn M. HAMILTON, Appellant, v. Honorable Pat GREGORY, Appellee.
No. 15943.
Court of Civil Appeals of Texas, Houston (1st Dist.).
May 18, 1972.
Rehearing Denied June 29, 1972.
Eugene Chambers, Houston, for appellant.
Joe Resweber, County Atty., John B. Reese, Asst. County Atty., Houston, for appellee.
Joe R. Greenhill, Jr., Houston, for ami-cus curiae.
COLEMAN, Justice.
This is an appeal from a judgment of the District Court of Harris County, Texas, which denied an application for a writ of mandamus to require Judge Pat Gregory of the Probate Court No. 2 to determine in limine whether Depelchin Faith Home has the requisite interest to contest the probate of a will offered for probate by Rayburn M. Hamilton.
Relator filed an application to probate the will of Esther M. Mowrer, Deceased, in the Probate Court No. 2 of Harris County, Texas. Depelchin Faith Home filed a contest in which it was alleged that the Home was a beneficiary under a prior will which had been lost and that the subsequent will was invalid for various reasons. Relator challenged the right of the Home to contest the will for the reason that it was not an “interested person” as required by the Probate Code in such cases, and demanded a separate trial in limine on that issue.
In the meantime Depelchin Faith Home filed an application to probate the lost will. The causes were consolidated for trial. The Probate Court denied the motion for a separate trial in limine. Relator then sought to require such a trial by an action for mandamus filed in the District Court and has appealed from the adverse ruling of that court.
“It is not the policy of the State of Texas to permit those who have no interest in a decedent’s estate to intermed-dle therein. Accordingly it has long been the established practice, when proper demand is made, to require one asserting a right to probate a will to first establish an interest in the estate which would be affected by the probate of such will. . . . It is too well settled to admit of argument that before one may prosecute a proceeding to probate a will or contest such a proceeding he must be, and if called upon to do so must prove that he is, a person interested in the estate. . . . The proper procedure is to try the issue of interest separately and in advance of a trial of the issues affecting the validity of the will . . Womble v. Atkins, 160 Tex. 363, 331 S.W.2d 294 (1960).
The “interest” required must be a pecuniary interest. In Logan v. Thomason, 146 Tex. 37, 202 S.W.2d 212 (1947), the court said:
“. . . Thus the burden is on every person contesting a will ... to allege, and, if required, to prove, that he has some legally ascertained pecuniary interest, real or prospective, absolute or contingent, which will be impaired ., or in some manner materially affected, by the probate of the will
The case of Chalmers v. Gumm, 137 Tex. 467, 154 S.W.2d 640 (1947), was an action to set aside the probate of a will by one alleging himself to be a “nephew and heir at law” of the testator. At the trial in the district court the jury found in answer to the one special issue submitted that the testator was lacking in testamentary capacity on the date the will was executed. The trial court granted a judgment non ob-stante veredicto on the ground that there was no evidence that the contestant had the requisite interest in the estate to authorize him to prosecute the suit. In reversing the case and ordering it remanded to the trial court, the Supreme Court said:
“Our conclusion is that the question of whether or not defendants in error are persons interested in the estate of Fred Erichson so as to be authorized to prosecute the proceeding, should have been raised in limine and before issue was joined on the merits of the case, and that the trial court erred in dismissing the contest on the motion for judgment non obstante veredicto.”
Merely alleging the existence of a prior lost will is not sufficient to show a “legally ascertained pecuniary interest, real or prospective, absolute or contingent” which will be materially affected by the probate of a later will. The word “contingent”, when applied to a devise, bequest, or other legal right or interest, implies that no present interest exists, and that whether such interest or right ever will exist depends upon a future uncertain event. Black’s Law Dictionary (4th Ed.). To show an interest in an estate by reason of a prior will, it is not necessary to develop facts necessary to entitle it to probate. Baptist Foundation of Texas v. Buchanan, 291 S.W.2d 464 (Tex.Civ.App.—Dallas 1956, ref. n. r. e.). However it is necessary that the contestant show that he was named as a beneficiary in a testamentary instrument executed with the formalities required by law, that is, a will.
The refusal of the trial court, on timely demand, to require the contestants of the probate of a will to support by evidence their allegations of interest in an estate is error, which on appeal will require a reversal of a judgment adverse to the proponent of a will. Abrams v. Ross’ Estate, 250 S.W. 1019 (Tex.Com.App.1923).
However it does not follow that the district court, or this court, should issue a writ of mandamus to forestall an error in procedure on the part of the trial court.
“. . . Relator has an adequate remedy by appeal, and writs of mandamus will not issue to forestall or to correct errors of a trial court committed in the course of a trial when the parties have an adequate remedy by appeal
“This case presents an unusual fact situation in which the normal alternative to a declaration of mistrial . . . the entry of judgment ... is not to follow immediately but only after trial of the damage issue. That procedure will entail some delay and additional costs in correcting the error by appeal, but that there may be some delay in getting questions decided through the appellate process, or that court costs may thereby be increased, will not justify intervention by appellate courts through the extraordinary writ of mandamus. Interference is justified only when parties stand to lose their substantial rights. Womack v. Berry, [156 Tex. 44,] 291 S.W.2d 677.” Iley v. Hughes, 158 Tex. 362, 311 S.W.2d 648 (1958).
Relator has an absolute right of appeal from the probate court to the district court, where he will receive a trial de novo. If the probate court fails to allow a proper trial in limine on the issue of interest on part of the contestant, the error can be corrected by the district court. He does not stand to lose his “substantial rights”. The district court did not err in refusing to issue its writ of mandamus.
Affirmed. |
sw2d_482/html/0289-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "BARROW, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
CONFEDERATED LIFE INSURANCE COMPANY et al., Appellants, v. W. Calvin MICKLER, Appellee.
No. 15069.
Court of Civil Appeals of Texas, San Antonio.
May 31, 1972.
Rehearing Denied June 28, 1972.
Tinsman & Houser, Inc., Margaret M. Maisel, San Antonio, for appellants.
Edward E. DeWees, Jr., Haight & DeWees, San Antonio, for appellee.
BARROW, Chief Justice.
A venue action. Appellee brought this suit against Confederated Life Insurance Company, United National Life Insurance Company and Pollard Simons, claiming partial breach of an agency contract. Defendants each filed a Plea of Privilege which were duly controverted and venue asserted under Subdivisions 5, 23 and 29a of Article 1995, Vernon’s Annotated Civil Statutes. The trial court overruled said pleas after a non-jury hearing, and appellants have perfected this appeal. Appellee subsequently dismissed the suit as to United National Life Insurance Company and Pollard Simons; and therefore, we will not consider these parties on this appeal.
On January 1, 1960, appellee, hereinafter referred to as Mickler, entered into a written contract with Consolidated Funeral Service Association of San Antonio whereby he agreed to solicit and sell insurance policies to certain persons residing in a radius of 75 miles of San Antonio. Consolidated agreed to pay certain commissions and renewals on policies sold by Mickler. Consolidated also agreed to pay $50.00 per month for automobile expense and $210.00 per month office salary. It was agreed that this contract should be for the duration of the life of Mickler and was binding on the assigns of each party. On April 1, 1967, Consolidated sold its business to Confederated Life Insurance Company and this contract was expressly approved in writing on behalf of Confederated by H. T. Hahn, Vice President. Mickler continued to work under this contract and was paid pursuant to same until June 30, 1970. He has not been paid the automobile expense or office salary since this date, although he has continued to receive his commissions and renewals.
Confederated is a Texas corporation with its residence and principal place of business in Dallas County. Mickler urges, however, that venue lies in Bexar County under Subdivisions 5 and 23.
It is seen that the written contract does not obligate Confederated, or its assigner Consolidated, to perform the obligation sued upon herein in Bexar County. Therefore, venue may not be sustained in Bexar County under Subdivision 5. 1 McDonald, Texas Civil Practice, Section 4.11.5; Garcia v. Kingsville First Savings & Loan Association, 415 S.W.2d 537 (Tex.Civ.App.—San Antonio 1967, writ dism’d); Stull Chemical Co. v. Capital Southwest Corporation, 408 S.W.2d 535 (Tex.Civ.App.—San Antonio 1966, no writ).
Under Subdivision 23, suit may be brought against a private corporation outside the county of its residence in these situations: (1) in the county where the plaintiff’s cause of action or a part thereof arose; or (2) in the county in which the plaintiff resided at the time the cause of action or part thereof arose, provided such corporation has an agency or representative in such county. The question before us is whether the record supports the implied finding of the trial court that Mickler established, by a preponderance of the evidence all elements of a cause of action, a part of which arose in Bexar County. It is asserted by Confederated that Mickler did not prove the existence of a valid lifetime employment contract as sued on herein. See Nelms v. A & A Liquor Stores, Inc., 445 S.W.2d 256 (Tex.Civ.App.—Eastland 1969, writ ref’d n. r. e.).
The contract in question was entered into between Mickler and Mrs. Joni Jones as Manager Director of Consolidated Funeral Services Association. The minutes of the Board of Directors of Consolidated for August 30, 1956, show Mrs. Jones was authorized by the Board “ . to make all Agent, General Agent and Sales Mgr. contracts.” on behalf of Consolidated. Nowhere in said minutes is there an express approval of the contract Mrs. Jones subsequently made with Mick-ler. However, the court’s implied finding of ratification is supported by the uncon-tradicted testimony that Mickler worked and was paid under the terms of such contract from January 1, 1960, until June 30, 1970. Included is a period of over three years after Confederated purchased the entire business operation of Consolidated. Furthermore, the suit not only seeks a declaration of the rights of the parties under said contract, but seeks recovery of the sum of $2,080.00 allegedly due and owing for services previously performed.
The contract was executed in San Antonio, Bexar County. Mickler was located there and his services were to be performed within a 75-mile radius of San Antonio which would include all of Bexar County. He has shown a breach of the contract and damages as a result thereof. Thus, a part of his cause of action arose in Bexar County so as to establish venue in Bexar County against Confederated under Subdivision 23. 1 McDonald, Texas Civil Practice, Section 4.30.2; Stone Fort National Bank of Nacogdoches v. Forbess, 126 Tex. 568, 91 S.W.2d 674 (Tex.1936); Transit Grain & Commission Co. v. Snapp, 148 S.W.2d 233 (Tex.Civ.App.—Amarillo 1941, no writ). It is unnecessary to consider whether Confederated has an agency or representative in such county.
The order of the trial court is affirmed as to Confederated Life Insurance Company. |
sw2d_482/html/0291-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "JOY, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Wayne H. KEETH, Appellant, v. PHILLIPS PETROLEUM COMPANY, Appellee.
No. 8250.
Court of Civil Appeals of Texas, Amarillo.
June 12, 1972.
Rehearing Denied June 30, 1972.
Edwards & Associates (James R. Edwards), Lubbock, for appellant.
C. J. Roberts and Jerry J. Miller, Gibson, Ochsner, Adkins, Harlan & Hankins (Joe Harlan), Amarillo, for appellee.
JOY, Justice.
This suit was initiated by plaintiff-appellant for injuries suffered in an accident while unloading pipe from the defendant-appellee’s truck. The trial court granted appellee’s motion for an instructed verdict and appellant prosecuted this appeal.
Affirmed.
Phillips Petroleum Company, defendant-appellee, ordered one of its truck drivers, Mr. Braymer, to deliver pipe to a job site where appellee was having a plant addition constructed. Pursuant to his instructions, Braymer obtained pipe from two or three pipe suppliers. Braymer assisted in the loading of the pipe onto the truck. On October 11, 1968, Braymer drove the pipe load from Borger, Texas, to the construction site near Dumas, Texas. Upon his arrival at the job site with the load of pipe, Braymer parked the truck and a crew of pipe fitters, employed by Robinson Industrial Contractors, was assigned by their foreman to help in the unloading operations. Mr. Keeth, appellant, was a member of that crew. The “boomer” chains, which were used to help secure the pipe onto the trailer, were removed. Keeth and Mr. Taylor, Robinson Industrial Contractors’ foreman who supervised Keeth’s work, mounted the truck and unloaded two or three joints of pipe. Keeth was positioned in front of the load or between the cab and the pipe and Taylor was to the rear of the load. Taylor stepped down from the truck bed and ordered Mr. Atchison, another member of the crew, onto the truck to assist with the unloading operations. Atchi-son climbed onto the back of the truck as instructed. Moments later the pipe “swarmed,” knocking Keeth to the ground causing him severe bodily injuries.
Keeth’s negligence action, a suit for damages sustained in the accident, is primarily based on Phillips’ alleged negligence in the improper loading of the pipe by its agent, employee or servant. Testimony in the trial court revealed that the pipe were randomly loaded, i. e., small pipes scattered throughout the load so that large pipes, ten to fourteen inches in diameter, were resting on small pipes, one to one and a half inches in diameter. It was also established that there were approximately three rows of pipe stacked horizontally on the truck’s trailer. The row uppermost from the bed of the trailer contained several joints of larger pipe, one of them containing about ten joints of smaller one or one and a half inch pipes. The larger pipe bearing the smaller pipe was five feet shorter than the smaller pipe that were loaded into it.
Taylor, appellant’s supervising foreman, a man with 27 years of experience as a pipe fitter, was asked on direct examination to illustrate his testimony by sketching the random method by which the pipe was loaded on the truck. The sketch by Taylor was drawn from the perspective of one looking at the back of the loaded pipe. It revealed a random load of pipe with some small pipe on the bottom of the load as well as small pipe being intermixed throughout the load of larger and smaller pipe. Furthermore, the sketch indicated that near the top of the load there was a large pipe with a smaller pipe placed inside. This diagram was admitted into evidence as plaintiff’s exhibit number one. Taylor further testified that the pipe loaded as depicted in his sketch is a hazardous method of loading pipe. On cross-examination, Taylor admitted to having made an inspection of the pipe load.
Appellant’s sole contention on appeal is that the trial court erred in instructing a verdict for appellee because there were unresolved issues of fact pertaining to the dangerous condition of the load, knowledge on the part of appellant’s supervisor and the supervisor’s appreciation of the danger of the condition.
It is beyond dispute in this state that an occupier of land or premises owes a duty to his invitees to keep his land or premises in a reasonably safe condition for his invitees. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425 (1950). Also, well established is that if dangers are present which are not open and obvious, the occupier is under a duty to take such precautions as a reasonably prudent person would take to protect his invitees therefrom or to warn them of the same. Halepeska v. Callihan Interests, Inc., 371 S.W.2d 368 (Tex.Sup.1963); Western Auto Supply Company v. Campbell, 373 S.W.2d 735 (Tex.Sup.1963). When any duty is owed to an occupier’s invitees, including the employees of an independent contractor, to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, full knowledge of the dangerous condition on the part of the invitees, or the independent contractor, as the case may be, will discharge the duty to warn. Delhi-Taylor Oil Corporation v. Henry, 416 S.W.2d 390 (Tex.Sup.1967); cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L.Ed.2d 667 (1967); cert. reh. denied, 390 U.S. 975, 88 S.Ct. 1023, 19 L.Ed.2d 1192 (1968).
Taylor, appellant’s foreman, had made an inspection of the pipeload before the unloading began and testified that such a method of loading pipe was hazardous. He testified that based upon his knowledge and past experience that it is an unsafe practice to load small pipe inside of larger pipe. Therefore, Taylor, by his testimony and graphic drawing, demonstrated that he had full knowledge of the method and manner in which the pipe were loaded and that the condition as presented involved risk and danger. This knowledge of the unsafe and hazardous condition of the pipe load would necessarily include the specific danger of the propensity of the pipe to “swarm.” At that point in time Taylor’s knowledge and appreciation of the condition and danger inherent in the way the pipe were loaded would be equivalent to that of the appellee and would discharge any duty on the part of appellee to warn him. There is no evidence to refute the supervisor’s testimony as to his knowledge and appreciation before any pipe had been unloaded. Taylor did testify that after he had helped to unload two joints of pipe, “I seen that the load was not going to shift, it looked to be safe and so I got down from the truck and I gave the bar to George At-chison and instructed him to get up and help finish with the unloading.” However, the foreman’s subsequent acts of helping to unload two joints of pipe were after he had full knowledge of the risk involved and would not impose a duty to warn where that duty, as a matter of law, no longer existed.
That Taylor’s knowledge and appreciation of the danger, as appellant’s supervising foreman, would discharge any duty owed appellant by appellee is settled by the case of Delhi-Taylor Oil Corporation v. Henry, supra, wherein it is stated at page 394:
“. . . While an owner owes a duty to employees of an independent contractor to take reasonable precautions to protect them from hidden dangers on the premises or to warn them thereof, an adequate warning to or full knowledge by the independent contractor of the dangers should and will be held to discharge the landowner’s alternative duty to warn the employees.”
<1 * * ⅝ * * »
“. . . To impose the duty on the owner or occupier of the premises to know and to warn every workman on the project of a dangerous condition would subject him to an impossible burden.
Appellee should not be put under the onerous burden of warning each employee of the independent contractor when the danger was as well known to the supervisor or foreman of the contractor as it was to the landowner, or occupier of the premises. Tyler v. McDaniel, 386 S.W.2d 552 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e.). Knowledge on the part of the foreman imposed a duty on the independent contractor to warn appellant and discharged any duty to warn on the part of the appellee. Delhi-Taylor Oil Corporation v. Henry, supra. Assuming a duty to warn had initially existed on the part of appellee, this duty was discharged notwithstanding the fact that Taylor may have failed to transmit a warning of the specific danger to appellant. The evidence of the case before us, considered in conjunction with the applicable principles of law enunciated in the Delhi-Taylor case, establishes that the knowledge and appreciation of appellant’s supervisor discharged any duty, as a matter of law, on the part of appellee to warn appellant.
The evidence reviewed in light most favorable to appellant’s position does not present unresolved facts as to the issues relied upon by appellants. Any duty owed appellant by appellee was discharged as a matter of law and the trial court was correct in directing a verdict against appellant and for appellee. Appellant’s sole point of error is overruled.
The judgment of the trial court is affirmed.
. The only definition of the term “swarm” found in the record is in the testimony of plaintiff’s expert witness, Luther D. Hall, who testified as follows: “It’s [the pipe] liable to come off this way, sideways, (indicating).” Apparently, the word is used in the pipe fitter’s vernacular to describe a situation where a load of pipe comes off a truck in an unpredictable and uncontrollable manner.
|
sw2d_482/html/0295-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "BREWSTER, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Bobby M. BURNS, Appellant, v. Edgar A. WOOD, Appellee.
No. 17322.
Court of Civil Appeals of Texas, Fort Worth.
June 23, 1972.
Rehearing Denied July 21, 1972.
Protho & Sellers and Lee Sellers, Wichita Falls, for appellant.
Banner & McIntosh, Fillmore, Lambert, Farabee & Purtle, Wichita Falls; DeLange, Hudspeth, Pitman & Katz, and Eugene J. Pitman, Houston, for appellee.
OPINION
BREWSTER, Justice.
This case involves restrictive covenants. The plaintiff, Bobby M. Burns, sued defendant, Edgar A. Wood, for an injunction to keep the latter from building and operating multi-unit apartment houses on certain land owned by Wood.
Following a jury trial judgment was rendered to the effect that the plaintiff, Burns, and two intervenors, Dubose Pipes and James H. Watson, take nothing by their suit. This is an appeal by the plaintiff, Burns, from that decree. Intervenors, Pipes and Watson, did not appeal.
Plaintiff had alleged in substance that in 1926 a corporation, Park Place Realty Company, had platted and dedicated a tract of land that it then owned into an addition known as Park Place Subdivision, an addition to the City of Wichita Falls, Texas; that plaintiff owns certain blocks that are a part of that addition and that plaintiff holds title in privity with and under a regular chain of title from Park Place Realty Company, the dedicator; that defendant owns Lot 7-A in Block 9 of Singleton Addition, Section 3, which property is also located in Park Place Subdivision; that Singleton Addition, Section 3, is a part of a replat of Park Place Subdivision; that defendant’s property is subject to restrictive covenants imposed by the plat and dedication of Park Place Subdivision which covenants prevent the construction and operation of apartment houses on defendant’s land; and that defendant acquired his land by a chain of conveyances originating with Park Place Realty Company.
The defendant had admittedly started construction of apartment houses on his lot not long before plaintiff brought this suit to enjoin such construction.
Plaintiff on this appeal urges five points of error. His first point is that the trial court erred in overruling plaintiff’s motion for judgment notwithstanding the verdict. Plaintiff contends in three of his points of error that the trial court committed reversible error in three separate instances in overruling his objections to certain evidence. In his other point of error plaintiff contends that the court committed reversible error in sustaining defendant’s objection to certain evidence offered by the plaintiff.
The defendant (appellee) replies that the trial court did not err in overruling plaintiff’s motion for a judgment notwithstanding the verdict because the plaintiff, upon the trial, did not offer sufficient evidence to establish even a prima facie case entitling him to have the defendant enjoined from constructing the apartment houses. Defendant says that since plaintiff did not offer sufficient evidence to establish prima facie his right to the relief sought that the defendant was for that reason entitled to judgment and that the court therefore properly overruled plaintiff’s motion for judgment and properly rendered the take nothing judgment. Defendant’s reply to the points of error relating to the overruling of plaintiff’s objection to evidence is that such rulings, even if erroneous, could not be harmful or reversible error because at the conclusion of all the evidence offered the defendant was entitled to an instructed verdict anyway. He says that since this was true the plaintiff could not have been harmed by admitting the evidence.
We have concluded that defendant’s contentions are correct.
The burden of proof was upon the plaintiff, who is seeking to enforce the restrictive covenant on defendant’s land, to prove that the defendant’s land is in fact legally burdened with such restriction, and further, that such restriction was imposed upon defendant’s land for the benefit of land owned by the plaintiff. McCart v. Cain, 416 S.W.2d 463 (Fort Worth Civ.App.1967, ref., n. r. e.); Jobe v. Watkins, 458 S.W.2d 945 (Fort Worth Civ.App.1970, ref., n. r. e.); and Brehmer v. City of Kerrville, 320 S.W.2d 193 (San Antonio Civ.App.1959, no writ hist.).
The plaintiff in this case introduced into evidence a plat and dedication which recited that it was executed in 1926 by Park Place Realty Company, a corporation. The plat and dedication purported to dedicate the tract of land therein described as “. . . Park Place Subdivision of a portion of the J. A. Scott Surveys Nos. Eight (8) and Nine (9), Wichita County, Texas, . . .” and undertook to impose the restrictions in question on the use of the land.
Proof was offered that both the defendant’s lot in question and the land owned by the plaintiff were located within the boundaries of the tract of land covered by this plat and dedication.
But there was no evidence offered during the trial, other than this plat and dedication referred to, that tends to prove that this corporation, Park Place Realty Company, was in fact the owner of the land involved and that by reason of being the owner that it had a right to burden such land with restrictive covenants.
There was no evidence tending to show that Park Place Realty Company was the common source of title of the lots owned by both plaintiff and defendant. There was no evidence tending to show that Park Place Realty Company was even in the chain of title to either the lot owned by the plaintiff or the one owned by defendant or that either the plaintiff or the defendant held title to their land in privity with and under a regular chain of title from Park Place Realty Company.
The plaintiff was not a party to the 1926 plat and dedication of Park Place Subdivision by Park Place Realty Company. It is contended that the restrictions in question were imposed on defendant’s lot by means of that plat and dedication. In order to establish that he was entitled to enforce the restrictions involved, it was therefore necessary for plaintiff to prove that he held his land in the addition in privity with and under a regular chain of title from Park Place Realty Company. Taylor v. McLennan County Crippled Children’s Ass’n, 206 S.W.2d 632 (Waco Civ.App.1947, ref., n. r. e.). He had to do this in order to establish the essential element of his cause of action, to-wit: that he was the owner of land for the benefit of which the dedicator imposed the restrictions in question on defendant’s land. Davis v. Skipper, 125 Tex. 364, 83 S.W.2d 318 (Tex.Com.App.1935) and Jobe v. Watkins, supra, and cases therein cited. The evidence offered by plaintiff was not sufficient to make out a prima facie case on this element of his cause of action.
43 C.J.S. Injunctions § 87(2), p. 582: “While it is not necessary that complainant should be a direct party to the covenant sought to be enforced, it is necessary that he should have bought with notice of, and in reliance on, it, and that the covenant should have been entered into for the benefit of the land complainant owns,
It was also essential in proving plaintiff’s case that he prove that Park Place Realty Company was in the chain of title to defendant’s property. If that corporation under the facts of this case, was not in defendant’s chain of title, then the restrictions sought to be imposed on defendant’s lot by Park Place Realty Company would be invalid and inoperative against defendant’s property.
Also, proof simply of the fact that Park Place Realty Company filed in 1926 a plat and dedication purporting to dedicate the tract therein described as Park Place Subdivision and purporting to burden the lots therein described with restrictive covenants is not sufficient to establish that Park Place Realty Company was in fact the owner of the land in question, and was not sufficient evidence to prove that it had a legal right to burden the land therein described with such restrictions.
Plaintiff made no effort to prove that there was a regular chain of title to defendant’s lot from Park Place Realty Company into the defendant and he made no effort to prove a regular chain of title to plaintiff’s lot running from Park Place Realty Company into the plaintiff.
He simply started his proof with Park Place Realty Company by proving that in 1926 that company undertook by the plat and dedication to dedicate the land and to restrict it. He next offered deeds dated many years later from plaintiff’s and defendant’s immediate grantors, who in neither instance was Park Place Realty Company. No attempt was made to prove the missing links in these titles or to connect them back to Park Place Realty Company.
The plaintiff had pleaded that both he and defendant had through regular chains of conveyances derived title to their respective tracts from and through Park Place Realty Company, but at the trial he made no effort to prove it other than as above demonstrated.
We hold, for the reasons stated, that the evidence offered was insufficient to establish that defendant’s land is legally burdened with the restrictions that are sought to be enforced against it.
In addition, the plaintiff during the trial did not prove the sale and conveyance by Park Place Realty Company of a single lot purporting to have been created by the plat and dedication. There was no showing at all that anyone ever bought a single one of the lots from that corporation in reliance on or with respect to the plat and the restrictions and thus there was no showing that any general plan or scheme was ever implemented or carried into effect. No proof was made that even a single deed in the chain of title to the land of either plaintiff or defendant was ever executed that either contained or referred to the restrictions that are here sought to be enforced. It was essential to plaintiff’s case that he prove prima facie the implementation of the general plan or scheme and we hold that he did not offer sufficient evidence to do it. Gibbs v. Garden Oaks Board of Trustees, 459 S.W.2d 478 (Houston Civ.App.1970, ref., n. r. e.), and cases therein cited.
Plaintiff did not prove a prima facie case entitling him to the relief sought, as is demonstrated above, and the court therefore properly overruled his motion for judgment notwithstanding the verdict and properly rendered judgment against him. We therefore overrule plaintiff’s first point.
In plaintiff’s points of error Nos. 2, 3, and 5, he claims reversible error was committed by the trial court in overruling objections that he made to certain evidence offered by defendant during the trial. We overrule each of those points because even if the court did err in admitting such evidence no harm could have been thereby caused to plaintiff in view of the fact that he did not offer sufficient evidence upon the trial to entitle him to go to the jury with his case. A losing party cannot be heard to complain of any error committed on the trial where he is not entitled to recover in any event. Riggs v. Riggs, 322 S.W.2d 571 (Dallas Civ.App.1959, no writ hist.) and many cases cited in 4A Texas Digest, Appeal & Error, <S=31029.
In plaintiff’s point of error No. 4 he contends that the trial court erred in sustaining defendant’s objection to testimony of the plaintiff and of the intervenors as to their opinions of the effect on their property of the construction of the apartments on defendant’s property. We overrule the point. We are convinced that this point does not demonstrate prejudicial or reversible error in view of the record made.
The judgment is affirmed. |
sw2d_482/html/0299-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SHARPE, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James G. BETTS et al., Appellants, v. Jerry Lynn BALDWIN, Appellee.
No. 711.
Court of Civil Appeals of Texas, Corpus Christi.
June 8, 1972.
Balasco & Balasco, Richard S. Garfin-kel, Houston, for James G. Betts.
W. Porter Bondies, Houston, for Austin Bridge Co.
Cullen, Carsner, Edwards, Williams & Stevenson, Donald Edwards, Victoria, for appellee.
OPINION
SHARPE, Justice.
This appeal is from a judgment rendered after jury trial that appellants take nothing from appellee.
Plaintiff-appellant James G. Betts, instituted this suit in the 135th District Court of Victoria County, Texas (Cause No. 18135) against the defendant, Jerry Lynn Baldwin, to recover damages for personal injuries sustained in an automobile collision which occurred on September 20, 1967, at approximately 8:45 a. m. on the Arenosa Bridge on U.S. Highway No. 59 at a point 15 miles northeast of Victoria, Texas. Austin Bridge Company also instituted a suit in the 24th District Court of Victoria County, Texas (Cause No. 18146) against Jerry Lynn Baldwin, to recover damages sustained to its truck which James G. Betts was driving. The two causes were consolidated under No. 18135.
The cause was submitted to the jury on twenty special issues with the following results; the special issue numbers being indicated in parenthesis. The jury refused to find: (1) That Jerry Lynn Baldwin failed to keep a proper lookout; (3) That Jerry Lynn Baldwin was driving at a greater speed than a person using ordinary care would have driven; (5) That Jerry Lynn Baldwin failed to make such application of the brakes as a person using ordinary care would have made. The jury found: (7) That Jerry Lynn Baldwin was following the vehicle ahead (driven by Betts) more closely than a person using ordinary care would have followed under the same or similar circumstances; but refused to find (8) That such action was a proximate cause of the occurrence in question. The jury further refused to find: (9) That Jerry Lynn Baldwin negligently attempted to overtake and pass the vehicle driven by James G. Betts. The jury found (11) That Jerry Lynn Baldwin was confronted by a sudden emergency; (12) That after such sudden emergency arose, Jerry Lynn Baldwin acted as a person of ordinary prudence would have acted under the same or similar circumstances; (13) That such sudden emergency was not the sole proximate cause of the occurrence in question. The jury refused to find: (14) That James G. Betts failed to keep a proper lookout; (16) That James G. Betts failed to keep his vehicle completely within the right half of the roadway. The jury found (18) That from a preponderance of the evidence, the reasonable expenses for necessary medical and hospital care received by James G. Betts in the past for treatment was $0.00 Dollars; (19) That from a preponderance of the evidence, reasonable compensation for necessary medical and hospital care which James G. Betts would, in reasonable probability, require in the future was $0.00 Dollars; (20) That from a preponderance of the evidence, James G. Betts suffered $0.00 Dollars on general damages for: (a) Past pain and mental anguish; (b) Future pain and mental anguish; (c) Loss of earnings in the past; and (d) Loss of earning capacity in the future. Issues Nos. 2, 4, 6, 10, 15 and 17 were submitted conditioned upon an affirmative finding of each respective immediately preceding issue and were properly left unanswered by the jury.
Analysis of the verdict reflects that the jury failed to find liability in favor of Betts against Baldwin.
The collision in question occurred on the Arenosa Bridge, on U.S. Highway 59 about fifteen miles east of Victoria, Texas. Three vehicles were involved. Baldwin and Betts were travelling in the same direction, generally southward toward Victoria, Texas. The third vehicle, a large truck, was travelling generally northward, toward Edna, Texas. Prior to the collision or collisions, Baldwin had been following the Betts vehicle for a mile or more. Four witnesses testified on the trial of the case. They were James G. Betts, plaintiff-appellant, Jerry Lynn Baldwin, defendant-appel-lee; Maxie Ward, a Texas Highway Patrolman, who made an investigation of the accident, and Dr. Jerome C. Hohf who treated Betts after the accident. Some conflicts existed between the testimony of Betts and Baldwin concerning the details of the accident. However, it is undisputed that at one time the front end of Baldwin’s car collided with the rear end of Betts’ vehicle. The testimony of the witnesses concerning the accident will be more fully discussed in connection with appellant Betts’ contentions under his points ten, eleven and twelve.
We will first consider the appeal of James G. Betts, who asserts thirteen points of error. The first nine points complain of the jury answers to special issues numbers 18, 19, 20, (the damage issues), asserting in substance that the trial court erred in accepting the jury verdict on those issues; in failing to grant a mistrial; that plaintiff was entitled to some money damages for his injuries; and that the evidence is legally and factually insufficient to support the jury findings mentioned. In connection with appellant Betts’ first nine points, appellee contends that the failure of the jury to award damages is immaterial because the verdict will not support a judgment for appellant in any event, and that the trial court did not err in accepting the jury verdict on the damage issues and in failing to grant a mistrial based thereon. We agree with appellee. This is not a case wherein liability was found against the defendant and the evidence established that the plaintiff was entitled to a jury award in some amount on the damage issues. See Gallegos v. Clegg, 417 S.W.2d 347 (Tex.Civ.App., Corpus Christi, 1967, wr. ref. n. r. e.) and cases therein cited. Instead, we are dealing with a case wherein liability was not established against the defendant (which subject is to be more fully hereinafter discussed) and the answers to the damage issues therefore became immaterial. Southern Pine Lumber Co. v. Andrade, 132 Tex. 372, 124 S.W.2d 334 (1939). The first nine points of appellant Betts are overruled.
Appellant’s points ten, eleven and twelve complain of the jury answer to special issue No. 8, contending in substance that the trial court erred in accepting the verdict on that issue in that appellant was entitled to an affirmative answer as a matter of law, and that the evidence was legally and factually insufficient to support the jury answer which in effect refused to find that Baldwin’s action in following the vehicle ahead (Betts’ automobile) more closely than a person using ordinary care would have followed under the same or similar circumstances, was a proximate cause of the occurrence in question. In connection with appellant Betts’ points ten, eleven and twelve appellee contends that Betts was not entitled to an affirmative answer to special issue No. 8 as a matter of law and that the evidence was legally and factually sufficient to support the jury answer to that issue which refused to find Baldwin’s conduct was a proximate cause. We also agree with appellee’s contentions on this phase of the case.
The material testimony of Jerry Lynn Baldwin was in substance as follows: On the morning of September 20, 1967 he left Houston, Texas, in his automobile at about 5 o’clock a. m. to go to Victoria, Texas. He stopped at Edna, Texas, for a cup of coffee. The weather was bad and it was raining hard. The headlights of his car were turned on. About one mile before reaching the bridge where the accident later occurred, he saw a pickup truck in front of him. The pickup was driving slowly and Baldwin cut the speed of his car to about fifty miles per hour. As the vehicles entered the bridge Baldwin saw a truck with its lights on at the other end of the bridge travelling in the opposite direction. At that time Baldwin said he was about three car lengths behind the pickup truck driven by Betts. Baldwin testified that the truck approaching from the opposite direction “was hugging the middle of the bridge likewise as the pickup.” Baldwin said he noticed a possible collision was in the making and he honked his horn and hit his brakes. Baldwin also said “The pickup and the truck collided, front fender, or portion of the front of each vehicle on the driver’s side.” Baldwin’s car then hit the pickup driven by Betts and thereafter collided with the back wheel of the oncoming tandem trailer. After the accident he was taken in an ambulance, along with Betts, to the hospital at Ganado. Baldwin said that he and Betts were both at the scene of the accident when the officer arrived.
The material testimony of James G. Betts was in substance as follows: On September 20, 1967 he was job superintendent for Austin Bridge Company. He was driving a company pickup truck toward the town of Inez. He intended to get some gasoline, go to Edna and then to Dallas to get out of the way of Hurricane Beulah which was apparently then approaching the area. He was headed toward Victoria when the accident happened. He was driving about 25-30 miles per hour because it was dark and raining hard. Betts testified “I felt something hit me from the rear. It knocked me over against the door of the truck and I went out. I don’t remember anything until I woke up in the ambulance. The first time I woke up.” Betts said he remembered a fellow trying to get his boot off and “I went back out”. The next time he woke up was in the hospital, where he remained for three days. Betts said that while he was in the hospital Baldwin talked to him and in part said:
“A . . He said, T was driving down the road doing about eighty-five and I throwed on my brakes and I did everything to stop. I even pulled my hand brake on. But I hit you in the rear and knocked you into this truck, and that is the way it happened.’ He said, ‘Your truck was cross ways in the road and my car was over here.’ And he told me exactly what I hit. It was a truck with a concrete beam on it. And that’s my first knowledge of knowing what I had hit.
Q Did he say anything else ?
A That’s about the extent of it that I can recall.”
It should be noted that Baldwin denied making the statements attributed to him by Betts.
Maxie Ward testified in substance that he was a State Highway Patrolman who was at the time of trial stationed in Bryan, Texas. In September 1967 he was stationed at Edna, Texas. He was notified of the accident in question on September 20, 1967 at about 9 o’clock a. m. He proceeded to the scene of the accident and made an investigation. He found, among other things, the three vehicles which had been involved in the collision or collisions. Ward testified generally about what he observed at the scene of the accident and to some extent about his conversations with Betts and Baldwin at the hospital at Gana-do, Texas. There were some conflicts between the testimony given by Ward, Betts and Baldwin. Ward made some preliminary notes at the scene of the accident and made out the main accident report seven days later. The investigation made by Ward was undisputedly carried out under adverse weather conditions. Some portions of his testimony could be construed favorably to Betts and others to Baldwin.
The jury was entitled to accept Baldwin’s version of how the accident happened. In particular, the jury was entitled to believe that before any collision between the vehicles driven by Betts and Baldwin that the Betts vehicle had collided with the truck travelling in the opposite direction; that the conduct of Baldwin was not the proximate cause of the injuries and damages to Betts but, on the other hand, were due to the first collision hereinabove mentioned. We therefore hold that the evidence did not establish as a matter of law that Baldwin’s conduct (in following Betts’ vehicle more closely than a person using ordinary care would have followed under the same or similar circumstances) was a proximate cause of the occurrence in question. The evidence relating to the answer of the jury to special issue No. 8 (refusal to find proximate cause) is not legally or factually insufficient to support the verdict in such respect. Appellants’ points ten, eleven and twelve are overruled.
Betts’ thirteenth point of error asserts that the trial court erred in accepting the verdict of the jury and in failing to grant a mistrial and in entering judgment for defendant (Baldwin) in that, on its. face, the verdict of the jury, taken as a whole, would show that it was the result of the jury’s prejudice, bias and vindictiveness, and was calculated to deny plaintiff (Betts) any recovery, rather than its being based on a preponderance of the evidence. The point is multifarious and we are not required to consider it. However, it appears that Betts’ thirteenth point in any event is largely a summary of contentions made under other points which other contentions we have held to be without merit. Further, there is no evidence to support the contention that the verdict was a result of jury prejudice, bias and vindictiveness calculated to deny a recovery to plaintiff, rather than being based on a preponderance of the evidence. The verdict was well within the functions entrusted to the jury as the fact-finder in this case. Betts’ thirteenth point is overruled.
We now pass to a discussion of the appeal of Austin Bridge Company. That appellant’s cause of action against Baldwin was based upon damages to its pickup truck which was being driven by Betts at the time of the accident. Austin Bridge Company asserts five points of error. We overrule the first three of these points because they involve substantially the same contentions concerning the jury answer to special issue No. 8 as are made by appellant Betts in his points ten, eleven and twelve, which we have held to be without merit.
The fourth point of error asserted by Austin Bridge Company reads as follows:
“The trial court erred in rendering judgment for defendant, and in not rendering judgment for plaintiffs or alternatively in not granting a mistrial or new trial, because sudden emergency was submitted to and answered by the jury below as a separate defense instead of being considered by the jury under instructions of the court as an explanation or excuse for defendant’s too close following found by the jury, and the jury in answering that sudden emergency was not the sole cause where obviously mindful of their answer to Special Issue No. 7 and this in all reasonable probability caused their legal opinion rendered in answer to Issue No. 8, or at least was calculated to and did influence the same, or confuse them in answering the same.”
The instant case was tried on April 5, 6 and 7, 1971 prior to the decision of our Supreme Court in Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup.1971). We have heretofore mentioned the sudden emergency issues and the jury answers thereto in the case now before this Court, submitted in special issues eleven through thirteen. Austin Bridge Company or James Betts did not object in any way to the submission of issues eleven through thirteen and did not request any instructions or definitions in such connection. The contention of Austin Bridge Company in connection with the emergency issues apparently narrows to the argument that the jury answer to special issue No. 8 was influenced by or was the result of confusion caused by submission of the emergency issues. We do not agree. There is nothing in the record to support the contention made by Austin Bridge Company that the answer to special issue No. 8 was the result of confusion or was influenced by the answers to the emergency issues. The submission of issues eleven through thirteen at most present harmless error. Austin Bridge Company’s fourth point is overruled.
The fifth point of error asserted by Austin Bridge Company reads as follows:
“The trial court erred in rendering judgment for defendant and not in favor of plaintiff Austin Bridge Company in the sum of $1,000.00 and costs, said plaintiff having sued for $2,500.00 including damages to its truck and loss of the use thereof and of the services of the plaintiff Betts its foreman, and having entered into a stipulation approved by the trial court to the effect that if the plaintiff Betts is entitled to judgment, the plaintiff Austin Bridge Company shall receive judgment for $1,000.00 ‘so that the necessity of submitting issues thereon would be removed’.”
At the beginning of the trial and out of the presence of the jury it was stipulated between counsel for Austin Bridge Company and counsel for Baldwin “that if plaintiff, Betts, receives a judgment in his favor Austin Bridge Company will receive judgment for one thousand dollars agreed to be the property damage to its truck.” The judgment in substance recited that stipulation along with a recitation reading “ — so that the necessity of submitting issues thereon would be removed . . .”. Austin Bridge Company now argues that the take-nothing judgment against it should be reversed and judgment here rendered in its favor for $1,000.00. We do not agree. In the absence of a judgment in favor of Betts, appellant Austin Bridge Company, in view of the stipulation, was not entitled to judgment against Baldwin. The fifth point of Austin Bridge Company is overruled.
The judgment of the trial court is affirmed. |
sw2d_482/html/0304-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "REYNOLDS, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James G. ELLISON et al., Appellants, v. H. M. McGLAUN et al., Appellees.
No. 8267.
Court of Civil Appeals of Texas, Amarillo.
June 5, 1972.
Rehearing Denied June 30, 1972.
Stokes, Carnahan & Fields (Robert N. Carnahan), Amarillo, for appellants.
Gibson, Ochsner, Adkins, Harlan & Hankins, Jewett E. Huff, Amarillo, George J. Jennings, Sr., Tulia, for appellees.
ON MOTION FOR REHEARING
REYNOLDS, Justice.
Appellees’ motion for rehearing is granted, and our opinion released on May I, 1972, is withdrawn.
While the motion for rehearing was pending, appellees were granted leave to file a supplemental transcript. An examination of this transcript reveals matters that were not before, and could not have been considered by, the trial court at the time its judgment was rendered; therefore, the supplemental transcript has not been considered in the disposition of this appeal.
Appellants James G. Ellison, George D. Hipp and Troy Burson present this appeal from a summary judgment rendered in favor of appellees H. M. McGlaun and George J. Jennings. Appellants’ suit grounded in the fraudulent concealment of a $10,000.00 indebtedness asserted against certain property they purchased, and for $10,000.00 resulting damages, and alternatively for a declaration of the nullity of the indebtedness and the deed of trust securing payment of the same, was summarily determined against them; summary judgment establishing the amount of indebtedness and granting foreclosure of the deed of trust lien was rendered for appellees. Appellants’ one designated point of error is that the trial court erred in rendering summary judgment for appellees and not for appellants, and alternatively that there are fact issues to be tried. Affirmed.
The record reveals that appellee H. M. McGlaun and N. H. Baldwin had formed a partnership to sell and service farm machinery, and later McGlaun, Baldwin and George Jennings, Jr., incorporated the business as Tulia Machinery Co., Inc., but no corporate stock was issued. McGlaun owned Lots Seven through Ten (7-10) and Twenty-three through Thirty-two (23-32) in Block Two (2) of the Santa Fe Addition to the Town of Tulia, in Swisher County, Texas. The intricate progression of events culminating in the summary judgment was inaugurated on January 1, 1960, when McGlaun and his wife conveyed an undivided one-half interest in this real property to N. H. Baldwin for $10,000.00, payment of which was deferred. The conveyance was by warranty deed in which the vendor’s lien was reserved to secure the payment of Baldwin’s debt evidenced by his $10,000.00 vendor’s lien note, bearing interest at the rate of six per cent (6%) per annum, and payable to the order of Mc-Glaun on or before ten (10) years after date. It was contemplated that Baldwin would pay the deferred purchase price consideration by payments made from his income from the business, but no payments were made. Baldwin and his wife executed a deed of trust dated January 1, 1960, to further secure the payment of the purchase price indebtedness.
On August 8, 1960, McGlaun and Baldwin, joined by their wives, executed a warranty deed conveying the lots, subject to the deed of trust executed by Baldwin and his wife, to the corporation. Both warranty deeds, together with an agreement executed by McGlaun on October 19, 1960, reciting the $10,000.00 note and vendor’s and deed of trust liens and subordinating them to a proposed first lien to be given on the corporate property to The First National Bank of Tulia, Texas, were recorded on October 24, 1960. The deed of trust was not then recorded.
The corporation’s business did not prosper as anticipated. The three incorporators entered into a written agreement dated March 27, 1961, to which the corporation was made a party, with Oscar Weaks and appellants George D. Hipp and Troy Bur-son. The agreement specified that no corporate stock had been issued and then provided for the conveyance to the corporation of the interest of the three incorporators in the corporation, after which Baldwin and Jennings, Jr., would own no interest therein. The instrument recognized that there were corporate debts and obligations, including a Dealers Sales Contract and Purchase Agreement with a farm machinery manufacturer for which certain of the signatories were personally liable, and stated that the authorized corporate stock would be issued in amounts to be determined to McGlaun, Weaks, Hipp and Burson. The instrument agreed to hold Baldwin harmless from liability under the Dealers Sales Contract and Purchase Agreement. The document then provided:
“For the same consideration, Tulia Machinery Co., Inc., H. M. McGlaun, Oscar Weaks, George D. Hipps (sic), and Troy Burson do hereby release H. N. (sic) Baldwin and George Jennings, Jr. from any liability of any kind or character to said corporation or to said persons individually from any claim of any kind made by the said corporation or said persons individually against H. N. (sic) Baldwin and George Jennings, Jr.”
The instrument further provided for the execution of all instruments necessary to the full execution of the agreement.
By warranty deed dated July 30, 1964, and recorded on November 23, 1964, the corporation conveyed the lots described above to Hipp and Burson. This deed made no reference to the $10,000.00 vendor’s lien note, the vendor’s lien or the deed of trust. In late 1965, Hipp and Burson entered into negotiations with appellant James G. Ellison for the sale and purchase of the lots. Under date of December 10, 1965, attorney George J. Jennings, Jr., prepared a written title opinion directed to Ellison, listing among other title objections the vendor’s lien retained in McGlaun’s January 1, 1960 warranty deed as an objection to Hipp and Burson’s title and requiring a release thereof. Subsequently, on December 22, 1965, Ellison, Hipp and Burson met in attorney Jennings’ office and Hipp and Burson executed a letter agreement addressed to Ellison acknowledging the completed sale and that they were unable at that time to furnish Ellison a release of the vendor’s lien. In the letter, Hipp and Burson agreed to furnish a release of the vendor’s lien within 60 days or, if necessary, to clear the title by a trespass to try title suit filed at the end of the 60-day period, without cost to Ellison, and further agreed to hold Ellison harmless from liability that might arise out of the note and lien.
The vendor’s lien not having been released, Hipp and Burson, at Ellison’s insistence and with his knowledge, instituted suit under cause no. 4625 against McGlaun in January, 1967. Thereafter, an undivided one-half interest in the $10,000.00 vendor’s lien note and the lien or liens securing payment of the same was sold, transferred and assigned to appellee George J. Jennings as revealed by an instrument recorded on February 10, 1967. The deed of trust dated January 1, 1960, was filed for record on February 13, 1967, and recorded on February 20, 1967.
On March 4, 1967, Hipp and Burson filed their first amended petition. The pleading alleged that the lien claimed against the property by virtue of the $10,000.00 vendor’s lien note was extinguished by the warranty of unencumbered title in the deed dated August 8, 1960, conveying the property to the corporation and by the March 27, 1961 agreement. The petition sought removal of McGlaun’s asserted lien as a cloud on the title, and recovery of $10,000.00 in damages for McGlaun’s failure to release the lien because it prevented Hipp and Burson from unobstructed use, partition or sale of the property. McGlaun’s answer to the suit included special exceptions, a general denial, special denials, and the special defenses that the vendor’s lien note, vendor’s lien and deed of trust were valid and that it was not the intention of the March 27, 1961 agreement to operate as a release of any encumbrance then existing against the corporate property. The parties submitted the cause to the trial court sitting without a jury, and the trial court acted on McGlaun’s special exceptions. Among McGlaun’s special exceptions was one alleging that the petition was not sufficient in law “in that it fails to allege ownership, or any right, title or interest of Plaintiffs in said property at the time of the institution of this suit, sufficient to warrant this Court to interfere or assume jurisdiction of the matters of which Plaintiffs complain.” Parenthetically, there is injected the fact that at this point in time, Hipp and Burson had conveyed all of their interest in the realty to Ellison and had committed themselves to securing a release of or removing the lien at no expense to, or liability on, Ellison. The trial judge sustained the exception and granted leave to amend. If a trial amendment were filed, the record before us does not include it.
Thereafter, on August 28, 1967, the trial court signed and entered its judgment reading, in part:
“ * * * the matters of fact as well as of law, were submitted to the court without the intervention of a jury, and the court having heard the pleadings, the evidence and the argument of counsel, and, being fully advised in the premises, finds that this is an action to Quiet Title and for Damages, * * * and the Court is of the opinion that the following Judgment should be rendered herein, as follows:
“‘Judgment for the Defendant; that the Plaintiff take nothing.’ ”
The trial court then ordered, adjudged and decreed judgment for McGlaun against Hipp and Burson, and that Hipp and Burson take nothing. Hipp and Burson’s notice of appeal was incorporated in the judgment, but the appeal was not perfected and the judgment became final.
By letter dated October 19, 1967, Jennings advised Baldwin, Ellison, Hipp and Burson of his ownership interest in the note and liens, and for himself individually and as attorney for McGlaun declared the payment of the note accelerated, demanded payment, and stated the deed of trust lien was subject to foreclosure upon non-payment of the note. This demand was made by virtue of asserted defaults in providing insurance coverage and payment of taxes on the property as required by the deed of trust.
On February 2, 1968, Ellison filed suit under cause no. 4739, from which this appeal originated, against McGlaun and Jennings and the substitute trustee, Virgil Pohlmeier, reciting the lots had been posted for sale to be held on February 6, 1968, under the deed of trust, and seeking a temporary restraining order, a temporary injunction, and upon final hearing a declaration that the lien was void. A temporary restraining order was issued without notice enjoining the advertised sale and a date was set for a hearing on the temporary injunction. McGlaun, Jennings and Pohlmeier filed their answer of general denial and not guilty. On March 14, 1968, Hipp and Bur-son filed in the cause a plea of intervention, although leave of the court therefor is not shown of record. The pleading alleged that the $10,000.00 indebtedness was fraudulently concealed from them when they purchased the corporate property; a determination of the validity of the promissory note as a lien on the property was requested, and $20,000.00 was sought as exemplary damages in the event the note was held to be a valid lien. Following a hearing on March 19, 1968, the trial court granted a temporary injunction, restraining and enjoining the deed of trust sale.
Thereafter, no action was taken in the suit until March 25, 1971, when Ellison, Hipp and Burson filed their first amended petition, naming Baldwin, McGlaun and Jennings as defendants. The petition alleged that on March 27, 1961, Hipp and Burson “purchased all the outstanding stock” in the corporation and the “stock at such time was owned by H. M. Mc-Glaun”; that McGlaun fraudulently concealed the $10,000.00 indebtedness in the financial statements and reports submitted, and they “did not learn of it for several years thereafter”; and that they are entitled to recover from McGlaun their damages in the sum of the $10,000.00 “difference in the value of the corporate stock as represented by” McGlaun and “its value in the condition it was in when delivered,” with interest. Alternatively, the petition alleged the note and deed of trust were cancelled and declared void “by the recon-veyance of the corporate stock owned by Defendants H. M. McGlaun and N. H. Baldwin when Baldwin, the maker of such note, reconveyed his interest in such corporate stock to Defendant McGlaun,” and prayed for judgment to that effect.
McGlaun and Jennings answered and, among other pleadings, specifically pleaded the two and four years statutes of limitations, and res judicata and estoppel by judgment entered in cause no. 4625. McGlaun and Jennings filed their cross-action on the note, which then had matured by its terms, and prayed for judgment thereon and for foreclosure of the liens securing payment of the indebtedness. Both parties then filed motions for summary judgment. In addition to the pleadings and instruments referred to above, the trial court had before it the depositions of Ellison, McGlaun and Baldwin and affidavits from attorneys George J. Jennings, Jr., George J. Jennings, Mattie B. Evans, and George S. McCarthy when the motions for summary judgment were heard. The trial court permitted Hipp and Burson’s intervention in the suit, discharged Baldwin, dissolved the temporary injunction theretofore ordered, denied appellants’ motion, and granted ap-pellees’ motion, computed the amount due under the terms of the note but specified that no personal liability attached, and decreed foreclosure of the deed of trust lien.
The undisputed summary judgment proof establishes the execution of the vendor’s lien note and the deed of trust, and that the note is due and unpaid. As a matter of law, appellees are entitled to summary judgment decreeing the amount of the indebtedness and foreclosure of the lien, unless it can be said that appellants are entitled to have the lien released, or to recover on their alleged action for fraud, or that unresolved material fact issues are presented.
The summary judgment does not state the basis for the trial court’s determination of the absence of genuine issues of material fact and appellees’ right to judgment as a matter of law; however, appellants submit that the trial court must have applied the doctrine of res judicata and the two year statute of limitation, and appellees have responded in these premises. Appellants argue that the doctrine of res judicata does not apply in this proceeding because the summary judgment record reveals that (1) there was not the required identity of party plaintiffs in cause no. 4625 and in this cause no. 4739, and (2) the same matters were not involved in the two lawsuits, or there is a question of material fact as to what matters were involved in the two proceedings. Appellants argue further that the two year statute of limitation could not summarily bar their cause of action for fraud because (1) a question of fact is presented as to when appellants knew, or should have known, that McGlaun would not release the lien, and (2) the statute of limitation could not run against the $10,-000.00 offset claimed by appellants against the foreclosed indebtedness.
Early in Texas jurisprudence, our Supreme Court announced in Foster v. Wells, 4 Tex. 101, 104 (1849), the rule that the judgment of a court of competent jurisdiction shall be final, and a bar to another trial, as between the parties, not only as to the matters actually determined, but as to every other matter which the parties might have litigated and have had decided in the cause. This rule, which we speak of as the doctrine of res judicata, with well recognized limitations, has been followed as the law of this state from that early time to the present date. See Abbott Laboratories v. Gravis, 470 S.W.2d 639 (Tex.Sup.1971). Appellants contend that the doctrine is inapplicable because Ellison owned the realty when Hipp and Burson, who were not then entitled to possession, filed cause no. 4625, and there was not in that cause that identity of the same party plaintiffs as in this cause no. 4739 which would constitute a bar to these appellants. While in cause no. 4625 the special exception to the status of plaintiffs Hipp and Burson to prosecute the suit was sustained and leave was granted to file a trial amendment, although no trial amendment is shown in this record, the trial court thereafter proceeded to hear the evidence and enter the judgment which has become final. Appellants’ present contention of lack of requisite identity of the party plaintiffs in the two suits is a collateral attack on the judgment entered in cause no. 4625, Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325 (1895); Restatement of Judgments § 11, comment (a), and in such collateral attack, in the absence of forbidding circumstances not present here, it will be presumed that some other and sufficient pleading was filed. Reeves v. Houston Oil Co. of Texas, 230 S.W.2d 255 (Tex.Civ.App.—Beaumont 1950, writ ref’d n. r. e.); 34 Tex.Jur.2d Judgments § 350. The court looks beyond -the nominal parties and treats all those whose interests are involved in the litigation and who control the action as real parties and hold them concluded by the judgment. Ex parte Foster, 144 Tex. 65, 188 S.W.2d 382 (1945). Cause no. 4625 was brought in compliance with the December 22, 1965 letter agreement between the appellants at Ellison’s insistence, with his knowledge, in his behalf and for his benefit, and the final judgment entered there bound him as well as Hipp and Bur-son, to the same extent as if he were a nominal, as well as the real party, to the action. 34 Tex.Jur.2d Judgments § 393.
To establish that the issues in the two suits were different, or that a fact issue as to the matters involved was raised, appellants offered the affidavit of attorney McCarthy, the only attorney of record for Hipp and Burson in their first suit and one of the attorneys of record for appellants in •the cause now on appeal. The affidavit states that the essence of the first suit was exclusively to remove a purported lien as being a cloud on the title to the property; that at no time was the theory of fraud in the purchase of the corporate stock ever raised; that the holding of the court in the first suit “establishes the validity of the Deed of Trust,” which forms the basis of the second suit for fraud; that the two suits are on totally collateral matters ; and that one does not form a bar to the bringing of the other. The affidavit, even uncontroverted, patently presents only an opinion and legal conclusions as to the issues involved in the two suits and is insufficient to establish the facts as a matter of law. Gibbs v. General Motors Corporation, 450 S.W.2d 827 (Tex.Sup.1970).
The proper approach in deciding whether a former judgment is res judicata of a later suit between the same parties and those privy to the judgment is to determine from the record what matters of fact and law were involved. The record should speak for itself. Foster v. Wells, supra. This record reveals that in the first suit the indebtedness represented by the vendor’s lien note and the liens securing payment thereof, together with appellants’ claim to damages for failure to release the lien, were matters in issue. The vital issue was the validity of the indebtedness and liens, because the matter of damages, if any, was dependent on the liens not being valid. The execution of the vendor’s lien note being judicially admitted by appellants, and no plea of payment being interposed, the validity and subsistence of the indebtedness and the liens could be overcome only by appellants proving their alleged release of the liens, and, absent release of the liens, the indebtedness, then, could be offset only by any damages proved to arise therefrom to the detriment of appellants, or which, through proper diligence, appellants might have presented and have had decided. The record shows that in cause no. 4625 there was a trial upon the merits and the court, after hearing the pleadings, the evidence and argument of counsel, entered its final judgment. Since the general rule in Texas is that the judgment, unless the contrary appears from the face thereof, disposed of all issues presented by the pleadings, Vance v. Wilson, 382 S.W.2d 107 (Tex.Sup.1964), the validity and subsistence of the indebtedness, represented by the vendor’s lien note, and the liens further securing its payment, together with the denial of damages, were determined by that final judgment, which barred the re-litigation of these same matters alleged in this cause no. 4739 now on appeal.
Appellants declare, however, that the same amount of damages sought in the second suit was upon a theory — fraudulent concealment of the $10,000.00 indebtedness — different from that theory — failure to release the lien — injected in the first suit. Be that as it may, both suits were predicated upon the same subject matter, viz., the same indebtedness and the same liens. In 1884, our Supreme Court, in Nichols v. Dibrell, 61 Tex. 539, stated the doctrine of res judicata enunciated in Foster v. Wells, supra, in these words: “Or, as differently expressed, ‘the plea of res judicata applies not only to points upon which the court was actually required to pronounce judgment, but to every point which properly belonged to the subject of litigation, and which the parties, by exercising reasonable diligence, might have brought forward at the time.’ Aurora City v. West, 7 Wall., [82] 106 [19 L.Ed. 42].” That rule is currently applied in Texas, e. g., see Texas Employers’ Insurance Ass’n v. Rampy, 392 S.W.2d 350 (Tex.Sup.1965), in all cases in which failure to use proper diligence is not caused by accident, excusable mistake, or fraud of the adverse party in preventing a ground of relief from being presented. Restatement of Judgments § 63. Any matter which would have defeated the liens or offset the indebtedness could have been pleaded and proved by appellants with the use of proper diligence in the first case. Hence, appellants could have set up the fraudulent concealment allegation in the first suit. It is no defense to the failure to present the fraud claim in the first suit that appellants, as alleged in the second suit, “did not learn of it [the indebtedness] for several years thereafter,” because as a matter of proven record, it was the knowledge of the liens securing the payment of the indebtedness that resulted in the filing of the first suit. That the plea for damages was based on contract in the first proceeding and on tort in the subsequent action does not justify separate actions, for the claims for damages may be joined either as independent or alternate claims. Rule 51, Texas Rules of Civil Procedure. In Texas jurisprudence, the criterion is the substance rather than the form of the action which entitles a party to any relief for which he shows a lawful reason. 1 Tex.Jur.2d Actions § 38. It is not the relief sought, but the matter alleged upon which the recovery proceeds, that creates the bar. Nichols v. Dibrell, supra. Whether McGlaun fraudulently concealed the indebtedness was a matter that properly belonged to the subject of the first litigation and no reason exists why it was not presented and decided. Having failed to use proper diligence in pleading and proving the matter in the first proceeding, appellants cannot now be heard on the issue. On any other principle than that stated herein, there would be no end to litigation over the same subject matter. To this end, the rule of res judicata becomes operative, for the law will not aid him who passes by his opportunity.
Were the action for fraudulent concealment of the indebtedness pleaded in this cause considered to be not concluded and barred by the final judgment entered in the first suit under a limitation to the rule of res judicata, the result of this litigation still would be the same. If the matter of fraudulent concealment were not comprehended within the issues of the first suit, and it were deemed a separate cause of action available to appellants, that action is barred by the two year statute of limitation, Vernon's Ann.Civ.St. art. 5526, specifically pleaded as a defense by appellees. Art. 5526 is applicable to an action for damages based on fraud, and the cause of action accrues at the time the fraud is perpetrated, unless it is concealed or is unknown to the defrauded party; but in any case limitation under the statute commences at the time the fraud is discovered, or could have been discovered by the exercise of reasonable diligence, by the defrauded party. Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438 (1940). Even accepting appellants Hipp and Burson’s premise that at the time of reorganization they were purchasing corporation stock and were not chargeable with notice of liens of record against the corporate property, nevertheless, when the title to the lots was conveyed to them individually by the warranty deed executed on July 30, 1964, they became constructively charged with notice of the existence and contents of the instruments of record constituting their chain of title, including the deed of trust that was not then recorded. The authorities establishing this rule are concisely collated in 59 Tex.Jur.2d Vendor and Purchaser § 752, where it is stated:
“The record of any duly proven or acknowledged instrument that is authorized or required to be recorded is constructive notice to all persons of the existence of such an instrument. To the person who is bound to search for it the record of a valid instrument connected with the chain of title is equivalent to actual notice. The record imports notice of the contents of the instrument as registered, and of any fact stated therein that would put a reasonably prudent man on inquiry.
“Accordingly, a purchaser of land must search the records as the primary source of title information, and he is charged with knowledge of the existence and contents of the recorded instruments affecting the title. * * * ”
And in § 754 of the same text, it is written :
“The purchaser is charged with notice of the existence, contents, and legal effect of all instruments contained in his chain of title or connected therewith. He is bound by every reference and reservation, description, recital, and by every other matter contained in or fairly disclosed by any instrument that forms an essential link in the chain of title under which he claims. This is true regardless of whether the instrument is recorded or whether he has actually seen or read it, or has any knowledge of its contents.”
When Hipp and Burson accepted the warranty deed to -the lots, there were then recorded the deed from the McGlauns conveying an undivided one-half interest in this property to Baldwin and reciting the vendor’s lien note and reserving the vendor’s lien, the deed from the McGlauns and Baldwins conveying the property to the corporation subject to the deed of trust, and the subordination agreement of October 19, 1960, listing the deed of trust, although the deed of trust had not then been recorded. All of these instruments were essential links in the chain of title under which Hipp and Burson claimed and imparted constructive notice to them of the indebtedness. Thereafter, Ellison, the other appellant, had notice of the indebtedness through the title opinion of December 10, 1965. Indisputably, all appellants had actual notice of the indebtedness they alleged to have been fraudulently concealed on December 22, 1965, when Hipp and Burson executed the letter, addressed to Ellison, the subject matter of which was the proposed release of the lien securing payment of the indebtedness. All of these dates were more than two years prior to March 14, 1968, the date of appellants’ first pleading alleging fraudulent concealment of the indebtedness. Therefore, as a matter of law, appellants had notice of the indebtedness more than two years before they filed their cause of action for damages for fraud, and the cause of action was barred then by the two year statute of limitation.
The thrust of appellants’ argument for the inapplicability of the limitation statute is that limitation did not commence running until Hipp and Burson realized that Mc-Glaun did not intend to release the lien, thereby presenting a fact question as to when they knew, or should have known, that McGlaun would not release the lien, and precluding summary judgment against them on their asserted cause of action for fraud. Under the facts presented by this record, this theorem is not tenable. Appellants’ pleaded cause of action was founded on fraudulent concealment of the indebtedness, not on fraud in the failure to release the lien. No more tenable is appellants’ declaration that limitation could not run against their claimed offset to the foreclosed indebtedness. If the claimed offset is in the nature of a defense to the validity of the indebtedness and the liens, the final judgment in the first suit is a bar; if, on the other hand, the claimed offset is an independent cause of action, the statute of limitation is a bar. Morriss-Buick Co. v. Davis, 127 Tex. 41, 91 S.W.2d 313 (1936); 52 Tex.Jur.2d Setoff, Counterclaim, Etc., §§ 24-25.
The summary judgment proof established as a matter of law that there was no genuine issue of fact as to the essential elements of appellees’ cause of action. Appellants’ point of error is overruled.
The summary judgment of the trial court is affirmed. |
sw2d_482/html/0313-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "BREWSTER, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
R. A. LOGAN et ux., Appellants, v. William S. GRADY, Temporary Administrator of Estate of Elizabeth M. Grady, et al., Appellees.
No. 17318.
Court of Civil Appeals of Texas, Fort Worth.
June 2, 1972.
Rehearing Denied July 7, 1972.
Shannon, Gracey, Ratliff & Miller, William J. Fleniken, Jr., Miteff & Evans, and Meto Miteff, Fort Worth, for appellants.
Cantey, Hanger, Gooch, Cravens & Munn, and Howard G. Barker, Fort Worth, for appellee, William S. Grady.
Thompson, Knight, Simmons & Bullion, M. Lawrence Hicks, Jr., and David R. Noteware, Dallas, for appellee, Dorian King.
OPINION
BREWSTER, Justice.
This is a suit for damages for personal injuries sustained by Mrs. Peggy Jean Logan, one of the plaintiffs, in a collision between her Pontiac automobile and a Dodge automobile being then driven by one of the defendants, Dorian King. William S. Grady, Temporary Administrator of the Estate of Elizabeth M. Grady, deceased, was also a defendant in the case. Elizabeth M. Grady was an occupant of the car being driven by Mrs. King. She was killed in the wreck. On receiving a jury verdict that found both drivers guilty of negligence that proximately caused the collision the trial court rendered judgment in favor of both defendants providing that plaintiffs take nothing by their suit. This is an appeal by the plaintiffs, Mr. and Mrs. R. A. Logan, from that decree.
When suit was instituted there was a question as to whether Dorian King or Elizabeth Grady was driving the Dodge at the time of the wreck. As the trial progressed the parties stipulated that Dorian King was the driver, so after that there was apparently no further effort to impose liability for the damages against the Elizabeth Grady Estate.
When this appeal was argued the appellants advised this Court that the trial court’s judgment in favor of defendant, William S. Grady, as Temporary Administrator of the Estate of Elizabeth M. Grady, deceased, was correct and that that part of the decree should be affirmed.
We, therefore, affirm that part of the trial court’s decree that provides that the plaintiffs take nothing by their suit as against William S. Grady, Temporary Administrator of the Estate of Elizabeth M. Grady, deceased.
Some undisputed facts in this case were: On April 8, 1966, Dorian King was driving a Dodge Dart south on Farm Road 718 in Wise County just south of the town of Newark; Elizabeth Grady also occupied that car at the time; Mrs. Peggy Jean Logan was the only occupant of her Pontiac car that approached Newark on this occasion on this came road going north; when she reached the crest of a hill Mrs. Logan started around a Ford auto that was traveling in front of her at a speed of from 50 to 55 miles per hour; she speed-ed up and passed around the Ford and got back into her correct lane of traffic and shortly thereafter the Dodge Dart coming from the other direction and going south went partly off onto the right shoulder and then cut diagonally across the Farm-to-Market Road No. 718; when the Dodge got into the northbound lane in which Mrs. Logan was traveling the Logan and King cars collided head-on resulting in the death of Mrs. Grady and serious injuries to the other occupants of both cars.
A witness by the name of Charles Bills was on this occasion traveling on the same road behind Mrs. Logan and had caught up with Mrs. Logan’s car and the Ford car and had followed them for about two miles before Mrs. Logan passed the Ford and he was a witness to the collision and to a part of the proceedings leading up to it.
The wreck occurred at approximately 5:45 P.M. and the two investigating officers arrived at the scene at about 6:45 P.M. They were highway patrolmen Norman Morton and one Sanders. They investigated the wreck and not very long after they arrived at the scene Officer Sanders gave the witness, Bills, a piece of paper and Bills, at Sander’s request, in his own handwriting, wrote out a statement and signed it and it is identified in the evidence as defendant King’s Exhibit No. 1, and such statement contains the following: “My location when accident happened was behind all 3 cars 200 yards. (Please tell in your own words just what you saw)
"I was traveling from Ft. Worth to Newark. I was at the top of the hill when the accident happened, traveling west. The Ford was being passed by the Pontiac and the Pontiac did not seem to have enough room to pass the Ford safely because of the oncoming Dodge Dart. The Dart saw that the Pontiac did not have room to pass safely and slowed and pulled off onto the .soft shoulder. The Dart then turned sideways (front end towards the road). At this time the Pontiac was traveling very fast and was back in its on lane. The Dart then turned back straight and immediately the Pontiac and the Dart hit each other. The Ford barely got stopped. It stopped within 20 feet I believe. See sketches on back of sheet.” (Emphasis ours.)
Patrolman Sanders did not testify in this case. Patrolman Morton did testify. He said that this statement was written out and signed by the witness, Bills, and given to Sanders by Bills, and made a part of the Highway Department’s file relating to that wreck. Morton did not recall talking to Bills. He said the statement was a part of the official investigation file on this wreck.
The plaintiffs in their first three points urged on this appeal contend that: (1) The court erred in letting Patrolman Morton on examination by defense counsel testify as to the contents of the written statement that Bills wrote out for Officer Sanders because the testimony was hearsay, came under no exception to the hearsay rule and it contained conclusions and opinions ; (2) the court erred in admitting in evidence this written statement of the witness, Bills, because it was hearsay, did not come under an exception to that rule, and contained opinions and conclusions; and (3) the court erred in denying plaintiffs’ motion to withdraw from the evidence the Bills’ statement and to strike from the evidence the testimony of Officer Morton concerning the contents of the Bills’ statement, and to instruct the jury not to consider any of such matters for any purpose.
The defendants’ (appellees’) counsel persuaded the trial court to admit Bills’ statement into evidence on the theory that such statement was a part of the official investigation file of the Texas Highway Department on this particular wreck and that it was therefore admissible as a business record by virtue of Art. 3737e, Vernon’s Ann.Civ.St, and that it was also admissible as a part of the res gestae.
The plaintiffs objected to the statement being admitted on the grounds that it was hearsay.
There is no question but what this statement given by the witness, Bills, was pure hearsay evidence and that it was inadmissible unless it came under the res gestae exception to the hearsay rule or under the statutory exception to the hearsay rule that was created by Art. 3737e, V.A.C.S. Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944); Allen v. Williams, 380 S.W.2d 718 (Waco, Tex.Civ.App., 1964, no writ hist.); and Ford Motor Company v. Mathis, 322 F.2d 267 (5th Cir. 1963).
Our courts hold that Art. 3737e, V.A.C.S., does create a valid exception to the hearsay rule. Travis Life Insurance Company v. Rodriguez, 326 S.W.2d 256 (Austin, Tex.Civ.App., 1959, affirmed in 160 Tex. 182, 328 S.W.2d 434).
The following is from Skillern & Sons, Inc. v. Rosen, 359 S.W.2d 298 (Tex.Sup., 1962) at page 301: “One seeking to have hearsay declarations of a witness admitted as an exception to the general rule must clearly show that they are within the exception. It is said in the Aetna v. Eastman case (Aetna Ins. Co. v. Eastman, 95 Tex. 34, 64 S.W. 863), supra:
“ ‘The declarations offered in evidence in such cases are at best hearsay, and are inadmissible under the general rule; and we are of the opinion that, if the declarations are sought to be brought within the exception, the grounds which take it out of the rule ought clearly to appear.’ ” See also Edwards v. Montgomery Ward & Co., 270 S.W.2d 432 (Beaumont, Tex.Civ.App., 1954, ref., n. r. e.).
Was the Bills’ statement admissible as coming within the business record exception created by Art. 3737e?
The mere fact that the Bills’ statement was a part of the Highway Department’s file on the wreck did not make it admissible in evidence. In order for an exhibit to become admissible as a business record under Art. 3737e it is necessary that the one offering it lay a proper predicate for its admission by proving the existence of each of the essential elements set out in the statute. Unless each of the elements designated in the statute is present, then the statutory exception to the hearsay rule does not exist. Skillern & Sons, Inc. v. Rosen, supra; Trans-Cold Express, Inc. v. Hardin, 415 S.W.2d 431 (Austin, Tex.Civ.App., 1967, no writ hist.); and Purvis v. Johnson, 430 S.W.2d 226 (San Antonio, Tex.Civ.App., 1968, no writ hist.).
Under Section 1(b) of Art. 3737e some employee or representative (of the Highway Department) who either made the record or transmitted the information therein contained to another to record must have had personal knowledge of the act, event or condition, reflected by such record, in order for such record to be admissible under the business records exception to the hearsay rule. See Skillern & Sons, Inc. v. Rosen, supra.
The necessary element created by Sec. 1(b) of the statute was clearly not present in this case.
We hold that the hearsay statement of the witness, Bills, was not admissible as being a business record under Art. 3737e because the essential element provided for by Sec. 1(b) of Art. 3737e was not proved to exist.
Was the Bills’ statement admissible as being a part of the res gestae?
Did the defendants clearly show that the Bills’ statement came within the res gestae exception to the hearsay rule, as they were required to do in order for it to become admissible under the rules laid down in the cases of Skillern & Sons, Inc. v. Rosen, supra, and Edwards v. Montgomery Ward & Co., supra?
We hold that they did not and that the Bills’ statement was not admissible as being a part of the res gestae.
In Pacific Mut. Life Ins. Co. of California v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709 (1944) at page 712, the Supreme Court said the following: “It is said in some of the cases that the application of the res gestae rule addresses itself largely to the discretion of the trial court. In our opinion the question as to whether or not evidence is admissible as res gestae is a law question which an appellate court has the same power to pass on that it has to pass on any other law question.”
The same holding is made in Truck Insurance Exchange v. Michling, 364 S.W.2d 172 (Tex.Sup., 1963).
The following is from the opinion in Texas Interurban Ry. Co. v. Hughes, 53 S.W.2d 448 (Tex.Com.App., 1932) at page 451: “In determining whether evidence is admissible under the rule, each case must be tested by its peculiar facts, and, if upon a fair analysis a statement after the event does not appear to be a continuation of it, it cannot be res gestae, even though made near the time of the occurrence. Statements made must be either a part of- the transaction or made under such circumstances as to raise a reasonable presumption that they are spontaneous utterances or facts created by or arising out of the transaction itself. If they are not in their nature a part of the fact, they do not constitute a part of the res gestae, and are inadmissible, though closely related in point of time. If this general rule announced by the authoritative decisions was not adhered "to,. it would be made the means of introducing indirect testimony in such a way as to make it injurious and prejudicial to litigants. . . . ”
The only evidence offered during the entire trial that could in any way be considered as a predicate to the admission of this Bills’ statement on the theory that it was a part of the res gestae is the following: Bills was a witness to the wreck; it occurred about 5:45 P.M. and Patrolmen Morton and Sanders did not arrive at the scene until about 6:45 P.M.; Patrolman Morton did not recall ever talking to Bills; all people that had been involved in the wreck had been removed from the scene by the time the officers arrived; when he saw the wreck, Bills stopped his car and went to help the people that were hurt; while he was still at the scene, Bills measured certain skid marks by stepping them off; not long after the patrolmen came to the scene and at a time more than an hour after the wreck, Patrolman Sanders handed Bills a blank piece of paper and told him to write out his version of how the wreck occurred; and pursuant to those instructions Bills wrote out the statement in question and signed it.
No evidence was offered to show whether or not Bills was excited or his emotional state at the time of making the statement.
We hold that this predicate was insufficient to make the Bills’ statement admissible on the theory that it was a part of the res gestae. This statement was not made under such circumstances as to be a part of the transaction, nor was it made under such circumstances as to raise a reasonable presumption that its contents were spontaneous utterances or facts created by or arising out of the transaction itself.
Since the Bills’ statement was inadmissible for the reasons stated, the court erred in admitting it into evidence. We therefore sustain each of the appellants’ first three points which relate to the trial court’s rulings relating to admitting before the jury the contents of the Bills’ statement.
The next question to be determined is whether these errors were reversible under Rule 434, Texas Rules of Civil Procedure.
Rule 434 provides: “. . .no judgment shall be reversed on appeal . unless the appellate court shall be of the opinion that the error complained of amounted to such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in the case,
The law applicable in making this determination is well stated in McCarty v. Gappelberg, 273 S.W.2d 943 (Fort Worth, Tex.Civ.App., 1954, ref., n. r. e.) at page 948, as follows:
“The meaning thereof has been held to cast upon a complaining party the burden of showing at least that the error probably resulted to his prejudice. Golden v. Odiorne, 1923, 112 Tex. 544, 249 S.W. 822, 823; Texas Power & Light Co. v. Hering, 1949, 148 Tex. 350, 224 S.W.2d 191. The determination on this score by the appellate court will be made from the record as a whole. See the numerous cases cited in Texas Power & Light Co. v. Hering, supra, 224 S.W.2d at pages 192 and 193. While we are not convinced that but for the admission of the testimony in question the jury would have returned a different verdict by answering the issue differently, we must remember that the Rule’s intent and purpose is not to require that the complaining party demonstrate that but for the error a different judgment would have resulted. Texas Power & Light Co. v. Hering, supra.
“It follows that the complaining party has shown reversible error when it is made to appear that he has been harmed by the error in that a finding of fact against him was controlled by, or probably resulted in whole or in part because of, the admission of the prejudicial testimony. Stated in different words: If the erroneously admitted testimony had such force as would be reasonably calculated to have effected the jury finding in question, the complaining party has suffered harm through the error and he is entitled to a reversal on appeal.”
Here the jury returned a verdict finding that the defendant, King, committed negligent acts that proximately caused the collision and that the plaintiffs sustained $42,450.00 in damages. It was only because the jury found Mrs. Logan guilty of contributory negligence in two respects, each of which it found was a proximate cause of the collision, that judgment was rendered in favor of defendant, King, and against the plaintiff.
The jury found the plaintiff, Peggy Jean Logan, guilty of contributory negligence in violating Sec. 56 of Art. 6701d, V.A.C.S., in attempting to pass the Ford (Murphy) car on the occasion in question at a time when the left side of the center of the road she was on was not free of oncoming traffic for a sufficient distance ahead to permit the passing to be completed without interfering with the safe operation of the King car that was approaching from the opposite direction. The jury also' found that Mrs. Logan was guilty of contributory negligence in failing to keep a proper lookout and that each of these acts of negligence was a proximate cause of the collision.
The witness, Bills, personally testified during the trial. He at that time testified that Mrs. Logan was following the Ford car being driven by Mrs. Murphy at a speed of from 50 to 55 miles per hour and that when the two cars reached the crest of the hill and a point where passing was permitted, Mrs. Logan pulled into her left hand lane on this two lane highway, accelerated the speed of her car, and passed in a short time around the Ford vehicle and got her car completely back into her proper lane for northbound traffic at a time when her car was still more than 200 feet South of the oncoming Dodge car being driven by defendant, King.
Contained in the erroneously admitted Bills’ statement were the following statements: “The Ford was being passed by the Pontiac and the Pontiac did not seem to have enough room to pass the Ford safely because of the oncoming Dodge Dart. The Dart saw that the Pontiac did not have room to pass safely and slowed and pulled off onto the soft shoulder.” (Emphasis ours.)
The parts of the Bills’ statement just referred to are pure conclusions of the witness and bear directly on the question of whether Mrs. Logan failed to keep a proper lookout and whether she attempted to pass the Murphy (Ford) car in violation of Sec. 56 of Art. 6701d, V.A.C.S. Bills did not personally testify to these conclusions when he appeared as a witness at the trial, because it would have been improper for him to have done so. Bills’ testimony at the trial, when he there appeared as a witness, to the effect that Mrs. Logan completed her pass of the Ford and had driven her auto completely back into its proper northbound lane at a time when she was still more than 200 feet away from the approaching Dodge, strongly supported the plaintiffs’ contention that Mrs. Logan was keeping a proper lookout and that she did not make her pass around the Ford in violation of Sec. 56, Art. 6701d.
However, the conclusions of the witness, Bills, in his questioned statement, are strongly supportive of the findings made by the jury in finding Mrs. Logan guilty of the two acts of contributory negligence that the jury also found proximately caused the collision.
We are convinced that the erroneous admission of the Bills’ statement was prejudicial to the plaintiffs’ rights and that this fact is borne out by the record.
At the hearing of the motion for new trial two jurors, one being the foreman, testified. Special Issue No. 14 of the charge submitted the contributory negligence issue as to whether Mrs. Logan violated Sec. 56, Art. 6701d, in passing the Murphy (Ford) car on the occasion. One juror testified that the jury spent a long time in answering it. The foreman said they were on that issue for two hours. They had the inadmissible statement of Bills in the jury room with them because it was an exhibit. One juror said it appeared to them-that Bills’ statement was different from the testimony he gave from the witness stand and that they were confused about it. She said they wanted to request the court to let them hear Bills’ oral testimony about the transaction. The foreman testified they were having a problem as to which way to answer the issue so he told the bailiff they needed more information about certain issues. The court bailiff then told the foreman that the jury already had in the jury room on the table (where the exhibits including Bills’ statement was) everything that they needed.
Following this statement by the bailiff the jury then found Mrs. Logan guilty of contributory negligence in two respects, which findings were strongly supported by the conclusions contained in the Bills’ statement that the jury had on the exhibit table in the jury room with them during their deliberations.
We are convinced that the jury findings against Mrs. Logan of contributory negligence in the two respects and of proximate cause were controlled by and probably resulted in whole or in part because of the errors complained of in admitting in evidence for the jury’s consideration the contents of the Bills’ statement. We are convinced that the court’s action in admitting the Bills’ statement was reasonably calculated to have influenced the jury’s answers to the contributory negligence issues and that the plaintiffs were prejudiced by the rulings that permitted the contents of the statement to go before the jury.
In addition to introducing the Bills’ statement into evidence, counsel for appellee, King, was permitted, while cross-examining Patrolman Morton, to ask him questions as to the contents of the Bills’ statement. This cross-examination was conducted over appellants’ objection. The statement was not simply read into evidence, as is customarily done when an exhibit of that nature is introduced, but defense counsel proceeded to cross-examine the officer, sentence by sentence, as to the contents of the statement. In this manner this officer, Morton, who did not witness the wreck and who did not talk to the witness, Bills, was permitted to give his analysis of what Bills said in the statement.
The matter referred to in this last paragraph is the thing complained of in appellants’ Point of Error No. 1.
Since the statement itself was not admissible, it follows that it was error to permit defense counsel to get into evidence the contents of such statement by way of cross-examining the witness, Morton, and in that manner unduly emphasizing the contents of the statement.
When the statement was introduced into evidence as an exhibit to be carried into the jury room with the jury during its deliberations, Bills’ version therein contained, which was adverse to plaintiffs, as to whether Mrs. Logan violated Sec. 56 of Art. 6701d and as to whether she kept a proper lookout was further unduly emphasized over his oral testimony to the effect that Mrs. Logan completed her pass around the Ford at a time when she was still more than 200 feet south of the oncoming Dodge. This oral testimony was not at the jury’s finger tips in the jury room, as was the written statement, at the time the bailiff told the jury that it had all it needed in order to answer the contributory negligence questions.
The two contributory negligence and proximate cause issues that were found by the jury against the plaintiffs were contained in Issues Nos. 14 and 15 (submitting violation of Sec. 56, Art. 6701d) and in Issues Nos. 18 and 19 (proper lookout).
Appellants’ Points of Error Nos. 4 through 19, inclusive, except Point No. 8, attack the jury’s findings made in answer to those four issues. The contentions of appellants are that there was both no evidence and insufficient evidence to warrant the submission of those issues.
In passing on these points we have reviewed the entire record. We overrule appellants’ Points of Error Nos. 4 through 19, inclusive, and excepting Point No. 8, because we are convinced that there was some evidence and sufficient evidence to support the submission of such issues. The jury’s answers to those issues were not against the great weight and preponderance of the evidence offered at the trial.
In appellants’ 8th point they urge that the trial court erred in failing to inquire in Issue No. 14 whether Mrs. Logan returned her car to her right hand side of the road before coming within 100 feet of any vehicle approaching from the opposite direction.
Section 56, Art. 6701d, provides as follows :
“No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible, and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred (100) feet of any vehicle approaching from the opposite direction.”
We overrule the point for the reason that it was undisputed in this case that Mrs. Logan returned her car to her right hand side of the road before she came within 100 feet of the approaching Dodge. It is not a jury’s function to decide undisputed facts.
It is undisputed that Mrs. Logan’s car left more than 100 feet of skid marks wholly within her right hand lane just before the collision. This, however, did not determine, under the facts of this case, whether Sec. 56, Art. 6701d, had been violated. It is not a prerequisite to a violation of that statute that the overtaking vehicle did not return to its proper lane until within 100 feet or less of an oncoming car.
In this particular case Issue No. 14 was not erroneous in the respect contended for by appellants.
In appellants’ Point of Error No. 20 it is contended that the bailiff in charge of the jury was guilty of misconduct in failing to allow the jury to request the court to let them hear the testimony of the witness, Bills, after being requested by the foreman of the jury to do so.
Hereinabove we have set out what happened relative to this point. The undisputed evidence at the motion for new trial established conclusively that the jury bailiff violated Rules 283 and 285 of T.R.C.P., when he did not make the jury’s wish as communicated to him known to the court and also when he instructed the jury that its members already had in the jury room all that it needed in order to answer Issue No. 14.
Rule 283 provides: “The officer in charge of the jury shall not make nor permit any communication to be made to them, except to inquire if they have agreed upon a verdict, . . . ” (Emphasis ours.)
Rule 285 provides: “The jttry may communicate with the court by making their zvish known to the officer in charge, who shall inform the court, and they may then in open court, and through their foreman, communicate with the court, either verbally or in writting.” (Emphasis ours.)
We are convinced that the facts we have above outlined relative to this occurrence wherein the rules governing the conduct of trials were violated were of such a nature that they were reasonably calculated to have affected the jury’s answers to the contributory negligence issues. We believe that the case of Bonds v. Lloyd, 218 S.W.2d 334 (Dallas, Tex.Civ.App., 1949, writ dism.) wherein a somewhat similar occurrence was involved, is authority for our holding that this transaction was a prejudicial error.
The appellees filed a cross-point contending that even if error was committed by the trial court in the respects claimed by appellants, such errors were harmless and this Court should still affirm the case because the trial court should have sustained the appellees’ motion for summary judgment based on the grounds that plaintiffs’ suit was barred by res judicata and Rule 97 (a).
Boiling appellees’ contention down it is to the effect that the trial court erred in overruling appellees’ motion for summary judgment. We overrule this cross-point.
The record reveals that appellee, King, did file a motion for summary judgment in the case and that on April 22, 1969, the court rendered a judgment overruling such motion, the order reciting that “ . the Court, after reading the pleadings, the depositions, the affidavits on file herein . is of the opinion that the Motion for Summary Judgment . . . should be in all things denied.”
Later, the case was tried on its merits and on August 11, 1971, the court rendered the final judgment in favor of appellees that is here being appealed from.
It is now settled that where a point is based on an alleged error of the trial court in overruling a motion for summary judgment that it is not a point to be considered on an appeal from the judgment rendered following a trial of the merits of the case. Stewart v. Lomax, 395 S.W.2d 82 (Corpus Christi, Tex.Civ.App., 1965, ref., n, r. e.); Castilleja v. Camero, 402 S.W.2d 265 (Corpus Christi, Tex.Civ.App., 1966, affirmed at Tex., 414 S.W.2d 424); and Dyche v. Simmons, 264 S.W.2d 208 (Fort Worth, Tex.Civ.App., 1954, ref., n. r. e.).
Although the points relied on as grounds for appellees’ motion for summary judgment were pleaded as a defense, the record does not show that this matter was ever presented to the trial court at any time during the trial on the merits for a ruling. No evidence whatever was offered during the trial on the merits in support of this defense.
There is an additional reason why we are required to overrule this cross-point. The judgment recited that the court in passing on the motion considered depositions that were on file in the case. These depositions are not a part of this appellate record.
It is the law that with the appellate record in that state it is incomplete and that an appellate court cannot tell from an incomplete record whether or not the court’s decree rendered at the summary judgment hearing is correct. The appellate court in such cases will presume that the omitted deposition established the propriety of the trial court’s ruling. Alexander v. Bank of American National Trust and Savings Association, 401 S.W.2d 688 (Waco, Tex.Civ.App., 1966, writ ref.) and G. C. Murphy Company v. Lack, 404 S.W.2d 853 (Corpus Christi, Tex.Civ.App., 1966, ref., n. r. e.).
The judgment against the plaintiffs to the effect that they take nothing as against the defendant, William S. Grady, Temporary Administrator of the Estate of Elizabeth M. Grady, deceased, is affirmed.
The judgment against the plaintiffs to the effect that they take nothing as against the defendant, Dorian King, is reversed and that part of the case is remanded to the trial court for a new trial.
All costs are taxed against the appellee, Dorian King. |
sw2d_482/html/0323-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SHANNON, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Juanita JACKSON, Appellant, v. Henry HENNINGER, Guardian of Rudy and Pearl Henninger, Appellee.
No. 11931.
Court of Civil Appeals of Texas, Austin.
June 28, 1972.
Harriet Samon Owen, Austin, for appellant.
Alvis Vandygriff, Joe D. Milner, Jr., Austin, for appellee.
SHANNON, Justice.
This appeal concerns a suit in the District Court of Travis County to set aside deeds to a 36.7 acre homestead upon the basis that the grantors lacked mental capacity to convey the land. Upon trial to the court, judgment was entered setting aside those deeds. We will affirm that judgment.
A factual resume follows. On April 3, 1969, and for some years previous, Rudy Henninger and his wife, Pearl, were owners of the 36.7 acre tract situated in Travis County. By that date the Henningers were over sixty-five years of age and, because of ill health, were living in the Monte Siesta Retirement Home. On April 3, 1969, the Henningers signed separate warranty deeds conveying that land to their niece, and appellant here, Juanita Jackson, reserving for themselves a life estate. On the same date the Henningers executed separate powers of attorney in favor of appellant in which appellant was empowered, among other things, to convey away their remaining interest in land.
Four days later the Henningers revoked the powers of attorney previously granted appellant. Their attorney, on April 14, 1969, wrote appellant requesting that she reconvey the tract to the Henningers. On May 9, the Henningers filed suit to set aside the deeds, alleging, in effect, that the deeds had been obtained as the result of appellant’s undue influence.
The case proceeded to trial on October 13, 1969, and after hearing the testimony of three witnesses, including Pearl Hennin-ger, the trial judge recessed the case on his own motion suggesting that a guardian ad litem be appointed for Mrs. Henninger. Sometime later Henry Henninger, a nephew, and appellee here, was appointed guardian of the person and estate of the Henningers by the Probate Court of Travis County, and was substituted over the objection of appellant as the plaintiff in this suit.
The trial was resumed on October 26, 1971, and in appellee’s trial petition he alleged that the deeds from the Henningers to appellant resulted from the exercise of undue influence by appellant and, alternatively, that the Henningers lacked the mental capacity to execute the deeds.
Pursuant to appellant’s request, the court filed findings of fact and conclusions of law and found, among other things, that at the time of the execution of the deeds to appellant, Rudy and Pearl Henninger were of unsound mind and did not have sufficient mental capacity to execute the deeds in that they did not have sufficient mind and memory to understand the nature and effect of their act.
By multiple points of error, appellant makes the basic contention that the findings that Rudy and Pearl Henninger were of unsound mind at the time of the execution of the deeds was supported by no evidence, or alternatively, that the evidence was insufficient.
Since the law presumes that the grantor of a deed has sufficient mental capacity at the time of its execution to understand his legal rights, the burden of proof rests on those seeking to set aside the deed to show lack of mental capacity of the grantor at the time of the execution of the deed. Smith v. Thornhill, 25 S.W.2d 597 (Tex.Comm.App.1930), rev’d on other grounds on rehearing, 34 S.W.2d 803 (Tex.Comm.App.1931). The term “mental capacity” means that the grantor at the time of the execution of the deed must have had sufficient mind and memory to understand the nature and effect of his act. Smith v. Thornhill, supra, see Baylor University: John M. Sanders, Deed of Insane Grantor, 11 Baylor L.Rev. 436 (1959). To demonstrate the state of the grantor’s mental capacity at the time of the conveyance, evidence of his mental capacity prior and subsequent to the time of the conveyance is admissible. Cole v. Waite, 151 Tex. 175, 246 S.W.2d 849 (Tex.1952).
Appellee produced four witnesses to discharge his burden of showing that because of the infirmities of their age and illnesses neither Rudy nor Pearl Henninger had the requisite mental capacity to execute the deeds. Those witnesses were Dr. Henry Marvin Dittert, Jr., the Henninger’s treating physician, and Mrs. Sammie M. Black, Peggie Louise Woodward, and Ceola Re-deaux, all nurses at the Monte Siesta Retirement Home in April of 1969.
According to Dr. Dittert, Pearl Hennin-ger had suffered from diabetes for a number of years before 1969, and was on January 8, 1969, a “brittle” diabetic. Her diabetic condition was such that she, on occasion, suffered from hypoglycemic shock which, together with arteriosclerosis, caused brain damage. At times Mrs. Hen-ninger was reduced to a near comatose condition from the effect of the diabetes or from the effect of the treatment of that condition. Dr. Dittert testified that while Mrs. Henninger might appear on first impression to be aware of her situation, a closer interrogation would reveal that she did not have a full understanding “of what was going on.” Her memory of current happenings involving herself was bad, and Dr. Dittert noticed in January and February of 1969, episodes of confusion in which Mrs. Henninger was disoriented as to where she was, who she was, and what was “going on.” Dr. Dittert’s opinion was that at no time when he saw Mrs. Hennin-ger was she capable of making “responsible” decisions.
Nurses Woodward and Redeaux testified that with respect to the general period of time here concerned, Mrs. Hen-ninger was confused and forgetful. Nurse Woodward was of the opinion that Mrs. Henninger’s mind was “not completely” clear and that she never realized the condition of Mr. Henninger and herself. According to Mrs. Woodward, Mrs. Hennin-ger’s mind would be “fairly good” one day and not so on the next day. Nurse Re-deaux testified with respect to April 3, 1969, Mrs. Henninger did not know the extent and nature of her property and that she did not know the natural objects of her bounty. It should be noted that the value of Nurse Redeaux’s testimony was diminished when on cross-examination it was shown that she was somewhat less than familiar with the meaning of the term, the “natural objects of her bounty.”
Dr. Dittert was called to treat Rudy Henninger for a “stroke” which left him paralyzed on the left side. Three days aft-erwards, on January 27, 1969, Mr. Hennin-ger showed a marked mental deterioration. He was disoriented as to time, place, and person, and in Dr. Dittert’s opinion he never improved. Dr. Dittert was of the opinion that Mr. Henninger had no memory of anything since the stroke on January 24, 1969. In Dr. Dittert’s opinion Mr. Hen-ninger would not know the nature of his acts, would not recognize a deed, and it would be doubtful that he would have known the extent of his property. Likewise, Dr. Dittert testified that Mr. Hennin-ger was not capable of making “responsible” decisions at any time that he had seen him.
Nurses Black, Woodward, and Redeaux also testified with respect to Mr. Hennin-ger’s condition. Mrs. Black was of the belief that he did not know where he was. In her opinion he did not know the extent of his property or its location, and that he did not know the nature of his acts or the objects of his bounty. Nurses Black, Woodward, and Redeaux did not think that he would recognize a deed. Mrs. Woodward testified that Mr. Henninger could not get up, feed himself, or tend to any of his bodily functions. In her opinion his mind had “never been clear” since she had known him. His mind wandered to such an extent that he could not carry on a conversation.
While paralyzed in bed in his room at Monte Siesta, Mr. Henninger often said that he was going out to milk the cows, clean out the well, tend to the flowers, plow the fields or feed the chickens. On one occasion when Dr. Dittert was called to treat a cut on his hand, Mr. Henninger invited him in to have ice cream, and urged that he be sure and take home some chrysanthemums. These utterances demonstrate that age and illness with their “stealing steps” had removed his power to realize his situation or whereabouts.
Appellants sought to rebut appellee’s evidence of the Henningers’ mental capacity on April 3, 1969 by the testimony of several witnesses. In the main, appellant relied upon the testimony of Mrs. Edith Roberts, Miss Kathryn Adams, and Reverend Wayne E. Dickerson. Mrs. Roberts was the attorney who prepared the deeds and powers of attorney, and was present when the Henningers signed those instruments. She testified that she explained and read those instruments to the Henningers, and in her opinion, they understood the nature and effect of the deeds. Mrs. Roberts testified that she was satisfied that the Hen-ningers knew the extent of their property. She also testified that during the time she was with the Henningers they did not appear confused or disoriented. Miss Adams is a neighbor and friend of the Hennin-gers. Miss Adams visited the Henningers on April 3, 1969, and on that visit the Henningers recognized her, and she “could see nothing wrong with them.”
Rev. Dickerson is the preacher at the Oak Hill Baptist Church. Although the Henningers did not go to church, he testified that he had known them about nine years and made calls on them before and after they went to Monte Siesta Retirement Home. After they were in Monte Siesta, he visited them about every month. Rev. Dickerson stated that Mrs. Henninger is the “same” now as she was when he first knew her nine years before. However, he did notice a deterioration in Mr. Henninger “six to eight months” after he was in Monte Siesta.
From the preceding summary, it is apparent that there is ample evidence to support the finding of the trial- court. In a non-jury trial wherein the court has filed findings of fact and a statement of facts has been filed, the court’s findings will be sustained if there is any evidence to support them. 4 McDonald, Texas Civil Practice, Sec. 16.10(b), p. 29 (Rev.Vol. 1971).
Appellant also complains that the court erred “. . . in considering the testimony of Pearl Henninger, and in allowing her testimony to be part of this record for any purpose . . .” On the first day of the trial, October 13, 1969, the trial court, after hearing the testimony and observing the demeanor of Pearl Hennin-ger, recessed the case suggesting that a guardian ad litem be appointed. Appellant claims that the court “considered” the testimony of Mrs. Henninger in formulating his findings, and such was erroneous since “the testimony of an alleged incompetent is not admissible for any reason.” Assuming, but not deciding, that appellant’s premise is correct, it is presumed in a non-jury trial that the trial judge ignored incompetent evidence, and that he grounded his decision solely upon the matters properly before him. Victory v. State, 138 Tex. 285, 158 S.W.2d 760 (Tex.1942), 4 McDonald, Texas Civil Practice, Sec. 16.04, p. 5 (Rev. Vol.1971).
By point of error fourteen appellant claims that the court erred in permitting appellee to be substituted as party plaintiff for the Henningers. At the time the trial court permitted appellee to be substituted as plaintiff, appellee had been appointed guardian of the persons and estates of Rudy and Pearl Henninger by the Probate Court of Travis County. Appellant says that there existed such a “. great conflict of interest between the guardian and his ward (sic) as to amount to a conspiracy to set aside” the deeds.
If appellant had wished to prevent appel-lee’s appointment as guardian, she should have challenged that appointment in the guardianship proceedings in the Probate Court. If appellant now wishes to attempt to remove appellee as guardian, she must file appropriate proceedings in the Probate Court. See Art. 222 of the Probate Code, V.A.T.S.
Appellant’s final point is that the court erred in overruling her motion for summary judgment. In the early stages of the case, both the Henningers and the defendant filed motions for summary judgment, both of which were denied. In such a situation, the order denying the motion for summary judgment is not subject to review upon appeal. Ackermann v. Vordenbaum, 403 S.W.2d 362 (Tex.1966).
The judgment is affirmed.
Affirmed.
. “But age, with his stealing steps, Hath claw’d me in his clutch.”
Shakespeare, Hamlet, Act V, sc. i. 1. 97.
|
sw2d_482/html/0327-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "REYNOLDS, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
LABORERS’ INTERNATIONAL UNION OF NORTH AMERICA, CONSTRUCTION & MUNICIPAL WORKERS LOCAL UNION NO. 1253, Appellant, v. W. R. BLACKWELL, as City Manager, and the City of Lubbock, Texas, Appellees.
No. 8266.
Court of Civil Appeals of Texas, Amarillo.
April 24, 1972.
Bader, Wilson, Menaker & Cox, Marvin Menaker, Dallas, for appellant.
Fred O. Senter, Jr., City Atty., James P. Brewster, Lubbock, for appellees.
REYNOLDS, Justice.
Appellant, Laborers’ International Union of North America, Construction & Municipal Workers Local Union No. 1253, filed this declaratory judgment action against the City of Lubbock, Texas, and W. R. Blackwell in his capacity as City Manager, seeking to have declared invalid a regulation of the City of Lubbock prohibiting various supervisory personnel from obtaining membership in a union. The trial court, without intervention of a jury, denied the relief requested by appellant on the ground that there existed no justiciable controversy upon which the court could render a decision.
Appellant thereafter perfected appeal assigning two points of error complaining primarily that (1) the trial court erred in its determination that the appellant had no justiciable interest in the City of Lubbock’s regulation pertaining to union membership, and (2) that the trial court erred in not granting a declaratory judgment prohibiting the City of Lubbock from promulgating or enforcing an administrative rule, ordinance, or policy prohibiting supervisors from forming a union, should they voluntarily choose to do so.
Affirmed.
The facts of the case before us are undisputed. All evidence, including exhibits, was made a part of the record by way of stipulation. Appellant is a labor organization with a principal office in Lubbock County, Texas. Appellee W. R. Blackwell, acting as City Manager for the City of Lubbock, on September 9,1968, promulgated a memorandum to all directors and department heads on the subject of “Administrative Regulation Governing Organization of Municipal Employees” pursuant to various administrative regulations governing union organization of municipal employees. The purpose of the memorandum and regulation was to state the policy of the City of Lubbock on matters of union membership. The regulation sets out the right of the city employees to join or not join a labor organization, grievance procedures, rules relating to collective bargaining, strikes, and various other matters relating to employment policies of the City of Lubbock. The section of the administrative regulation dealing specifically with supervisory personnel, the section in question here, reads as follows:
“VIII. Membership of Supervisory Employees
8.01 Supervisory employees carry responsibilities and duties in the management of the City’s business which may be incompatible with membership in a labor organization. Supervisory employees, therefore, shall abstain from active participation in a labor organization in which employees supervised by such supervisory personnel are also members.”
Appellant seeks by way of declaratory judgment to have Sec. 8.01 of the regulation declared invalid relying upon Vernon’s Ann.Civ.St. art. 2524-1, § 2, and Vernon’s Ann.Civ.St. art. 5154c, § 4. Appellees contend that appellant has no justiciable interest so as to entitle it to a declaratory judgment because appellant does not represent supervisory personnel to whom Sec. 8.01 applies, nor has there been any action taken or threatened to be taken whatsoever pursuant to such regulation.
In 1 McDonald, Texas Civil Practice, § 2.04 — B concerning the history and meaning of the Uniform Declaratory Judgments Act, there is stated at page 171 the following:
“ . . . The Act is merely procedural, confers no new substantive rights upon the parties, adds nothing to the jurisdiction of the courts, and provides simply a ‘remedy or procedure of great elasticity’ for the determination of controversies, already within the courts’ power.”
There are certain well recognized requisites which must be met in order to entitle a party to secure a declaratory judgment. There must exist a justiciable, actual, real controversy, and a protectible right, not a future or speculative right. The court cannot be called upon to render advisory opinions on abstract, hypothetical, or moot questions. Further, the court in an action for declaratory judgment will not declare rights on facts which are uncertain, contingent and which facts or events may never happen. California Products, Inc. v. Puretex Lemon Juice, Inc., 160 Tex. 586, 334 S.W.2d 780 (1960); Reuter v. Cordes-Hendreks Coiffures, Inc., 422 S.W.2d 193 (Tex.Civ.App.—Houston (14th Dist.) 1967, no writ). See McDonald, Texas Civil Practice, § 2.05.1—C, pp. 172-175.
Anderson’s Actions for Declaratory Judgment, ch. 2, sec. 17, Vol. 1, p. 67, defines justiciable controversy as follows :
“A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.”
Chapter 2, sec. 19, Vol. 1, p. 77 of the same work states this:
“In other words, if the construction or validity of a statute or ordinance is drawn into question, the courts will not entertain an action based thereon, seeking a determination as to either the construction or validity thereof, where there is no controversy as to the violation of such statute or ordinance. In these circumstances, there is no justiciable controversy.”
There is a total lack of evidence in the stipulations that appellant labor union represents any supervisor who may be affected by the regulation complained of by appellant. No employee of the City of Lubbock, supervisory or other, has joined in this suit seeking declaratory relief. Further, there is no evidence that any action has been taken by the City of Lubbock to restrain or interfere with any organizational activity of appellant union. Appellant in effect seeks tO' have this court declare various “rights” under a situation in which there is no proof that any “right” has been affected. It should be noted that the regulation itself is not self-executing in the sense that it automatically sets up a penalty for any action taken in disregard of such regulation. Section 2 of the Uniform Declaratory Judgments Act clearly states that any question of construction or validity thereof is to declare rights, status, or other legal relations arising under such statutes. No use has been made of the regulation here by either party to this action ; thus, it cannot be said that any rights, status, or other legal relations have been affected by the regulation. Orange Independent School District v. West Orange Independent School District, 390 S.W.2d 81 (Tex.Civ.App.—Beaumont 1965, writ ref’d n. r. e.); Beverly v. The City of Dallas, 292 S.W.2d 172 (Tex.Civ.App.—El Paso 1956, writ ref’d n. r. e.).
We are thus called upon in this case to decide the validity of the regulation if a supervisor should join appellant union and if the City should take some action against him. As previously indicated, there are no allegations or proof of any violation of the regulation in question here. There are also no allegations or proof of the initiation of any action of a disciplinary nature against any employee of the City of Lubbock pursuant to Sec. 8.01. While the appellant contends that it does not wish to involve in union activities any supervisory personnel whose position may be jeopardized by the regulation, the court does not have the power to advance an opinion, which, upon this hypothetical state of facts, would be advisory only. United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1946); Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641 (1933); Firemen’s Insurance Company of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Sup.Ct.1968). As noted by our Supreme Court in California Products, Inc. v. Puretex Lemon Juice, Inc., supra, “(t)he Uniform Declaratory Judgments Act does not license litigants to fish in judicial ponds for legal advice.”
We, therefore, overrule appellant’s two points of error and hold that under the present facts of this case there exists no justiciable controversy upon which a decision can be rendered.
The judgment of the trial court is affirmed.
. “Sec. 2. Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a Statute, municipal ordinance, contract, or franchise, may have determined any question of construction or validity arising under the instrument, Statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.”
. “Sec. 4. It is declared to be the public policy of the State of Texas that no person shall be denied public employment by reason of membership or nonmembership in a labor organization.”
|
sw2d_482/html/0330-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "CLAUDE WILLIAMS, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
TOWER CONTRACTING CO., INC. OF TEXAS, Appellant, v. BURDEN BROTHERS, INC., Appellee.
No. 17898.
Court of Civil Appeals of Texas, Dallas.
June 22, 1972.
Rehearing Denied July 20, 1972.
D. Samuel Coats, Clark, West, Keller, Sanders & Ginsberg, Dallas, for appellant.
Charles H. Storey, Dallas, for appellee.
CLAUDE WILLIAMS, Chief Justice.
This is an appeal from a judgment rendered non obstante veredicto in favor of appellee in its action against appellant on a promissory note.
Tower Contracting Company, Inc. of Texas (hereinafter referred to as Tower) is engaged in the general construction business. Burden Brothers, Inc. (hereinafter called Burden) is in the mechanical contracting business doing primarily heating, air conditioning and plumbing work. The two Texas corporations had been involved in numerous business transactions, both in Texas and other states, for approximately ten years. Tower would generally be the contractor on the job and Burden the subcontractor.
On and before September 30, 1965 Tower was the general contractor for the erection of a multi-story office building in Dallas, Texas known as the Blanton Tower. Tower was also the owner of the property. On that date Tower was indebted to Burden, which was the mechanical subcontractor for the improvements, such debt being delinquent. Tower was also indebted to several other subcontractors furnishing labor and materials for the building. At that time Tower was also six or eight months in default of its interim loan to Mercantile National Bank of Dallas and such bank was threatening foreclosure. On that date the capital stock of Tower was owned by J. D. Blanton, except for one share owned by J. Raymond Jones and one share owned by Ben Goodwin. On such date there was pending in the district court of Dallas County a suit styled J. Raymond Jones, Plaintiff vs. Ben Goodwin et al and J. D. Blanton, Defendants, in which Jones was attempting to enforce an alleged oral agreement to vest in him fifty per cent of the common stock of Tower. In such action an injunction had been obtained which restrained the officers, directors and shareholders from meeting or taking any action to accept a loan commitment in the sum of $3,800,000 from Teamsters Union Pension Fund which Jones had in his possession since August, 1965 and which loan was suf-. ficient to pay Mercantile Bank as well as the subcontractors and other debtors of Tower. In the light of the internal fight for control of Tower, Burden, on September 30, 1965, perfected its mechanic’s and mate-rialman’s lien covering the work it had performed on the Blanton Tower project and thereafter, on October 15, 1965, it intervened in the Blanton case in which it prayed for a mandatory injunction to force the officers, directors and stockholders of Tower to accept the outstanding loan commitment, foreclosure of its liens, and the appointment of a receiver. On November 3, 1965, all parties in the Blanton case, including Burden, entered into an agreement whereby the loan commitment would be accepted, Jones would acquire all of the stock of Tower which included its principal asset, Blanton Tower. On November 5 all parties entered a consent order authorizing the meeting of Tower’s shareholders and board to elect officers and accept the loan commitment. Pursuant to the agreement Jones acquired all of the Tower stock and obligated himself and Tower to pay to J. D. Blanton or to the Blanton Trust $250,000 in cash, and a note for $240,000. Jones further obligated himself to “take such action as may be appropriate, including the execution of any necessary documents, to hold the Guardian of the Estate of J. D. Blanton harmless from any claims which may be asserted by any trade credi-ditors of Tower Contracting Co. Inc. of Texas and J. D. Blanton Construction Company, Inc., existing as of November 1, 1965.” The agreement was approved and ratified in the court’s final judgment in the Blanton case entered on January 28, 1966. In these negotiations J. Raymond Jones was represented by William H. Clark III and Burden was represented by Charles H. Storey.
When Burden’s lien on the Blanton Tower was perfected on September 30th it secured a debt of $142,062.80. Thereafter, Burden continued to furnish labor and materials to Blanton Tower to the date of closing, at which time its principal debt on the Blanton Tower project was $150,298.30. Burden contended that since payment of its indebtedness on the Blanton Tower project had been delayed it was entitled to interest on such indebtedness in the sum of $17,-047.54 and it also contended that it was entitled to indebtedness, as well as interest, on projects previously performed for Tower in Mobile, Alabama, Palo Alto, California, and on the Tower Restaurant in Dallas, amounting to a figure in excess of $40,000. On January 24, 1966, following a conference between attorneys Clark and Storey, attorney Storey, representing Burden, addressed a letter to attorney Clark, representing Tower, in which he advised that “certain questions have been raised by my clients which I thought it best to call to your attention in advance of the Wednesday closing so that, if necessary, this closing may be deferred until these questions are resolved. I trust that a delay will not be necessary, but my clients properly feel that since, as a practical matter, they are being called upon and have been called upon, to finance a major portion of this project they should have a complete disclosure insofar as disbursement of the loan proceeds is concerned.” The letter then proceeds to outline the debts which are being paid from the loan proceeds which included an item of “Trustees $250,000.00.” While questioning the right to expend the sum of $250,-000 of the loan proceeds for the purpose of purchasing the shares of stock by Jones, Storey stated he felt “that I can get my clients to go along with this payment if all remaining funds are properly accounted for and applied to their debts.” He then outlined Burden’s debt as being $150,298.30 plus $17,047.54 as interest, totaling the sum of $167,345.84. This sum represented Burden’s claim for work on the Blanton Tower and secured by its lien. The letter then contained the following paragraph:
“In addition to the debt of Burden Brothers, Inc. shown above, there are other outstanding debts owed to it which should be simultaneously resolved. If it is in fact necessary to apportion cash payments to the above debts, then these additional debts hereinafter mentioned would not be included in the apportionment. They should, however, be included in any deferred balances owed to Burden Brothers and the installment payments fixed so as to simultaneously liquidate them. These additional debts are as follows:
Capital Inn, Mobile, Alabama $22,170.81
Palo Alto, California, Cabana 10,655.80
Tower Restaurant, Dallas 6,941.26
Tower Contracting, Miscellaneous 940.00
Total $40,707.87"
Storey, in the letter, also stated that Burden was claiming reasonable attorney’s fees but said: “I am sure that you and I can agree upon a reasonable fee in event the other matters can be resolved.”
This letter was duly received by attorney Clark. Although it had been planned by the parties to consummate the distribution of the funds from the loan commitment on January 28th the closing was not actually had until the 31st of January, 1966. On this date Jones, his attorney Mr. Bill Clark, and Sam Suri, the accountant for Tower, met at the title company to close the transaction. No official of Burden was present at the closing. On that occasion, and as a part of the closing, Burden accepted the sum of $107,811.64 in cash; a note in the sum of $46,679 (referred to as Note No. 1); and another note (referred to as Note No. 2) in the sum of $48,828.80, totaling the sum of $203,319.44.
It is undisputed that in this final closing on January 31, 1966, Tower, acting through Jones, received the permanent loan of $3,-800,000 and disbursed this amount in favor of Mercantile National Bank, as well as other lienholders and creditors, including Burden. It is also without dispute that from this loan Jones paid the sum of $250,-000 to the stockholders and thereby became the principal owner of the corporation.
Note No. 1, referred to above, was paid, but Note No. 2 was not paid. Burden brought this action to recover on this note. Tower answered by asserting defense of (1) want of consideration; (2) offsets and credits; and (3) duress.
The case was tried before the court and a jury and at the conclusion of the evidence thirteen special issues were submitted to the jury in the court’s charge. Special Issue No. 1 inquired: “Do you find from a preponderance of the evidence that the Defendant was under duress from the Plaintiff when it executed the note dated January 28, 1966?” To which the jury answered “We do.” Because of conditional submission, the jury was not required to answer any of the other remaining issues which dealt with the defenses of consideration and offsets. The trial court then sustained Burden’s motion for judgment non obstante veredicto and rendered judgment that it have and recover of and from Tower the amount of the note sued upon, plus interest and attorney’s fees.
Tower’s appeal is based upon two points of error: (1) that the judgment non ob-stante veredicto should be reversed and rendered because there was evidence to support the jury’s answer to Special Issue No. 1 that Tower was acting under duress from Burden when it executed the note; and (2) that such action of the trial court in rendering judgment non obstante veredicto deprived the appellant of the right to have jury findings relating to the issues of lack of consideration and offsets.
In support of its first point of error appellant Tower relies chiefly upon the testimony of its president, J. Raymond Jones, who testified that the first time he became aware of the note made the basis of this litigation was when it was presented to him for his signature, among other papers and notes, at the time of the closing of the permanent financing arrangements on January 31, 1966. Jones testified:
“Q Is it your testimony that on January 31, 1966, when you went to the title company to close on the permanent financing, you had no knowledge of the $48,000 note?
A That is correct.
Q At the time you signed this note, Mr. Jones, did you make that fact known?
A Yes sir, I sure did.
Q Who was present at the time you signed the note?
A Mr. Storey.
Q All right, who else?
A The man at the title company, Mr. Bill Clark, and Sam Suri, and myself, and people were running in and out of there all the time. I signed fifteen to twenty notes that day. This was on the bottom and I said, T don’t owe this note’.
I had been doing business with Charles [meaning Charles Burden] for twelve to fifteen years and I say ‘Okay, if I have to sign it’, I felt I could go and talk to them afterwards and find out what it was all about. I have tried for five years and I couldn’t talk to them about it.
Q Mr. Jones, you say you did sign the note though?
A Yes, sir, I signed it.
Q Now, why do you say you had to sign it?
A If I didn’t sign it, I would have lost everything that I had worked for. Burden Brothers would have lost what they had put in the job as well as about fifteen or twenty other people.
Q You had a $3,800,000 loan at stake ?
A That is correct.
Q And you had certain liens that had to be released?
A They all had to be released.”
When asked why he could not have delayed the closing of the deal he responded:
“A Well, we had been delaying the closing since the first of the year. The Bank was anxious for their money and they were ready to close. Charles [meaning Charles Burden] had already filed their lawsuit to foreclose their lien, and the agreement I had to buy out the other interests in the Tower Contracting Company and I had until February 4th to close that deal, to pay them that money and receive that stock; I would have lost everything. I had no choice. If it had been $100,000, I would have signed it. I knew I could work it out with Charles later.”
On cross-examination Jones admitted that his attorney, Mr. Clark, was present at the time the note was presented to him. He admitted that he did not ask his attorney for an explanation of the note. He agreed that his attorney had full authority to represent Tower and to negotiate with Burden.
Mr. Suri testified that when the note was given to Mr. Jones to sign he asked: “What is this, Bill?” (referring to Bill Clark), and he said, “Well you just have to sign it or the deal is off otherwise.”
A careful review of the entire record in this case convinces us that there is no evidence of actionable duress or business coercion causing the execution of the note sued upon. We think that the record as a whole establishes the absence of duress, as a matter of law.
Questions concerning duress, duress of property, and business coercion have been made the subject of numerous law review articles, textbooks, and decided cases both in Texas and in other jurisdictions.
The courts of Texas have consistently adhered to the common law doctrine of duress as well as a more modern doctrine of duress of property. McGowen v. Bush, 17 Tex. 195, 201 (1856); Oliphant v. Markham, 79 Tex. 543, 15 S.W. 569, 23 Am.St.Rep. 363 (1891). Our law is definitely settled that where the will of the individual is overcome by threats directed against his property the law will not enforce agreements obtained while under such threat of force. 21 Tex.Jur.2d, “Duress and Coercion”, § 3, p. 117. What constitutes duress is a question of law but whether the facts exist to make up the elements of duress may be an issue of fact. 21 Tex.Jur.2d, “Duress and Coercion”, § 9, p. 120; Sanders v. Republic National Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App., Tyler 1965); and Brooks v. Taylor, 359 S.W.2d 539 (Tex.Civ.App., Amarillo 1962).
While the authorities cited in the footnote demonstrate a lack of unanimity on the question, our courts of Texas have consistently followed the rule, as a matter of law, that (1) there can be no duress unless there is a threat to do some act which the party threatening has no legal right to do; (2) there must be some illegal exaction or some fraud or deception; (3) the restraint must be imminent and such as to destroy free agency without present means of protection. Ward v. Scarborough, 236 S.W. 434 (Tex.Comm’n App.1922); Dale v. Simon, 267 S.W. 467 (Tex.Comm’n App.1924); Hall v. Odiorne, 14 S.W.2d 870 (Tex.Civ.App., Austin 1929, writ dism’d); Goodrum v. State, 158 S.W.2d 81 (Tex.Civ.App., Galveston 1942, writ ref’d w. o. m.); Fischer v. Richard Gill Co., 253 S.W.2d 915 (Tex.Civ.App., San Antonio 1952); Metro-Goldwyn-Mayer Distributing Corp. v. Cocke, 56 S.W.2d 489 (Tex.Civ.App., Amarillo 1933); Outlaw v. Settegast, 338 S.W.2d 291 (Tex.Civ.App., Waco 1960); Lawrence v. J. M. Huber Corp., 347 S.W.2d 5 (Tex.Civ.App., Waco 1961); Brooks v. Taylor, 359 S.W.2d 539 (Tex.Civ.App., Amarillo 1962); Sanders v. Republic Nat. Bank of Dallas, 389 S.W.2d 551 (Tex.Civ.App., Tyler 1965); Daugherty v. Gower, 403 S.W.2d 535 (Tex.Civ.App., Amarillo 1966); and Scurlock v. Lovvorn, 410 S.W.2d 525 (Tex.Civ.App., Dallas 1966).
When we analyze the record developed in the trial court in the light of these authorities the conclusion is inescapable that appellee was doing nothing more than exercising its legal right in a proper manner by requiring appellant to execute the note in question, which represented delinquent accounts alleged to be due, before releasing its materialman’s and mechanic’s lien on the Blanton Tower property. The picture presented by this record is far different than those presented in cases relied upon by appellant where the party executing the agreement, or paying money, is required to by economic pressure brought about by a wrongful or illegal act or threat. Illustrative of these cases is Crow v. City of Corpus Christi, 146 Tex. 558, 209 S.W.2d 922 (1948), in which the Supreme Court held that the City of Corpus Christi was attempting to collect an illegal tax from a taxicab company.
In the situation here presented appellee Burden was within its legal rights in demanding that its mechanic’s and material-man’s lien on the Blanton Tower project be released as a part of the settlement agreement, both growing out of the Jones versus Blanton lawsuit and also by virtue of negotiations which had been carried on by the attorneys for the respective parties at a time prior to the final closing date. Appel-lee Burden had a perfect right to negotiate with Tower to the end that it, Burden, would not require Tower to pay off the lien in cash but instead to give it part cash and a note for the balance. In addition, it had a perfect right to require Tower to take care of its other claimed indebtednesses in the form of the note referred to as Note 2. All of these matters were part and parcel of an agreement to settle and compromise the differences between the parties and to adjust their legal positions.
It is also quite significant to observe that Tower, and its attorney Bill Clark, had notice for several days concerning Burden’s claim to the right to have its claimed accounts brought up to date and disposed of contemporaneously with the closing of the Blanton Tower transaction. It cannot be said that this proposition was a last-minute or “pistol to the head” threat on the part of Burden. Moreover, at the time the note was executed Mr. Clark, attorney for Tower, was present and made no protests. While it is true that he told Jones that unless he signed the note the “deal would be off”, this could not come as a surprise to the attorney since he and Mr. Storey, attorney for Burden, had been negotiating concerning the closing for several days prior to the closing date. Thus it is evident that the alleged threat was not so imminent as to destroy free agency on the part of Tower.
Accordingly, we find that the alleged threat made by Burden to require Tower to execute the note in question was not a threat to do an illegal act nor was it a threat by Burden to exercise a legal right in a wrongful manner but, on the contrary, was the exercise of a legal right in a proper manner on the part of Burden so that the execution of the note by Jones for Tower was not caused or brought about by duress, as a matter of law.
In its alternative second point of error appellant contends that the action on the part of the trial court in granting judgment non obstante veredicto effectively deprived it of jury findings relating to the issues of lack of consideration and offset. It argues that if it should be held that the execution of the note was not brought about by duress then the case should be reversed and remanded to the trial court so that these defensive issues could be submitted and answered. The essence of appellant’s contention is that since there was no real verdict in this case there can be no judgment non obstante veredicto. It relies upon Fitts v. Carpenter, 124 S.W.2d 420 (Tex.Civ.App., Eastland 1939) and Whisenant v. Fidelity and Casualty Co. of New York, 354 S.W.2d 683 (Tex.Civ.App., Dallas 1962). These authorities are not applicable for the reason that in each case there was an incomplete verdict and it was correctly held that a judgment non obstante veredicto was improper. However, the verdict here was complete. The jury answered Special Issue No. 1 in the affirmative and was expressly instructed by the court that in the event of such answer they need not answer any of the remaining issues. This constituted a complete verdict pursuant to the instructions of the court.
Appellant directed no objections to the manner in which the trial court conditionally submitted its various special issues relating to its defense of lack of consideration and offsets. By failing to object to the method of submission of the issues appellant has effectively waived its right to have same answered by the jury. Rules 272 and 279, Texas Rules of Civil Procedure. Our Supreme Court in Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985 (1949), held that it was incumbent upon a party asserting an affirmative defense to see that the jury answers all essential elements of the defense in his favor, or to object to the submission of the case to the jury in such manner that an answer on an essential element will be prevented. The same rule was applied by the Supreme Court in Bay Petroleum Corporation v. Crumpler, 372 S.W.2d 318 (1963), in which Chief Justice Calvert pointed out that by failing to object to the conditional submission of issues the party waived its right to have them answered. To the same effect see Strauss v. LaMark, 366 S.W.2d 555 (Tex.Sup.1963); Knight v. Stewart, 287 S.W.2d 748 (Tex.Civ.App., Dallas 1956); Barrett v. Curtis, 407 S.W.2d 359 (Tex.Civ.App., Dallas 1966); and Bell v. Aetna Casualty & Surety Co., 394 S.W.2d 830 (Tex.Civ.App., Houston 1965, writ ref’d n. r. e.),
Appellant’s points of error, having been carefully considered, are found to be without merit and are therefore overruled. The judgment of the trial court is affirmed.
Affirmed.
. A most comprehensive and in depth study of the gradual expansion of the ancient common law doctrine of duress is found in “Economic Duress — An Essay in Perspective”, by John P. Dawson, 45 Mich. Law Rev. 253-290; and “Duress Through Civil Litigation”, by John P. Dawson, 45 Mich.Law Rev. 571-598 and 679-716. See also “Economic Duress”, by John Dalzell, 20 N.C.Law Rev. 237 and 341 (1942) ; 13 WiUiston on Contracts, 3d Ed., 647-683 (1970), and cases therein cited; Restatement of the Law of Contracts, §§ 492 to 498; and 17A Am. Jur. 564, § 7, and eases therein cited.
|
sw2d_482/html/0337-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WALTER, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
The FORT WORTH NATIONAL BANK et al., Appellants, v. Jonisue Cogdell Bowden STIFF et al., Appellees.
No. 4541.
Court of Civil Appeals of Texas, Eastland.
May 26, 1972.
Rehearing Denied July 14, 1972.
Law, Snakard, Brown & Gambill (Samuel A. Denny, Robert Randolph & G. W. Parker, Jr.), Ft. Worth, Joe Carroll, Snyder, for appellants.
Shafer, Gilliland, Davis, Bunton & Mc-Collum (W. O. Shafer), Odessa, Hard-wicke, Pope, Hobbs, Christie & Montgomery (George F. Christie), Ft. Worth, Gibson, Ochsner, Adkins, Harlan & Hankins (Thomas Morris), Amarillo, Gene L. Du-laney, Snyder, for appellees.
WALTER, Justice.
This is a plea of privilege case. D. M. Cogdell was married twice. To the first union were born two children, Charlotte Cogdell Etgen and Marion P. Cogdell. To the second union were born three children, Jonisue Cogdell Stiff, David Martin Cog-dell and William Munsey Cogdell. D. M. Cogdell died on the 15th day of November 1964. His children by his second marriage were named Independent Executors of his will and estate and The Fort Worth National Bank was named as trustee of two trusts created for the use of the two children of the first marriage.
The Bank as trustee filed suit in Scurry County against the Independent Executors of the Estate of D. M. Cogdell, deceased. It sought a declaratory judgment construing the will of D. M. Cogdell, this facet of the suit was severed. The Bank also filed objections to the accounting filed by the executors; it asserted a derivative suit in behalf of the estate against William Mun-sey Cogdell and David Martin Cogdell, Jr., individually; it asserted causes of action for self-dealing by the executors; it asserted a cause of action for breaches of fiduciary duty and for attorney’s fees and expenses.
David Martin Cogdell, Jr. and William Munsey Cogdell, individually and as majority executors filed an amended cross-action against the Bank in its individual corporate capacity and against the Bank as trustee and asserted a cause of action for fraud, misrepresentation and deceit. The Bank in its individual corporate capacity and the Bank as trustee filed pleas of privilege which were controverted and overruled by the court. The Bank has appealed and contends the court erred in overruling its pleas.
It relies on 12 U.S.C., Section 94 which provides as follows:
Ҥ 94. Venue of suits
Actions and proceedings against any association under this chapter may be had in any district or Territorial court of the United States held within the district in which such association may be established, or in any State, county, or municipal court in the county or city in which said association is located having jurisdiction in similar cases.”
It also contends that Mercantile National Bank at Dallas v. C. H. Langdeau, 371 U. S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523, constitutes authority for sustaining its points. The statute and the Mercantile Bank case do establish venue in an original suit filed against a national bank, however, the Bank waives venue as to a cross-action arising out of or incidental to the subject matter of a suit filed by the Bank in a county outside the county of its residence. In Zachry v. Robertson, 147 Tex. 307, 214 S.W.2d 949 (1948) the Court said:
“When the plaintiff instituted this suit in Tarrant County he submitted himself-to the jurisdiction of the District Court of Tarrant County as to all matters arising out of or incidental to the subject matter of the suit, and thereby waived his right to be sued in the county of his domicile in a cross-action arising out of such cause of action.”
We hold that the matters asserted in the cross-action relate to matters arising out of or incidental to the subject matter of the suit filed by the Bank in Scurry County. The appellants’ points are overruled.
The judgment is affirmed. |
sw2d_482/html/0339-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DUNAGAN, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
The JACKSBORO NATIONAL BANK, Appellant, v. SIGNAL OIL AND GAS COMPANY, Appellee.
No. 631.
Court of Civil Appeals of Texas, Tyler.
June 15, 1972.
Patrick A. Myers, Jacksboro, for appellant.
Barbara L. Welz, Dallas, for appellee.
DUNAGAN, Chief Justice.
This is an appeal by writ of error from a default judgment on a writ of garnishment rendered for Signal Oil and Gas Company against The Jacksboro National Bank, garnishee, for $504.58 with interest.
The application for writ of garnishment recites that Signal Oil and Gas Company had obtained a personal judgment for the sum of $504.58, including accrued interest against John Doughty and wife, Mae Doughty; that said judgment was final and wholly unsatisfied.
The appellant contends that the court erred in granting default judgment because (1) the sheriff’s return does not show “the manner of service,” as required by Rules 663, 107, and 16, Texas Rules of Civil Procedure, (2) the sheriff’s return does not show “the manner of service” as required by Sec. 2.11, subdiv. A of the Texas Business Corporation Act, V.A.T.S. and Art. 2029, Vernon’s Tex.Civ.St, (3) the .sheriff’s return does not show the place of service as required by Rule 16, T.R.C.P., and (4) the sheriff’s return does not recite that the writ was executed.
The appellant states in its brief that the record shows that the appellee having recovered a judgment against defendants John Doughty and wife, Mae Doughty, caused a writ of garnishment directed to The Jacksboro National Bank to be issued on the 13th day of July, 1971. It appears that service of the writ on appellant was attempted on the 14th day of July, 1971. Further, that the record shows that The Jacksboro National Bank, the appellant, failed to file an answer or to make an appearance in the case. On August 9, the day after appearance day, default judgment was entered against appellant.
Appellant superseded the judgment and perfected this appeal by writ of error.
Appellant further states in its brief that it received no notice of default judgment as provided by Rule 329(a), T.R.C.P. On September 10th appellee notified appellant that the default judgment was final and requested payment. We assume that the dates August 9th and September 10th were in the year 1971.
The sheriff’s return on the writ of garnishment was “(c) ome to hand on the 14 day of July, 1971, on the 14 day of July, 1971, by delivering the within named Garnishee, Jacksboro National Bank, by serving S. V. Stark, in person, a true copy of this writ.”
No findings of fact or conclusions of law were filed by the trial court, and the case having been tried to the court without the aid of a jury, we must determine whether there was any evidence to support the judgment and the implied findings of fact incident thereto, and in doing so will consider only the evidence most favorable and disregard that opposed to these issues. Opryshek v. McKesson & Robbins, Inc., 367 S.W.2d 357 (Tex.Civ.App., Dallas, 1963, n. w. h.); Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950) and 23 A.L.R.2d 1114.
The case of Continental Insurance Co. v. Milliken, 64 Tex. 46, is squarely in point. On substantially the same facts as in the case at bar, the Supreme Court held that the return would not support a default judgment.
In that case, the officer’s return read: “By delivering to the Continental Insurance Company, by serving A. N. Grant in person, its local agent at Weatherford, Parker County, Texas, a true copy of this citation.”
The court said “to state that an officer executed process by serving it upon a named person is not to state the manner of service, but to give only the legal conclusion of the officer as to the compliance of his acts with the requirements of the statute. It is to state no more than that he served process by serving it upon a particular person, the manner of service is left untold.”
This decision has been followed by a long line of cases. Hyltin-Manor Funeral Home, Inc. v. Hill, 304 S.W.2d 469 (Tex.Civ.App., San Antonio, 1957, n. w. h.); Diamond Chemical Company v. Sonoco Products Company, 437 S.W.2d 307 (Tex.Civ.App., Corpus Christi, 1968, n. w. h.); Watson Van & Storage Company v. Busse, 451 S.W.2d 557 (Tex.Civ.App., Houston, 1st Dist., 1970, n. w. h.); Carlson Boats Works v. Hauck, 459 S.W.2d 887 (Tex.Civ.App., Houston 1st Dist., 1970, n. w. h.).
An officer’s return of a writ of garnishment is governed by the same rules applicable to the return of citations. Rules 663, 107, and 16, T.R.C.P.; Fleming-Stitzer Road Bldg. Co. v. H. C. Rominger & Co., 250 S.W. 456 (Tex.Civ.App., El Paso, 1923, n. w. h.).
In the Fleming case, which was a garnishment suit, the court quoted Article 278, R.C.S. (now Rule 663, T.R.C.P.) and then said, “(t)he return must recite that a true copy of the writ was delivered to the defendant in person.” See Mansfield v. Security Trust Co., 175 S.W. 771 (Tex.Civ.App., San Antonio, 1915, n. w. h.).
The sheriff’s return recites that the writ was served on S. V. Stark in person. S. V. Stark is not alleged to have any capacity with The Jacksboro National Bank. Furthermore, the entire record is void of any mention of S. V. Stark, other than the recitation that he was served with the writ of garnishment.
It was held in Texaco, Inc. v. McEwen, 356 S.W.2d 809 (Tex.Civ.App., Dallas, 1962, writ ref., n. r. e.) that “(i)t has long been the established law of this State that it is imperative and essential that the record affirmatively shows a strict compliance with the provided mode of service.” See Bankers Life and Casualty Company v. Watson, 436 S.W.2d 404 (Tex.Civ.App., Tyler, 1968, writ ref., n. r. e.).
Neither the affidavit nor the writ of garnishment designate S. V. Stark as an agent or officer of the corporation. The return of the serving officer merely shows that he served The Jacksboro National Bank by serving someone named Stark. This obviously is not sufficient to comply with the law relating to service, and the default judgment based thereon cannot stand.
It was held in Cragin & Son, Inc. v. Jones, 37 S.W.2d 1114 (Tex.Civ.App., El Paso, 1931, n. w. h.) that the court cannot presume that a person described in the return of service of writ of garnishment on him as “officer” of defendant corporation was president, secretary, or treasurer thereof. The courts of Texas have refused to presume that the “manager” upon whom service was made was either the president, secretary, or treasurer of the company. Tompkins Machine & Implement Co. v. Schmidt, 4 Willson Civ.Cas.Ct.App. § 134, 16 S.W. 174 (Tex.Civ.App., 1890). Service of a writ of garnishment on a vice president of a bank under Article 2029, V.T.C.S., was held defective. First Nat. Bank of Athens v. Guaranty Bond State Bank of Athens, 12 S.W.2d 676 (Tex.Civ.App., Beaumont, 1928, rev. on other grounds, Tex.Com.App., 23 S.W.2d 312).
Service upon a domestic corporation which recited that “by serving H. David Lasseter, its ‘agent’ ” was held defective because it was neither alleged nor shown that Lasseter was one of those named by law authorized to be served on behalf of the corporate defendant. United States Leasing Corp. v. Centennial Liquor Stores, Inc., 368 S.W.2d 951 (Tex.Civ.App., Dallas, 1963, n. w. h.).
Moreover, a default judgment should not have been granted because the sheriff’s return does not show the place of service as required by Rule 16, T.R.C.P.
Said Rule 16 provides that “(e)very officer shall indorse on all process and precepts coming to his hand the day and hour on which he received them, the mariner in which he executed them, and the time and place the process was served as well as the distance actually traveled in serving such process, and shall sign the returns officially.” (Emphasis ours).
It would seem that to have affirmatively shown a valid service, the sheriff’s return should recite at least that the writ was served within the State of Texas. The return in question states neither the city, town, state, nor country in which it was served. As a matter of fact, the sheriff’s return does not recite that the writ was executed.
It has been held that “a garnishment suit is purely a statutory proceeding, and the provisions of the statute are to be strictly construed.” First Nat. Bank of Athens v. Guaranty Bond State Bank of Athens, supra, and Cragin and Son, Inc. v. Jones, supra.
No presumption will be indulged to aid a sheriff’s return in order to support a judgment by default. Grapevine Trucking, Inc. v. Shepherd, 366 S.W.2d 950 (Tex.Civ.App., Ft. Worth, 1963, writ ref., n. r. e.).
The officer’s return in question does not affirmatively show that the writ was either executed or delivered to the garnishee.
To support a default judgment against a corporation, the record must affirmatively reveal a strict compliance with the statute or rules of civil procedure in regard to service of citation. Texaco, Inc. v. McEwen, supra; United States Leasing Corp. v. Centennial Liquor Stores, Inc., supra; Ponca Wholesale Mercantile Company v. Allen, 378 S.W.2d 129 (Tex.Civ.App., Amarillo, 1964, writ ref., n. r. e.).
Appellee has not filed a brief and therefore by virtue of Rule 423, T.R. C.P., did not avail itself of oral or written argument. Appellee has not challenged in any manner the statements in appellant’s brief relative to the facts in the record. Under this state of the record, we accept as correct the statements in appellant’s brief relating to the facts and the record and render judgment in conformity therewith. Rule 419, T.R.C.P.; Traweek v. Shields, 380 S.W.2d 131 (Tex.Civ.App., Tyler, 1964, n. w. h.); Gonzales v. Gonzales, 224 S.W.2d 520 (Tex.Civ.App., San Antonio, 1949, writ ref.); Coates v. Coates, 355 S.W.2d 260 (Tex.Civ.App., Eastland, 1962, n. w. h.); Hartford Fire Ins. Co. v. Owens, 272 S.W. 611 (Tex.Civ.App., Ft. Worth, 1925, writ ref.).
For the reasons herein stated the judgment is reversed and remanded to the trial court. |
sw2d_482/html/0342-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "GUITTARD, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
CITY OF GARLAND, Texas, Appellant, v. VALLEY OIL COMPANY, Appellee.
No. 17891.
Court of Civil Appeals of Texas, Dallas.
June 22, 1972.
Rehearing Denied July 13, 1972.
Louis F. Mathis, Asst. City Atty., Garland, for appellant.
Jake C. Cook, Fort Worth, for appellee.
GUITTARD, Justice.
The trial court granted an injunction restraining the city of Garland from enforcing an ordinance which required plaintiff Valley Oil Company to discontinue after one year the operation of a self-service gasoline station in an area where such use was forbidden by a general zoning ordinance. The city appeals. We hold the ordinance to be valid and dissolve the injunction.
By its first point the city contends that since plaintiff appeared before the board of adjustment, it cannot make a collateral attack on the action of the board by this suit for injunction, but is limited to direct review under Vernon’s Tex.Rev.Civ. Stat.Ann. art. lOllg (Supp.1972). This point is overruled. This suit does not attack the order of the board of adjustment, but rather the ordinance adopted by the city council on August 4, 1970. The only action by the board was a resolution adopted March 18, 1970 “that the station in question be phased-out in one (1) year’s time from the date of the Ordinance passed by the City Council.” This resolution was not a final determination of the matter, since it had no force until action was taken by the city council. Apparently, it was only a recommendation. The city council expressly adopted this recommendation at its meeting on July 21. That decision was implemented by enactment of the ordinance in question on August 4, and the present suit was filed to restrain the enforcement of that ordinance.
Although article 101 lg allows any person aggrieved by any decision of the board of adjustment to present to the court within ten days a petition showing that the decision of the board is illegal, no provision is made for similar review of the action of the city council. The property owner may maintain an independent action attacking such an ordinance on the ground that it is arbitrary and unreasonable. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229 (1937); City of Carthage v. Allums, 398 S.W.2d 799 (Tex.Civ.App., Tyler 1966, no writ).
By its second and third points the city asserts that the trial court erred in requiring the board to furnish plaintiff a “substantially judicial type hearing with all of the traditional concepts of due process,” and in determining the case on procedural due process without any pleadings to support such a determination. These points are sustained. The action complained of is not an order of the board, but an ordinance enacted by the city council. Plaintiff has made no attack on that ordinance for lack of procedural due process. The petition alleges that the attempt to enforce the ordinance deprives plaintiff of its vested property rights without due process of law and that the ordinance “is an unreasonable, unnecessary, and unconstitutional exercise of the police power of said City, and deprives plaintiff of his private property rights without compensation and without due process of law, and will deprive plaintiff of its non-conforming use of the property.” There is no allegation of lack of notice, denial of hearing, or any other procedural irregularity in enacting the ordinance. The judgment recites that the resolution of the board and the ordinance “should be set aside because of lack of procedural due process,” but no procedural irregularities are specified, and plaintiff has not pointed out to us anything in the record which would support this recital. Consequently, the judgment below cannot be sustained on this ground, and we must examine the record further to determine whether plaintiff has established its allegations that the ordinance is void as unreasonable or as depriving plaintiff of property without due process of law.
By its remaining points the city seeks to sustain the ordinance on the ground that the trial court erred in holding that plaintiff had a valid nonconforming use, and in ruling that the ordinance requiring plaintiff to discontinue the use after one year was unreasonable and not supported by substantial evidence. These points are sustained.
The general zoning ordinance adopted in 1962 provides that all territory thereafter annexed should be temporarily classified as “agricultural district” until permanent zoning is established by the city council. In January, 1966, before the land in question was annexed, the owners of the property leased it to Petro, Inc. for a term of fifteen years. The lease specified that the land should be used “for filling station, carwash, drive in grocery, washateria or other affiliated businéss and for no other purpose.” The annexation ordinance recites that it was published March 24, 1966, was “passed and approved on initial action” April 19, 1966, and was “passed and approved on final action” on June 6, 1966. In the interim between initial and final action, the station was built and plaintiff made its initial investment. Construction began May 2 and gasoline sales began May 11. In the same month plaintiff “took over” the lease and purchased the equipment from the lessee for $4,000. The value of the equipment at that time, according to plaintiff, was $1,500 for pumps, $934.40 for storage tanks, $1,475 for a building and $521.71 for inventory. Two years later, in May, 1968, plaintiff purchased the land for $20,000.
After plaintiff began operating the station a church was built on adjoining property and houses were built in a residential subdivision across the street. So far as the record shows, none of the land in the area other than plaintiff’s service station is used for commercial or industrial purposes. On February 2, 1970 plaintiff received a notice from the city of a hearing before the board of adjustment to consider “termination and discontinuation of the nonconforming gas station.” After two hearings before the board and one before the city council, the ordinance in question was passed and approved requiring plaintiff to discontinue operation of the station within one year.
At the council hearing plaintiff admitted that all of the service station equipment could be moved. Evidence before the court shows that plaintiff operates a total of fifteen self-service stations, and that associated companies operate about four hundred and fifty stations. In answer to interrogatories, plaintiff stated that its net profits from the station for the fiscal years after beginning operation, without considering land cost, interest on the outstanding note or depreciation, were as follows:
$2572 $4237 $3309 $3197 $3067.
On the same basis, plaintiff estimated its net profits from August 14, 1970 through August 14, 1971 would be $5,966.
The question is whether under these circumstances the ordinance requiring discontinuance of the use in one year was unreasonable and arbitrary and therefore beyond the police power of the city to restrict the use of property in the interest of public health, safety and general welfare. City of Corpus Christi v. Allen, 152 Tex. 137, 254 S.W.2d 759 (1953). We hold that plaintiff has not shown the ordinance to be unreasonable and arbitrary. When plaintiff made its initial investment, it was charged with notice that the land was in the process of annexation and that upon annexation would be zoned so that its use as a service station would be prohibited. Since the city’s potential jurisdiction had attached, plaintiff acted at its peril and now has no standing to complain that it has been deprived of its property without due process. City of Dallas v. Meserole, 155 S.W.2d 1019 (Tex.Civ.App., Dallas 1941, writ ref’d w. o. m.). Cf. Houston Ice & Brewing Co. v. Keenan, 99 Tex. 79, 88 S.W. 197 (1905).
In the second place, the period of one year allowed before discontinuance of the station was not unreasonable in view of undisputed evidence that plaintiff had already recovered its initial investment of $4,000 several times over at the time the ordinance was adopted, and that in the one additional year allowed by the ordinance, plaintiff’s expected profit would amount to almost 150 per cent of that investment, without considering removal and use of the equipment at other stations. An ordinance requiring termination of even a legal nonconforming use is valid if a reasonable time is allowed for recovery of the investment. Swain v. City of University Park, 433 S.W.2d 727 (Tex.Civ.App., Dallas 1968, writ ref’d n. r. e.); National Advertising Company v. County of Monterey, 1 Cal.3d 875, 83 Cal.Rptr. 577, 464 P.2d 33 (1970).
Plaintiff contends that it should have been allowed enough time to amortize the $20,000 it paid for the land, since there was evidence that the land would be worth less than $1,000 on discontinuance of the station. This contention is not well taken because plaintiff bought the land well after annexation, when operation of the station was at best a nonconforming use under the applicable zoning ordinance and subject to involuntary termination on allowance of a reasonable period for amortization of the initial investment. An additional investment in a nonconforming use cannot extend the period of amortization or otherwise restrict the city’s police power. This principle has been recognized in cases involving replacement of nonconforming structures and extensions of nonconforming uses. Since one of the legitimate objectives of zoning regulations is eventually to eliminate nonconforming uses, it has been held that a nonconforming structure cannot be replaced or substantially altered so as to prolong the nonconforming use. Goodrich v. Selligman, 298 Ky. 863, 183 S.W.2d 625 (1944); Cole v. City of Battle Creek, 298 Mich. 98, 298 N.W. 466 (1941). Likewise, it has been held that the owner of a nonconforming service station, who, with actual or constructive notice of a zoning ordinance, purchases an adjoining lot for the purpose of building a larger station, cannot complain of any hardship by denial of such extended use. DeWitt v. Town of Brattleboro, 262 A.2d 472 (Vt.1970).
For the reasons stated, we hold that the ordinance in question has not been shown to be arbitrary and unreasonable. Consequently, it must be sustained as a valid exercise of the city’s police power. The judgment of the trial court is reversed and judgment is here rendered dissolving the injunction.
Reversed and rendered. |
sw2d_482/html/0347-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "COLLINGS, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Elton Lee RATLIFF, Appellant, v. Jewell HOLLEY, Appellee.
No. 4531.
Court of Civil Appeals of Texas, Eastland.
June 16, 1972.
Rehearing Denied July 14, 1972.
Schulz, Hanna & Burke, Bob Hanna, Bruce Evans, Abilene, for appellant.
Pope, Dickenson, Batjer & Glandon, Robert D. Batjer, Jr., Abilene, for appellee.
COLLINGS, Justice.
Elton Lee Ratliff brought this suit against Jewell Holley for damages arising out of the collision of an automobile with plaintiff, a pedestrian, on the streets of the city of Abilene. The case was submitted to a jury on special issues and it was found by the jury that on the occasion of the accident Jewell Holley failed to turn off the ignition switch before leaving her automobile parked at the curb; that she failed to put the vehicle in neutral after parking to the curb, and that such failure to leave the vehicle in neutral and to turn off the ignition switch before leaving the car were not acts of negligence. Over timely objection the court included instruction on “sudden emergency” and “unavoidable accident” in its charge to the jury. Based upon the findings of the jury the trial court entered judgment that Elton Lee Ratliff take nothing. He has appealed from this judgment.
The record shows that on or about the evening of January 15, 1971, Mrs. Jewell Holley drove a 1968 Chevrolet automobile with an automatic shift to a domino hall on Chestnut Street in the city of Abilene to pick up her husband. After she arrived at the domino parlor, her husband and a Mr. Moore came out and sat in the car. Both her husband and Mr. Moore had been drinking. Shortly thereafter, Mrs. Holley’s husband and Mr. Moore got out of the car and went to where a Mr. Huddler who had also come out of the domino parlor was standing. The men were arguing and there was some scuffling, but no one was hit and no weapons appeared or were used.
The accident occurred on Chestnut Street in the city of Abilene. Mrs. Holley was parked headed into the curb. The street sloped down toward the curb from the middle of the street and Mrs. Holley got out of the car and left the motor running. The car started moving back into the street with the motor running and no one in it. It proceeded slowly at first and then moved faster. Mr. Ratliff who was standing nearby and desired to help ran to the moving automobile and was knocked down, causing the damages for which this suit is brought.
In his points one and two, appellant, Elton Lee Ratliff, contends that the court erred in including an instruction on “sudden emergency” in its charge to the jury because there was no evidence, and/or insufficient evidence to show that Mrs. Holley at the time in question was faced with a sudden emergency as that term is defined at law, and that the giving of such instructions were prejudicial to appellant and went to the heart of his case. These points are overruled.
Appellee, Jewell Holley, pleaded, among other things, the emergency doctrine. Our Supreme Court in the recent case of Del Bosque v. Heitmann Bering-Cortes Company, 474 S.W.2d 450 (Tex.Sup.1971), in discussing the doctrine of emergency states as follows:
“ . . . that the fact finder, judge or jury as the case may be, may conclude that conduct which in other circumstances would be unreasonable or imprudent is not so in emergency situations.”
See also Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup.1971) and Goolsbee v. Texas & N. O. R. Co., 150 Tex. 528, 243 S.W.2d 386 (1951).
In the instant case the jury was instructed in this regard as follows:
“When a person is confronted by an emergency arising suddenly and unexpectedly, not proximately caused by any negligence on his or her part, and which to a reasonable person requires immediate action without time for deliberation, his or her conduct in such an emergency is not negligence or a failure to use ordinary care, if, after such emergency arises, he or she acts as a person of ordinary prudence would have acted under the same or'similar circumstances.”
In our opinion the proof in the instant case raised the issue of “sudden emergency”. The situation which confronted Mrs. Holley was not brought about by her own actions. Her husband was in a drunken condition, and at the time in question was on the brink of physical combat at night in a dim corner of the down town area of Abilene. No one in the position of appellee could have known whether one of the participants was or was not armed. The fact that no weapons had yet appeared or been used did not mean that none were there. The record shows that appellee was excited when she left her car with the motor running and went to see about her husband. Appellant himself testified that she appeared to be alarmed because of the fight.
We also overrule appellant’s third point in which it is contended that the court erred in submitting an instruction on unavoidable accident in its charge to the jury, because there was conclusive evidence that appellee was negligent and the giving of the instruction was therefore prejudicial to appellant and went to the heart of his case. There is ample evidence showing that the accident in question was not caused by the negligence of either the plaintiff or the defendant. The instruction on unavoidable accident in our opinion was therefore raised by the evidence and was properly given by the trial court.
The judgment is affirmed. |
sw2d_482/html/0349-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McCLOUD, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
CENTENNIAL INSURANCE COMPANY, Appellant, v. Juan M. CANTU et al., Appellees.
No. 4560.
Court of Civil Appeals of Texas, Eastland.
June 16, 1972.
Larry L. Gollaher, Dallas, for appellant.
Boyd, Veigel & Gay (George McCles-key), McKinney, for appellees.
McCLOUD, Chief Justice.
This is a venue case. Juan Cantu and wife, Rosa Cantu, sued Centennial Insurance Company under the uninsured motorist provisions of a standard Texas family combination automobile policy issued to Juan Cantu by Centennial. Centennial filed a plea of privilege requesting that the case be transferred to Harris County, its place of residence. Juan and Rosa Cantu relied upon Subdivision 28, Article 1995, Vernon’s Ann. Civ. St. to retain venue in Collin County. The plea of privilege was overruled by the trial court and Centennial Insurance Company has appealed. We reverse and render.
The evidence shows that appellees, Juan and Rosa Cantu, reside in Collin County; that the policy, which was introduced in evidence, was an “assigned risk policy”; that Juan Cantu signed an “Application for Automobile Liability Insurance” under the Texas Automobile Insurance Plan; and, that the policy was issued by appellant. The parties stipulated that the accident occurred in Dallas County.
Subdivision 28 provides in part as follows :
“ • . . Suits on policies may be brought against any life insurance company, or accident insurance company, or life and accident, or health and accident, or life, health and accident insurance company, in the county where the home office of such company is located, or in the county where loss has occurred or where the policyholder or beneficiary instituting such suit resides.”
Our Supreme Court has recently stated that Subdivision 28 is not applicable in a suit by the insured against the insurer under the uninsured motorist provisions of an automobile liability policy. Pioneer Casualty Company v. Johnson, 450 S.W.2d 64 (Tex.Sup.1970). The Court said:
“Section 28 is inapplicable because Pioneer is not the type of company, and the insurance policy sued on is not the type of policy, to which this exception applies.”
See also Insured Lloyds v. Classic Motors, 296 S.W.2d 350 (Tex.Civ.App.—Austin 1956, no writ); Mason v. Allstate Insurance Company, 440 S.W.2d 404 (Tex.Civ.App.—Beaumont 1969, no writ); Southern Farm Bureau Casualty Insurance Company v. Powell, 414 S.W.2d 770 (Tex.Civ.App.—Corpus Christi 1967, no writ).
The judgment of the trial court is reversed and the cause is transferred to the District Court of Harris County. |
sw2d_482/html/0350-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "COLLINGS, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
R. C. BUCKNER et al., Appellants, v. ANDERSON-DUNHAM, INC., Appellee.
No. 4549.
Court of Civil Appeals of Texas, Eastland.
June 23, 1972.
Rehearing Denied July 14, 1972.
Stone & Stone (W. Emerson Stone, Jr.), Jacksonville, for appellants.
Allen, Feigl & Noah (W. R. Allen), Richardson, Aalon W. Ferguson, Dallas, for appellee.
COLLINGS, Justice.
Anderson-Dunham, Inc. brought suit against R. C. Buckner, A. K. Gillis & Sons, National Automobile and Casualty, Inc., and Seaboard Surety Company seeking judgment against the defendants jointly and severally for the sum of $4,214.99 and for attorneys’ fees and interest. The suit was brought under the terms of the McGregor Act, Article 5160, subd. B(b), Vernon’s Ann.Tex.Civ.St. Plaintiff alleged that it is a Louisiana corporation which supplied, sold and delivered to Red-E-Mix, Inc. sand and gravel in tonnage quantities which the purchaser used to produce concrete which it furnished to the defendants, R. C. Buckner and A. K. Gillis & Sons. The defendant Buckner was as to Red-E-Mix, Inc. the prime contractor, and the sub-contract with Red-E-Mix, Inc. to furnish concrete used in the construction of the project was oral. R. C. Buckner after September 30, 1969, paid Red-E-Mix, Inc. $11,453.40 for 530.25 cubic yards of concrete.
Plaintiffs suit against the defendants was to recover for sand and gravel furnished to Red-E-Mix, Inc. for the months of October and November, 1969, at the rate of $3.70 per ton for sand and $4.14 per ton for gravel. Plaintiff alleged deliveries as follows:
"To Red-E-Mix, Inc.
Sand Gravel
October 410.37 tons 753.18 tons
November 223.03 tons 326.60 tons
that Red-E-Mix, Inc. delivered from these raw quantities concrete that contained the following:
Sand Gravel
October 229.06 tons 468.82 tons
November 223.61 tons 350.55 tons."
The trial court found that the defendants failed to plead or prove that the plaintiff had no direct contractual relationship with the defendants, and that the defendants thereby waived the notice requirements of Subsection B(b) of Article 5160, and rendered judgment for the plaintiff against the defendants jointly and severally for the sum of $5,235.08 and for costs of suit and attorneys’ fees. The defendants have appealed.
The question before this Court is the sufficiency of the notice to appellants given by the second tier supplier, the plaintiff, to the prime contractor.
The defendants did not and do not on appeal disagree with the facts as above set out, but do assert that plaintiff was never paid for any of the sand and gravel delivered to Red-E-Mix, Inc. during the months of October and November, 1969. Defendants further assert that plaintiff acting through its agent, W. R. Allen, on January 15, 1970, placed in the United States Post Office at Richardson, Texas, properly addressed and marked as postage paid certified mail, a notice to each of the defendants of its claim herein sued upon, which notices were received by defendants in due course of mail after that date.
Article 5160, V.A.T.S., sometimes referred to as the McGregor Act, as to notices required for unpaid bills provides in part as follows:
“(3) When a claimant who is a subcontractor or materialman to the prime contractor or to a subcontractor has a written unit price agreement, completed or partially completed, such notices shall be sufficient if such claimant shall attach to his sworn statement of account a list of units and unit prices as fixed by said contract and a statement of such units completed and of such units partially completed.
(b) Additional Notices Required of Claimants Who Do Not Have a Direct Contractual Relationship With the Prime Contractor.
Excepting an individual mechanic or laborer who is a claimant for wages, no right of action shall be legally enforceable, nor shall any suit be maintained under any provision of this Act by a claimant not having a direct contractual relationship with any prime contractor for material furnished or labor performed under the provisions of this Act unless such claimant has complied with those of the following additional requirements which are applicable to the claim:
(1) If any agreements exist between the claimant and any subcontractors by which payments are not to be made in full therefor in the month next following each month in which the labor was performed or the materials were delivered or both, such claimant shall have given written notice by certified or registered mail addressed to the prime contractor at his last known business address, or at his residence, within thirty-six (36) days after the 10th day of the month next following the commencement of the delivery of materials or the performance of labor that there has been agreed upon between the claimant and such subcontractors such retention of funds. Such notice shall indicate generally the nature of such retainage.
(2) Such Claimant shall have given written notice by certified or registered mail as described in the preceding sub-paragraph B(b) (1) to the prime contractor within thirty-six (36) days after the 10th day of the month next following each month in which the labor was done or performed, in whole or in part, or material delivered, in whole or in part, that payment therefor has not been received. A copy of the statement sent to the subcontractor shall suffice as such notice.”
The trial court found that appellee, Anderson-Dunham, Inc., fully complied with Article 5160. Appellant notes that under Subsection B(b) of that article it is required that appellants receive statutory notice within thirty-six (36) days following the 10th of the month, next following the delivery of materials to the subcontractor, Red-E-Mix, Inc. Appellant contends that for the October 1969 deliveries of sand and gravel, the notices should have been received by December 16, 1960; and that for the November, 1969 deliveries of sand and gravel, the notices should have been received by January 15, 1970. It is admitted that the statutory notice in the instant case was not mailed until January 15, 1970 and that such notice was received after that date in due course of mail. Appellants contend that appellee therefore failed to give notice as required by Subsection B(b) of Article 5160.
Appellee contends that since the notice was mailed by Appellee by certified mail on January 15, 1970 which was thirty-six (36) days after December 10, 1969, that this satisfies the literal requirement of the statute.
The general rule is stated in 66 C.J.S. Notice § 18, p. 664 as follows:
“By force of statute or by provision of contract, service may be effective when the notice is properly mailed, regardless of its receipt by the addressee . . . ”
In accordance with this rule, we hold that the subcontractor in the instant case gave notice on the thirty-sixth (36th) day of the thirty-six (36) day statutory period when notice of the surety was registered and mailed, and that the notice then became effective, and not as contended by appellants when it was received by appellants. Johnson Service Company v. Climate Control Contractors, Inc., 478 S.W.2d 643 (Tex.Civ.App.—Austin 1972).
The judgment is affirmed. |
sw2d_482/html/0352-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SHARPE, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Roland HELDT et al., Appellants, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.
No. 707.
Court of Civil Appeals of Texas, Corpus Christi.
May 25, 1972.
Rehearing Denied June 29, 1972.
Fulbright, Crooker & Jaworski, J. Rufus Wallingford, Houston, for appellants.
Urban, Coolridge, Pennington & Scott, Charles M. Bardwell, Houston, for appel-lee.
OPINION
SHARPE, Justice.
This appeal is from a judgment rendered after non-jury trial in favor of appellee against appellants for $1,851.00.
This suit was instituted by appellee, Southwestern Bell Telephone Company against Roland Heldt, Agnes Marie Heldt and Martha L. Heldt, individually and doing business as Heldt Bros. Trucking Company, appellants, for damages caused when appellants’ truck struck an overhanging telephone line owned by appellee in Wharton, Texas. The trial judge filed 23 findings of fact and 6 conclusions of law.
Appellants assert six points of error reading as follows:
“POINT ONE
The trial court erred in entering judgment against the appellants because the evidence shows as a matter of law, that the appellee was guilty of negligence proximately causing the incident in question.
POINT TWO
The finding of the trial court (express or implied) that the actions of the appel-lee in maintaining its line at a height of less than 18 feet was not negligence and a proximate cause of the incident made the basis of suit is wholly against the great weight and preponderance of the evidence and so clearly wrong as to be manifestly unjust.
POINT THREE
The trial court erred in entering judgment against appellants because the evidence shows, as a matter of law, that ap-pellee was in violation of the ordinances of the City of Wharton.
POINT FOUR
The trial court erred in entering judgment against appellants because the court’s findings that the City of Wharton’s electrical ordinances with respect to ground clearances did not apply to appel-lee were against the great weight and preponderance of the evidence and so clearly wrong as to be manifestly unjust.
POINT FIVE
The trial court erred in entering judgment against appellants because there was no competent, properly admissible evidence before the court concerning the reasonableness of the value of the repairs made by the appellee to the cable.
POINT SIX
The trial court erred in admitting the testimony of the appellee’s witness, K. D. Glenn, concerning the value of repairs because said testimony was hearsay and, absent such testimony, there is no evidence before the court concerning the value of the repairs made by the appellee to the cable.”
The trial judge made findings of fact and conclusions of law which establish that appellants were liable to appellee in connection with the incident in question, and these are not questioned on this appeal. However, appellants assert in substance that the trial court erred in failing to find that appellee was contributorily negligent; and in failing to find that ap-pellee was in violation of an ordinance of the City of Wharton, and that for such reasons appellee’s recovery was barred. Additionally, appellants contend that the trial court erred in permitting the witness Glenn to give hearsay testimony concerning the reasonable and necessary repairs involved and there was no competent evidence in such respect. We have concluded that appellants’ points of error are without merit and that the judgment should be affirmed.
Under appellants’ first two points they contend that the evidence shows as a matter of law that appellee was guilty of negligence proximately causing the incident in question; and that the finding of the court (express or implied) that appellee’s maintaining its line at a height less than 18 feet was not negligence and a proximate cause is against the great weight and preponderance of the evidence and so clearly wrong as to be manifestly unjust.
The record reflects that on July 7, 1967 appellants’ truck came into contact with appellee’s overhead cable at the intersection of Highway 59 and New Caney Street within the city limits of Wharton, Texas. Appellants’ truck was carrying a substructure which was part of a drilling rig. Only one eye-witness to the accident was called by appellee. He was Mr. J. F. Caldwell, the owner of a Mobil Service Station located on the southwest corner of the intersection. Caldwell testified that a pipe or “nipple” extended above the load on the truck and came into contact with the telephone cable, at which time the pipe protruded yabout six inches above the cable. He indicated that the pipe was sticking up about four feet above the load.
The record also reflects that Mr. Alonzo Menking, appellants’ safety director, testified in substance that after the incident in question he made measurements using an identical load and trailer and found that the overall height of the vehicle was 15 feet 9 inches with the standpipe down and 16 feet 6 inches with the standpipe up. It is conceded that appellants did not have a permit from the State Highway Department for movement over the highways of Texas of a load in excess of 13 feet, 6 inches, as is required by law.
The evidence concerning the height of the telephone cable was furnished by Mr. K. D. Glenn, exchange engineer for appel-lee, who testified in substance that from his calculations the lowest point in the cable would be in excess of seventeen feet six inches above roadway. Mr. Glenn also said that appellee at the time of the accident tried to maintain a reasonable height of clearance from the roadway, which would be in the neighborhood of eighteen feet.
Article 1416, Vernon’s Ann.Civ.St., provides as follows:
“Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets and waters of this State, in such manner as not to incommode the public in the use of such roads, streets and waters. Acts 1874, p. 132; G.L. vol. 8, p. 134.”
That article applies to telephone as well as telegraph lines. City of Brownwood v. Brown Telegraph & Telephone Co., 106 Tex. 114, 157 S.W. 1163 (1913).
The trial court found “That the telephone cables damaged in said collision owned and maintained by SOUTHWESTERN BELL TELEPHONE COMPANY were placed in such a manner as not to incommode the public.”, and “That said cables had been in the same location without incidents since 1951.” The trial court concluded that “The aerial cables of Plaintiff, SOUTHWESTERN BELL TELEPHONE COMPANY, were lawfully located.”
Upon the record presented here we cannot hold that the evidence shows as a matter of law that appellee was guilty of negligence proximately causing the incident in question. Nor can we hold that findings to the effect that appellee’s maintenance of its line at a height of less than 18 feet did not constitute negligence and proximate cause of the incident here involved are against the great weight and preponderance of the evidence. Appellants’ points one and two are overruled.
Appellants’ points three and four basically involve their contention that the evidence shows as a matter of law that appel-lee was in violation of the ordinances of the City of Wharton and that the trial court findings to the effect that the City of Wharton’s electrical ordinances concerning ground clearances were inapplicable to appellee were against the great weight and preponderance of the evidence. The trial court found that “The City of Wharton Electrical Ordinances do not apply to SOUTHWESTERN BELL TELEPHONE COMPANY.”
The record reflects that Southwestern Bell Telephone Company is a long-lines telephone company. Appellee erected the poles and the aerial cable at the location of the accident in question in 1951. The identical poles are still standing and the height of the cable had not been changed since that date. On December 8, 1964, the City of Wharton enacted certain electrical ordinances which appear in the record as Defendants’ Exhibit 5.
Appellee, under the authority of Article 1416, V.A.C.S., is authorized to erect its poles, wires and other fixtures along, upon and across any public roads, streets and waters of Texas, subject only to the restriction that same must be done in a manner as not to incommode the public in the use of such roads, streets and waters. This is a right granted by the State which cannot be denied by a municipality or city. Moreover, the trial court specifically found (which finding has not been challenged by appellants) that appel-lee’s poles and cables, lawfully in place at the time in question, were located in such a manner as not to incommode the public.
The ordinance relied on by appellants was enacted by the City of Wharton to regulate electrical apparatus, poles, and wiring and does not in any manner purport to regulate telephone or communication companies or their fixtures. Nor does it regulate or attempt to regulate the height above ground of communication or signal lines. The only time signal wires are mentioned (Section 8, Paragraph Y) in the ordinance is in an exclusionary manner, i. e., that electrical lines wherever expedient, shall not be carried on the same pole as signal wires, and in the event that they are, the electrical lines must be not less than forty inches above such signal wire. The first paragraph of Section 9 specifically exempts the Telephone Company from the necessity of obtaining a permit for the installation, maintenance or alteration of wiring, apparatus, etc., for telegraph, telephone, signal service or central station protective service used in conveying signals of intelligence. Thus it does not appear that the ordinance is regulative of the Telephone Company or the height above ground at which its signal lines must be placed. The ordinance as a whole negates appellants’ contention that it is applicable to appellee.
Even if it should be found that the cited section of the ordinance relating to “pole line construction” applies to appellee, the method of construction and erection of Telephone Company poles is not in question. The only matter which appellants seek to bring under this specific sentence relates to the height of the signal wires above the ground. How the poles were constructed or erected, the height above ground, depth below ground, or their composition, cannot be construed as effecting the height of aerial cables placed thereon and is the only issue on which the cited provision of the ordinance could possibly bear, if considered applicable. It further appears that even if this Court should determine that the ordinance is applicable here and further that “the pole line construction” in some way applies to the height signal wire should be above ground, the evidence fails to show that appellee was in violation thereof.
It is well settled that the same rules of construction apply in municipal ordinances as apply to statutes, Dawson v. City of Amarillo, 355 S.W.2d 827 (Tex.Civ.App., Amarillo, 1962, writ ref’d n. r. e.) and cases cited therein. Furthermore, it is equally settled that a statute shall have only a prospective operation unless its terms shall clearly show a legislative intention that it shall have a retroactive effect. This has been the law in Texas since first stated by Justice Stayton speaking for the Texas Supreme Court in the case of Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887). The basis for this being Article 1, Section 16, prohibiting ex post facto and retroactive laws. Acting under the authority granted it by the State of Texas, appellee lawfully erected and maintained its poles and cables at the location in question for 13 years prior to the enactment of the electrical ordinance relied on by appellants. We are unwilling to hold that the ordinance in question applies to appellee retroactively or at all on the record here presented. Appellants’ points three and four are overruled.
By their points five and six the appellants contend in substance that there was no competent, proper admissible evidence before the court concerning the reasonableness of the value of the repairs made by appellee to its cable, and that the trial court erred in admitting the testimony of K. D. Glenn, appellee’s witness, concerning the value of repairs because such testimony was hearsay, and absent the same there was no evidence concerning the value of repairs to appellee’s cable. The trial court found that the reasonable and necessary cost to repair the damage to appellee’s aerial cables was $1851.00, and after such repair the cables were in no better condition than immediately prior to the collision in question.
The testimony concerning the value of repairs to appellee’s cable was given by Mr. K. D. Glenn who was district engineer for appellee in the Wharton area. It was stipulated that appellee’s cable which stretched over U. S. Highway 59 was severed by the collision with appellants’ truck. Mr. Glenn had been in the engineering department of appellee Telephone Company for more than twenty years. He testified that he had the custody of the records of appellee pertaining to aerial cables and poles; that the records were made at or near the time of the transaction in question ; that they were part of the permanent records of appellee under his supervision and control; and that they were accurate representations. Mr. Glenn was subjected to extensive direct and cross-examination and some voir dire examination concerning the cost of the repairs to the cable here involved. Mr. Glenn also testified, among other things, that it was one of his duties to prepare a damage or cost report; that his records reflected how much it cost to make the repairs in question; that appellee had an accountant or accountant group using standard procedures which determines such cost based on man hours, cost of cable and cost of connectors; that such costs were periodically forwarded to the engineers in various districts; that he had such a report in connection with the incident in question. Ultimately, Mr. Glenn was permitted to testify that the amount of damage in this case was $1851.00. He said that he was furnished a manual by the accounting department, which was continuously updated, showing cost figures, which manual was furnished to all the engineers for Telephone Company use. Mr. Glenn reiterated that the actual cost figures were determined by him by use of the book and other things.
The relevant law governing the admissibility of business records in Texas is found in Article 3737e, V.A.C.S. Section 1 sets forth the criteria to be met, e. g., records made in the regular course of business. Section 2 thereof sets forth the manner in which the criteria may be established. This section specifically states that the identity and mode of preparation of the memorandum may be proved by the testimony of the custodian of such record. The record reflects here that Mr. Glenn was the custodian of these records and that they were records of the Telephone Company. We believe that appellants’ objections went to the weight rather than to the admissibility of the testimony given by Mr. Glenn and that the evidence given by him was admissible. See Texas Practice, Vol. 2,Texas Law of Evidence, McCormick and Ray, Section 1255, pages 118-120. The evidence was legally sufficient to support the trial court finding of $1851.00 as the reasonable cost of repairs to appellee’s cable. Appellants’ points five and six are overruled.
The judgment of the trial court is affirmed. |
sw2d_482/html/0358-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McKAY, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
J. B. BURROUS, dba Upshur House Hotel, Appellant, v. David E. KNOTTS et al., Appellees.
No. 621.
Court of Civil Appeals of Texas, Tyler.
June 15, 1972.
On Rehearing July 6, 1972.
Ritter, Nichols & Thibodeaux, Otto A. Ritter, Longview, for appellant.
Welby K. Parish, Gilmer, for appellees.
McKAY, Justice.
Appellees brought suit against appellant for damages for the death of David H. Knotts in a hotel fire. Appellees are the children and heirs of the deceased, and appellant was the owner of the Upshur House Hotel in Gilmer. Trial was had before a jury and judgment was rendered for appellees based upon the verdict of the jury for $40,000 in damages plus $1140 for burial expenses. Appellant brings this appeal on fourteen points.
Appellees alleged that appellant (1) failed to provide adequate fire escapes; (2) failed to maintain and clean the air conditioning and heating unit to prevent the hazard of fire; (3) after discovering the fire, failed to warn deceased immediately upon discovery; and (4) failed to call the fire department immediately upon discovery of the fire. Appellees claimed each of the above was negligence and a proximate cause of the damages alleged.
The jury found that appellant (1) failed to clean the air conditioning and heating unit in such a way to prevent the hazard of fire; (2) failed to provide an adequate fire escape as a means of escape from the second story of said hotel in the event of fire; (3) failed to provide and equip the hotel with more than one adequate fire escape; (4) failed to provide and equip the hotel with a fire alarm system; and (5) failed to warn deceased immediately upon discovery of the fire. The jury found that each of these acts was negligence and a proximate cause of the occurrence in question, and that $40,000 would have fairly and reasonably compensated the deceased for his conscious physical pain and mental anguish suffered before his death.
Appellant contends by his first four points that the trial court erred in submitting each of the five sets of issues found by the jury because each one does not present an issue or cause of action upon which appellees could recover, and that in addition, by point 4, contends there was no evidence to support submission of Issues 5, Sa and 5b, and the jury’s answer to each of those issues was against the great weight and preponderance of the evidence. We have carefully reviewed the entire record and have concluded that the answers of the jury to Issues 5, 5a and 5b are supported by the evidence, and that appellant had a duty to warn David Knotts immediately upon discovery of the fire; that he failed to do so; and that such failure was negligence and a proximate cause of the death of Knotts.
An innkeeper is not an insurer of the safety of his guests, but he does owe them a duty to furnish and maintain a safe place in proper condition. His responsibility is limited to the exercise of ordinary or reasonable care, and proof must be made of negligence and proximate cause. An innkeeper who discovers a fire on his premises must exercise such care as a person of ordinary prudence would exercise for the safety of his guests, and he has, ordinarily, the duty to warn the guests. 31 Tex.Jur.2d, Sec. 4, Pp. 386-388; Sec. 5, P. 389; Texas Hotel Co. of Longview v. Cosby, 131 S.W.2d 261 (Tex.Civ.App., Texarkana, 1939, writ dismissed, judgment correct); Smith v. The Texan, 180 S.W.2d 1010 (Tex.Civ.App., Fort Worth, 1944, writ ref. w. m.).
We appreciate the fact an innkeeper would not be liable for a failure to warn where there was not sufficient time to do so. The record here, however, shows facts which we believe reasonably demonstrate that there was sufficient time to warn, and that the facts and circumstances in this case may be distinguished from Texas Hotel Co. of Longview v. Cosby, supra; Texas Hotel Co. of Longview v. Jones, 131 S.W.2d 265 (Tex.Civ.App., Texarkana, 1939, n. w. h.), and National Hotel Co. v. Motley, 123 S.W.2d 461 (Tex.Civ.App., Eastland, 1939, writ, dis., judgment correct).
At approximately 7 a. m. on January 8, 1969, Hub Owen, night clerk, was on duty at the desk just off the lobby of the Up-shur House Hotel. A Mrs. Morris came by the office and remarked that she believed “you all have a fire,” and that she smelled paper or something burning. Owen testified he did not then smell any smoke and told her the fire was in the kitchen stove. Owen testified that only one or two minutes later he smelled what he took to be smoke from burning paper and that he got up to investigate where it was coming from. He went directly to the lobby from the hallway where he saw some fire coming out of the men’s restroom. Owen described it as “a complete roll of fire, just a ball of it looked like, just coming through.” He said it was burning “pretty good” when he saw it. He then ran back to the office and called the fire department. He then came out of the office and because there was so much fire he went out of the building at the south door instead of the west door and moved his pickup truck from in front of the hotel because the fire trucks would need the space. Owen further testified that when he first saw the fire he yelled “for everybody to get out of here because this thing is on fire.” He said when he came back to the lobby “I saw I couldn’t get up there, I couldn’t get anywhere, and the lobby was on fire and the fire was — had already hit the upstairs steps and that was on fire, so I couldn’t get upstairs.” Owen knew there were hotel guests upstairs and knew which room Knotts stayed in but did not know whether Knotts was in his room.
Knotts had a private telephone in his room, but it did not go through the hotel office. However, there was a telephone in the hallway some twenty to thirty feet from Knotts’ room. Knotts’, body was found lying on the floor of his room between his bed and the door to the hallway, and the door moved against his body when it was opened. He had on his trousers and a T shirt undershirt. His shirt was beside him. He had some burns on the top side of his body. When asked, “(a)fter you called the fire department did you ever make any effort to ring that telephone upstairs?”, Owen answered, “(n)o, sir, I was trying to get out of there.”
Verlie Odom, a cook who was in the kitchen, smelled smoke from paper burning and checked around the kitchen and did not find it. She did not tell Owen, but she said others discovered the fire while she was looking for it.
Willie Wheeler, a janitor, was working in the kitchen when a waitress told him she smelled paper burning. He looked in the kitchen and dining room and saw nothing but smelled paper burning, and then went back to work in the kitchen. He was told again there was paper burning somewhere and he again looked and when he got to the lobby, “it blew out.” He said the flames were coming out of the men’s restroom and he began to yell, “(everybody get out, fire, fire, fire, fire.” He further said he tried to go upstairs but when he started up the stairs “the fires commenced to meeting me and I turned around and come back.” He later got a ladder from a fire truck, put it up to the window in Knotts’ room, and climbed up and saw Knotts lying on the floor.
Appellant Burrous testified, “we could always call up there and he (Knotts) could hear the phone and answer it.”
The hotel was a two-story building wifh guest rooms on both floors. There was a meeting room or banquet room above the second floor which was used rarely, but there were no guest rooms except on the first and second floors. There was no fire alarm system or warning device and there were no fire escapes. There was a stairway from the lobby to the second floor and there was an outside stairway on the back of the building at the end of the hallway on the second floor. Knotts’ room was a few feet from the top of the stairway located on a front corner of the building. There was an awning three or four feet below two windows in Knotts’ room which faced on the street, and the awning was eight to ten feet above the ground.
There is no statutory authority for fire escapes to be provided on a two-story hotel. Art. 3955, Vernon’s Ann.Civ.St. Nor is there a requirement for a fire alarm or warning device to all rooms in hotels. The question here is whether the appellant’s servants and employees failed to exercise such care as a person of reasonable prudence and foresight would have exercised under same or similar circumstances.
It is difficult to ascertain the time elapse by the sequence of events. However, Mrs. Morris told Owen she believed there was a fire because she smelled paper burning. He made no investigation. Owen says in one or two minutes he smelled smoke and got up to investigate. Had he acted on the warning given by Mrs. Morris, Knotts likely could have been warned in time to escape. Had the time elapse been longer, he would have had more time to warn before the fire came out of the men’s restroom. When first asked about the sequence of his actions after discovery of the fire Owen said he called the fire department, then went outside to move his pickup, and when he returned to the lobby the stairway was burning so much he could not go up. He later testified the stairway was also in that condition before he went out to move his pickup.
Willie Wheeler was told by a waitress that she smelled smoke and he looked for it in the kitchen and dining room and smelled it himself but he did not locate it nor did he tell Owen or anyone else. The cook, Verlie Odom, smelled smoke and looked for it in the kitchen but did not find it. She did not tell Owen or others.
Knotts was on the second floor with windows on the front overlooking an awning three or four feet below the windows. If it could be said there was not sufficient time for Knotts to have safely descended the stairway, had he been alerted by some means he might have been saved by dropping onto the awning since he apparently died from smoke inhalation. The death certificate was signed by Dr. M. S. Rag-land and shows the immediate cause of death to be “acute burn and smoke inhalation, DOA” and the interval between onset and death to be ten minutes. This was the opinion of the doctor since he did not see Knotts at the time of onset, and Knotts was dead on arrival at the hospital where the doctor made his examination.
After review of all the facts and circumstances shown by the record, we believe that the evidence was sufficient to support the finding of the jury that there was a failure to warn the deceased.
By Point 5 Appellant contends there was no evidence to support the damage issue for conscious physical pain and mental anguish suffered before deceased’s death, and that the jury’s answer is against the great weight and preponderance of the evidence. By Point 8 complaint is made of the action of the trial court in allowing the introduction of the death certificate of the deceased. We overrule these points.
The death certificate meets the requirements of Article 4477, Rule 54a, V.A. T.S. This court held in Reserve Life Insurance Company v. Estate of Shacklett, 412 S.W.2d 920, 1967, writ ref. n. r. e.: “We find the law in this State to be that such certificates are not only admissible in evidence, but are prima facie evidence of the facts therein stated.” See also American Nat. Ins. Co. v. Valencia, 91 S.W.2d 832 (Tex.Civ.App., El Paso, 1936, writ, dis.); Buchanan v. American National Insurance Company, 446 S.W.2d 384 (Tex.Civ.App., El Paso, 1969, writ ref. n. r. e.).
While it is true there was no evidence other than the death certificate as to how long the deceased lived or how long he had conscious pain and suffering, the facts and circumstances in the record indicate he would have suffered some conscious pain and mental anguish. The ten minute entry on the death certificate would be prima fa-cie evidence he lived that long before death, but it does not mean that it is prima facie evidence that he suffered conscious physical pain and mental anguish for the entire ten minute period. There is no evidence in the record to contradict the prima facie character of the death certificate.
Appellant’s Point 6 complaining of the trial court’s instruction to the jury on unavoidable accident and failure to give appellant’s requested issue and instruction is overruled. The instruction given the jury was, “(i)n this case the defendant contends that the occurrence in question was the result of an unavoidable accident. The occurrence was an unavoidable accident if it happened without the negligence of either of the parties to the suit.”
We believe the instruction properly follows the opinion of our Supreme Court in Yarborough v. Berner, 467 S.W.2d 188 (Tex.Sup., 1971).
Point 7 complains that the trial court failed to give appellant’s requested issue asking whether the fire was started by an unknown origin. In view of our disposition of this appeal we believe this point is without merit. The failure to warn issue is not related to the cause of the fire.
By Point 9 appellant complains that the injection of insurance into the case was reversible error. We overrule this point. Appellees’ counsel called appellant Burrous as his first witness without denominating him as an adverse party witness, and was inquiring about the square footage in the hotel. Appellees’ counsel asked, “(n)ow, going back to my original question about the' square footage in the hotel, did you ever get that figure, Mr. Burroughs (sic), that you promised us at the time that you would?”, and his answer was, “(i)t seems to me that I did and I — it seems to me like I had the insurance agent to get it, and I don’t recall — .” While the reference to his insurance agent was made by appellant himself while a witness, we hold it was a casual and inadvertent reference to insurance and is not reversible error. Atchison, Topeka and Sante Fe Railway Company v. Acosta, 435 S.W.2d 539 (Tex.Civ.App., Houston 1st, 1968, writ ref., n. r. e.). Not every mention of insurance requires the setting aside of the jury’s verdict. Marchyn v. Silva, 455 S.W.2d 442 (Tex.Civ.App., San Antonio, 1970, writ ref., n. r. e.). Appellant’s answer did not disclose there was liability insurance, but if it could be so construed appellant could not take advantage of his own voluntary statement. Flatt v. Hill, 379 S.W.2d 926 (Tex.Civ.App., Dallas, 1964, writ ref., n. r. e.).
We hold the introduction of some of deceased’s clothing found in his room, if error, was not reversible error. Rule 434, Texas Rules of Civil Procedure. We also hold that the inadvertent statement by the witness Hill that there was “more than one man there in this hotel upstairs,” in violation of a granted motion in limine is not reversible error. Rule 434, supra. Points 10 and 11 are overruled.
Appellant claims the trial court erred in failing to grant his request for an order of remittitur of at least $35,000. The only proof with reference to the conscious pain and suffering was contained in the death certificate where the doctor indicated Knotts lived ten minutes from the onset. It is reasonable to conclude from the circumstances that Knotts suffered some conscious physical pain and mental anguish. It is also reasonable to conclude from the circumstances that he was not conscious for the entire ten minutes but would have lost consciousness at some point before death. Recovery can be had only for pain consciously experienced, and events subsequent to unconsciousness are not compensable. Sharpe v. Munoz, 256 S.W.2d 890 (Tex.Civ.App., San Antonio, 1953, writ ref., n. r. e.). The determination of the damages for pain and suffering lies primarily with the jury but is subject to correction by the courts for abuse or passionate exercise, but it is not necessary to show passion or prejudice or improper motivation to order a remittitur. Texaco, Inc. v. Forester, 456 S.W.2d 196 (Tex.Civ.App., Beaumont, 1970, writ ref., n. r. e.); Sharpe v. Munoz, supra.
We have reached the conclusion that the jury failed to distinguish between the periods of consciousness and unconsciousness of deceased and therefore rendered an excessive verdict. We find that the damages are excessive by $30,000 and that $10,000 constitutes reasonable compensation for damages suffered by deceased for conscious pain and suffering. Rule 440, T.R.C.P.; Wichita Valley Ry. Co. v. Williams, 116 Tex. 253, 288 S.W. 425 (1926); Sharpe v. Munoz, supra.
By Point 13 appellant says the argument of appellees’ counsel was improper and inflamed and prejudiced the jury against appellant. Whether it could be said that some of the argument objected to could not be cured by the court’s instruction it is our opinion that such argument may have contributed to the awarding of excessive damages by the jury. Since we are ordering a remittitur we conclude that such argument would not be reversible under such circumstances. Rule 434, supra. Point 14 is also overruled.
If within fifteen days appellees remit the sum of $30,000 the judgment will be reformed and affirmed; otherwise, said judgment will be reversed and remanded.
Affirmed on condition of remittitur.
On Rehearing
Appellant’s Motion for Rehearing overruled.
Appellees’ Motion for Rehearing overruled; and appellees having failed, within the time prescribed, to file the remittitur suggested, the judgment of the trial court is reversed and the cause is remanded to the trial court.
. “ISSUE NO. 6
“What sum of money, if any, do you find from a preponderance of the evidence would have fairly and reasonably compensated David Knotts for his conscious physical pain, if any, and mental anguish, if any, suffered before his death, as a result of the occurrence in question?
“Answer in dollars and cents, if any.
“Answer: $40,000 Forty thousand.”
|
sw2d_482/html/0364-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "RAY, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
TOM HICKS TRANSFER COMPANY, Inc., Appellant, v. FORD, BACON & DAVIS TEXAS INCORPORATED, Appellee.
No. 8057.
Court of Civil Appeals of Texas, Texarkana.
June 27, 1972.
Morgan Nesbitt, James, Robinson, Felts & Starnes, Austin, for appellant.
John A. Mackintosh, Jr., Thompson, Knight, Simmons & Bullion, Dallas, for appellee.
RAY, Justice.
This was a summary judgment proceeding in the District Court of Dallas County. The suit was instituted by appellant Tom Hicks Transfer Company, Inc., against Ford, Bacon & Davis Texas Incorporated, appellee, for freight charges in the sum of $4,769.73. Appellant alleged that' it delivered certain machinery by motor carrier from Haltom Manufacturing Company in Dallas to the Shell Oil Company plant in South Louisiana consigned to appellee. Appellee answered by sworn denial that it paid Haltom Manufacturing Company for any applicable freight charges, and that since appellant had delivered the machinery to appellee with bills of lading marked “prepaid,” appellant was estopped as a matter of law to collect unpaid freight charges from appellee, although Haltom Manufacturing Company had not in fact “prepaid” the freight charges.
Both appellant and appellee filed motions for summary judgment based on the affidavits, pleadings and stipulations on file. The District Court of Dallas County entered a no-liability judgment for appellee Ford, Bacon & Davis Texas Incorporated after sustaining appellee’s motion for summary judgment and overruling appellant’s motion for summary judgment.
The majority of the pertinent facts in this case were stipulated between the parties in the trial court. Over a period of months in 1967, appellee purchased machinery from Haltom Manufacturing Company of Dallas, Texas, and the purchase order for the equipment specified that appellee was to receive the machinery from Haltom Manufacturing Company f.o.b. job site. After delivery, appellee paid Haltom Manufacturing Company in full for the equipment and the applicable freight charges. Consignor Haltom Manufacturing Company contracted with appellant, Tom Hicks Transfer Company, Inc., for the transportation of the heavy equipment to the job site at Shell Oil Company’s Bayou Goula refinery in Southern Louisiana. It was stipulated by the parties that on each of the memorandum bills of lading under which the shipments moved, the word “prepaid” had been typed by appellant in the space on the printed form headed “If charges are to be prepaid, write or stamp here: ‘To be Prepaid.’ ” It was stipulated that ap-pellee accepted the shipments of equipment in reliance upon appellant’s representations that all freight charges had been “prepaid” by consignor Haltom Manufacturing Company. The true facts were that appellant carrier elected to extend credit to Haltom Manufacturing Company and the freight charges were not “prepaid” as represented. Appellant later sought payment from consignor Haltom Manufacturing Company, but was unable to collect the freight charges. The parties stipulated that Hal-tom Manufacturing Company was insolvent on the date of the presentation of their respective motions for summary judgment in the trial court. Appellant now seeks recovery of the unpaid freight charges from appellee Ford, Bacon & Davis Texas Incorporated notwithstanding its earlier representation that the charges had already been paid prior to the delivery. Appellee denied liability for the unpaid freight charges and submitted that appellant was estopped to collect such unpaid charges because of its prior conduct in representing to appellee that prepayment had been made by Haltom Manufacturing Company.
Appellant's theory of recovery is that the Interstate Commerce Act, 49 U.S.C.A. Sec. 317, and Uniform Bill of Lading Sec. 7 creates a public duty on the part of the interstate motor carrier to collect its freight charges from the consignee, Ford, Bacon & Davis Texas Inc., notwithstanding the fact that the carrier had previously delivered the equipment to the consignee representing prepayment of the freight charges by the consignor, Haltom Manufacturing Company. Appellee contends that the trial court correctly held that the doctrine of estoppel was applicable, and that public policy and the provisions of the Federal Statutes do not require appellee to pay the freight charges twice (once to the consignor and once to the carrier).
Insofar as we have been able to determine, this is the first Texas decision construing the Interstate Motor Carrier Section of the Interstate Commerce Act, 49 U.S.C.A. Secs. 317 and 323, concerning whether those sections and public policy demand that the freight charges be collected from the consignee when the merchandise was shipped by the consignor via motor carrier by bill of lading stamped “Prepaid” when such charges are uncollectible from the consignor.
Appellant contends that the trial court erred in failing to require the consignee, Ford, Bacon & Davis Texas Inc., to pay the applicable freight charges upon failure of the shipper to pay such charges, even though the shipments were marked "Prepaid.” Appellant further contends in its point of error No. 2, that as a matter of law, a consignee cannot accept delivery of an interstate shipment without incurring liability for the carrier’s lawful charges, known or unknown, supposed to be prepaid or otherwise.
The applicable provisions of the Interstate Commerce Act, 49 U.S.C.A., provide the following:
“Sec. 317(b) No common carrier by motor vehicle shall charge or demand or collect or receive a greater or less or different compensation for transportation or for any service in connection therewith between the points enumerated in such tariff than the rates, fares, and charges specified in the tariffs in effect at the time; and no such carrier shall refund or remit in any manner or by any device, directly or indirectly, or through any agent or broker or otherwise, any portion of the rates, fares, or charges so specified, or extend to any person any privileges or facilities for transportation in interstate or foreign commerce except such as are specified in its tariffs:
“Sec. 317(d) No common carrier by motor vehicle, unless otherwise provided by this chapter, shall engage in the transportation of passengers or property unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter.”
The pertinent part of Section 7 of the Uniform Bill of Lading provision is as follows :
“The owner or consignee shall pay the freight and average if any, and all other lawful charges accruing on said property; but, except in those instances where it may lawfully be authorized to do so, no carrier shall deliver or relinquish possession at destination of the property covered by this bill of lading until all tariff rates and charges thereon have been paid. The consignor shall be liable for the freight and all other lawful charges, except that if the consignor stipulates, by signature, in the space provided for that purpose on the face of this bill of lading that the carrier shall not make delivery without requiring payment of such charges and the carrier, contrary to such stipulation shall make delivery without requiring such payment, the consignor (except as hereinafter provided) shall not be liable for such charges. Provided, That, where the carrier has been instructed by the shipper or consignor to deliver said property to a consignee other than the shipper or consignor, such consignee shall not be legally liable for transportation charges in respect of the transportation of said property (beyond those billed against him at the time of delivery for which he is otherwise liable) which may be found to be due after the property has been delivered to him, if the consignee (a) is an agent only and has no beneficial title in said property, and (b) prior to delivery of said property has notified the delivering carrier in writing of the fact of such agency and absence of beneficial title,
Sec. 323 of 49 U.S.C.A. provides in part as follows:
“No common carrier by motor vehicle shall deliver or relinquish possession at destination of any freight transported by it in interstate or foreign commerce until all tariff rates and charges thereon have been paid, except under such rules and regulations as the Commission may from time to time prescribe to govern the settlement of all such rates and charges, including rules and regulations for weekly or monthly settlement, and to prevent unjust discrimination or undue preference or prejudice. . . .”
Appellant contends that both the shipper and the consignee are equally liable for freight charges and that the carrier may collect from either. The transfer company further states that the shipper’s obligation to pay the freight charges is incurred when he tenders the shipment to a carrier at the origin point accompanied by shipping instructions, and that only one way exists to avoid this liability, and that is by the execution of the so-called “no recourse” clause of Sec. 7 of the Bill of Lading terms. Appellant urges that the consignee’s obligations to pay the freight charges become absolute when it accepts the shipment from the carrier at destination and that the law permits only one way to avoid that liability, which is by notifying the carrier in advance of delivery that the consignee is acting solely as an agent for someone else. The carrier submits that this conclusion is a proper interpretation of Sec. 7 of the Bill of Lading and is also inferred by the provisions of 49 U.S.C.A. Sec. 323. Appellee disputes these contentions and states that it had no part in making the arrangements for shipment, nor did it contract with appellant-carrier for the transportation. Appellee claims that it had a right to rely on the representation contained in the bill of lading stating that all freight charges had been “Prepaid” by consignor, Haltom Manufacturing Company, and that the carrier is now estopped to deny that the consignor failed to pay the freight charges as represented. Further, it is urged by appellee that since appellant-carrier elected to extend credit to the consignor it took the risk of not getting paid. Also, it states that it should not have to pay twice for the freight charges because it had already paid Haltom Manufacturing Company for the merchandise and the cost of shipping the goods to appellee, and that appellant could have taken precautions to get its money.
There are no Texas motor carrier cases interpreting 49 U.S.C.A. Secs. 317 and 323 and the rail transportation cases concerning this same matter are in conflict, as well as the one water carrier case.
Appellant cites as authority for its position the case of Missouri Pacific Railroad Company v. Phelan Company, 444 S.W.2d 832 (Tex.Civ.App. Beaumont 1969, err. dism’d); Houston & T. C. R. Co. v. Johnson, 41 S.W.2d 14 (Tex.Civ.App.1931); Northern Transportation v. Harbor Box, 8 Fed.Car. cases, para. 80,638 (D.C.—Cal.1951); National Van Lines, Inc. v. Herbert, 81 S.D. 633, 140 N.W.2d 36 (1966); and Great Northern Ry. Co. v. Hyder, 9 Cir., 279 F. 783-786.
Appellant quotes from Northern Transportation v. Harbor Box, supra, the following:
“Apparently someone has to pay the freight and if the consignor does not do so, the consignee must pay notwithstanding that he was presented with a prepaid bill of lading at the time of delivery. The carrier issued the prepaid bill of lading on credit extended to the consignor. The consignor failing to meet his obligations, the carrier now falls back on the consignee.
“The weight of authority favors plaintiffs’ position and holds that someone has to pay the freight. The carrier must not lose notwithstanding credit was improvidently extended to the consignor.
“Though there is no controlling authority in this Circuit, the weight of authority favors plaintiff’s position. I believe, however, that Judge Cushman in Great Northern Ry. Co. v. Hyder, 9 Cir., 279 F. 783-786, states the correct but harsh rule when he says:
“ ‘The consignee, in refusing payment, is relying on the plaintiff’s being es-topped by its conduct. The shipper, the carrier, and the consignee are all agents and trustees for the public, and no complications arising out of the agreements between them, or shuffling, should defeat the purpose of the act requiring the full and exact payment of the freight as fixed by the filed, posted, and published tariff.’
“Judgment is granted plaintiff as prayed for. ...”
See also Pyramid Nat. Van Lines v. Goetze, 65 A.2d 595 (Mun.Ct.App.Dist. of Col.1949), and 66 A.2d 693 (1949); Pennsylvania R. Co. v. L. N. White, Inc., 280 App.Div. 587, 116 N.Y.S.2d 361 (Sup.Ct.App.Div. First Dept.1952); Aero Mayflower Transit Co. v. Rae, 203 Misc. 801, 118 N.Y.S.2d 895 (1952); Steele v. General Mills, Inc., 329 U.S. 433, 67 S.Ct. 439, 91 L.Ed. 402 (1947); Chicago, R. I. & P. Railway Company v. Central Warehouse Company, 8 Cir., 14 F.2d 123 (D.C.Minn.1926).
Appellee submits that when the construction of a federal statute is involved, deference should be given to the interpretation of that statute by Federal Court decisions. The three Federal Court decisions relied upon by appellee are: Missouri Pacific Railroad Co. v. National Milling Co., 276 F.Supp. 367 (D.N.J.1967), affirmed, 406 F.2d 882 (3d Cir. 1969); Missouri Pacific R. Co. v. Lake Charles Grain and Groc. Co., Inc., 320 F.Supp. 1064 (W.D.La.1971); and, Farrell Lines, Inc. v. Titan Industrial Corp., 306 F.Supp. 1348 (S.D.N.Y.1969), affirmed per curiam, 419 F.2d 835 (2d Cir. 1969), certiorari denied, 397 U.S. 1042, 90 S.Ct. 1365, 25 L.Ed.2d 653 (1970). The first two cases cited by appellee are rail carrier cases and the last case cited is an ocean carrier case.
Our research reveals that Consolidated Freightways Corporation of Delaware v. Admiral Corporation, 442 F.2d 56 (U.S.Ct. App., 7th Cir. 1971) is decisive of the question before us. There the plaintiff was an interstate motor carrier that sued Admiral Corporation for recovery of freight charges. Admiral was the consignee of goods transported by plaintiff at the direction of William A. Rogers, the shipper. The goods were shipped under plaintiff’s prepaid bill of lading and Admiral paid Rogers for his services and the freight charges. Plaintiff, Consolidated Freightways Corporation, was extending credit (unknown to Admiral) to Rogers for the freight charges. When Rogers became insolvent and unable to pay the charges, Consolidated sought payment from the consignee, Admiral. Admiral alleged that plaintiff was estopped to proceed against it for the collection of the freight charges. The court held that the doctrine of estoppel was available as a defense and that Sec. 223 of the Motor Carrier Act (49 U.S.C.A. Sec. 323) does not impose absolute statutory liability upon the consignee. The court said:
“Plaintiff also urges that Admiral acted improperly in settling Rogers’ invoices without demanding receipts from Rogers evidencing actual payment of the charges to the carrier. In that manner, it is claimed, Admiral could have prevented any fraud by Rogers and protected itself against possible double liability for those charges. Plaintiff ignores, however, the weight which Admiral could justifiably attach to the representations made on the shipping documents. We see no reason, however, for a double check by Admiral in the face of the representations of prepayment supplied by the carrier itself. Plaintiff could have indicated on those documents the exact nature of its credit transactions with Rogers. Its extensions of credit to Rogers neither involved nor benefited the unsuspecting consignee. Plaintiff may not now shift the risk of its own credit transactions to an innocent party acting in reliance upon plaintiff’s incorrect representations of prepayment.”
The court went on to say that because of the unlawful and lax credit extensions the plaintiff contributed substantially to an ultimate inability to recover payment from the shipper and further declared:
“Plaintiff thus created the risk of loss by its credit practices. It contributed to the gravity of the loss by allowing Rogers’ unsatisfied debts to accumulate beyond the lawful and reasonable time for credit. Finally, it effectively prevented Admiral from protecting itself from Rogers’ conversions, first through the misrepresentations of prepayment, and then through its failure to notify Admiral until May, 1966. Under these circumstances, we find no difficulty in holding plaintiff estopped to collect payment of the freight charges from Admiral.”
After a thorough review of the decisions, we have concluded that the appellant, Tom Hicks Transfer Company, Inc., is estopped to collect the unpaid freight charges from appellee Ford, Bacon & Davis Texas Inc., when it carried the machinery from Haltom Manufacturing Company in Dallas to South Louisiana with bills of lading marked “Prepaid.” We find no error committed by the trial court. The judgment of the trial court is affirmed. |
sw2d_482/html/0369-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "O’QUINN, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Jack F. RITTER, Sr., Appellant, v. Leon KENDRICK d/b/a Leon’s Tile et al., Appellees.
No. 11909.
Court of Civil Appeals of Texas, Austin.
June 7, 1972.
Rehearing Denied July 5, 1972.
Robert C. (Lou) McCreary, Austin, for appellant.
E. B. Fuller, Austin, for appellees.
O’QUINN, Justice.
This lawsuit is a controversy between the owner of a residence, built in 1968 and 1969, and two craftsmen who worked on the house and furnished materials.
Jack F. Ritter, Sr., owner of the house, brought suit against Leon Kendrick, doing business as Leon’s Tile, alleging breach of contract to furnish certain Formica work and for slander of Ritter’s title based on Kendrick’s filing of his mechanic’s and materialman’s lien.
Kendrick answered and filed a counterclaim for $1,467.52 plus attorney’s fees.
Ritter subsequently brought a third party action against Harry D. Johnson, who had performed carpentry and various services, including acting as a go-between for Ritter in dealing with the various craftsmen during construction of the house. Ritter sought indemnity against Johnson, in event Kendrick should establish his counterclaim, alleging that Johnson negligently failed to inform Ritter that Kendrick’s work would exceed $645.80.
Johnson answered and brought a counterclaim for $1,596.90 for extra labor and for attorney’s fees. Ritter then claimed the right to a credit against Johnson for sums Ritter claimed he had paid in excess of $5,771.40, the price for which Ritter alleged that Johnson agreed to perform the carpentry and other services.
Based on a jury’s answers to special issues, the trial court entered judgment denying Ritter all relief, either as plaintiff or as cross-defendant, and awarding Kendrick judgment against Ritter for $1,623.61 plus attorney’s fees of $1,500 and awarding Johnson recovery from Ritter of $1,471.49 plus attorney’s fees of $300.
Ritter has appealed and brings sixteen points of error. We will overrule all points of error and affirm the judgment of the trial court.
Under the first three points of error Rit-ter complains that the trial court refused to allow him an offset against Johnson for “monies paid in excess of the original contract” between Ritter and Johnson.
The original contract Ritter relies on consisted of a sheet of paper signed by Johnson and initialed by Ritter listing seven items of “carpenter labor” totaling $4,771.40, with the additional notation, “Plus $1,000.” The paper was dated July 30, 1968, and shows by its heading that the items and figures pertain to “3002 Scenic Dr.,” the address of the residence Ritter later constructed. No reference was made in the memorandum to plans and specifications for the proposed building. The record shows that additional oral agreements were made between Ritter and Johnson from time to time before and during actual construction. Oral testimony was employed by the parties at the trial to explain the meaning of “Plus $1,000” in the writing.
Ritter testified by deposition that when the paper was signed by Johnson the architect’s plans for the house were not complete and were not “finalized” until after the carpenter work had been started two or three months later, either in September or October.
Ritter stated that he “. . . had an arrangement with Harry Johnson for labor and assistant supervision contract . [with] certain services to perform as a supervisor.” Ritter testified that Johnson was not a general contractor “as the term is generally used” and that Johnson could hire labor done only with Ritter’s approval and upon Ritter’s instructions, although Johnson did have authority to hire “his own labor to carry out his own subcontract.” Ritter characterized Johnson’s functions as, “One, to supervise and assist me as a supervisor. The other to do the carpenter contract part of the work . . .”
Ritter tried his claim against Johnson on the theory that their contract was for a “turn-key job.” It is clear from the record that the contract between Ritter and Johnson, consisting of the paper dated in July of 1968 followed by numerous oral agreements, was not for a “turn-key job” as that term is used in construction work. A turn-key job is defined as, “Any job or contract in which the contractor agrees to complete the work to a certain specified point, and to assume all risk.” (Webster’s New International Dictionary, 2nd ed., unabridged, 1954)
Ritter by his own testimony was in charge of the job, and Johnson at most was an assistant, subject to Ritter’s instructions, and without authority to hire other than carpenter labor without Ritter’s approval. Johnson’s assumption of risk was limited to performing the carpentry in a good and workmanlike manner and to carry out Ritter’s instructions as assistant supervisor of the job.
Though Ritter’s officer manager, who kept records of expenses on the job, a recapitulation of payments was admitted in evidence. It was shown that in addition to payment of $5,750 to Johnson, payments of $170.80 for sheetrock and $400 for Formica work had been made to Johnson. Payment of $800 was also made to another carpenter, T. L. McCarty. All such payments totaled $7,120.80. By subtracting the amount of Johnson’s first bid, dated in July of 1968, the office manager showed in her recapitulation “over-payment to Johnson” in the sum of $946.10, which calculation forms the basis of Ritter’s claim of an offset against Johnson.
The office manager admitted her lack of familiarity with the plans and specifications for the residence and with changes or alterations in the plans. Ritter testified that much of his dealings with Johnson were by telephone at night or in person on the job. The office manager said she was not present when Johnson and Ritter made the memorandum of July 30, 1968, several weeks before work started.
Ritter admitted that changes were made in the course of construction. Johnson’s testimony is undisputed that numerous changes and alterations were ordered by Ritter which were in addition to the “Finalized plans and specifications.” Johnson’s verified claim listed fifteen items, the largest being for changing from mahogany panels to birch panels in five areas in which mahogany had been specified in the original plans. This alteration in the den, bar, kitchen, butler’s pantry and kitchen hall required 168 additional man hours of labor amounting to $794.
After completing all carpenter work called for in the plans, as well as fifteen changes and additions included in his counterclaim, Johnson left the job early in February, 1969. At that time, he testified, all “. . . carpenter work that is on the plans and specifications was a hundred per cent complete.” When he left the job, Johnson was working on “the ceiling inside the flower room,” an item not “on the original specifications.”
Johnson did not know who completed the work on the ceiling of the flower room and the other additional work that Ritter had told Johnson would be done, including a closet at the end of the patio and a water heater closet Ritter’s wife wanted built.
Ritter argues that “By the testimony of Appellant’s managing officer Appellant proved that he paid out over $900.00 to finish work contracted by Ap-pellee Johnson.” We do not find this statement supported by the testimony of the witness, nor do we find any other evidence in the record to make such proof. The office manager testified to additional payments made to Johnson, for sheetrock and Formica work, and to McCarty, but the witness furnished no more than mathematical calculations to arrive at a difference of $946.10 between the grand total and Johnson’s original bid, made several weeks before plans were completed by the architect and prior to the numerous changes and additions Ritter ordered during construction. The office manager did not know what the plans included and was without knowledge of changes and additions. Johnson’s testimony is uncontradict-ed that Ritter ordered at least fifteen changes and additions, that the work he had contracted to do under his original bid had been completed by him before he left the job, and that Ritter at that time had under consideration other additions of a substantial nature. Ritter conceded that changes and additions were made varying from the architect’s plans.
Ritter requested special issues, which the trial court refused, asking the jury whether Ritter “paid any sum of money in excess of . . . [Johnson’s original bid] to finish the construction job . . .” and, if so, how much money. The record is clear that Ritter did pay in excess of $900 above Johnson’s initial bid, but such payments were for additions not included in the architect’s original plans. The jury found, in response to issues which the trial court did submit, that . . Johnson performed and furnished labor in the construction of the Ritter home over and above that called for by the plans and specifications for such home . . . ” and that the reasonable value of such labor was approximately $1,200. Even if Ritter’s requested issues had been submitted and the jury had found that Ritter had paid some $900 over and above Johnson’s initial bid, such findings would not have supported Ritter’s claim of an offset.
The trial court properly refused Ritter’s requested issues. Ritter failed to adduce evidence of probative force in support of his claim to an offset, and was not thereby denied the right of trial by jury guaranteed by the Texas Constitution. Texas and Pacific Railway Company v. Van Zandt, 159 Tex. 178, 317 S.W.2d 528, 531 (1958).
Under his fourth point Ritter urges error of the trial court in refusing four requested special issues related to Ritter’s suit against Kendrick for slander of title resulting from the filing of a mechanic’s and materialman’s lien.
The assignment as presented on appeal complains of the refusal of requested issues “inquiring about Appellee Johnson’s [sic] wrongful filing of a mechanic’s lien against Appellant’s property.” The record does not disclose that Johnson filed a lien. Ritter’s arguments under the point of error relate only to the filing of Kendrick’s lien. We will consider the point as one directed to the Kendrick lien.
Kendrick installed tile and Formica in the Ritter house and submitted an itemized statement for the Formica and labor on February 21, 1969, in the sum of $1,486.14. Ritter did not pay the account, but on February 27 wrote Kendrick a letter stating that the contract for Formica approved by him “was the cost plus ten percent delivered to the job.” Ritter requested Kendrick to furnish the “manufactors [sic] bill establishing the base cost of the formi-ca” and “the exact square footage of for-mica furnished.”
Ritter stated in the letter, “Further I have no comprehension what is meant by material for 202 system formica, therefore I am asking for an explanaination [sic] and the manufactors [sic] document of cost.” The “202 system formica” referred to by Ritter was a type of Formica new in the industry which Ritter’s wife had seen advertised and wanted installed in the house under construction. Factory experts from Houston went on the job and instructed Johnson and Kendrick’s workmen in the approved method of installing the new system. Ritter instructed Johnson to obtain the “202 system” from Kendrick but told Johnson to install the panels instead of Kendrick. Kendrick’s price for the materials, as stated by Ritter in his letter to Kendrick, was cost plus ten percent.
After receiving Ritter’s letter, Kendrick “on different occasions . . . attempted to call” Ritter but was told that Ritter was out. Kendrick left his name and number and asked that Ritter call him back. Kendrick did not hear from Ritter further until a second letter arrived, dated more than two weeks after the first. In the second letter Ritter stated in part, “I direct that you comply with my request in that letter [the first], in order that we may set- tie our account with you.” (Emphasis added)
Upon receipt of the second letter, Kendrick called Ritter’s office immediately. Kendrick testified, “I think in a matter of three or four minutes that we could have worked out all the problems . . .”
Kendrick described this telephone call in the following' testimony:
“Q What happened when you called his office?
“A Well, the last time I called his office, his secretary answered the phone, and she apparently forgot to put her hold button — her telephone on hold, because she turned and asked what I assume was Mr. Ritter, did he want to talk to me, and he said no, tell him that I am out of town for two weeks.
“Q What did you do then ?
“A Well, as soon as she came back on the line, I told her there wasn’t any use in her repeating what he said, because I had already heard it, and she said something to the effect that, well, she was sorry he didn’t want to talk to me.
“Q What did you then do ?
“A Well, I sat there. I hung up the phone, and I was reading these letters still, and shortly thereafter I got my file together, including the letters, which he is only maybe a mile down the road from me, and I took the file and went down to his office to go over the file with him.”
Kendrick went to Ritter’s office with the file, which included the invoice and other information Ritter had requested. Ritter refused to see Kendrick, and Kendrick described that visit in this testimony:
“Q What happened when you got there ?
“A Well, I went in to the receptionist and I told her who I was. * * * And she said, ‘What can I do for you?’ And I said, ‘I would like to see Mr. Ritter,’ and I don’t recall whether she called him on the intercom or whether she went back to talk to him on the first occasion, but he told her, and I heard what he said, that he didn’t want to see me.
* * * * * *
“Q ... . After that happened, did you make any further attempts to get in touch with Mr. Ritter ?
“A No. * * * I couldn’t see that there would be any point in it, no.”
Kendrick’s testimony that he called Rit-ter’s office by telephone and later went to Ritter’s office in an effort to talk to him was corroborated by Ritter’s office manager. When asked whether Ritter had paid Kendrick, the office manager stated, “He [Ritter] would have if he had gotten an explanation of the bill.”
Following his unsuccessful attempts to talk to Ritter about the account, Kendrick consulted a lawyer who prepared and filed a lien for him. Kendrick testified that at that time the Ritter house was near completion and Kendrick believed he would have no legal means of obtaining the money due him if Ritter closed the loan without the lien on record.
The first of the four special issues requested by Ritter in connection with his suit against Kendrick for slander of title was to ask the jury whether Kendrick, in executing and recording his affidavit “was actuated by actual malice ?”
Ritter takes the position on appeal that his suit against Kendrick was and is to “remove the cloud on . [Ritter’s] property,” recover cost of removal, and to recover additional damages “caused by Kendrick’s malicious filing of a mechanic’s lien.”
Ritter pleaded that the amount of the lien was contrary to the contract between Kendrick and Ritter, and that the “lien was maliciously filed” to intimidate Ritter “into paying said amount by the threat of having the false and maliciously filed lien enforced . . . [and that] said lien has slandered . . . [Ritter’s] property and diminished” its value.
In an action for slander of title the burden is on the plaintiff to plead and prove that the slanderous writing was false and malicious, without which pleading and proof there can be no recovery of damages. Stovall v. Texas Company, 262 S.W. 152, 153 (Tex.Civ.App. Fort Worth, 1924, no writ); Fant v. Sullivan, 152 S.W. 515 (Tex.Civ.App. San Antonio, 1913, writ ref.). The burden was on Ritter to plead and prove that the affidavit Kendrick caused to be filed was false and that Kendrick was actuated by malice in filing the affidavit.
Ritter sought to show, by the opinion testimony of one of the attorneys in the case, that a lien based on an unwritten contract would not be “good against a homestead.” No proof was made that the residence under construction was the homestead of Ritter and his wife and that they had no other homestead occupied by them while the new house was being built.
In an effort to prove malice, Ritter relies on Kendrick’s admission that he was “a little angry at the office” and was “upset because he [Ritter] wouldn’t see me or talk to me.” Kendrick testified, “After all, if someone wouldn’t talk to you, you couldn’t hardly be too normal.” When asked whether he was “a little bit hot” when he went to see the lawyer about filing the lien, Kendrick stated, “Oh, no. That was just a momentary thing,” and that he had “cooled off” after being at Ritter’s office “real quick.”
Ritter in the main relies on Winn v. Warner, 199 S.W.2d 560, 567 (Tex.Civ.App. Waco 1947, writ ref. n. r. e.) and First National Bank v. Moore, 7 S.W.2d 145, 147 (Tex.Civ.App. San Antonio, 1928, writ dismd.) in support of his contention that proof was made that Kendrick filed his lien “actuated by actual malice.”
In Winn v. Warner the party filing the affidavit had no interest in the oil lease in question. This fact, coupled with extended friction between the parties in their business relations, distinguishes that case from the case before us. In that case when the owner of the lease requested the maker of the affidavit to remove the cloud, the af-fiant said, “I will knock your damn block off.”
In First National Bank v. Moore the parties filing an abstract of judgment knew that the property in question was the separate estate of a married woman and “evidently desired to force appellees to pay off the judgment.” Even after a sale was broken off, “appellants refused to lift the cloud . . . but persisted in claiming a lien on her property.”
Malice as a basis for recovery of actual damages “should mean that the act or refusal was deliberate conduct without reasonable cause.” Kidd v. Hoggett, 331 S.W.2d 515, 518 (Tex.Civ.App. San Antonio 1959, writ ref. n. r. e.).
The jury found in favor of Kendrick in his claim for the “202 system Formica,” which Ritter contended was false, and also found that $1,500 was reasonable and fair compensation for Kendrick’s attorney in prosecuting the entire claim against Ritter for labor and materials.
It cannot be said that Kendrick’s conduct in filing his lien was without reasonable cause. After Ritter requested additional information and explanations of Kendrick’s itemized statement for work and materials, Ritter deliberately refused to see or talk to Kendrick, although Kendrick made repeated efforts to comply with Ritter’s request for more information. Ritter acknowledged in his first letter that he had contracted for materials on a basis of cost plus ten percent, and stated to Kendrick in the second letter that he wanted the information so he could settle his account with Kendrick. Ritter’s office manager stated that Ritter would have paid the account if he could have had the information.
After his futile attempts to see or talk to Ritter, Kendrick sought legal advice, after which the lien was filed. The fact that Kendrick admitted being momentarily a little bit angry at Ritter’s office fails as proof that Kendrick acted in malice to protect his right to pay for work and for materials furnished Ritter’s job, which the record shows to have cost in the neighborhood of $100,000. Under the circumstances it must be said that Kendrick exercised commendable restraint. After he realized that Ritter apparently was determined not to accept any explanation of the itemized statement and settle the account, Kendrick merely pursued the normal course open to every mechanic or material-man who reasonably believes he is about to lose the fruits of his labor or will not be paid for materials contributed to the job.
We overrule Ritter’s fourth point of error.
Under points five and six Ritter urges error in awarding attorney’s fees to Kendrick and to Johnson. Ritter places reliance on the holding in Tenneco Oil Company v. Padre Drilling Company, 453 S.W.2d 814 (Tex.Sup.1970). The holding in Tenneco is not controlling in this case.
Ritter was his own contractor in building the residence. Neither Kendrick’s work nor Johnson’s work was done under what Ritter erroneously characterized as a “turn-key job.” We rejected this contention earlier.
Johnson was hired as a carpenter and to assist Ritter in supervising the job. Johnson served as a go-between in dealing with other workmen and subcontractors. Ritter reserved the right, which he frequently exercised, to vary the work, make additions and alterations, to order Johnson instead of Kendrick to install certain areas of Formica, to substitute birch for mahogany in five rooms of the house, and in general to contract and supervise from day to day without limitation of prior agreement or contract. Ritter ordered, or authorized, work to be done from time to time, and in the same manner ordered or required, the furnishing of such materials as he alone deemed necessary.
Kendrick was asked to furnish certain materials and was asked to install some of the materials, both tile and Formica. The fact that he submitted a bid for some of the materials has no bearing on whether the materials furnished come within the meaning of Article 2226, Vernon’s Ann. Tex.Civ.Stat. (as amended by Acts 1971, 62nd Leg. p. 1073, ch. 225, sec. 1, effective May 17, 1971).
Both Johnson and Kendrick employed other workmen on the job to perform carpentry or installation of materials. Ritter received the direct benefits of labor done and materials furnished. Both Kendrick and Johnson performed personal services for Ritter, in addition to labor done, and such services also are within the provisions of Article 2226.
In Tenneco the two companies had a written contract under which Padre undertook to drill an oil well to a specified depth for Tenneco. Padre furnished tools, equipment, supplies, materials, supervisors, workmen, drillers, and all things and all personnel needed to perform the contract. In the case before us Ritter was his own contractor, hiring and firing, supervising, buying materials, and assuming all risks and responsibilities. The craftsmen such as Johnson and Kendrick who furnished the labor and the people such as Kendrick who supplied the materials for the job were acting within the contemplation of Article 2226 in event the claims for such labor and materials became the subject of litigation. (On “materials furnished,” see Pacific Coast Engineering Company v. Trinity Construction Company, 481 S.W.2d 406 (Tex.Sup.1972).
Points five and six are overruled.
Ritter’s points seven and eight, briefed together, are that the trial court erred (7) “in refusing to allow Appellant leave to file ‘Plaintiff’s Supplemental Cross-Action Against Harry Johnson . . and (8) “in refusing Appellant’s requested Special Issues Nos. 11 and 12 inquiring about the negligence of Appellee Johnson.”
Ritter admits that “Even though Appellant’s first cross-action against Johnson was legally sufficient, Appellant requested leave to file a supplemental complaint, leave being denied.” Apparently the trial court likewise considered Ritter’s “first cross-action against Johnson . . . legally sufficient,” and within the court’s discretion refused leave to file the supplemental complaint. Point seven is overruled.
Point eight fails to set out in full the two special issues requested by Ritter. Nor do we find in the brief that Ritter has stated in full the special issues requested and refused by the trial court. Rule 418, Texas Rules of Civil Procedure, requires that, “If complaint is made of any charge . refused, such charge shall be set out in full” in appellant’s brief. Because of Ritter’s failure to comply with Rule 418, we are not required to review the matter complained of under point eight. Banker v. McLaughlin, 200 S.W.2d 699, 703 (Tex.Civ.App. Beaumont 1947, affirmed 146 Tex. 434, 208 S.W.2d 843, 8 A.L.R.2d 1231).
Ritter groups points nine, ten, and eleven in his brief.
Under point nine Ritter complains that the trial court erred in “overruling Appellant’s objections No. [sic] 1 and 2 to the Court’s charge to the effect that the Court’s definitions of ‘implied authority’ and ‘apparent authority’ were (a) unwarranted by the evidence, (b) erroneous as a matter of law, (c) not pleaded, and (d) deprived Appellant of an affirmative defense.”
Point ten is that the trial court erred “in refusing Appellant’s requested definition of ‘apparent authority.’ ” Under point eleven Ritter complains that the trial court erroneously refused to grant Ritter’s motion for judgment non obstante veredicto “because there is no evidence that . . . Johnson had authority to secure materials or labor over $645.80.”
The sum of Ritter’s complaints is that he did not by his own conduct and actions place Johnson in such position of agency that Kendrick, using reasonable diligence and discretion, could naturally and reasonably suppose that Johnson had authority from Ritter to secure from Kendrick materials and labor for the “202 Formica system.”
The jury found that “ . . . Johnson had authority from Mr. Ritter to secure from Mr. Kendrick the materials and labor for the 202 Formica System.” The jury also found that the reasonable value of materials for the “202 Formica System” plus ten percent, together with labor for the day factory representatives demonstrated installation, was the sum of $742.72.
In submitting special issues upon which these findings were made, the trial court gave the following instruction:
“You are instructed that the authority of an agent to act for a principal may be express authority, implied authority, or apparent authority. ‘Express authority’ means the authority granted by the principal to the agent expressly by words. ‘Implied authority’ is such authority as may be reasonably implied from the express authority granted, that is, implied authority embraces authority to do whatever is reasonably necessary and proper to perform the acts or transactions which the agent has been expressly authorized to perform. ‘Apparent authority’ means such authority as a reasonably prudent person, situated as was Mr. Kendrick, using reasonable diligence and discretion, would naturally and reasonably suppose Mr. Johnson to possess at the time Mr. Kendrick dealt with him.”
Ritter objected to the definition of “apparent authority” and offered a definition which read substantially as that of the court, with the additional instruction : “ . . . and you are further instructed that the alleged principal in this case, Mr. Jack F. Ritter, Sr., had, by his actions, to place Mr. Johnson in such a position by his, Mr. Ritter’s, conduct and actions.”
The trial court’s definition of “apparent authority” lacked an affirmative and express relation to the conduct of Ritter as principal. The term has been defined as meaning “ . . . such authority as a reasonably prudent man, using diligence and discretion in view of the principal’s conduct, would naturally and reasonably suppose the agent to possess.” (Emphasis added) Great American Casualty Co. v. Eichelberger, 37 S.W.2d 1050, 1052 (Tex.Civ.App. Waco 1931, writ ref.).
Ritter objected also to the court’s definition of “implied authority.” We do not find fault with the trial court’s definition.
Under the facts surrounding Johnson’s agency for Ritter in the course of constructing the residence, we conclude that error in the definition of “apparent authority” did not result in harm to Ritter. Nor has Ritter made a showing of harm.
A summary of the facts, with some necessary repetition of what has already been stated, is required at this point. To determine the probable effect of the trial court’s instruction on apparent authority, without including an affirmative connection with the principal, we have examined the entire record. Levermann v. Cartall, 393 S.W.2d 931, 936 (Tex.Civ.App. San Antonio 1965, writ ref. n. r. e.).
Ritter’s office manager testified that Johnson had worked for Ritter on at least three previous construction projects over a period of three or four years, and that Johnson had been employed by Jack Ritter, Jr., on numerous projects, and by Tim Rit-ter, another son, on two previous projects. The manager testified that the Ritter family had a great deal of confidence in Johnson’s ability and integrity.
Ritter testified by deposition that on the Scenic Drive job Johnson “had the authority to enter into a contract according to the agreement that we agreed with between us for the doing for construction of all the Formica work in the residence . ” and that Johnson “did have the right to contract with somebody else to do that . . . ” with Ritter’s “approval and he had it and had specific agreement.”
Ritter also testified that on Formica for the job “ . . . we had no notion of giving the contract to anybody but . ” Kendrick. “It was never even thought of, I don’t believe, to even talk to anybody else. The man had Johnson’s confidence and he had my own confidence by reputation. We had no reason to believe he wouldn’t do us a proper job, a job on a competitive basis according to our estimates and his workmanship would be good and we would be entirely happy.” The record shows that Kendrick had furnished materials and labors on prior residence construction by Ritter with Johnson supervising for Ritter.
As to the wall Formica, it was Ritter’s testimony that Johnson “came up with . an estimate for Formica . approximately a thousand dollars .... And the bid that I remember was an estimate through Johnson and a clear cut contract . . . [by Kendrick] that he would do the thing on a cost plus ten percent.”
As early as September of 1968 Kendrick made a bid through Johnson for “ceramic tile shower only” at $339.20 and “Formica Drains and Tops” at $306.60, a total of $645.80. The tile shower and the Formica counter tops, both work and materials, were furnished by Kendrick. It was not until November or early December that Johnson talked to Kendrick about the “202 system,” or wall Formica. Negotiations regarding wall Formica were separate and apart from the earlier bid on ceramic tile and Formica for drain and counter tops.
Johnson corroborated Ritter’s testimony that Kendrick agreed to furnish the wall Formica at cost plus ten percent. Johnson testified that the “Formica 202 system,” commonly called “wall Formica”, as opposed to counter top Formica, “is a completely different process than regular laminated Formica,” and that when first consulted, Kendrick had not heard of the “202 system” and indicated he would have to await factory quotations before arriving at an estimate of the price.
After factory representatives from Houston demonstrated the approved methods of installing the wall Formica, Kendrick again told Johnson he would furnish the Formica, which was already on the job site, at cost plus ten percent, but wanted cost plus twenty percent if he should do the work of installing. Johnson testified that he discussed Kendrick’s proposal with Ritter.
When Ritter learned that Johnson had witnessed the installation demonstration for a full day, Ritter asked Johnson to do the work. Ritter said, “Okay then. Fire Leon [Kendrick] and his crew off that wall Formica, and you put it up yourself, and I will pay you the price that I have been paying you, prices for doing other jobs other odd jobs.” Johnson also testified that Ritter knew in advance that the factory men would spend a day showing Kendrick’s crew and Johnson how to install the new type of wall Formica and that Ritter had approved the expense of such work.
In accord with Ritter’s instructions, Johnson installed the wall Formica which Kendrick furnished, for which Johnson was paid $400 for labor.
Ritter testified that he negotiated agreements with subcontractors in only “one or two instances” and that “Most of them were by Johnson or in the presence of Johnson because I wanted him to know what was going on. And it was his job to help me. * * * So there was some negotiations on the part of his part at home and then the fellow would meet us the next morning and so forth. Just routine matters in most any construction job, I believe, would be built by.”
With the wall Formica already on the job, part of which had been applied during the one-day demonstration by factory experts, and after Ritter instructed Johnson to fire Kendrick’s crew and to install the “202 system” himself, Johnson did the work and Ritter paid for it, accepting the work Johnson did and the materials Kendrick had furnished. After Kendrick submitted his final bill, Ritter wrote Kendrick asking for a factory invoice on the wall Formica, which Kendrick had itemized in the statement. In the letter Ritter stated, “The contract approved by me was the cost plus ten percent delivered on the job and based on actual need and requirements of square footage necessary according to the plans and specifications.” (Emphasis added) Ritter has not questioned the quantities or the square footage.
Ritter’s office manager testified that Ritter would have paid Kendrick’s itemized statement, which included the wall Formica for the “202 system,” if Kendrick had given Ritter the explanation he requested. Ritter repeatedly refused to talk to Kendrick by telephone, and on Kendrick’s last effort at Ritter’s office to give Ritter the explanation, Ritter refused to see Kendrick. Kendrick went to Ritter’s office for the purpose of presenting the invoice and to give the explanations Ritter had said he wanted.
Johnson’s testimony is uncontradicted that Ritter approved purchase of the wall Formica from Kendrick on a basis of cost plus ten percent, and, in fact, is corroborated by Ritter in his first letter to Kendrick in which he stated that he had approved such a contract.
Although Ritter stated in the letter that he had “no comprehension what is meant by material for 202 system formica,” the direct evidence is without dispute that Rit-ter and his wife initiated consideration of wall Formica, or the “202 system,” and Ritter directed Johnson to get prices from Kendrick on cost of materials and for installation. When Johnson told Ritter that Kendrick wanted twenty percent for labor, Ritter instructed Johnson to fire Kendrick’s labor crew and'to install the wall Formica himself.
Ritter testified that Johnson told him that Kendrick’s figure on cost of Formica would be “Approximately a thousand dollars.” Kendrick’s bid on the Formica and the ceramic tile was dated in September of 1968, a short time after work on the house had been started. The Formica in that bid was for “Drains & Tops” and did not include wall Formica. The matter of wall Formica did not arise until sometime in November, or in early December, after Ritter’s wife had become interested in the new “202 system” for walls. When Kendrick submitted his final statement late in February of 1969 the ceramic tile and counter top Formica were listed separately from the items of wall Formica subsequently furnished in December and installed by Johnson in January.
Kendrick’s bid in September of 1968, for both tile and counter top Formica, was $645.80, and the component parts of this total were repeated by itemization in Kendrick’s final statement in February of 1969. Included with these items was an additional $73 for “add Formica tops,” which is not challenged by Ritter, bringing the total for the earlier work and materials to $718.-80.
The additional wall Formica, furnished in December of 1968, also was in the final statement Kendrick submitted, bringing the total bill to $1,486.14, or $767.34 added for the second parcel of work and materials Kendrick furnished.
Neither bid made by Kendrick, in September and in December, was as much as “Approximately a thousand dollars,” and, of course, neither portion of the two types of Formica exceeded the figure Ritter testified he expected to pay for Formica. In fact, deducting from the total statement the sum of $339.20 for ceramic tile, not questioned by Ritter, and the $73 extra for Formica tops already mentioned as not in question, Kendrick’s total claim for Formica materials amounted to $1,073.94, a figure reasonably close to Ritter’s expectation of “Approximately one thousand dollars” which he testified he authorized through Johnson.
Kendrick’s two bids were at least two months apart, and the second purchase of Formica was to meet changes and additions Ritter and his wife made after they decided to use the new “202 system” of wall Formica. It is obvious that when Kendrick bid on tile and counter Formica in September, the use of wall Formica was not then contemplated by either Ritter or Kendrick, and the need for the second bid did not arise until after the first materials had been furnished and were installed in the house.
Judicial recognition of apparent authority as the basis of the principal’s liability rests upon the doctrine of equitable estop-pel which has not been pleaded in this case and is not at issue. Kendrick’s position appears to be simply that he dealt with Johnson who had express authority from Ritter to order and accept the materials and labor Kendrick furnished to Ritter’s residence job.
The jury’s finding that Johnson had authority from Ritter to secure from Kendrick the materials and labor for the “202 Formica System” was the only finding justified by the evidence. That Johnson had actual authority from Ritter is supported by the evidence and is not rebutted or contradicted by any evidence of probative force. We conclude that there can be no reversible error in the manner of the submission of the issue or in the accompanying instructions. Greever v. Persky, 156 S.W.2d 566, 569 (Tex.Civ.App. Fort Worth 1941, affd. 140 Tex. 64, 165 S.W.2d 709); Coffey v. Fort Worth & Denver Railway Company, 285 S.W.2d 453, 461 (Tex.Civ.App. Eastland 1955, no writ).
Points nine, ten, and eleven are overruled.
By point twelve Ritter complains that the trial court overruled objections to submission of Special Issues 3 and 4 because these issues inquired of labor, and reasonable compensation for labor, “over and above . . . [the labor] called for in the plans and specifications.” Ritter insists that the inquiry should be as to labor “over and above the contract of July 30, 1968,” which was the itemized figures Johnson provided prior to the time plans and specifications were completed by the architect. It appears that this point of error is grounded on Ritter’s theory that the writing of July, 1968, constituted a contract for a “turn-key job.” We have previously discussed this phase of the case and concluded that Ritter tried his case on a wrong theory. We overrule point twelve.
Under point thirteen Ritter brings attention to four requested special issues which he insists presented affirmative defenses. Because Ritter has not complied with Rule 418, Texas Rules of Civil Procedure, by setting out in full the four requested issues, we are not required to review the matters complained of under this point. (See discussion and authorities under point eight above).
Under points fourteen and fifteen Ritter urges error of the trial court in allowing counsel for Kendrick to testify that a suggestion of contempt had been filed and to testify that “other continuances had been filed in this case.”
In proving up the services performed by him in the case in behalf of Kendrick, Kendrick’s counsel stated that after Ritter or his former attorney in the case failed to produce a deposition, the witness “filed what we call a Suggestion of Contempt which is a . . . ” At this point trial counsel for Ritter objected, and moved “the Court to instruct the jury not to consider it for any purpose.”
The trial court instructed the jury, “ . . . with reference to the matter that has been described here as a contempt procedure, you are instructed and you will not consider it with respect to any matters submitted to you except you may consider it solely for the purpose of determining the legal services rendered by the witness in connection with this proceedings. You may consider it for that purpose and for that purpose only.”
We find the court’s instruction proper and sufficient to render harmless any effect of the testimony.
As to testimony regarding other continuances, Ritter makes no argument, and we consider the contention waived. Points fourteen and fifteen are overruled.
Ritter’s sixteenth and final point is that the trial court improperly overruled Rit-ter’s motion for continuance.
The motion for continuance stated that counsel presenting the motion had been employed in the case only a few days prior to trial after Ritter’s first attorney had withdrawn from representation. The motion also stated that Ritter’s “wife has had surgery several months ago of a serious nature and he must be at home to nurse and take care of Mrs. Ritter.”
The record shows that several continuances, only one by agreement, had been granted in the case.
Ritter did not appear at the trial. The record does not disclose that his absence was due to his own or his wife’s ill health. Ritter’s testimony was by deposition.
Ritter filed suit April 25, 1969, and after several delays and continuances, the cause was brought to trial July 12, 1971.
Kendrick states in his brief, and Ritter has not denied the statement, that “ . . . the record shows that Appellant knew no later than late in May or early in June that a change of counsel would be required.”
Grant or refusal of a continuance is addressed to the sound discretion of the trial court, and judgment will not be reversed unless abuse of discretion is shown in denial of a continuance. American Bankers Insurance Company v. Fish, 412 S.W.2d 723, 725 (Tex.Civ.App. Amarillo 1967, no writ), and cases cited.
The record in this case does not disclose that the trial court abused its dis-creation in overruling Ritter’s motion for continuance. Point sixteen is overruled.
The judgment of the trial court is in all things affirmed. |
sw2d_482/html/0382-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "CHADICK, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Sallie Jo RUDDELL, Appellant, v. The CHARTER OAK FIRE INSURANCE COMPANY, Appellee.
No. 8084.
Court of Civil Appeals of Texas, Texarkana.
June 20, 1972.
Kenneth L. Ross, Sharp, Ward & Ross, Longview, for appellant.
Blake C. Erskine, Kenley, Boyland, Hawthorn, Starr & Coghlan, Longview, for ap-pellee.
CHADICK, Chief Justice.
On March 1, 1970, Mrs. Sallie Jo Rud-dell, while employed at a Safeway Food Store in Longview,. Texas, and while in the furtherance of her employer’s affairs and the performance of her duties, slipped and fell as she was carrying food products into the store’s cooler. Mrs. Ruddell, in her brief, says that she “fell on her hips very hard and her foot struck a metal table leg. * * * She looked at her left foot immediately thereafter and saw that it was twisted and turned, and appeared to be broken. At that time her hips were hurting worse than her foot.” She timely applied for Workmen’s Compensation, and her application followed regular procedures through final determination by the Texas Industrial Accident Board. After the Board made its award, The Charter Oak Fire Insurance Company, the store’s compensation carrier, instituted a suit in a District Court of Gregg County to set aside the Board’s award to Mrs. Ruddell. At completion of a jury trial, judgment was entered by the trial court that was unsatisfactory to Mrs. Ruddell, and she has appealed therefrom and here seeks reversal of the judgment and a remand of the case for new trial.
The answer and cross-action filed by Mrs. Ruddell in response to the insurance carrier’s original petition plead a conventional Workmen’s Compensation action, alleging a general injury made compensable by Vernon’s Tex.Rev.Civ.Stat.Anno. art. 8306 Sec. 10 and 11 (1967). Her brief in this court confirms and emphasizes such construction of her pleadings. The insurance company plead that her injury was to her left leg below the knee and was com-pensable, if at all, under the provisions of Section 12 of the same article. To emphasize the positions of the parties, Mrs. Rud-dell does ont rely for recovery upon injury to a foot that extends to and affects other parts of her body generally; specific injury is plead only by the insurance carrier, and neither party plead an extension of a specific injury to the body generally. In summary, Mrs. Ruddell asked to be compensated for what has come to be called in workmen’s compensation practice a general injury, and the insurance carrier plead that she be compensated, if at all, for what, in the practice is commonly called a specific injury.
The distinction between general and specific injuries was recently made by this court in Banks v. Miller’s Mutual Fire Insurance Company of Texas, 476 S.W.2d 768 (Tex.Civ.App. Texarkana, 1972, no writ), in this language, viz:
“The Texas Workmen’s Compensation Law in its broad design divides com-pensable injuries into two classes: General injuries to the body governed by Tex.Rev.Civ.Stat.Anno. Art. 8306, Secs. 10 and 11 (1967) and injuries, by custom called specific injuries, that produce the loss of, or loss of the use of, specified bodily members and faculties which are scheduled under Section 12 of the same article. Texas General Indemnity Co. vs. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952); 63 Tex.Jur.2d Workmen’s Compensation, Sec. 165 (1962).”
And the opinion went on to say:
“The language of Section 12 does not purport to fix the location of a compensa-ble injury on the workman’s body, it simply says that injuries causing the loss of, or the loss of the use of, specified bodily members or faculties shall be compensated as therein provided. In McCartney v. Aetna Casualty & Surety Co., 362 S.W.2d 838 (Tex.Sup.1962), it is said: ‘ * * * If the insurer desires to limit the claimant’s recovery to the compensation recoverable under the provisions of Section 12 or seeks to otherwise separate the effects of general and specific injuries, the burden rests with the insurer to either request appropriate special instructions to the jury, in connection with the general injury issue, or plead, prove and secure jury findings so limiting the claimant’s recovery.’ * * *
■The record under review presents a case in which the claimant ignored a concurrent specific injury and seeks compensation based upon general injury to the body. The insurance carrier, in its turn, defends its interests by injecting the question of specific injury.
Counsel for Mrs. Ruddell have briefed a single point of error, to-wit:
“The District Court erred by overruling appellant’s motion for mistrial and motion for new trial based upon an irrecon-ciliable conflict in the answers to special issues in the court’s charge.”
In argument under the point, it is insisted that an irreconciliable conflict exists between Special Issues No. 1, No. 2, No. 3, and No. 4 on the one hand and Special Issue No. 37 on the other. These issues and answers thereto, plus Special Issue No. 16 and its answer, are next copied in the order of appearance in the charge, viz:
“Special Issue No. 1: Do you find from a preponderance of the evidence that plaintiff, Sallie Jo Ruddell, received an injury on or about March 1, 1970?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do.
“If you have answered Special Issue No. 1 ‘We do’, then answer Special Issue No. 2; otherwise do not answer Special Issue No. 2.
“Special Issue No. 2: Do you find from a preponderance of the evidence that such injury was a producing cause of any total incapacity ?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do.
If you have answered Special Issue No. 2 ‘We do,’ then answer Special Issue No. 3; otherwise do not answer Special Issue No. 3.
“Special Issue No. 3: Find from a preponderance of the evidence the beginning date of such total incapacity. Answer by giving the month, day and year.
ANSWER: March 1, 1970.
“If you have answered Special Issue No. 3 ‘We do’, then answer Special Issue No. 4; otherwise do not answer Special Issue No. 4.
“Special Issue No. 4: Do you find from a preponderance of the evidence that such total incapacity is permanent, or was or will be temporary?
Answer ‘permanent’ or ‘temporary.’
ANSWER: Permanent.
* * * * * *
“Special Issue No. 16: Do you find from a preponderance of the evidence that the plaintiff, Sallie Jo Ruddell, received an injury to her left leg below the knee on or about March 1, 1970 ?
Answer ‘We do’ or ‘We do not.’
ANSWER: We do.
* * * * * *
“Special Issue No. 37: Do you find from a preponderance of the evidence that the incapacity, if any, of the Plaintiff was not caused solely by the Plaintiff’s loss of use of the left leg below the knee?
Answer ‘It was not caused solely by the loss of the use of the left leg below the knee,’ or ‘It was caused solely by the loss of use of the left leg below the knee.’ ANSWER: It was caused solely by the loss of use of the left leg below the knee.”
It is clear from the language of the appellant’s point of error that a conflict between answers to special issues is the single vice or factor relied upon to nullify the trial court’s judgment, and this vice is limited by the argument to a conflict of special issues No. 1 through No. 4, with special issue No. 37. In testing to ascertain the existence of a conflict in findings that will nullify a judgment, an examination must be made to determine the materiality of the issues asserted to be in conflict, the existence or not of dominant findings, waiver, and whether or not other issues not in conflict will support the judgment. See 3 McDonald’s Texas Civil Practice, Jury Trials: Verdict, Sec. 15.06.2. through Sec. 15.06.6.-(d) for a treatise on this subject; also, Hodges, Special Issue Submission in Texas 111 (1969 Supp.) for an enlightening discussion of the subject of conflicting issues. The section from McDonald first mentioned, Sec. 15.06.02., is supported by a number of footnoted cases; and although no case appears to deal with the precise question presented by this appeal, the text generalizes the results reached by the courts and sets out a rule of practice, in part as follows:
“When the findings appear to conflict, the court, by construing them as a whole and considering the method of submission, should reconcile them if this can be done consistent with the pleadings (or issues tried outside the pleadings by expressed or implied consent) and the evidence. It may be presumed that the jurors did not intentionally make conflicting findings, and if a reasonable interpretation will avoid the conflict, the court should adopt it. * * * ”
On undertaking a reconciliation of the jury’s answers in this case, it is appropriate to notice that Mrs. Ruddell’s theory of recovery was submitted in the first fifteen special issues. These issues were designed, if favorably answered, to establish facts constituting the foundation of liability premised on a general injury. The remaining issues are relevant to the insurer’s defense. In answering the first issue, the jury found Mrs. Ruddell received an injury . Such finding is broad enough to include an injury that might, when a bodily member or faculty is considered individually, fall within the specific injury category. The jury’s answer to the second, third, and fourth issues constitute findings that the injury established by answer to the first issue was a producing cause of some degree of total incapacity beginning March 1, 1970, that was permanent in nature. It is this first series of findings, the appellant contends, that conflict with the answer to special issue thirty-seven that Mrs. Ruddell’s incapacity was caused solely by loss of use of the left leg below the knee. Put more pointedly, it is urged upon this court that these first four jury findings (that the injury was a producing cause of some degree of total incapacity permanent in nature) are opposite to, conflict with, and tend to negate the existence of the subsequent answer to the thirty-seventh special issue (that Mrs. Ruddell’s incapacity was caused solely by the loss of use of the left leg below the knee).
In the previously cited work by Professor Hodges a rule is formulated that includes this statement from Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97 (Tex.Comm’n.App.1939, opin. apprvd), to-wit:
“It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled. This is elementary.”
And proceeds on the basis of Rhone and other cases cited, to incorporate the conclusion that:
“ * * * the proper consideration is of the evidence. The burden is upon the one claiming the existence of the conflict to show there is no evidence upon which the jury could have reasonably found a factual theory making their answers consistent. The party opposing the claim of conflict should point out evidence on which the answers could be consistently made.”
The illusion of a conflict in the factual findings underlying answers to the first through fourth and thirty-seventh special issues disappears when the evidence is examined.
Evidence was offered that Mrs. Ruddell fell in such way as to hurt and injure her left foot, and that the injury she received produced some degree of total incapacity. This evidence, under the plaintiff’s pleadings and the instruction of the court, is consistent with and tends to support the answers given to the first four issues. The same evidence under the defendant’s pleadings and the court’s instruction is consistent with and tends to support the answer to the sixteenth, and in conjunction with other evidence the answer to the thirty-seventh special issue. In this fact finding process, the jury was not compelled to find inconsistent facts in order to answer all issues in question as it did; that is to say, the jury did not pursue inconsistent factual theories in reaching its verdict on the mentioned issues.
The conclusion expressed finds support in Argonaut Insurance Co. v. Newman, 361 S.W.2d 871 (Tex.Sup.1962). The claimant in the case undertook to show a specific injury extended to and affected other parts of his body. When the jury in the case first returned its verdict on the special issues submitted, the trial judge concluded that some of the findings were in conflict and proceeded to instruct the jury to resolve the conflicts. In reference to the trial judge’s instructions to the jury, Judge Walker’s opinion says:
“The jury was again advised that neither total nor partial incapacity can exist where an injury and its effects are confined to the toes, to the foot, or to the leg, or where the injury produces only a loss of the use of the toes, the feet or the leg. (pp. 872-873) * * * If the evidence shows that the claimant is totally or partially disabled from performing the usual task of a workman, the jury may properly find that he has suffered incapacity even though it also concludes that his injuries are confined to a specific member.” (p. 874)
As this language in the opinion is understood, the Supreme Court holds that it was error to instruct that answers finding a partial loss of use of plaintiff’s toes were in conflict with a finding that the claimant had suffered total and permanent disability. The Supreme Court appears to hold that incapacity caused by a partial loss of the use of claimant’s toes may factually exist at the same time, or along with, total and permanent general disability. Recovery for general disability can only be had, as the opinion is understood, on determination that the injury to the foot extended to other parts of the body, and was not caused solely by the loss of use of the foot. Another case also lends support. In Bituminous Fire & Marine Insurance Co. v. Jones, 398 S.W.2d 577 (Tex.Civ.App. Tyler 1966, error ref’d n. r. e.), a finding that injury to a hand affected the claimant’s general health causing incapacity, was held not to be in conflict with a finding that the injury to the hand did not extend to nor affect his shoulder, because the pain in the hand could have caused sleeplessness and loss of weight and strength, without affecting the shoulder.
A case that has caused some scholarly handwringing, Texas General Indemnity Co. v. Dickschat, 440 S.W.2d 922 (Tex.Civ.App. Waco 1969, err. ref’d, n. r. e.), should not go unnoticed even though decision herein is not grounded upon it. This reproduction of the special issues and jury answers in the Dickschat case is taken from the Waco Court’s opinion, to-wit:
“16) Do you find from a preponderance of the evidence that plaintiff’s disability, if any, is not confined to his left arm?
To which the jury answered: ‘Disability is confined.’
“17) Do you find from a preponderance of the evidence that plaintiff’s disability, if any, is not caused solely by the loss of the use, if any, of his left arm?
To which the jury answered: “Disability is caused solely.’
“18) Do you find from a preponderance of the evidence that the incapacity, if any, of plaintiff is not limited to the arm below his shoulder?
To which the jury answered: ‘It is limited to the arm below the shoulder.’ ”
Judge McDonald speaking for the court sums up the effect of these findings in this brief pronouncement:
“Defendant asserts the trial court’s judgment is precluded by the jury’s answers to issues 16, 17 and 18. The findings in answer to such issues may well mean that plaintiff did not establish that his disability was not confined, but such findings do not establish the converse. C. & R. Transp. Inc. v. Campbell, Tex., 406 S.W.2d 191.”
If, as the Waco court holds, the jury answers to the issues, particularly special issue No. 17, do not establish that plaintiff’s disability is caused solely by loss of the use of his left arm, then in the instant case, the jury answer to the thirty-seventh special issue does not establish that Mrs. Ruddell’s incapacity was caused solely by the loss of the use of the left leg below the knee. Under such an interpretation the answer to the thirty-seventh special issue would not conflict with either of the first four issues, as the effect of the jury answer to the thirty-seventh is merely failure on the part of Mrs. Ruddell to establish that her incapacity was not confined to her left leg below the knee. The error urged is a conflict in findings. In the absence of an affirmative finding that Mrs. Ruddell’s incapacity was confined, etc., no conflict can exist.
For the reasons discussed, it is concluded that no conflict between issues exists and that appellant’s point of error must be overruled. The judgment entered is not questioned on other ground. No case has been found in which the precise confrontation of issues here discussed has been before a Texas court, but decision here is consonant with such cases as : Brown v. Transamerica Insurance Company, 416 S.W.2d 902 (Tex.Civ.App. Tyler 1967, no writ); Aetna Casualty & Surety Company v. Moore, 361 S.W.2d 183 (Tex.Sup.1962); Federal Underwriter’s Exchange v. Simpson, 137 S.W.2d 132 (Tex.Civ.App. Austin 1940, no writ); Petroleum Casualty Co. v. Seale, 13 S.W.2d 364 (Tex.Comm.App.1929, apprvd by Sup. Ct.); Russell v. United Employers Casualty Co., 158 S.W.2d 575 (Tex.Civ.App. Texarkana 1941, writ ref’d, w. o. m.); Ferrell v. Texas Employers’ Ins. Ass’n., 194 S.W.2d 585 (Tex.Civ.App. Dallas 1946, no writ); Texas Employers’ Ins. Ass’n. v. Thrash, 136 S.W.2d 905 (Tex.Civ.App. El Paso 1940, writ dism’d, judgment cor.); Texas Employers’ Insurance Ass’n. v. Hinkle, 308 S.W.2d 543 (Tex.Civ.App. El Paso 1957, writ ref’d, n. r. e.); Sanchez v. Texas General Indemnity Company, 392 S.W.2d 222 (Tex.Civ.App. San Antonio 1965, writ ref’d, n. r. e.); Texas General Indemnity Co. v. Scott, 152 Tex. 1, 253 S.W.2d 651 (1952).
The cases upon this subject cited and relied upon by the appellant have been considered and are regarded as either distinguishable or unsound as precedents, and therefore, are not followed. These cases include: Service Mut. Ins. Co. of Texas v. Moaning, 129 S.W.2d 341 (Tex.Civ.App.1939, Waco, no writ); Texas Motor Coaches Inc. v. Palmer, 132 Tex. 77, 121 S.W.2d 323 (Tex.Sup.1938); Fireman’s Fund Indemnity Co. v. Hopkins, 119 S.W.2d 394 (Tex.Civ.App. San Antonio 1938, no writ); Maryland Casualty Co. v. Brown, 110 S.W.2d 130 (Tex.Civ.App. San Antonio 1937, no writ); Texas Indemnity Ins. Co. v. Barker, 82 S.W.2d 389 (Tex.Civ.App. Eastland 1935, no writ); United Benefit Fire Insurance Company v. Stock, 344 S.W.2d 941 (Tex.Civ.App. Houston 1961 no writ); Texas Employers’ Insurance Ass’n. v. Brinkley, 349 S.W.2d 321 (Tex.Civ.App. Fort Worth 1961, err. ref’d, n. r. e.); Sims v. Travelers Insurance Company, 391 S.W.2d 807 (Tex.Civ.App. Fort Worth 1965, err. ref’d, n. r. e.)
The appellant’s motion for rehearing is persuasive, but the court will adhere to its original disposition of the appeal. However, in order to clarify certain portions, the original opinion is withdrawn and this substituted for it. For the reasons discussed, reversible error is not shown. The judgment of the trial court is affirmed.
DAVIS, J., not participating.
. Injury means damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom, or the incitement, acceleration, or aggravation of any disease, infirmity or condition, previously or subsequently existing by reason of such damage or harm. (Definition in court charge).
. Producing cause means an injury or condition which, either independently or together with one or more other injuries or conditions, results in incapacity, and without which such incapacity would not have occurred when it did. (Definition in court charge).
.Total incapacity does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment. (Definition in court charge).
. See comment in 2 Texas Pattern Jury Charges, Section 26.14.
|
sw2d_482/html/0388-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McCLOUD, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
R. W. KING et ux., Appellants, v. King William SMITH, Appellee.
No. 4527.
Court of Civil Appeals of Texas, Eastland.
May 19, 1972.
C. J. Eden, Breckenridge, for appellants.
Elliott, Bevill & Clark, Tom R. Bevill, Breckenridge, for appellee.
McCLOUD, Chief Justice.
This case involves the obstructing of an alleged public road. The road is approximately one and one-half miles long and is located on property that is either owned or controlled by King William Smith. Smith erected an iron pipe gate across the road. R. W. King and wife, Laura King, filed suit to enjoin Smith from obstructing the road. The jury found that the road had never been dedicated as a public road by Smith or his predecessors in title. A take nothing judgment was entered. R. W. King and wife, Laura King, have appealed. We affirm.
Appellants own land adjacent to appel-lee’s property and they on occasion use the road in question when going from their land to a paved farm to market road.
Appellants complain first of the trial court’s failure to submit a requested special issue. The record contains no objections to the court’s charge nor does it disclose that the special issue was tendered or requested. The point is overruled. Rule 279, Texas Rules of Civil Procedure.
Appellants complain next of jury misconduct. One complaining of jury misconduct has the burden to prove not only the overt act of misconduct, but also that it was material misconduct, and from the record as a whole that injury probably resulted. Rule 327, T.R.C.P.; Fountain v. Ferguson, 441 S.W.2d 506 (Tex.Sup.1969).
Appellants argue that the juror Key was prejudiced and biased. They say that statements made by Key while the jury was deliberating conclusively establishes that such juror was not fair and impartial. We disagree. The juror’s statements concerning the credibility of the witnesses did not constitute material misconduct. Juror Harris testified that juror Key stated during jury deliberations that when she heard Mr. Smith testify “she made up her mind how she was going to vote . . . She was just hardheaded and she wasn’t going to change.” When Harris was asked if he heard anyone make any statements concerning Sam Jones, he stated that juror Key “just didn’t like him and didn’t believe him.”
The Court in Kendall v. Southwestern Public Service Company, 336 S.W.2d 770 (Tex.Civ.App.—Amarillo 1960, no writ) stated:
“The juror was a judge of the credibility of the witnesses and had the right under the circumstances to take the position in the jury room that the evidence before them showed Kendall was not telling the truth. Dallas Ry. & Terminal Co. v. Burns, Tex.Civ.App., 60 S.W.2d 801; Dancy et al. v. Peyton et al., Tex.Civ.App., 282 S.W. 819.”
We think the cases cited by appellants are distinguishable. In each case the Court was concerned with unsworn testimony given by a juror who was attacking the veracity of a witness. In Storey v. Zuniga, 254 S.W.2d 415 (Tex.Civ.App.—San Antonio 1952, writ ref., n. r. e.) the juror stated that the witness “had deserted his wife and two children”, and in Wallace v. Partin, 345 S.W.2d 943 (Tex.Civ.App.—Austin 1961, no writ) the juror stated that she had heard that the witness was as “crooked as a barrel of snakes”. Juror Harris did not testify as to any statements made by juror Key concerning the witness Sam Jones. He stated only that Key “just didn’t like him and didn’t believe him!”
Appellants’ attorney asked the jury panel as a whole during voir dire examination if any of the prospective jurors were prejudiced or biased against the State or County acquiring a roadway over private land without payment to the owner for the land. Appellants argue that the juror Groseclose stated during deliberations that the Grose-close land had been measured and they did not have as much as the deed called for because a public road crossed the land and they were paying taxes on the land used as a public road. The juror stated “she did not like to pay taxes on a public road.” Appellants argue that such statement injected extraneous matter before the jury and constituted improper communication with the jury. We disagree. The juror stated that she did not like to “pay taxes” on public roads which crossed her land. The statement does not indicate that the juror was untruthful in her answer on voir dire examination.
We hold that the statements made by jurors Key and Groseclose do not constitute jury misconduct. Furthermore, if we should be in error as to such statements not constituting overt acts of misconduct, we further hold that appellants have not demonstrated that injury probably resulted as a result of such statements. Rule 327, T.R.C.P.
Appellants further contend that the trial court erred in overruling their motion for judgment notwithstanding the verdict. They say that the evidence established as a matter of law that the road in question had been dedicated as a public road. We disagree.
The appellee, Smith, testified that the road in question originated as an oil field road; that he owned none of the minerals; that the road was constructed by oil companies around 1919 or 1920; that he had observed people who “had business” in there using the road; that he never did attempt to stop these people; that he couldn’t keep them out anyway because they had a right to go in there under the lease; that he had attempted to keep trespassers out; that the road was never used as a school bus route; that the wells have been plugged and there are no producing wells in the area now.
Bill Mobley testified that he was land manager for Petroleum Corporation of Texas; that as land manager he was familiar with oil and gas leases; that there is an implied right to build roads under oil and gas leases.
R. B. O’Brien testified that he was a pumper from 1924 to 1948 in the area; that the road originated as an oil field road; that the company he worked for maintained the road; that they drug it occasionally with a half joint of pipe behind a truck; that he served on the school board at Eliasville and that the board would not allow the school bus driver to use the road; that the road was very narrow and had one bad creek crossing that was rocky and bad to cross with a truck.
Truman Mayes, County Commissioner of Young County, testified that he lived near Eliasville; that he would classify the road as a pasture road; that sometimes roads are maintained by county commissioners behind gates but this does not make it a public county road.
While discussing an oil field road, the Court in Eastex Wildlife Conservation Association v. Jasper, 450 S.W.2d 904 (Tex.Civ.App.—Beaumont, 1970, writ ref., n. r. e.) said:
“Plaintiffs labored under the burden of making proof that there was ‘a clear and unequivocal intention on the part of the landowner to dedicate the same to public use * * * ’ [which] ‘must be shown by something more than an omission or failure to act or acquiesce on the part of the owner.’ (Greenway Parks Case [Greenway Parks Home Owners Ass’n v. City of Dallas, Tex.], supra, 312 S.W.2d [235] at 241).”
Appellants cite O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960) as authority for their position. The case is distinguishable. There the Court was concerned with whether there was any evidence in support of a jury finding that a road had been dedicated. No witness was able to state the exact origin of the user of the roadway by the public nor the ownership of the land at the time of such origin. The Court applied the rule that a presumption of acquiescence is raised when the origin of the user by the public and the ownership of the land at that time are shrouded in obscurity, and no evidence exists to show the intention of the owner in allowing the use.
In the instant case there is evidence that the road originated as an oil field road and was used by oil field workers. The jury found that the road had not been dedicated as a public road. We do not think that the evidence established as a matter of law that the road had been dedicated as a public road.
Also we have considered the entire record and are of the opinion that the finding of the jury is not against the overwhelming weight and preponderance of the evidence so as to be clearly wrong and manifestly unjust. In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).
We have considered all of appellants’ points of error and all are overruled. The judgment of the trial court is affirmed. |
sw2d_482/html/0391-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "BARRON, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
J. J. GAITZ, Appellant, v. Phillip MARKMAN et al., Appellees.
No. 637.
Court of Civil Appeals of Texas, Houston (14th Dist.).
May 24, 1972.
Stephen Perel, Kahn, Perel & Maier-son, Houston, for appellant.
Ronald D. Cohen, Bernard S. Stolbun, Stolbun & Shaw, Houston, for appellees.
BARRON, Justice.
This suit is based upon an oral contract of a real estate broker, J. J. Gaitz, who sued Phillip Markman, Jack Markman, Harry Pepper and Isaac Tapper for certain commissions which plaintiff allegedly earned as a result of a sale consummated by Pepper and Tapper as grantors to the Markmans as grantees in early 1970. The suit, while admittedly not based upon a written contract, involves also an alleged deliberate interference with contractual rights on the part of the Markmans, who allegedly caused Pepper and Tapper to fail to pay the commission to Gaitz, and the Markmans also made an agreement with Gaitz to pay him the sum of $4,800.00 as his commission for the alleged sale of the properties involved. The portion of the suit relied upon is in tort for wrongful interference with contractual relations. Other pleas are made but are not material here.
This is a summary judgment case. The summary judgment evidence, in the form of affidavits and depositions, shows that Gaitz had done business as a realtor with Pepper and Tapper several times before on an oral basis and that the above owners had never defaulted in paying Gaitz the lawful commissions which he had earned. In the present case Gaitz did enter into an agreement with Pepper and Tapper, as owners, for which he was to receive a commission if he caused the sale of the property. Gaitz thereafter contacted Phillip and Jack Markman as prospective purchasers of the real property, and Markman told Gaitz that they were not interested in buying. Gaitz then “declared” their names to Pepper and Tapper as prospective purchasers. A “declaration” was explained as the naming of prospective purchasers to authorize payment of a commission to the realtor if sale is made to such prospect within 90 days after expiration of a listing agreement. Pepper agreed that the above explanation of a declaration is correct.
Thereafter, Gaitz learned that Pepper and Tapper were about to consummate a sale of the involved property to the Mark-mans, and he immediately contacted Pepper and Tapper and informed them of his right to a commission. There followed a series of negotiations, as a result of which Gaitz agreed to settle and compromise his claim with the Markmans, who agreed to pay the sum of $4,800.00, with $1,000.00 to be paid down and with a note to represent the balance. Pepper testified that he would not have gone through with the sale if he had thought the Markmans were not going to pay the commission, and that the Markmans were going to take care of it. The Markmans urged Pepper not to be concerned with the commission, because the Markmans would take care of it. Pepper heard the agreement made whereby Markman was to pay Gaitz his commission. Gaitz was unable to attend the closing of the sale and was assured by Pepper and Tapper that they would protect him at the title company closing, and that Gaitz would be paid according to the agreed compromise settlement which the Markmans had assumed. However, Gaitz was not protected. Gaitz then contacted Jack Markman who wrote Gaitz a check for $1,000.00 of the settlement agreement. However, Markman stopped payment on the check before Gaitz could negotiate it, and refused and still refuses to pay any part of the settlement agreement as made. Markman was going to pay Gaitz for “moving out of the way”, thus relieving Pepper and Tapper of any obligation originally assumed to pay Gaitz.
We are faced at the threshold with a jurisdictional problem. On November 2, 1970, the trial court entered summary “Interlocutory Judgment” in favor of Harry Pepper and Isaac Tapper, and noted that Gaitz was plaintiff and that Phillip Mark-man, Harry Pepper and Isaac Tapper were defendants. The court ordered that Gaitz take nothing of defendants, Pepper and Tapper, and no other name or action was mentioned. Subsequently, on December 8, 1971, the trial court, by separate judgment naming Gaitz as plaintiff and Phillip Markman and Jack Markman, individually and d/b/a Markman Brothers Investments as defendants, rendered judgment in favor of the Markmans and against Gaitz. No mention was made of the prior interlocutory judgment, and the actions were taken under the same case number and style. No severance appears of record. The latter judgment did not purport to set aside or bring the provisions of the first judgment by implication or otherwise into the latter judgment. We simply have two judgments entered in one cause with no reference being made in the judgments to the other.
Rule 301, Tex.R.Civ.P., based upon the earlier Tex.Rev.Civ.Stat.Ann. art. 2211 (1939), provides clearly that only one final judgment shall be rendered in any cause except where it is otherwise specially provided by law. Courts from time immemorial have followed and applied this rule. We think the difficulty springs from a misunderstanding of the rule mentioned in H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192 (Tex.Sup.1963), citing McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961). In McEwen an interlocutory default judgment was taken against Texaco, Inc. Thereafter, the plaintiffs took a non-suit as to the other two defendants. The Supreme Court said that upon the taking of the non-suit as to the remaining two defendants the default judgment taken against Texaco thereupon became final, and that the time for appeal or writ of error by Texaco started to run from the entry of the final judgment disposing of the remaining two defendants. Certainly the above is the law of this state and involves correct reasoning. But we do not believe that it follows that a trial court is empowered to enter two or more final, separate judgments on the merits of a case, without severance, when the judgments are completely independent of each other. We simply do not feel that Zachry is applicable in this situation. See Transport Insurance Company v. Wheeler, 420 S.W.2d 635, 637 (Tex.Civ.App.-Houston (14th Dist.) 1967, writ ref’d n. r. e.); Gallaher v. City Transp. Co. of Dallas, 262 S.W.2d 807 (Tex.Civ.App.-El Paso 1953, writ ref’d).
Recently in Webb v. Jorns, 473 S.W.2d 328, 331 (Tex.Civ.App.-Fort Worth 1971, writ granted) the Fort Worth Court of Civil Appeals mentioned the hopeless conflict of decisions in this State on the above question, and a list of cases is there referred to which we adopt by reference here to identify the conflict. In that case the Fort Worth Court applied McEwen and Zachry. However, we respectfully decline to apply the above cases to the present fact situation. See also Mayfair Building Corporation v. Oak Forest Bank, 441 S.W.2d 568, 572 (Tex.Civ.App.-Austin 1969, no writ). The Supreme Court of Texas has held that only one final judgment may he entered after all claims and issues involved in the suit have been tried. Kansas University Endowment Ass’n v. King, 162 Tex. 599, 350 S.W.2d 11, 19 (1961). We here apply the rule announced in Thomas v. Shult, 436 S.W.2d 194, 196 (Tex.Civ.App.-Houston (1st Dist.) 1968, no writ). In that case it was held that there may not be a severance by implication. See the significant case of Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200 (1959). In the Shult case above Chief Justice Bell stated:
“We consider the cases of H. B. Zachary Company v. Thibodeaux, 364 S.W.2d 192, and McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, both by our Supreme Court, to be distinguishable. In each of them there was an order dismissing the parties from the suit and there was only one judgment making adjudication on the merits as to all issues, as between all other parties in the suit.”
A final judgment is one that determines the rights of all the parties and disposes of all the issues involved. Such was not done in this case, but two separate and independent judgments were entered more than a year apart. See Sisttie v. Holland, 374 S.W.2d 803 (Tex.Civ.App.-Tyler 1964, no writ), with which we concur. And see the list of cases cited in Webb v. Jorns, supra, 473 S.W.2d at p. 331. We therefore do not believe that a final judgment has been rendered below.
We observe, however, on the merits that while an oral listing agreement for the sale of land whereby a real estate commission becomes due cannot be enforced in a court of law unless all necessary items are specifically in writing (Tex.Rev. Civ.Stat.Ann. art. 6573a, sec. 28 (1967)) Section 28 being the practical equivalent of the statute of frauds, a defendant must plead and prove certain facts to invoke the above rule in defense. This may or may not be done. The summary judgment record here raises issues and inferences that Pepper and Tapper might have paid Gaitz except for the interference, which proved to be wrongful, of the Markmans. They had always paid Gaitz before, and Pepper stated that he would not have gone through with the deal unless Markman paid the commission as agreed. There was a controversy between all parties regarding the commission. It is well settled that a compromise and settlement of a disputed claim is a valid consideration even though it later appears that the claim was without merit. And it is well settled that a moral obligation is a sufficient consideration for a subsequent promise of the debt- or to pay in a case where the original debt is barred by limitations or the bankruptcy or insolvency laws. See Miller v. Aaron, 413 S.W.2d 426, 428 (Tex.Civ.App.-Dallas 1967, writ ref’d n. r .e.), and cases there cited. While in Aaron it appeared that cases “proscribed” by the Real Estate License Act, particularly Section 28 thereof, do not come under the above rules, the later case of Clements v. Withers, 437 S.W.2d 818, 821 (Tex.Sup.1969) clearly stated that such a contract is not void or illegal, nor is there any public policy opposing its performance. “To the contrary, the public is better served by the performance of all promises made for lawful purposes.” We believe the evidence and inferences show that the Markmans induced Pepper and his partner not to pay Gaitz. The Markmans then so agreed and immediately defaulted or refused to live up to their agreement or representations. We believe fact issues appear which might create liability on the part of the Mark-mans for inducing the breach of an oral realtor’s contract, and that such possible unenforceability of Gaitz’s contract originally does not alter the rule of liability if the facts are shown to exist as above indicated. See Clements v. Withers, supra; Raymond v. Yarrington, 96 Tex. 443, 73 S.W. 800, 803 (Tex.Sup.1903, per Gaines, C. J.); Prosser, Law of Torts, sec. 123 at 955-956 (3d ed. 1964); 1 Harper & James, Law of Torts 495 (1956).
For the reasons above stated, in our opinion no final judgment has been rendered, and this appeal is dismissed without prejudice to have final judgment entered as the trial court sees fit pursuant to the law in substance and form. |
sw2d_482/html/0395-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "JAMES, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
The HOME INSURANCE COMPANY, Appellant, v. Peter A. SMITH, Appellee.
No. 5136.
Court of Civil Appeals of Texas, Waco.
June 22, 1972.
Rehearing Denied July 20, 1972.
Pomeroy, Tekell & Book, Raymond T. Matthews, Houston, for appellant.
Ken Rolston, Houston, for appellee.
OPINION
JAMES, Justice.
This is a Workmen’s Compensation case, in which the jury awarded Appellee Smith total and permanent disability. The trial court entered judgment in accordance with the verdict, from which The Home Insurance Co. prosecutes this appeal.
The first three points of error contend that the jury findings of total and permanent disability are supported by (1) no evidence, (2) insufficient evidence, and (3) that said findings are against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. In oral argument before this Court, Appellant waived his first and second points; therefore, we will discuss Appellant’s third point, namely, that the jury findings of total and permanent disability are against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. This point of error puts the duty on us as a Court of Civil Appeals to consider and weigh all the evidence in the entire record. In re King’s Estate (Supreme Court 1951) 150 Tex. 662, 244 S.W.2d 660. After having carefully weighed all the evidence in the record we overrule this point.
Smith is thirty-three years of age, and has a wife and five minor children, four of whom lived in the home at the time of trial. Two of these four are his wife’s by a former marriage, and two are Smith’s. On August 29, 1969, Smith was driving a company truck from Houston, Texas, to Fort Worth, Texas, while in the employ of Wayne Duddleston Interests; and near the City of Fairfield in Freestone County, Texas, his truck was sideswiped by an oncoming vehicle. Smith’s left arm and elbow were resting in the window on the driver’s side; whereupon the oncoming vehicle sheared off the rear vision mirror, scraped the left side of the truck Smith was driving, and severely injured Smith’s left arm and elbow. He sustained a compound, comminuted fracture of his left arm and elbow, being broken in at least three places, with the injuries extending into his left shoulder and neck. He was taken to a hospital at Fairfield, Texas, but due to the severity of the injuries was transferred to the Heights Hospital in Houston, Texas. Here he was placed under the care of a Dr. Medley, a company doctor. Surgery was performed on him, in which a steel pin about five inches in length was placed in his left arm. This steel pin was still in his arm at the time of trial, which was in November 1971, some two years and three months after the accident. His left arm was in a cast for about four months after the accident. A severe traumatic arthritis of his left arm and shoulder resulted from his injuries, which medical testimony showed would in reasonable medical probability get worse as time goes on.
Smith had been working in Houston, Texas, for Wayne Duddleston Interests, a construction firm, for about two months at the time of the injury. He was hired as a painter, with the understanding that he would be required to do some truck driving. He was an experienced painter, and had also had prior jobs as a truck driver. He preferred painting work to driving, and prior to the accident, his work for Wayne Duddleston Interests consisted of doing painting in new construction work of apartment areas in and around Houston, Texas. This work required stooping, bending, and working on scaffolds and ladders. He had to be able to climb scaffolds and ladders while carrying his buckets of paint and equipment, and be able to balance and secure himself while performing his painting work. Before the accident, he was healthy and able-bodied, and was able to properly perform these tasks. After the accident, he was never able to carry weight on his left arm and did not have any security in holding himself while working.
Immediately following the accident, he was in the hospital at Houston for three days and thereafter was treated by Dr. Medley as an outpatient. He suffered a great deal of pain after the accident which has continued for the most part on up to the time of trial. The pain persists not only with use of the left arm and shoulder, but also with nonuse. About a week after the accident, he was given light work by his employer for about two months, consisting of carrying a clipboard around to the apartments under construction, and making a list of work that needed to be completed, and doing “touch up” painting and calking where needed. Thereafter, he did painting work for this same employer about three more months. Then he went to Fort Worth, Texas, and worked as a painter for a Mr. Martin for about three months, and then a Mr. Lee for another three or four months. He apparently was not able to perform his work satisfactorily because of his disability, and Mr. Lee laid him off saying that “work was slack”. Smith knew at the time that work was not slack. He then took a job driving a truck at Texarkana, Arkansas, for about eight months. After this, about eight months before the trial, he went to Tyler, Texas, and got a job operating a dragline at a foundry, on which job he was working at the time of trial. He has to use both arms and both legs in operating a dragline, and has problems in doing this type work. At the time of trial, he still had pain and still used medication as a result of his injuries. Union wages for an experienced painter in the Houston, Texas, area is shown to be $5.85 per hour; whereas Smith makes $3.-04 per hour operating the dragline.
One Dr. Jacobi testified that from his examination of Smith that he was totally and permanently disabled for “working purposes”, and further, that the traumatic arthritis Smith was shown to have in his left arm and shoulder would probably get worse in time.
Smith had not been able to do any manual or physical lifting since his injuries occurred; and although the truck driving and dragline operating did not involve heavy physical labor, he had trouble doing either. He has an eleventh grade education, together with some credit for schooling in motor work in the military service. He testified that he has altogether the equivalent of a high school education.
From our examination of the entire record, we believe the evidence is factually sufficient to support the jury’s findings that Smith was totally and permanently disabled. Certainly such findings are not against the great weight and preponderance of the evidence so as to be manifestly wrong and unjust. Appellant’s third point is accordingly overruled.
Appellee was earning $3.00 per hour immediately prior to the accident in question, and has earned substantially the same hourly wage in his job after the accident.
Where the evidence is factually sufficient to support the trial court’s judgment for total and permanent incapacity, the judgment will not be reversed merely because there is evidence which establishes that the claimant is in fact working and earning money, regardless of the amount being earned. Trinity Universal Insurance Company v. Scott (Fort Worth CA 1961) 342 S.W.2d 348, error refused NRE. Indeed, numerous cases have held that the fact that a claimant continues to work and earn more money after an injury is not controlling on the question of total and permanent disability, but it is evidence to be considered with other facts and circumstances before the jury. See Travelers Insurance Co. v. Buffington (Eastland CA 1966) 400 S.W.2d 800, error refused NRE, and cases cited therein.
The term “total incapacity” or “total disability” means that an injured person is disqualified from performing the usual tasks of a workman in such a way as to procure and retain employment, and does not imply any absolute disability to perform any kind of labor. Texas Employers Ins. Assn. v. Mallard (Supreme Court 1944) 143 Tex. 77, 182 S.W.2d 1000. An employee is not entitled to recover for total incapacity merely because he is unable to procure and retain employment in his usual occupation, but the term implies disability to perform the usual tasks of a workman, and not merely the usual tasks of any particular one trade or occupation. Mallard, supra; Texas Indemnity Ins. Co. v. Bonner (Waco CA 1950) 228 S.W.2d 348, error refused NRE.
Appellant’s fourth point asserts the trial court erred in admitting testimony of Appellee Smith’s wife regarding what activities Smith performed on the job after his injuries. However, Appellant makes no mention of this ground of error in his motion for new trial. This being a case tried to a jury, a motion for new trial is a prerequisite to Appellant’s right to appeal. Rule 324, Texas Rules of Civil Procedure. A ground of error not distinctly set forth in the motion for new trial, in cases where a motion for new trial is required shall be considered as waived. Rule 374, TRCP. Appellant’s fourth point, having thus been waived, is accordingly overruled.
Appellant’s points five, six, and seven complain of alleged errors in the trial court’s submission of Special Issue No. 1. However, the record contains no objections and exceptions to the court’s charge, and therefore said points are waived. Rules 272, 274, TRCP; Williams v. Sperlich (Waco CA 1962) 362 S.W.2d 204, no writ history; Bituminous Casualty Corporation v. Moore (Tyler CA 1965) 396 S.W.2d 249, error refused NRE.
Judgment of the trial court is accordingly affirmed.
Affirmed. |
sw2d_482/html/0398-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HALL, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
MOBIL OIL CORPORATION, Appellant, v. Roger SMITH, Appellee.
No. 5132.
Court of Civil Appeals of Texas, Waco.
May 18, 1972.
Maurice Amidei, Dallas, for appellant.
W. V. Dunnam, Jr., Waco, for appellee.
HALL, Justice.
This is a venue case. The plaintiff-ap-pellee, Roger Smith, filed this action in McLennan County, the county of his residence, on October 19, 1971, against Dale Coker and the appellant, Mobil Oil Corporation, for personal injury damages. Plaintiff alleged that on December 28, 1969, he was injured when he tripped on a gasoline pump hose and fell to the ground at a service station located in Burnet County; that Mobil, a foreign corporation, and Coker, operated the station at the time of his injury; and that his fall was proximately caused by the negligence of Mobil and Coker and their employees.
The defendants filed pleas of privilege, seeking to have the case transferred to the counties of their respective residences: Dallas County for Mobil, and Burnet County for Coker. The pleas were duly controverted by plaintiff.
At the hearing on the pleas, which was held before the court without a jury on January 14, 1972, plaintiff was granted a non-suit as to Coker. After the hearing, Mobil’s plea of privilege was overruled.
Plaintiff relied upon the following provisions of Subdivision 27, of Article 1995, Vernon’s Texas Civil Statutes, to maintain the suit against Mobil in McLennan County: “Foreign corporations, * * * doing business within this State, may be sued * * * in any county where such company may have an agency or representative * *
Mobil assigns error to the trial court’s ruling, complaining that there is no evidence to support the implied findings that it is a foreign corporation or that it had an agent or representative in McLennan County at the time of the filing of suit or at the time of the hearing on the pleas.
Artie Giotes testified that he is vice-president and senior trust officer of the First National Bank of Waco Texas; that, in that capacity he makes investments for beneficiaries under trusts and purchases stock for various trusteeships; that, as trust officer, it has been his duty and he has had occasion during the past eight years to study and analyze “major corporations in this country and their positions with regard to locations, places of incorporation, and field of operation”; that throughout that period of time he has received, in the capacity of trustee of various trusts, “the direct literature of some corporations in this country to stockholders,” including Mobil Oil Corporation; that from his “expert studies of those companies and from the literature actually received direct from the Mobil Oil Corporation home office,” he knows that Mobil was, on December 20, 1969, and that it has been continuously since then, incorporated in the State of New York.
Mobil asserts that the testimony of the witness Giotes is hearsay and therefore of no probative value. We disagree. His testimony shows that his knowledge that Mobil is a foreign corporation is based in part upon direct personal dealings with the company. Such first-hand knowledge is not hearsay. 1 McCormick & Ray, Texas Law of Evidence (2d ed.), p. 578, Sec. 793.
Subdivision 27, of article 1995, refers to a situation in which the business of the defendant is, in more or less regular and permanent form, actually conducted in the county of suit, or one in which a party possessing broad powers from the defendant resides in the county, the one instance being that of “agency” and the other of “representative.” Milligan v. Southern Express, 151 Tex. 315, 250 S.W.2d 194, 198 (1952); Pan American Petroleum Corporation v. Vines (Tex.Civ.App.—Waco 1967, writ dism.) 422 S.W.2d 764, 765.
Orville Hoffman testified that he is terminal foreman in McLennan County for Mobil; that, at the time of the hearing, he had “been there six months”; that the function of the terminal is to supply and deliver Mobil petroleum products in Mc-Lennan County and the surrounding counties; that a group of eleven employees, composed of a terminal superintendent, a terminal foreman, a commission agent, a cashier, warehousemen, and transport drivers, serves the terminal; that a commission agent “is responsible for all the products and makes sales out of the bulk plant. * * * He solicits business (for Mobil) and sells products in response to business he solicits.”
We conclude that the evidence is legally sufficient to support the questioned findings.
Mobil’s points and contentions are overruled. The judgment is affirmed. |
sw2d_482/html/0400-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McDONALD, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Billy Winn MORRIS, Sr., Appellant, v. Carol Craig MORRIS, Appellee.
No. 5114.
Court of Civil Appeals of Texas, Waco.
April 27, 1972.
Andress & Woodgate (Wm. Andress, Jr.), Dallas, for appellant.
Claude R. Miller Law Offices (Cooper Blankenship), Dallas, for appellee.
OPINION
McDONALD, Chief Justice.
This is an appeal by defendant Billy Morris from judgment divesting him of title to a house and lot, and vesting title to same in plaintiff Carol Morris.
The parties were divorced on May 1, 1970. Later that same day they made and signed a written agreement by which: 1) Billy Morris was to pay Carol Morris $88,000, in installments over 70 months, in settlement of all claims against the community or separate estate of Billy Morris. 2) Carol Morris was to (and did) convey by warranty deed the real property at 1512 Bella Vista, Dallas, Texas (the property here involved) to Billy Morris, “it being the understanding and agreement” that Billy Morris will hold the legal title as nominee for the benefit of Carol Morris, and “reconvey by warranty deed the said property” within 30 days after written request by Carol Morris for him to do so. (Carol Morris was to pay all maintenance, taxes and mortgage payments on the property).
Billy paid $7000. on the $88,000. after which he ceased to pay. Carol made written demand for Billy to convey the property to her in accordance with the agreement, but he did not do so.
Thereafter plaintiff sued defendant for $81,000. and for title to the property. Defendant answered by general denial, and further plead the deed from plaintiff to defendant “was executed by plaintiff to shield said property from the just claims of third-party creditors and in fraud of third-party creditors”, and prayed that plaintiff take nothing.
Trial was before the court, after which judgment was rendered for plaintiff for $81,000; and terminating defendant’s title to the property, and vesting title to same in plaintiff.
The trial court filed Findings of Fact, finding among other things:
8) At the time the agreement was signed by the parties the real property described therein was the homestead of plaintiff and the four minor children of plaintiff and defendant.
12) Defendant failed to prove there was any fraud connected with the executing of the agreement at the time it was signed.
13) Defendant failed to sustain his burden of proof that at the time the agreement was signed by plaintiff and defendant it was executed in fraud of creditors or third parties.
Defendant appeals only the portion of the judgment vesting title to the real estate in plaintiff, and contends:
1) There is no evidence to sustain the trial court’s findings 12 and 13, that plaintiff’s conveyances to defendant was not given with intent to defraud creditors.
2) Plaintiff having deeded the property to defendant with intent to defraud creditors cannot require reconveyance, and the courts will leave the parties where it finds them.
3) There is no evidence to sustain the trial court’s finding 8, that the property was homestead.
Plaintiff and defendant were divorced on May 1, 1970. They made a property agreement following the divorce by which defendant was to pay plaintiff certain money; and plaintiff was to and did deed the property here involved to defendant, to be held in trust for plaintiff, and to be re-conveyed to plaintiff upon her written request. Defendant did not pay the money, and refused to reconvey the property. Defendant asserts the property was conveyed to him by plaintiff in fraud of her creditors, for which reason he gets to keep the property.
The trial court found defendant failed to prove plaintiff conveyed the property to him in fraud of creditors, and that the property was the homestead of plaintiff and her children.
Without detailing the evidence we hold that the trial court was authorized to believe that plaintiff did not convey defendant the property in fraud of creditors, and that the evidence is ample to sustain the trial court’s findings 12 and 13; but this is not the sole basis of our disposition.
The trial court found in finding 8 that at the time of the agreement the property was the homestead of plaintiff and the four minor children of plaintiff and defendant. The judgment of divorce, approved by defendant, recites in three places the property was homestead. Plaintiff and the four minor children lived on the property since the divorce; prior to the divorce the parties and the children lived on the property for some 13 years, and the parties owned the property as their home. There is ample evidence to support the trial court’s finding the property was the homestead of plaintiff and her children.
It is well settled that a conveyance of exempt property may not be attacked on the ground that it was made in fraud of creditors Chandler v. Welborn, 156 Tex. 312, 294 S.W.2d 801; Sorenson v. City Nat. Bank, 121 Tex. 478, 49 S.W.2d 718; Crow v. First Nat. Bank of Whitney, Tex.Civ.App., Er.Ref., 64 S.W.2d 377.
The judgment is correct, points are overruled. Defendant’s
Affirmed. |
sw2d_482/html/0403-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STEPHENSON, Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Tom B. LIVESAY, Appellant, v. FIRST CHRISTIAN CHURCH OF BEAUMONT, Texas, Appellee.
No. 7347.
Court of Civil Appeals of Texas, Beaumont.
June 1, 1972.
Joe Farris, Jr., Beaumont, for appellant.
Alan McNeill, John P. Blair, Beaumont, for appellee.
STEPHENSON, Justice.
This is an action on a written contract to collect for architectural services. Trial was by jury, but judgment was directed for defendant at the end of plaintiff’s testimony. The parties will be referred to here as they were in the trial court.
Tom B. Livesay entered into a written contract on March 6, 1958, with the First Christian Church of Beaumont, Texas, for the design and preparation of plans for certain buildings for such church. When the plans and specifications were completed, bids were taken in the form of a base bid with four alternates. The defendant accepted the bid of Thad Dederick Construction Co., Inc., dated October 16, 1961. Alternate 3 was for the construction of additional classrooms and offices. Such contractor’s bid on Alternate 3 was in the amount of $87,800 which was not accepted and the improvements were not built. Plaintiff contends that he has been paid for all of his services except those performed in reference to Alternate 3, for which he here sues.
This suit was filed January 29, 1971. Defendant answered with pleas of payment, the two and four-year statutes of limitation, and laches. By amended pleadings, plaintiff alleged: That he was assured by representatives of the defendant that when a building was built he would be paid his fee for services rendered. That because of such promise and his reliance, the defendant was estopped from pleading limitations as a defense. Defendant’s motion for directed verdict relied upon the following ground, in substance: That there was no evidence the building being constructed was the one plaintiff had planned and therefore no proof that the money was due. That there was no consideration for any such new promise and therefore defendant was not estopped to rely upon its pleas of limitations. That plaintiff sent defendant a bill of 1962 marked “Final Cost” which was paid in full. The judgment rendered for defendant states no reason or reasons for the trial court granting the motion for directed verdict.
Rule 268 provides that a motion for directed verdict shall state specific grounds therefor. Two Texas cases make the statement that the reason for the rule is defeated when a motion for directed verdict states more than one ground and the judgment does not show which ground is sustained. See Shaw v. Tyler Bank & Trust Company, 285 S.W.2d 782 (Tex.Civ.App., Texarkana, 1955, error ref. n. r. e.) and Harris v. Sanderson, 178 S.W.2d 315 (Tex.Civ.App., Eastland, 1944, error ref. w. o. m.). We are inclined to agree. There are two opinions out of this court which lend support to such holding. In Olivier v. Life and Casualty Insurance Co. of Tenn., 440 S.W.2d 398 (Tex.Civ.App., Beaumont, 1969, error ref. n. r. e.), it is written that where a trial court granted a peremptory instruction without specifying the ground or grounds, the failure to assign error as to all of the grounds upon which the court’s action might have been based amounts to a waiver thereof. In Lejeune v. Gulf States Utilities Company, 410 S.W.2d 44 (Tex.Civ.App., Beaumont, 1966, error ref. n. r. e.), it is held that appellant’s failure to assign error or brief the independent grounds upon which the trial court granted a summary judgment is a basis for affirmance.
Plaintiff’s points of error are that the trial court erred in holding as a matter of law that his evidence was not sufficient to overcome the statute of limitations and in holding that this was not a proper case for the application of the doctrine of equitable estoppel. In considering these points, we follow the well established rule that we view the evidence in its most favorable light to the losing party and indulge every reasonable inference which might be drawn from such evidence as we would in considering any “no evidence” point. These points are overruled.
The law appears to be well settled that the parties, by their words and conduct, may estop themselves from seeking the benefit of the statutes of limitation. However, the party seeking to rely upon the statute of limitation must have been guilty of deception or a violation of a duty toward the other party before es-toppel will be applicable. See: Elsesser v. Cotham, 250 S.W.2d 591, 593 (Tex.Civ.App., San Antonio, 1952, no writ) and Panhandle Const. Co. v. Hood, 114 S.W.2d 632, 634 (Tex.Civ.App., Austin, 1938, error ref.).
The words and conduct claimed to be the basis for estoppel must be clear and unequivocal and must constitute a new promise to pay. Kuteman v. Alexander, 201 S.W.2d 73, 75 (Tex.Civ.App., Amarillo, 1947, error ref. n. r. e.) and Chandler v. Alamo Mfg. Co., 140 S.W.2d 918 (Tex.Civ.App., Austin, 1940, no writ).
There is also a related and additional rule, that in order to rely upon a statement of an adverse party as a basis for estoppel, the plaintiff is under a duty to exercise reasonable care and diligence. Neal v. Pickett, 280 S.W. 748, 753 (Tex.Comm.App. 1926, holdings approved) ; Elsesser v. Cotham, supra, and Kuteman v. Alexander, supra.
Many of the essentials of equitable estoppel are lacking in the present case. In the first place, no unconditional promise to pay is either alleged or proved. As stated above, the plaintiff alleged he was to be paid “when a building was built.” He testified that he was to be paid “when it [this building] was built”; “when the money was available and that building was built”; and “[w]hen they had money to build this building.” He also testified: That the subject did not come up as to whether he was to be paid if the church did not build the building for which he had drawn the plans. That it was not discussed as to whether he would get his money if another building was constructed. There is no evidence that the building called for in Alternate 3 — that is additional classrooms and offices — is either under construction or has been built.
There is no evidence in the record that plaintiff exercised reasonable care and diligence. Plaintiff testified that he had built many churches and therefore was presumed to be aware of the fact that generally each building committee is an “ad hoc” committee and that changes occur from year to year. Yet plaintiff contends his “assurance” came from some nebulous committee with no mention of its authority or church approval. After receiving such “assurance” in 1962, plaintiff secured nothing in writing from the church and, in fact, made no memorandum of such “assurance” in his file. Plaintiff did not even mention such “assurance” to any member of the church building committee or any member of the church until 1970 when he was interviewed for some new construction.
Most of the cases in which estoppel has been upheld involve a situation in which there is a mutual agreement under which the defendant has made a definite promise to pay and the plaintiff has agreed to refrain from filing suit within the limitation period. See Manzell v. Hightower, 159 S.W.2d 552, 554 (Tex.Civ.App., Texarkana, 1942, no writ); Rauch v. Hearne, 189 S.W.2d 342, 346 (Tex.Civ.App., Waco, 1945, error ref. w. o. m.) and Frey v. Pearson, 168 S.W.2d 886, 889 (Tex.Civ.App., Waco, 1943, no writ). We have no proof of any such agreement in this case. Plaintiff’s testimony does not reflect any intention on his part to file suit against defendant (either that he mentioned or otherwise) until his interview with the church committee in 1970. Plaintiff failed, as a matter of law, to establish the necessary ingredients to constitute estoppel and his claim was barred by limitation.
Judgment affirmed. |
sw2d_482/html/0406-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "MASSEY, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Coke L. GAGE, Appellant, v. HOLLYWOOD OVERHEAD DOOR COMPANY OF FORT WORTH et al., Appellees.
No. 17323.
Court of Civil Appeals of Texas, Fort Worth.
June 9, 1972.
Rehearing Denied July 7, 1972.
Morgan & Nobles, and Wm. A. Nobles, Decatur, for appellant.
Hunter & Greenfield, Timothy J. Vineyard, and Bill C. Hunter, Dallas, for appel-lees.
OPINION
MASSEY, Chief Justice.
In mid 1968 plaintiffs Hollywood Overhead Door Company of Fort Worth and Dallas Pump Service Company provided to a contractor by the name of Rockwell certain personal property we denominate as doors and “lifts” for installation in a building under construction by the contractor for defendant Coke L. Gage. Sale was to the contractor under transactions to which Gage was not participant, and invoices were in accord. The doors and “lifts” were installed in August and/or September, 1968.
The contract between Gage and Rockwell was completed about the latter part of September, 1968. Within a few months thereafter, by payments made to such contractor, or in his behalf, Gage fully discharged all his obligations provided by the construction contract. By a Finding of Fact the trial court found that Gage had paid all sums of money due under the construction contract prior to the receipt of any notice that either plaintiff had unpaid accounts (for the doors and “lifts”) due from Rockwell. When there is reference to the record it becomes obvious that the time of the last payment was after Rockwell had completed all the work demanded of him in respect of the construction, and was in complete discharge of all of Gage’s liability under the contract, treated as fully performed by Rockwell. Notice by plaintiffs to Gage that they were claiming a lien upon the doors and “lifts” because of the debt of Rockwell was given early in 1969.
Despite the fact finding upon the matter of absence of notice of plaintiffs’ liens the trial court, in its Conclusions of Law, found that the doors and “lifts” aforementioned (which could be removed from the building in which they were installed without material damage or detriment to the realty, etc.) were personal property upon which the respective plaintiffs held liens first and superior to any claim or interest therein of defendant Gage.
In accord with such legal conclusion the judgment of the trial court was for the respective plaintiffs in award of a decree of their entitlement to remove the doors and “lifts” from the building and for foreclosure of the plaintiffs’ liens thereon as security for the unpaid debt of Rockwell. Additionally, plaintiffs were given a personal judgment against said contractor, with provision for credit thereon pursuant to such lien foreclosure. Rockwell did not appeal. Gage did appeal.
We are fortunate in having as authority the law expounded in the case of J. R. Dunaway Rig & Lumber Company v. Blessing, 274 S.W.2d 90 (Texarkana Tex. Civ.App., 1954, error refused). The factual background of the instant case is identical with that in Dunaway. There is no distinction because the factual finding made in our case is the same as the finding presumed in Dunaway (Findings of Fact not having been made), to-wit: that the building owner had no notice of any indebtedness owing plaintiff by the contractor for materials furnished and installed in carrying out the construction contract when he discharged all the owner’s liability thereunder.
In Dunaway the holding was that despite the provision for the plaintiffs’ lien under V.A.T.S., Constitution, Article 16, Section 37, the court would not direct its foreclosure under the fact presumed, i. e., the want of notice thereof to the owner prior to the time of such owner’s payment of the full construction contract price. Generally, the premise for the holding was that the remedy, necessarily one granted or withheld under equitable principles, was not to be afforded the applicant therefor when he had delayed giving notice. To grant relief in such a situation would be to compel the owner to either suffer loss of that for which he had paid, or, alternatively, to pay for it twice if he would retain it. The assumption is that such an onerous consequence would have been avoidable if he had received notice. In understanding the underlying philosophy see also Continental Radio Co. v. Continental Bank & Trust Co., 369 S.W.2d 359 (Houston, Tex.Civ.App., 1963, writ ref., n. r. e.). Under existing circumstances the owner’s legal position would be identical to that of an innocent purchaser.
In the instant case, as in Dunaway, plaintiffs must be relegated to their remedy against Rockwell, the defendant contractor to whom they sold the doors and “lifts”. They may not avail themselves of a remedy of foreclosure as against the defendant Gage for want of that notice to Gage essential to the preservation of right to enforce their liens as against him after discharge of his obligations under the construction contract.
Judgment is reversed, and judgment rendered that the plaintiffs take nothing by their suit for foreclosure of lien against property in the possession of the defendant Coke L. Gage. |
sw2d_482/html/0407-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "McDONALD, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Barbara Dale HERRINGTON, Appellant, v. Damon L. HERRINGTON, Appellee.
No. 5146.
Court of Civil Appeals of Texas, Waco.
June 1, 1972.
J. Frank Thompson, Ft. Worth, for appellant.
Dick Harbin, Dublin, for appellee.
OPINION
McDONALD, Chief Justice.
Final judgment was rendered in this cause on October 29, 1971. Motion for new trial was overruled on November 30, 1971, and notice of appeal was given on December 17, 1971. No Transcript or Statement of Facts has been filed in this court, nor has appellant filed motion for enlargement of time within which to do so. More than 150 days have elapsed since motion for new trial was overruled, and more than 75 days since the last date upon which appellant could, for good cause, seek enlargement of time.
Appellee has filed his motion for Affirmance on Certificate pursuant to Rule 387, Texas Rules of Civil Procedure.
Motion granted at cost of appellee.
Affirmed on certificate. |
sw2d_482/html/0409-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HENRY I. EAGER, Special Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
GILLENWATERS BUILDING COMPANY, a Corporation, Appellant, v. Caleb Lee LIPSCOMB and Ellen Marie Lipscomb, husband and wife, Respondents.
No. 56036.
Supreme Court of Missouri, Division No. 2.
June 12, 1972.
Motion for Rehearing or for Transfer to Court En Banc Denied July 17, 1972.
Keith V. Williams, Mayte B. Hardie, Springfield, for appellant.
James K. Prewitt, Prewitt, Jones, Wilson & Karchmer, Springfield, for respondents.
HENRY I. EAGER, Special Commissioner.
This is an action by the holder of the record title to quiet its title to lot 4 and the north 19.6 feet of lot 5, Block “I” in the Amended Plat of Brentwood Estates in Springfield. Defendants answered, stating that they were the owners of the north 19.-6 feet of lot 5, and they filed a counterclaim asking that title thereto be quieted in them. The issues at trial involved only that 19.6 feet and the petition was orally amended. We are required to take jurisdiction because title to real estate is involved and the transcript was filed before January 1, 1972.
Lot 4 lies north of lot 5. The addition had obviously been surveyed when it was laid out; the plat had been filed. Plaintiff received its title to lot 4 and the north 19.6 feet of lot 5 from Gillenwaters & Company, a corporation, by deed of September 19, 1969. The latter had received title to much of the addition from various members of the Gillenwaters family by deed of May 13, 1957. By deed of December 21, 1959, Gillenwaters & Company conveyed to E. Howard Esterle and wife all of lot 5 except the north 19.6 feet thereof, and certain other land adjoining lot 5 on the east which is not involved here. By deed of December 31, 1959, the Esterles conveyed the same property to the defendants. A title opinion, in evidence as an exhibit and written for a Savings & Loan Association on May 20, 1960, covered the same property. The only definite evidence regarding the officers of Gillenwaters & Company was that J. D. Gillenwaters was President, and O. T. Gillenwaters was Secretary at the time of trial, but. how far back that status extended is not shown.
In 1959 Mr. Esterle, who was a builder, proposed to build a house for defendants, apparently upon a plan presented by Mr. Esterle, and upon a lot to be selected. The defendants had in mind the lot in question (which was later conveyed to them) and also one somewhere else. Defendant Lipscomb testified, in substance: that he viewed the lot and was shown “the general property line”; that later Esterle called him, they went again to the lot, and met Mr. O. T. Gillenwaters there; that Esterle had staked out defendants’ house and “it was too big to go on the lot” and “there was no way to fit the house * * * on the lot”; that “Mr. Gillenwaters, rather than to lose the sale, said: ‘I’ll just give you some more land off the lot to the north of me’ ”, and with “this agreement we proceeded.” Mr. Lipscomb further testified: that he “was to get” a wedge-shaped piece of ground 38 feet wide at the front and tapering to a point at the back (which does not in any sense fit the 19.6 foot strip claimed here); that he asked Mr. Gillenwaters to stake the piece off, and that he did it or had it done; that when his house was built they took possession of the wedge-shaped strip, put a hedge along it, planted and mowed grass, planted shrubbery, and in general treated it as a part of their lot; that the grass, etc., on the lot to the north was high and unkempt. Some years later, and probably about 1965, plaintiff or Gillenwaters & Company staked out a house on the lot to the north and, according to defendant Lipscomb, violent discussions ensued between him and J. D. Gillenwaters as to the ownership of the strip or that part of it which defendants had been using. At that time, according to Mr. Gillenwaters, Lipscomb “inquired to buy the property.” Nothing was done for a time. Eventually plaintiff started to put in a chain link fence, someone took out the posts, and this action was filed. A photograph of the line of posts, reconstructed more or less, was admitted to show where defendant thought that plaintiff claimed the line to be. It is extremely difficult to describe from this record precisely where the respective lines lie but, according to Lipscomb’s testimony, the line of the property as conveyed to him, would come within one foot of an extension of his porch, which plaintiff’s counsel frequently referred to as a retaining wall; it is also said to pass through the branches of a tree of the defendants. A house has been built on the property north of defendants, and sold. Defendant Lipscomb necessarily admitted that his deed, his deed of trust, the title opinion and a second deed of trust all excluded the 19.6 feet. When we refer to “defendant” we are indicating Mr. Lipscomb.
Mr. Esterle and O. T. Gillenwaters expressly denied any and all conversations about giving defendants more land and Es-terle had no recollection of meeting defendant and Gillenwaters at the lot. This, of course, cannot restrict the effect of defendants’ testimony in considering whether they made a submissible case. J. D. Gil-lenwaters testified that their companies had always claimed this strip, and he produced tax receipts specifically covering it for the years 1962-1969, inclusive. There had been some grading or terracing across the strip when defendants built their house. Plaintiff is in the construction business; Gillenwaters & Company was evidently a family holding company. The hedge placed by defendants ran “cata-cor-nered” and was not on any “legal alignment.”
Defendants do not claim by adverse possession; in fact, their total occupancy to the filing of suit was for less than ten years. Their theory was that they had acquired title by an oral agreement between adjoining owners upon a boundary line, and acquiescence. The trial court submitted plaintiff’s case to the jury upon an instruction hypothesizing that it was the owner and entitled to possession, unless if found for defendants upon another instruction hypothesizing (1) “an uncertain and disputed boundary line,” (2) an agreement between defendants and plaintiff’s predecessor on the line, and (3) a taking of possession. Defendants’ counterclaim was also submitted upon those three elements. The jury found “the issues in favor of defendants and against the plaintiff,” making no distinction between plaintiff’s petition and defendants’ counterclaim. The Court had, during trial, expressed doubt as to the applicability of defendants’ theory and cases to the situation presented. However, it entered a judgment in favor of defendants and against plaintiff on plaintiff’s petition and on defendants’ counterclaim and adjudged that defendants were the owners in fee simple of the disputed tract, namely, 19.6 feet as described; also, that plaintiff had no interest therein and was enjoined from claiming any right or interest. The motion for judgment or a new trial was overruled by lapse of time.
Defendants first contend here that plaintiff failed to preserve in its after-trial motion either of the points it raises on this appeal. These are: (1) that the trial court should have directed a verdict for plaintiff or sustained its after-trial motion for judgment because defendants did not make a submissible case that a boundary dispute existed which had been settled by agreement; (2) that the two instructions given for defendants on the merits were not supported by the evidence, and did not sufficiently identify the alleged agreed line. In plaintiff’s motion it was alleged: that defendants failed to plead or prove a claim upon which relief could be granted or a defense to plaintiff’s claim; that the Court erred in denying plaintiff’s motion for directed verdict; that the defense had, over objection, converted the proof from the legal issues raised by the pleadings into “alleged” equitable issues, and that the verdict of the jury on such equitable issues was not binding on the court. The motion contained many other allegations, with some concerning defendants’ main instructions; these included one that those instructions submitted issues not pleaded “nor proven
In essence, the sole issue here is whether the evidence of defendants was sufficient to create a submissible defense to plaintiff’s action based on its record title and whether it was sufficient to justify submission of defendants’ counterclaim to quiet title. We hold that the allegations of plaintiff’s after-trial motion were sufficient to call the trial court’s attention to these decisive questions. We have been rather liberal in considering assignments raising the sufficiency of the evidence, and particularly where such was a pervading issue at the trial. The point on the instructions stands or falls on the sufficiency of defendants’ evidence. The contention of a deficiency in plaintiff’s motion is denied.
It has been held several times in Missouri and frequently elsewhere: that an uncertain or disputed boundary line may be fixed by agreement, written or oral, with possession taken accordingly and continuing; that such an agreement does not pass title, but merely fixes what each party owns; that any such agreement must be made with reference to an uncertain or disputed line and the parties cannot thus establish a line which they know is not the true line, for that would constitute a passing of title which can only be done by formal conveyance; that if there is no uncertainty as to the true line, or if one or both know that the agreed line is not the true line, such an agreement is void under the statute of frauds. 12 Am.Jur.2d Boundaries §§ 77-79; 11 C.J.S. Boundaries § 67; 69 A.L.R. 1430, note; 113 A.L.R. 421, note; Goltermann v. Schiermeyer, 111 Mo. 404, 19 S.W. 484, 20 S.W. 161; Turner v. Baker, 64 Mo. 218; Barnes v. Allison, 166 Mo. 96, 65 S.W. 781; Klaar v. Lemperis, Mo., 303 S.W.2d 55; Grimes v. Armstrong, Mo., 304 S.W.2d 793; Quisenberry v. Stewart, Mo., 219 S.W. 625; Weeks v. Martin (SCNY), 10 N.Y.S. 656. The Missouri cases, beginning with Turner v. Baker, supra, emphasize that the principle is only applicable where there is a disputed or uncertain boundary, and in Turner, loe. cit. 64 Mo. 240, it was said that if the parties attempt “ * * * for mutual convenience or other sufficient reason to transfer land from one to the other by a parol agreement, changing the location of such boundary, the statute of frauds will inflexibly apply.”
Plaintiff’s counsel recognize, as they must, the existence of the above principle but take the position that it does not apply here. We agree. Defendants rely largely upon the supposed acquiescence of plaintiff and its predecessors in their possession over a period of approximately nine years. The mere knowledge that defendants were using a small wedge-shaped part of the adjoining strip in the limited manner testified to by them, even if known, would constitute a rather doubtful acquiescence in a claim of title. The Gil-lenwaters insisted that they did not know of any claim of title for some years. Defendants cite: Martin v. Hays, Mo., 228 S.W. 741; Tillman v. Hutcherson, 348 Mo. 473, 154 S.W.2d 104; Jacobs v. Moseley, 91 Mo. 457, 4 S.W. 135; Ernsting v. Gleason, 137 Mo. 594, 39 S.W. 70; and Mothershead v. Milfeld, 361 Mo. 704, 236 S.W.2d 343. We shall not attempt to discuss these cases individually. They emphasize the materiality of possession or acquiescence in an agreed boundary line, but when read in full context, it seems obvious that all of the supposed agreements were made concerning uncertain or disputed boundaries. In some, as Tillman, Jacobs, Ernst-ing, reference is expressly made to such situations; in Martin it is apparent that the boundary was uncertain. Whether we refer to it as “acquiescence” or not, no court, so far as we find, has ever held that a mere agreement upon a boundary different from the true and known boundary, coupled with possession, would ever ripen into title except by adverse possession. Some of these cases say that long acquiescence may be considered as evidence of a parol agreement upon a line fixed by the parties, but again we note that those cases are premised upon the existence in the first instance of an uncertain or disputed line; otherwise the courts would be permitting the transfer of real estate by parol agreement. Jacobs and Ernsting, supra, expressly state the rule as we did in the first instance in this opinion, i. e., as requiring an uncertain or disputed boundary line; the “acquiescence” may perhaps supply the lack of an express agreement, but not the necessity of an uncertain or disputed boundary. And it would hardly be permissible to let defendants rely upon a presumed agreement by “acquiescence” when they have testified to an express oral agreement, which proves insufficient. Some of the above cited cases also involved adverse possession. Defendants had the burden of proving their affirmative defense as well as their counterclaim. Nichols v. Tallman, Mo., 189 S.W. 1184.
We look again to the facts of this case. There never was any dispute as to the boundary between lots 4 and 5, or concerning the north line of the property conveyed to defendants (lot 5 except the north 19.6 feet thereof, plus property not involved here). Defendants’ agent, the builder Esterle, had no trouble in locating defendants’ north line when he staked out the house and when he told defendants that it would not fit on the lot. That is Lipscomb’s own testimony. A plat of this type and size could not be laid out and filed without a survey and the marking of lot corners. Indeed, the title opinion recited that a survey of the lot had been made as of December 16, 1959 (just before Es-terle’s purchase), with a copy shown in the abstract. Mr. Esterle confirmed the making of the survey. If defendants did not personally find the markers for the property they were buying it is immaterial, for the information was readily available and had been found and used. There was no uncertain line and there certainly was, at that time, no disputed line.
The most glaring deficiency in defendants’ evidence is that there never was any agreement pretending to fix an uncertain or disputed line (actual or supposed). The only agreement Lipscomb testified to was that, in order that the sale might not be lost, Mr. Gillenwaters said: “I’ll just give you some more land off the lot to the north * * That is the claimed agreement and it flies in the very teeth of the authorities which say that any oral agreement to change a known line or transfer additional land orally, is void. One simply cannot twist that supposed agreement so as to fit it into the decided cases.
We mention a few additional matters incidentally : it is not shown how Mr. O. T. Gillenwaters, whether President or Secretary of the owner corporation, would have had any authority to give away land, or even to fix a boundary, without corporate action; defendants’ instructions submitted their case (both on plaintiff’s petition and their counterclaim) on the hypothesis of a disputed boundary, whereas clearly there was no such; and the wedge-shaped tract which defendants say they occupied does not in any sense fit the dimensions of the 19.6 foot strip across the north end of lot 5, as claimed in the counterclaim.
Plaintiff and defendants claim under a common source of title, Gillenwaters & Company, although plaintiff took by deed and defendants, as to this strip, claim by oral agreement. Plaintiff only needed to trace its title back to the common source. Missouri State Life Ins. Co. v. Russ, Mo., 214 S.W. 860; Jones v. Himmelberger-Harrison Lumber Co., Mo., 223 S.W. 63. In order to quiet its title plaintiff need not establish an indefeasible title against the whole world but only that its title is good as against the defendants. Ritter v. Pattonville Consolidated School Dist. R-3, Mo., 318 S.W.2d 304; Maynor v. Tyler Land & Timber Co., 236 Mo. 722, 139 S.W. 393; Graton v. Holliday-Klotz Land & Lumber Co., 189 Mo, 322, 87 S.W. 37; Deal v. Lee, Mo., 235 S.W. 1053. It has done so and it is entitled to a judgment.
The judgment is reversed and the cause is remanded to the trial court with directions to enter judgment quieting title in plaintiff to the north 19.6 feet of Lot 5, Block I, in the Amended Plat of Brent-wood Estates, in the City of Springfield, Greene County, Missouri, and judgment for plaintiff on defendants’ counterclaim.
PER CURIAM:
The foregoing opinion of HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and PETERS, Special Judge, concur. |
sw2d_482/html/0414-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "EAGER, Special Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Velma MILLER, Executrix of the Estate of Isabel R. Kirchner, Deceased, Respondent, v. Darlene R. GAYMAN and Walter J. Gayman, Appellants.
No. 56144
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
Zenge & Smith, Canton, for respondent.
J. Patrick Wheeler, Canton, Ralph Brei-denstein, Kahoka, for appellants.
EAGER, Special Commissioner.
Plaintiff sued defendants in two counts. The first count was on a note of defendants for $35,000 payable to plaintiff’s testatrix and her husband, who predeceased testatrix; the note was secured by a mortgage on land in Illinois. Plaintiff alleged ownership in Isabel R. Kirchner, her testatrix, by survivorship. It was further alleged : that the note could not be produced by plaintiff because it was lost or inadvertently destroyed, but that it was not in the hands of anyone having legal or equitable title thereto; that the mortgage was unsatisfied of record; that principal of $30,000 was due and unpaid with interest at 5% since March 1, 1965, and also a reasonable attorney’s fee. The second count sought recovery of $15,066.40, with interest, for other sums allegedly borrowed from the testatrix. The Court entered judgment for defendants on the second count and plaintiff has not appealed. We shall therefore confine our consideration to the action on the note. By their answer defendants admitted the execution of the note and mortgage; they denied the allegation that the note had been lost or destroyed and that it was not in the hands of anyone having title thereto. As an affirmative defense they alleged that the note “was renounced by decedent, Isabel R. Kirchner, prior to her death” and that defendants had been discharged of all obligations thereon; and they further asserted “the affirmative defenses of payment and renunciation * * Sundry other allegations of the petition were denied generally. Since defendants lived in Illinois, a writ of attachment was issued; it was later dissolved by stipulation upon entry of appearance. Defendants moved for a summary judgment; affidavits were filed pro and con. We find no definite ruling on that motion, but since the case went to trial on the merits, with a jury waived, the motion is of no further consequence. Motions for the production of documents on behalf of each party were sustained. The Court entered judgment for plaintiff on the note for $30,000 as principal, $7,772.48 as interest, and an attorney’s fee of $3,777.25 (10%); as indicated, it entered judgment for defendants on Count 2.
At trial plaintiff produced the original recorded mortgage and a photostatic copy of the note which had been furnished by defendants on order of the Court. Plaintiff identified the signatures on both. Objection was made to the mortgage as irrelevant and to the copy of the note because it was secondary evidence. Both objections were overruled. Plaintiff identified various notations of payments on the back of the note which she said were made by her father. That witness, her husband, her sister Twila Groene, and the latter’s husband, all testified to the conversations had at a meeting held on June 16, 1969, at which both defendants and Mr. Zenge, counsel for plaintiff, were present. The essence of that testimony of the discussion was (over a continuing objection of privilege) : that defendant Darlene owed money to her mother; that a statement had been prepared by the mother under oath, which was produced and examined; this purported to show the status of the account of defendants with the mother and probably that of the other sisters; that all read it, and that Darlene said “they didn’t owe that much”; that she admitted that the “note part” was correct and that the principal balance due was $30,000; that Darlene asked for a copy of the affidavit and said that she had figures; she was told that she could have a copy when she presented her figures, but that she never did; that Darlene later got a copy of the paper by court order. Plaintiff offered the paper as Exhibit 3, then and later, but it was excluded as self-serving and hearsay. The references to the paper were kept in evidence as an indication of what the parties were talking about. Some of this testimony was that defendants admitted that the note “was not paid,” — rather than a statement of what was due. Plaintiff offered in evidence admissions from the pleadings and from an affidavit of Darlene of the execution of the note and mortgage, that the mortgage was unsatisfied of record, and of the payments made on the note. At the conclusion of plaintiff’s case defendants filed a “Motion for Directed Verdict,” which the Court overruled.
All substantive testimony of the defendants themselves was excluded under the “Dead Man’s Statute,” but Darlene produced the original note, identified the signatures and her father’s notations on the back, and she also identified the original mortgage. The note was then introduced as defendants’ Exhibit A. Both Darlene and Walter Gayman testified that what they said concerning the note at the family meeting was that the note had not been “paid.’’ At this point counsel for plaintiff admitted that $5,000 had been paid on the principal. Darlene further testified that she asked at the meeting about the savings and loan accounts and “other money” and that plaintiff said that this would “come out” in her final report. Defendants offered in evidence Schedules E and G of the federal estate tax return of decedent. Schedule E was offered to show the holding of substantial sums of money and securities in the joint names of decedent and her daughters, including defendant Darlene. Schedule G was offered to show transfers during decedent’s lifetime of real estate, securities, cash and savings and loan accounts in substantial amounts to the daughters of decedent and their husbands (and children), and presumably to show the inequality of such distributions, with less to defendants. The theory of defendants’ counsel on this (and certain depositions to be mentioned later) was to show a motive for the supposed renunciation of defendants’ note. This evidence was excluded upon objection that it had no probative value on the issues raised by the pleadings. There was evidence that Isabel Kirchner frequently visited her daughter Darlene in Illinois, stayed for more or less extended periods, and that their relations were yery cordial. The will of the testatrix, filed in connection with the motion for a summary judgment, left the residue of her estate to her three daughters, “share and share alike.”
The testimony on which the claim of renunciation is based came from one Esther Ruckman of Ottumwa, Iowa. She testified: that she had known decedent for 20 years, that both were interested in raising dogs, and that they visited in each other’s homes; that she also knew and visited with the defendants and had been in their home at times when decedent was visiting there; that she was present in defendants’ home on a day during March 1965 when decedent was there; that “they had their tax papers all spread out” on card tables, with decedent “helping-,” and that the discussion was of “taxes and money”; that Mrs. Kirchner “went and got her purse and she said to Darlene, ‘Here’s a paper I want you to have. It’s the note,’ ” and that she “gave it to her in my presence.” The witness identified Exhibit A as the note referred to; she testified that at one time in 1968 (the year in which she died) decedent said that she wanted her children to have everything divided equally. On cross-examination the witness added that decedent said that “it was the note on her farm.” The note itself, Exhibit A, showed nothing upon its face or back to indicate a discharge.
Defendants offered the depositions of officials of four savings and loan associations located in Illinois. The purport of these was that decedent had created joint accounts of substantial sums in the names of herself and her daughters Velma or Twila or both; excluded Schedule G of decedent’s estate tax return showed the transfers to those daughters and their families of similar sums. Objection was made to all of the depositions on the ground that they were of no probative value. The Court indicated that it would consider them subject to the objection. They were never ruled on specifically but were apparently considered to be irrelevant. Some question was raised in the evidence concerning the residence of plaintiff, as affecting the validity of her appointment as executrix. She had lived and taught school in Illinois for several years. The place for such an attack is in the proper probate court and, so far as this Court is concerned, plaintiff is the acting and appointed executrix. Defendants’ motion for a directed verdict at the close of the case was taken with the case.
The Court entered a general finding of the issues in favor of plaintiff, neither party having requested findings of fact. It filed a memorandum opinion in which it stated in substance: that admittedly $30,000 of the principal of the note was unpaid, and that the burden of proving its discharge by some other method was on defendants; that the testimony of a delivery and relinquishment of the note was “unconvincing,” for various reasons stated; that there was no “gift” of the note; that it was “readily inferable” that decedent had brought the note along for use in computing interest to be included in the tax returns. The substance of the memorandum was that the Court did not believe the testimony concerning a relinquishment, surrender, or “gift” of the note and, as stated, judgment was entered on the note accordingly. The Court did not make or indicate any finding of fraud, as defendants seem to suggest. The Court further considered that plaintiff had failed to prove Count 2 (for other money loaned), since the evidence offered was “pure hearsay.”
We need not discuss the point made that this Court reviews the entire case upon both the law and the evidence since all are acquainted with the principle; but Rule 73.01, V.A.M.R., also provides that the judgment shall not be set aside “unless clearly erroneous,” and that due regard shall be given to the opportunity of the trial court “to judge of the credibility of the witnesses.” Essentially, defendants make these points: that the Court erred in placing the burden upon defendants to prove a discharge of the note, and especially to prove the surrender as a “gift,” in view of the fact that defendants had possession of the note; that plaintiff failed to make a prima facie case when she failed to produce or explain the absence of the original note; that the judgment is erroneous because there was no evidence to overcome “the presumption” of renunciation raised by defendants’ possession of the note; and that the Court erred in sundry respects in the admission and exclusion of evidence.
In a court-tried case under Rule 73.01 the Court is usually not so much concerned with the question of a “prima facie case” as in a jury-tried case. The Court may render judgment “at or after the ■trial,” and it has much discretion in the taking of evidence and in the order of evidence. ' If a plaintiff produces evidence which affirmatively destroys his case, the Court might, of course, terminate the proceedings at that point. We have no such situation here and we do not consider valid the argument that no prima facie case was made. It was entirely within the Court’s discretion to hear all the evidence before it ruled the case. A photostatic copy of the note, furnished by defendants on court order, and the original mortgage were offered by plaintiff and received. Defendants had admitted the execution of both, and the original acknowledged and recorded mortgage was, in itself, proof of the execution and delivery of the note. Sanders v. Kaster, Mo., 222 S.W. 133. There was testimony that Darlene had, at the meeting, admitted a balance due on the note of $30,000, that “they admitted they owed it” (the note), “they said they owed $30,000 on the mortgage,” and that defendants had stated that the note was not “paid.” There was no dispute whatever about the execution, delivery or existence of the note. Defendants pleaded what they expressly designated as an affirmative defense, namely, that the note was “renounced by decedent, Isabel R. Kirchner, prior to her death,” and that defendants had been discharged thereon. This was within the purview of Rule 55.10 on affirmative defenses. Normally, the defendant in a suit on a note has the burden of proving payment or other discharge. Madison v. Dodson, Mo.App., 412 S.W.2d 552; Meinholtz v. Lampert, Mo.App., 101 S.W.2d 503; Tilley v. Tracy, Mo.App., 128 S.W.2d 636; Johnson v. Johnson, 352 Mo. 787, 179 S.W.2d 605. Defendants rely solely upon the fact that they had possession of the note and say that this put the burden on plaintiff to prove that the note was an “asset” of the estate and had not been renounced. Under the facts here we decline to so hold. The pleadings established the execution of the note; plaintiff’s evidence verified this and showed the nonpayment of $30,000 of the principal and that such was due and “owed”; renunciation was stated as an affirmative defense and defendants were as much required to assume the burden and prove this as they would be to prove payment. Defendants have cited no cases holding that mere possession of a note shifts the burden of proof, so as to relieve defendants of proving an affirmative defense. We have examined defendants’ cited cases. In one, Finch v. Heeb, Mo.App., 131 S.W.2d 146, it was held that plaintiff had the burden to prove the liability of three individuals who signed the note of a fraternal lodge as “trustees.” The case had nothing to do with possession of the note, nor did Roth v. Roth, Mo.App., 142 S.W.2d 818, also cited. In Lines Music Co. v. Brittell, Mo.App., 30 S.W.2d 781, it was held: that possession by the maker of a note marked “paid" raised a presumption of payment, which plaintiff had then contradicted by its evidence, thus sustaining its burden of proceeding; and that thereupon the burden of proof, which had never shifted, required defendant to prove the payment. The facts and holding there do not aid the present defendants. The facts in Algeo v. Stewart, 222 Mo.App. 1003, 7 S.W.2d 470, brought the case within the terms of our statute on cancellation. Section 401.123, RSMo 1959, V.A.M.S. Under the facts of our case we do not deem it material that plaintiff offered in evidence the photostatic copy instead of the original note, and there was no error in receiving it. The copy had been supplied by defendants and there never was any controversy about the existence of the note. The sole issue arose from the affirmative defense.
Since the trial court decided the case on all the evidence and we review it upon all the evidence, we are not so much concerned with the “burden of proof” as we are with defendants’ burden of convincing the trial court on their affirmative defense. The question is “ ‘whether the decree rendered was that which should have been rendered in the light of the entire case as disclosed by the record.’ McClintock on Equity, § 19.” Appellate Review of Cases Tried Without a Jury. Judge Laurance M. Hyde. Vol. 26, Journal of Missouri Bar, Feb. 1970, p. 73. It seems obvious that the Court found against defendants because it did not believe the evidence of a “renunciation” and not because they, technically, had the burden of proof. In essence, the note was proved up, the amount unpaid was proved up, and the Court did not accept (or believe) the evidence of a surrender or renunciation. For all practical purposes that ended the matter, burden or no burden.
Defendants’ basic theory was that of a “renunciation” under our statute. Section 401.122, RSMo 1959, V.A.M.S. (the statute in effect in 1965), is as follows : “The holder may expressly renounce his rights against any party to the instrument before, at or after its maturity. An absolute and unconditional renunciation of his rights against the principal debtor made at or after the maturity of the instrument discharges the instrument. But a renunciation does not affect the rights of a holder in due course without notice. A renunciation must be in writing, unless the instrument is delivered up to the person primarily liable thereon.” The doctrine has been recognized in Missouri cases. Roth v. Roth, Mo.App., 142 S.W.2d 818; Barber v. Mallon, Mo.App., 168 S.W.2d 177; Nelson v. Hudson, 221 Mo.App. 211, 299 S.W. 1111. As said in Nelson, it is a gratuitous abandonment or giving up of a right, and does not require a consideration. The doctrine of renunciation apparently came from the English Law Merchant, and was incorporated into the Negotiable Instruments Law of our states. If the trial court had accepted the full import of Mrs. Ruckman’s evidence, it could conceivably have found that there was a renunciation and thus a discharge of the note. It did not do so, but obviously rejected her testimony. Thus, the Court stated: “Their defense is that Mrs. Kirchner gave them the note, intending thereby to relinquish the debt and treat it as paid. I am not impressed by that story. The account of the transaction given by the single witness who testified to it is unconvincing * * * ”; it later referred to the “story” as “incredulous.” The Court proceeded to give various reasons why it thought the testimony was improbable. We need not repeat them here. The point is that it did not accept that testimony. Allowing due deference to the opportunity of the trial court to determine credibility, we agree with its finding. That really decides the case. It is immaterial that this evidence was not “contradicted”; the Court had the right to disbelieve and reject it just as a jury may do, and the defense was not sustained. It is true that the Court referred at times to a “gift” of the note; probably the use of the term was inadvertent, for the theory of renunciation had been pleaded and undoubtedly argued. A renunciation must be a voluntary, full and complete relinquishment of the note and, as a practical matter, its elements would differ little, if any, from those of a gift; for a gift is merely a voluntary transfer of something from one person to another without consideration. If, on all the evidence, the Court did not believe the evidence of such a transfer, but did believe the note was effective and overdue, it thereby found against any renunciation and, in such event, it is immaterial where the burden of proof was placed or should have been placed. The trial court, and we, review all the evidence and find the facts; it found, and we find, that there was no discharge of the note. From another point of view, even the testimony of the witness Ruckman was not entirely clear in establishing a complete surrender of the note.
There remain the points concerning the admission and exclusion of evidence; such points are seldom decisive in a court-tried case. Counsel complain that the objections to the testimony and competency of the defendants, based upon the Dead Man’s Statute (§ 491.010, RSMo 1969, V.A.M.S.), were either premature or insufficient. We have examined the objections and find that those which were sustained were clear enough to apprise the Court of the purport and meaning of the objections and this was sufficient. We have discussed the admissibility of the photostatic copy of the note. The acknowledged and recorded mortgage was clearly admissible as additional proof of the note, if for no other reason. Exhibit 3, the affidavit of decedent concerning her accounts with her daughters, was excluded and defendants can have no complaint of that. The Court excluded the schedules from the estate tax return of the decedent as having no probative value on any pleaded issue. Presumably it treated the depositions of the savings and loan officials in the same manner, although it made no ruling. Defendants’ theory, as already stated, was that these things showed substantially greater distributions to the other two daughters and that the relinquishment of the note would tend to equalize the situation; and thus, that the proffered evidence was corroboratory. The excluded evidence had no direct probative effect on the one real issue, i. e., whether the note was due or discharged, and it was within the Court’s discretion to exclude it. In our own view we find that even were that evidence considered it would not change the result. And with Mrs. Ruckman’s evidence disbelieved there was nothing left to be corroborated. There is no reversible error in the exclusion of evidence in a court-tried case where the evidence is in the record and may be considered by the appellate court. Defendants say also, advancing sundry reasons, that the Court erred in not accepting the evidence of Mrs. Ruckman, since it was uncontradicted, and that this would have fully sustained any burden of the defendants. The trial court is the arbiter of the facts in a jury-waived case; it may believe or disbelieve oral evidence, and the fact that it may be uncontradicted is not in any way decisive.
On the whole record, and allowing deference to the trial court’s findings on credibility, we find the issues of fact and law on Count I for plaintiff and against the defendants. Count II has been fully disposed of. The judgment is affirmed.
PER CURIAM:
The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and SCHOONLAUB, Special Judge, concur.
. So far as we are concerned here, the only difference in Section 400.3-605 of the present Uniform Commercial Code is the substitution of “surrender” for “delivered up.”
|
sw2d_482/html/0420-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Earnest FRANKLIN, Appellant.
No. 56168.
Supreme Court of Missouri, Division No. 2.
June 12, 1972.
Motion for Rehearing and for Transfer to Court En Banc Denied July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Ralph Edwards, Jerry D. Perryman, St. Louis, for appellant.
STOCKARD, Commissioner.
Earnest Franklin, charged with first degree murder and as an habitual criminal, was found guilty by a jury and was sentenced by the court to life imprisonment. He has appealed. We affirm.
Appellant first contends that there was no substantial evidence to support the verdict, and that the verdict was contrary “to the plain facts rule.” Ordinarily this would call for a detailed statement of the evidence, but because of the nature of the contentions set forth in argument we may, to a substantial part, set forth only the substance of the testimony.
On December 20, 1969, appellant and Elnora Harris went to the residence of Anna Mae Triplett where two other persons were present. All had been drinking and an argument ensued between appellant and Elnora. According to the witnesses for the State, appellant ran from the house, obtained a 20-gauge shotgun and from the steps in front of the house fired into the front door causing it to open, and then shot Elnora in the abdomen inflicting a fatal wound. Appellant testified that when he and Elnora had the argument, in which Elnora’s mother joined, they threw buckets of water on him which he thought could be lye water, and he obtained the shotgun to scare Elnora and her mother. When they again threw a bucket of water at him, he ducked and the shotgun was accidentally discharged.
Appellant in argument directs our attention to these circumstances: 1. Elnora was five and one-half feet in height and the wound indicated that the pellets coursed in an upward direction. '2. The State’s witnesses testified that two shots were fired, but appellant testified that he fired only once, and that it was accidentally fired. Only one shotgun casing was found, and it was in the front yard. 3. The hole in the door, apparently made by the first shot according to the State’s witnesses, was two inches in diameter and the wound inflicted on Elnora was approximately four inches in diameter. Appellant was approximately twelve feet from Elnora at the time of the fatal shot, and “it is a fact of common knowledge that a shotgun develops a pattern and at the distance testified to, the pattern would be in excess of eight or nine inches.” 4. The scattering of shotgun pellets when the gun was fired at the distance testified to would have resulted in pellets being found in great abundance in the room. There were little or no pellets in the room.
The recitation of these circumstances demonstrates that they were matters to be considered by the jury in determining the credibility of the witnesses and arriving at the facts. It is questionable that they can be considered to constitute conflicts in the testimony, but if so, it was for the consideration of the jury. Dintelman v. McHalffey, Mo., 435 S.W.2d 633. Under no circumstances could it be said that these circumstances destroyed the State’s case.
Appellant next asserts prejudicial error in admitting into evidence a photograph of the deceased. He contends that the only purpose was to arouse the emotions of the jury.
Appellant testified, and by his testimony and other evidence an issue was made as to how the fatal wound was inflicted and where appellant was when the fatal shot was fired. The photograph showed the location of the wound and the amount of injury, and was helpful to the jury in determining the facts. Even though a photograph may be gruesome, when it is so because of the nature of the case, and the photograph is helpful in establishing material facts, it is admissible in evidence. State v. Robinson, Mo., 328 S.W.2d 667. The admission of such photographs is subject to the sound discretion of the trial court. State v. Hendrix, Mo., 454 S.W.2d 40. No abuse of discretion is demonstrated in the circumstances of this case.
Appellant’s third point is that the information should have been dismissed because a medical report from Malcolm Bliss Mental Health Hospital contained privileged and confidential information relating to his defense.
This report was made pursuant to a request by appellant for a mental examination as authorized by § 552.020 RSMo 1969, V.A.M.S. It was not introduced in evidence and its contents were not revealed to the jury. Appellant argues that since a copy was furnished to the prosecutor, and because the report contained a statement of facts made by appellant to the doctor concerning the crime with which he was charged, the report resulted in a violation of his privilege against self-incrimination, and the report provided information to the prosecutor from which he could obtain other admissible evidence.
There is nothing in the record, and appellant points to nothing, which indicates that by reason of this report the prosecutor obtained information concerning the case not otherwise available to him. § 52.020, supra, does not require a recitation in the report of the facts concerning the crime of which the defendant was accused, and perhaps for the reasons asserted by appellant it should not do so. However, when it does, the relief is to exclude evidence obtained by reason of the report, and does not include the dismissal of the information or indictment, the only relief requested in this case.
Appellant next assigns as error the refusal of the court to require the production for examination by appellant of the police report concerning the crime with which appellant was charged. When the request for the report was made the trial court personally examined it, and based on that examination concluded that it contained no impeaching information and did not disclose any facts which had not been developed by the witnesses.
There is nothing to demonstrate that without the police report being turned over to appellant his trial was fundamentally unfair. By court rule the present limitations on the availability of such reports to an accused may be changed, but under the decisions of this court applicable at the time of the trial of this case, the production of the report was discretionary with the trial court, and under the circumstances no abuse of that discretion is demonstrated. See generally, State v. Aubuchon, Mo., 381 S.W.2d 807; State v. Cody, Mo., 379 S.W.2d 570; State v. Hale, Mo., 371 S.W.2d 249; State v. Cannon, Mo., 465 S.W.2d 584.
Appellant’s final point is that the trial court should have suppressed an oral statement made by him to a police officer. Prior to the statement appellant was given the “Miranda warnings.” The trial court held a hearing out of the presence of the jury on the issue of the voluntariness of the statement, and ruled it was voluntarily given and admissible in evidence. There was no evidence or contention by appellant that he gave the statement as the result of threats or promises. The police officer related to the jury what appellant told him, and appellant later testified and stated substantially the same facts. In his brief appellant states: “In view of the consistency of the testimony by the police officer and the defendant at trial as to the ‘alleged confession’ one must wonder whether the confession is [appellant’s] or the police officer’s.”
The trial court found the oral confession or statement by appellant to have been voluntarily given, and unlike most cases where this issue is presented, there is no evidence to the contrary. In fact, when appellant testified he did not deny making the statements related by the police officer and he did not contend that the statements were made by him involuntarily. Under these circumstances, the court correctly admitted in evidence the testimony of the police officer. See State v. Nolan, Mo., 423 S.W.2d 815; State v. Pughe, Mo., 403 S.W.2d 635; State v. McGee, Mo., 447 S.W.2d 270.
The judgment is affirmed.
HOUSER, Ct, concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and LEWIS, Special Judge, concur. |
sw2d_482/html/0424-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "FINCH, Chief Justice.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Robert Lee LINCOLN, Appellant.
No. 56859.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
C. B. Fitzgerald, Warrensburg, for appellant.
FINCH, Chief Justice.
This is an appeal from a conviction for burglary and stealing wherein the court assessed defendant’s punishment at consecutive sentences of five years for burglary and two years for stealing after the jury found defendant guilty of both offenses but was unable to agree on punishment. We affirm.
The original complaint filed in the magistrate court charged defendant and one Larry Sears with breaking and entering a store from which they stole various items. Defendant waived a preliminary hearing. Subsequently, the prosecuting attorney filed separate informations in the Circuit Court against defendant and Sears. Thereafter, Sears entered a plea of guilty and testified against defendant, who pleaded not guilty and stood trial in this case.
Defendant’s first contention is that since the State filed a complaint against both him and Sears in the magistrate court and neither of them requested a severance, the State could not sever the charges against them. Defendant does not claim an absolute right under all circumstances to joint prosecution, but asserts that once the State filed a joint complaint in the magistrate court, it had elected that course and thereafter the two defendants were to be proceeded against jointly unless a severance was requested by one of those charged.
We find no merit in this contention. The offenses involved were ones which may be charged jointly or separately. If the State had elected to proceed by indictment, it could have charged defendants jointly in a single indictment or individually in separate indictments. The prosecuting attorney had the same election where defendants were charged by information rather than by indictment. The fact that the preliminary complaint filed in the magistrate court to determine probable cause named both persons in one complaint did not alter this right. Such a situation was dealt with in the case of State ex rel. Esser v. District Court of Fifth Judicial District in and for Nye County, 42 Nev. 218, 174 P. 1023. There, two men were charged jointly by complaint in the justice of the peace court with stealing nine head of cattle. After hearing, the justice of the peace entered judgment holding both defendants for trial in the district court. Thereupon, separate informations were filed against the two defendants, and a contention similar to that of defendant herein was made. In disposing of that contention, the court said, 174 P. l.c. 1026:
“We find no error or irregularity in the proceedings in this respect. Had the grand jury of Nye county investigated the charge against petitioner and his codefendant May after the preliminary examination held in the justice court of Beatty township, separate indictments might have been filed against the parties; or had they been jointly indicted, either or both might, under the statute, have demanded separate trials, and such demand the court would have been required to recognize and grant. Petitioner here was deprived of no substantial right by the filing of a separate information after a preliminary examination, although in that preliminary examination he was jointly charged with another in the commission of an offense.” See also 42 C.J.S. Indictments and Informations § 158a, p. 1105.
Defendant cites § 545.880, V.A.M. S., Supreme Court Rule 25.07, V.A.M.R., and State v. Johns, 259 Mo. 361, 168 S.W. 587. However, the statute, Supreme Court Rule and case simply deal with situations in which two or more defendants are jointly indicted or informed against. Where this occurs, defendants have the right to be tried separately if they request it; otherwise, joint trial is authorized and the trial court is granted discretion as to whether the defendants are to be tried separately or jointly. These authorities do not stand for the proposition advanced by the defendant.
Next, defendant makes an attack on Instruction No. 2, which was the verdict-directing instruction. He says that the evidence introduced was that Larry Sears actually broke and entered the building, opening a door to let defendant in, but that Instruction No. 2, instead of requiring a finding that the defendant acted in concert with others to accomplish the burglary, simply authorized a verdict if the jury found he broke and entered the building. Actually, there was evidence that defendant himself broke, entered and stole property from the building. A statement by defendant which was received in evidence told of prying a window, entering the building and taking articles. Larry Sears also testified as to such acts by defendant. We overrule this complaint as to Instruction No. 2.
Defendant also complains that the list of guns described in Instruction No. 2 was not the same as that in the information and bill of particulars. There are some differences in the list of guns but they are relatively minor. The guns taken from the defendant’s truck at the time he was arrested were positively identified by the store manager, and the defendant consented to introduction of the guns as a group, not individually, and asserted no objection to their introduction. The minor variances in description of the guns would not have been materially prejudicial to defendant and would not result in reversible error.
Defendant’s third contention is that the court erred in giving Instruction No. 8, which stated: “The Court instructs the jury that voluntary intoxication is no excuse for the commission of crime.” . Defendant does not complain with respect to the wording or content of the instruction but says he did not advance voluntary intoxication as a defense to the crime, charged and hence the giving of the instruction was error.
The record shows that the matter of defendant’s asserted intoxication was referred to only in interrogation on behalf of defendant. He testified himself at some length on the subject and went into the matter on cross-examination of various other witnesses. There were numerous instances in which the subject of defendant’s intoxication was referred to. Under these circumstances, the giving of the instruction was proper. State v. Sawyer, Mo., 365 S.W.2d 487.
Finally, defendant complains that the giving of Instruction No. 12 was reversible error. That instruction informed the jury as to the various verdicts possible, and told the jury that they should first decide on guilt or innocence, after which they should fix defendant’s punishment. The instruction further stated, however, that if, after deliberation, they found the defendant guilty but were unable to agree upon the punishment for the offense of which they found him guilty, the foreman could sign one of the verdict forms so stating, and, in that event, the court would fix the punishment upon which the jury was unable to agree. Defendant complains that the jury deliberated a total of only thirty minutes and that as a result of Instruction No. 12 it abdicated to the court its function of fixing punishment.
The instruction in question was approved by this court in State v. Brown, Mo., 443 S.W.2d 805. Since that time, the instruction has been approved in various other cases. State v. Mills, Mo., 465 S.W.2d 554; State v. Thompson, Mo., 465 S.W.2d 590; State v. Ransburg, Mo., 466 S.W.2d 691.
The determination of the proper time which the jury should be allowed to deliberate for the purpose of determining punishment rests in the discretion of the trial court. State v. Hampton, Mo., 317 S.W.2d 348; State v. Burton, 355 Mo. 792, 198 S.W.2d 19. We decline to disturb the exercise of discretion by the trial court judge.
Judgment affirmed.
All of the Judges concur. |
sw2d_482/html/0427-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SEILER, Judge. HENLEY, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Dora Lee HENDRIX a/k/a Dora Hendrix, Petitioner, v. Alphonso LARK, as Warden of the St. Louis Municipal Jail, Respondent.
No. 57392.
Supreme Court of Missouri, En Banc.
July 17, 1972.
American Civil Liberties Union of Eastern Missouri, Tom P. Mendelson, St. Louis, for petitioner.
Robert W. Van Dillen, City Counselor, John J. Fitzgibbon, Assoc. City Counselor, St. Louis, for respondent.
SEILER, Judge.
This is an original proceeding in habeas corpus by which petitioner, Dora Lee Hendrix, seeks discharge from imprisonment imposed in lieu of fines and costs she was unable to pay because of her indigency.
In March 1971, the City Court of St. Louis sentenced petitioner to serve an aggregate of 270 days in jail and to pay $2,-000 in fines and $32 in costs upon her pleas of guilty to four charges of “Soliciting for Prostitution.” She completed the jail time portion of the sentences in October, 1971. She was incarcerated in city jail by respondent under the “work off” provision of the city charter because she failed to make immediate payment of the fines and costs. Petitioner failed to pay fines and costs solely because of her indigency. It is conceded that if she had the means she would pay the fines and costs rather than serve them out in jail. On November 2, 1971, this court ordered that petitioner be admitted to bail pending this decision. She was released from jail the following day on a bond procured by the American Civil Liberties Union.
Petitioner contends that her imprisonment to satisfy payment of the fines and costs denies her equal protection of the law in violation of the equal protection clause of the Fourteenth Amendment. Three recent decisions of the United States Supreme Court, Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586; Morris v. Schoonfield, 399 U.S. 508, 90 S.Ct. 2232, 26 L.Ed.2d 773, and Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130, support her position. Her incarceration is unlawful under the law there announced, because of failure to give her an alternative of paying by installments. Respondent does not contest this ruling but seeks guidance from this court on its implementation.
In Williams v. Illinois, supra, the court suggested numerous alternatives which may be utilized to avoid imprisonment of indigents for failure to make immediate payment of fines or court costs. One suggestion was to permit payment and costs in installments. We note that Sec. 24, Art. IV of the Charter of the City of St. Louis, as amended April 6, 1971, provides for the payment of fines in installments. St. Louis must provide indigent defendants an opportunity to pay fines in reasonable installments and that portion of Sec. 773.070 of the Revised Code of the city providing the court shall not stay the payment of any fine and calling for its execution, i. e., immediate imprisonment in lieu of payment, is unconstitutional under the above decisions.
We foresee a substantial possibility that the petitioner will be unable to pay $2,032 in fines and costs even in reasonable installments because petitioner is nineteen, black, female, without any vocational skills and educated only through the eighth grade. She also has a criminal record. What can the city do with petitioner if she consents to make installment payments, makes a good faith effort to pay, but is unable to do so? In Tate v. Short, supra, the court specifically left this question open.
One view is the petitioner, upon an involuntary failure to pay fines and costs on an installment basis, could be imprisoned for sufficient time to satisfy the unpaid balance. See State v. DeBonis, 58 N.J. 182, 276 A.2d 137, which involved municipal fines for motor vehicle violations. The DeBonis case proceeds on the theory of a fine (or imprisonment in lieu thereof) being punishment with the aim of inflicting a “therapeutic sting”. The difficulty with this approach is, however, that it ignores the fact that the only ones who receive the “therapeutic sting” in the form of a jail sentence are those who are indigent and cannot pay the fine, and ignores the vast difference in the amount of sting inflicted on the indigent who must work out the fine by serving time in the St. Louis city jail, as compared to the defendant who has funds, pays the fine, and walks away free.
In addition, it is clear the theory on which the DeBonis case proceeds is not available here. The imprisonment under the St. Louis ordinance for failure to pay the fine for the offense of prostitution is not an alternative form of punishment, but is instead in the nature of a collection device, because the ordinance specifically prohibits any stay of payment or execution or probation. The offender either must pay in full at once or go to jail. This is the ultimate in collection devices. It is simple, immediate and inflexible — either pay in full at once or go to jail.
An opposite view is that imprisonment in lieu of payment of fines may be used only when the offender contumaciously refuses to pay. See In Re Antazo, banc, 3 Cal.3d 100, 89 Cal.Rptr. 255, 473 P.2d 999, where upon a guilty plea to arson, petitioner was given a suspended sentence of three years, with release upon probation conditional that he pay a fine of $2,500 or in lieu of payment, serve one day in jail for each $10.00 unpaid. Petitioner was unable to pay and was forthwith imprisoned. The California Supreme Court granted habeas corpus, saying, 89 Cal.Rptr. l. c. 481, 473 P.2d 1. c. 1007 “. . . Proper use of imprisonment as a coercive mechanism presupposes an ability to pay and a contumacious offender ... As applied to indigents we fail to see how either the threat or the actuality of imprisonment can force a man who is without funds, to pay a fine . . .”
On the point of using imprisonment as a means of collecting fines, the California court referred to the alternatives mentioned in the Williams case, supra, and said, 89 Cal.Rptr. l. c. 482, 473 P.2d l. c. 1008: “. . . Because the state has available to it these alternative methods of collecting fines, we cannot conclude that imprisonment of indigents is necessary to promote this state interest.”
On the point about imprisonment for failure to pay the fine being valid because it served a penological interest of the state the court found this “untenable”, saying at 89 Cal.Rptr. l. c. 482, 473 P.2d l. c. 1008: “. . . It does not follow, however, that the mere equating of the imprisonment of the indigent who cannot pay a fine with the cash payment of the fionindigent who can, to the end of promoting the rehabilitation of both classes of offenders, compels the conclusion that the treatment of the former is constitutionally permissible. What we have said above establishes that there are alternative methods by which the state may enforce collection of fines. These same methods simultaneously promote the state’s interest in rehabilitating the offender and by requiring compliance on the part of an indigent offender with onerous conditions, they serve to make him aware of his responsibility for his criminal conduct and to encourage him to become a law-abiding citizen.”
The court went on to say, 89 Cal.Rptr. l. c. 483, 473 P.2d l. c. 1009, that “. . . our holding is simply that an indigent who would pay his fine if he could, must be given an option comparable to an offender who is not indigent. When the indigent offender refuses to avail himself of such alternatives at the inception, or defaults or otherwise fails to meet the conditions of the particular alternative which is offered without a showing of reasonable excuse, the indigent offender becomes in the eyes of the court exactly the same as the contumacious offender who is not indigent. When either of these conditions obtain the offender’s indigency ceases to be dispositive and he may, consistently with the mandate of the equal protection clause, be relegated to ‘working out’ his fine by imprisonment.”
The court concluded that, 89 Cal.Rptr. l. c. 483, 473 P.2d l. c. 1009: “Finally, we point out that nothing in today’s opinion diminishes the wide scope of authority vested in the sentencing judge in the exercise of his powers . . . [W]e assume that a fine is not imposed on a particular indigent offender with the objective of bringing about his eventual imprisonment for its nonpayment for ‘to do so would be to accomplish indirectly as to an indigent that which cannot be done directly.’ The sentencing judge’s bona fide discretion to impose imprisonment directly in cases where he deems it appropriate is unaffected by today’s decision.”
We believe the foregoing view to be the sounder and more realistic. If the petitioner were returned to the city jail after an involuntary failure to meet installment payments, she would be confined solely because of her indigency. It was for this very reason that the initial incarceration was a denial of equal protection of the law. We perceive no substantial difference between imprisonment of an indigent because of an inability to make an immediate payment of fines and costs, and imprisonment of an indigent because of the involuntary failure to make installment payments when permitted the opportunity to do so. Both deny the indigent equal protection of the law. In both the end result is that she is incarcerated because she is poor. The intervening grace period does not change this.
“The poor always ye have with you”, declares the Bible, and we know this to be true, even in this country, where the unemployment rate is seldom less than S'% and is much higher among certain groups. So we have to accept the fact there will always be some people who are unable to pay a fine even though willing to do so if they could. The city can determine whether this is true as a fact of any particular defendant and proceed accordingly. The system suggested by the American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to> Sentencing Alternatives and Procedures, for dealing with non-payment of fines is a sensible one. “. . . [I]n the first place, fines should never be levied unless it is reasonably clear that the defendant is going to be able to pay, either immediately or over time. With respect to defendants who cannot or will not be able to pay, a more appropriate sanction should be chosen. With respect to defendants who appear to be able to pay but ultimately do not, the proposal is that there first should be an inquiry into the reason for nonpayment. Only in the case where such a hearing discloses no excuse for nonpayment would jail be an appropriate response . . . ”, Standards with Commentary, Sec. 6.5(b), pp. 288-289.
We also note the city, in its brief, states the installment method of paying- fines is recognized in its municipal courts as a part of probation, except that as to the offense here involved Sec. 773.070 of the city’s code bars the use of probation. This, of course, the city can change by amending the ordinance if it desires. The city’s brief says, “. . . It has been a long settled policy of our courts to allow a defendant time to bring in the money fine, either by continuing a case for a period of time in order that the defendant may raise the money or by placing the defendant on probation to satisfy the money fine or by continuing the fine after the period of probation has been successfully served .” It is apparent, therefore, that the installment method of paying fines is practical for St. Louis. It may well be, too, that having to pay a fine in installments is more effective than anything else in preventing future violations of the ordinance. a
We order petitioner remanded to the custody of respondent (1) for the limited purpose of taking her immediately to the City Court for a prompt hearing to determine her ability to pay the fines and costs, and (2) if found to be unable to make immediate payment because of indigency, she be released from custody and afforded an opportunity to pay fines and costs in reasonable installments as fixed by the court in light of her ability to pay and (3) if she refuses to accept this opportunity, or after acceptance, fails to make a good faith effort to pay the fines and costs in reasonable installments, she may be incarcerated for sufficient time to satisfy the fines and costs at the rate prescribed by ordinance, but (4) if she, upon a good faith effort, is unable to pay the fines and costs in installments, she cannot lawfully be incarcerated for her failure to pay the fines and costs.
FINCH, C. J., and DONNELLY, MORGAN and BARDGETT, JJ., concur.
HENLEY, J., concurs in separate concurring opinion filed.
HOLMAN, J., concurs in result and concurs in concurring opinion of HENLEY, J.
HENLEY, Judge.
I concur only in that part of the principal opinion which holds that petitioner’s incarceration is unlawful under Williams v. Illinois, Morris v. Schoonfield and Tate v. Short.
. Section 24, Art. IV of the Charter of the City of St. Louis provides:
“ . . . Any one against whom any fine shall have been assessed, failing to pay the same and costs, shall be committed to the workhouse or other place provided therefor, and to such labor as may be provided by ordinance, until such fines and costs shall be fully paid, at the rate of one day’s imprisonment for each fifteen dollars of fine or fraction thereof; or such additional amount as may be provided by ordinance, provided that when any one committed under provisions of this section shall fail to perform such labor as required the rate shall be one day’s imprisonment for each five dollars; and provided further, that fines may be paid in installments in such manner as may be provided by ordinance.”
. The 76th General Assembly also enacted legislation (Senate Bill 227), effective September 29, 1971, which authorizes municipal judges in cities, towns and villages (Sec. 71.220 V.A.M.S.) and magistrates (Sec. 543.270, V.A.M.S.) to provide for the payment of fines on an installment basis.
. “Nor is our decision to be understood as precluding imprisonment as an enforcement method when alternative means are unsuccessful despite the defendant’s reasonable efforts to satisfy the fines by those means; the determination of the constitutionality of imprisonment in that circumstance must await the presentation of a concrete case.” Tate v. Short, 401 U.S. 395, 400, 91 S.Ct. 668, 672.
. According to the city’s brief, St. Louis has a highly organized probation and parole system.
. Petitioner contends that once the city sets up an installment payment program it would ultimately benefit all concerned, as “ . . . The costs and problems of housing a great number of short-term prisoners would be abated. Fine collections, abandoned under the present work-off system, would increase. Welfare dependency necessitated because of the jailing of a support source would be curtailed. In short, a present loss could be a future gain — for all concerned.”
According to a note in 22 Vanderbilt L.R. 611, 625, the available evidence on the subject is that “ . . . the rate of collection under an installment system is significantly greater than in a system without installment plans . . . ”
The same article also says that experience shows installment payment seems to have some reformative effect, with reduction of recidivism, 22 Vanderbilt L.R. 625.
. Apprehension has been voiced that this could lead to abolition of the use of fines. This is not likely. For one thing, whether it should be or not, fines are too important a source of municipal revenue. In St. Louis, for example, fines and forfeitures in the year 1970 amounted to §1,915,374, Taxation and Revenue in Missouri Municipalities, Missouri Municipal League, June 1971, p. 65. If anything, installment payments would probably increase the revenue.
It is also said this would produce an inverse discrimination: as to offenses punishable only by fine, solvent citizens would have to pay, but the poor would go scot-free.
In the past, as we know, those who could have paid the fine; those who could not have gone to jail in lieu. The result was that while the offense may in terms have been punishable only by fine, in fact it was also punishable by a jail term and there actually was no such thing as an offense punishable only by fine. If the city is convinced that a jail term is required for a particular offense, it may so provide. In that case, both the solvent and the indigent offender would be treated alike.
But if the city decides that it has no interest in a jail sentence and that a fine is sufficient to serve its purpose for a particular offense, then, if the fine cannot be paid promptly and in full, the city ean use the installment method or conditional probation or parole. Ultimately, it may turn out that an indigent cannot pay, but this need not mean that the indigent can commit the offense with impunity or that he goes scot-free as a matter of course if the city is willing to pursue the various alternatives available. On the contrary, this method of handling the indigent should convince him of just the opposite.
|
sw2d_482/html/0432-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. James Farmer LEWIS, Appellant.
No. 57041.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Shaw & Howlett, Charles M. Shaw, Clayton, for appellant.
STOCKARD, Commissioner.
James Farmer Lewis has appealed from the judgment entered pursuant to jury verdict by which he was found guilty of burglary in the second degree and stealing in conjunction therewith, and sentenced to imprisonment for six years for burglary and four years for stealing, the sentences to be served concurrently. We affirm. This case is in some respects factually related to State v. Lewis, Mo., 482 S.W.2d 436.
On July IS, 1970, Mr. Marion Strube discovered that his mobile home had been broken into, and that certain personal property was missing including a color television set, three pistols, ten boxes of .22 rifle shells, a clock radio, and a metal filing cabinet with its contents which included the record titles to the mobile home and three automobiles. About one hour later Mr. Strube and his brother discovered the television set in a nearby wooded area. That night as Mr. Strube and his two brothers watched the area, appellant and a companion by the name of Gary Ickenroth approached the place where the television set had been found. They were apprehended and turned over to the sheriff of Montgomery County. In appellant’s automobile, which was parked over one-eighth mile away, there were found two pairs of cotton gloves and the four “car titles in the glove compartment” which had been in the metal box taken from the mobile home of Mr. Strube.
Gary Ickenroth testified for the State. He stated that on July IS he was hitchhiking on Interstate Highway 70 and was picked up by appellant who turned onto Highway 19, and then onto a gravel road and parked the automobile. According to Gary, appellant told him that he was going to “pick up a colored TV and three pistons” [pistols?] which he had gotten the night before and placed there “because he was being followed by the law.” Gary then related how he and appellant were apprehended by the Strube brothers, and he further stated that appellant had told him that he had stolen the television set from a trailer, and that he was going to get it and take it to St. Louis where he worked.
Appellant testified to the effect that he did not burglarize the Strube mobile home, and that he did not steal anything from it. He stated that on July 15 he had loaned his automobile to a person by the name of Larry Stevens, and that when the automobile was returned, Larry told appellant he would pay him $50 if he would go pick up a television set located in a wooded area. Larry gave appellant a map showing the location of the television set, but the map was left in the automobile and he did not know what became of it. He denied any knowledge of the automobile titles found in his automobile.
In rebuttal, the State offered in evidence as a prior inconsistent statement a recording of a portion of an oral statement appellant made the day following his arrest in which he said that he had loaned his automobile to a person by the name of Bill, and that it was Bill who offered him $50 to pick up the television set.
Appellant contends that the evidence was insufficient to authorize a finding that he had burglarized or stolen anything from the Strube mobile home. He argues that there was no exclusive possession by him of recently stolen property, and further, that if possession is shown, the rule that the possession of recently stolen property creates a presumption that the possessor of such goods stole them is unconstitutional in that it shifts the burden of proof to the accused.
Appellant has misconstrued the rule pertaining to the possession of recently stolen property. As stated in State v. Cobb, Mo., 444 S.W.2d 408, “it is now recognized that possession of stolen property does not raise a presumption of guilt but is only a circumstance from which guilt may be inferred as a matter of fact.” Stated another way, “A defendant’s possession of property stolen in a burglary is evidence of guilt connecting him with the commission of the burglary and in the absence of countervailing evidence is sufficient to sustain a conviction of burglary.” State v. Heitman, Mo., 473 S.W.2d 722, 726. See also State v. Durham, Mo., 367 S.W.2d 619, and State v. Holmes, Mo., 434 S.W.2d 555.
It is difficult to see how, under the circumstances, Gary Ickenroth could have had possession of any of the stolen property, but in any event, the possession of recently stolen property which will support an inference of guilt may be a joint possession, State v. Cobb, Mo., supra, and actual manual possession is not required. State v. Prunty, 276 Mo. 359, 208 S.W. 91. In this case appellant had recent and actual possession of the four certificates of title which were stolen at the time of the burglary. We need not rule whether the factual situation would permit an inference of possession of the television set. This case, to a substantial degree, was based on circumstantial evidence, but it does not rest solely on the inference authorized by reason of possession of recently stolen property. The jury could take into consideration that appellant parked his automobile over one-eighth of a mile from where he entered the woods, that he entered the woods near midnight and went directly to the place where the television set had been found, that he had possession of some of the property stolen in the burglary, that he admitted to Gary that he had stolen the television set, and that he made inconsistent statements concerning his reason for entering the woods. When these facts and circumstances are considered with the facts of the burglary, and the items which were stolen, they authorized a finding by the jury that appellant was the one who burglarized the Strube mobile home and stole the property therefrom. Possession of the stolen property was but one of the circumstances; the case did not rest on that fact alone. We find no merit in this contention.
Appellant next asserts prejudicial error resulted from the admission into evidence over his objection of the two pairs of cotton gloves found on the floor of his automobile.
There was testimony that no fingerprints could be found on the television set or at the mobile home. Gloves, when worn by a burglar, will prevent the imprint of fingers, and it is generally known that gloves are a common tool employed by burglars and thieves. State v. Witt, Mo., 371 S.W.2d 215, 219. The fact that appellant had gloves was material to explain the absence of fingerprints, and was properly admitted into evidence. State v. Russell, Mo., 324 S.W.2d 727.
Appellant asserts it was erroneous for the State to play to the jury a portion of the recording of his oral statement, which showed a prior inconsistent statement, because “it would lead the jury to believe that there had been a confession during the custodial interrogation.” He argues that the prejudice outweighed its probative value, but he concedes that this is a matter directed to the sound discretion of the trial court.
Assuming, but not deciding, that a jury reasonably could have been caused to believe that appellant had made a confession during cross-examination, police officer Green, who participated in recording the oral statement, testified that at no time during the oral statement did appellant confess to any participation in the burglary or the stealing. There was no abuse of discretion.
Appellant next contends that Instruction 5, the verdict directing instruction pertaining to stealing, contained “an inadequate general converse” in that it concluded as follows: “and unless you find the facts to be, you will find the defendant not guilty of stealing in conjunction with burglary.”
The instruction could have been better worded, but it is not necessarily erroneous because better wording could have been used. The instruction clearly told the jury that unless it found the facts to be as hypothesized therein, it should acquit appellant of stealing. In State v. Dougherty, 287 Mo. 82, 228 S.W. 786, a verdict directing instruction concluded with the phrase, “unless the jury find the facts to be as stated they will acquit the defendant.” The court held this language, which we consider to be in substance the same as that used in Instruction 5, “cannot be construed as otherwise than telling the jury if they find the facts as stated they may convict, but unless they so find them they will acquit. There is therefore no opportunity for the jury to have misinterpreted their province.” See also State v. Engberg, Mo., 377 S.W.2d 282, 287. We find no error.
No request was made for an instruction on circumstantial evidence. However, appellant now asserts the court was required to give such an instruction as a part of the law of the case.
While this case is based to a substantial degree on circumstantial evidence, there was also direct evidence in the form of the admissions by appellant testified to by Gary Ickenroth. Where there is direct evidence such an instruction is not required, even if requested. State v. Stevens, Mo., 467 S.W.2d 10, 25. Also, when there is no direct evidence “an instruction on the law of circumstantial evidence [is] * * * required if, but only if, requested.” State v. Allen, Mo., 235 S.W.2d 294, 297. See also State v. Barnes, Mo., 442 S.W.2d 932. The trial court did not err in failing to instruct on circumstantial evidence.
Appellant’s final contention is that the court erred “when it failed to offer to have the jury polled upon the return of the verdict.” An accused may waive his right to poll the jury, State v. Thursby, Mo., 245 S.W.2d 859, and “since the right of accused to a poll of the jury is not a necessary ingredient of his conviction, the court is not required to have the jury polled in the absence of a request therefor; * * *.” 23A C.J.S. Criminal Law § 1392, p. 1049. See also State v. Burns, 148 Mo. 167, 49 S.W. 1005, 71 Am.St.Rep. 588. We note, however, that the court asked the members of the jury collectively if the verdict signed by the foreman was their verdict, and the record shows “affirmative answers from jurors.”
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur. |
sw2d_482/html/0436-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. James Farmer LEWIS, Appellant.
No. 57042.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Shaw & Howlett, Charles M. Shaw, Clayton, for appellant.
STOCKARD, Commissioner.
James Farmer Lewis has appealed from the judgment entered pursuant to jury verdict by which he was found guilty of burglary in the second degree and stealing in conjunction therewith, and sentenced to imprisonment for five years for burglary and two years for stealing, the sentences to be served concurrently. We affirm. This case is in some respects factually related to State v. Lewis, No. 57,041, Mo., 482 S.W.2d 432.
Robert Huffstutter left his house on July 14, 1970. When he returned about 5:30 o’clock of the evening of July 16, he found that the door had been damaged, and that several items in the house were missing, including a roll-about fan, a Craftsman combination sander and buffer, a television set, a Craftsman chain saw, and two fishing rods with reels.
On the evening of July 15 appellant was apprehended by Marion Strube and his two brothers, as set forth in State v. Lewis, Case No. 57,041, and were turned over to the sheriff of Montgomery County. In the trunk of appellant’s automobile were found the two fishing rods and reels which had been stolen from the home of Robert Huffstutter.
Appellant first asserts that the evidence was insufficient to support the verdict in that it was “never showed that defendant had burglarized or stolen anything from the dwelling house of Robert Huffstutter.” As in Case No. 57,041, appellant argues that the fishing rods and reels were not in his personal and exclusive possession, but if they were the rule that possession of recently stolen property creates a presumption of guilt is unconstitutional because it shifts the burden of proof to the accused.
The fishing rods and reels were found in appellant’s automobile at a time not remote from the time of the burglary. The jury was not required to believe appellant’s testimony that he did not know they were there. As ruled in Case No. 57,041, the possession of recently stolen property which will support an inference of guilt may be a joint possession, State v. Cobb, Mo., 444 S.W.2d 408, and manual possession is not required. State v. Prunty, 276 Mo. 359, 208 S.W. 91.
In this case as in Case No. 57,041, appellant has misconstrued the rule pertaining to the possession of recently stolen property. No presumption of guilt is created ; such possession is a circumstance from which guilt may be inferred as a matter of fact. State v. Cobb, Mo., supra.
The sufficiency of the evidence to support the verdict does not rest alone on the possession of recently stolen property. That is but one of the circumstances which the jury was entitled to consider. Appellant does not challenge the sufficiency of the evidence except for the unmeritorious reason above stated.
When appellant was apprehended by the Strube brothers he had entered a wooded area to pick up a television set. The arrest which then followed was for the alleged burglary of the mobile home of Marion Strube. It was during the processing of that arrest that the fishing rods and reels were found in the trunk of appellant’s automobile. In his "opening statement the prosecuting attorney said: “Mr. Ickenroth will testify that they [he and appellant] came out in a certain vehicle, that the defendant was driving the vehicle, and that they went out into the woods to pick up this television.” Appellant objected “to this” and a discussion between the court and counsel followed concerning the relevancy of the proposed testimony. The court ruled that “it is so much a part of this chain of circumstances * * * I don’t see how it can be left out.” However, until rebuttal as subsequently noted, Gary did not mention the purpose for which he and appellant went into the woods. Appellant also asserts that error resulted in permitting Gary to testify on rebuttal as to the intent of appellant in en-¿ering the woods.
No mention was made in the opening statement or in the testimony of Gary on rebuttal that the television set had been stolen. The court ruled properly in each case. As stated in State v. Adamson, Mo., 346 S.W.2d 85, the State is not to be penalized if a party so entangles his illegal affairs that one offense cannot be proved without proving another. In any event, no possible prejudice could have resulted. Appellant testified on direct examination that he went into the wooded area to pick up a television set, and that a person had offered to pay him $50 to obtain the set. The testimony of Gary in rebuttal was to the effect that appellant told him that he was to pick up a television set which he had placed there the night before. This was proper testimony for rebuttal purposes.
When Marion Strube was testifying to the circumstances of the apprehension of appellant, he stated: “Well, they came up on an angle, off from the county road at the point where my TV was.” The trial court sustained appellant’s objection “to that” but refused to declare a mistrial, and that refusal is the action appellant assigns as prejudicial error.
The declaration of a mistrial is a drastic remedy. It should be exercised only in extraordinary circumstances, and whether it should be declared rests in the sound discretion of the trial court. State v. Ward, Mo., 457 S.W.2d 701; State v. Smith, Mo., 431 S.W.2d 74. The reference to the television set was not responsive to a question but was volunteered, and no relief such as to strike the answer or instruct the jury to disregard it was requested. Under the circumstances there was no abuse of discretion.
Appellant assigns as error the admission in evidence of two pairs of cotton gloves found in appellant’s automobile on the ground they were irrelevant and immaterial to any issue.
The factual situation presented here and the contention of error are the same as in Case No. 57,041, and there ruled adversely to appellant’s contention. We need not again set forth that holding, but reference is made to the opinion in that case for the reason for the ruling.
In addition to the cotton gloves, a large screwdriver was found in appellant’s automobile. The lock on the door of Mr. Huffstutter’s home contained pry marks. Lieutenant Kenneth Miller of the Highway Patrol, an expert in the field of tool mark examination, testified that he had made tests of the screwdriver and the lock, and that in his opinion “a screwdriver or a prying instrument of a shape and dimensional features such as the screwdriver [found in appellant’s automobile] did make these [pry] marks,” but that the “minute detail or striation was lacking in the imprint on the lock plate to establish positive identification.” Appellant asserts it was error to admit in evidence Exhibit 5, the screwdriver, and Exhibit 8, the lock plate, because the exhibits were irrelevant and immaterial, and were prejudicial “because of the common association of screwdrivers as a device used by burglars.” However, appellant makes no challenge to the testimony of Lieutenant Miller.
To state the facts demonstrates that this contention of appellant is without merit. The exhibits were an essential part of the unobjected-to testimony of Lieutenant Miller, and constituted evidence for the consideration of the jury pertaining to the results of an-out-of-court experiment by an expert witness. See State v. Truster, Mo., 334 S.W.2d 104. In addition, if it be contended that the testimony did not establish with certainty that the pry marks were made by the screwdriver found in appellant’s automobile, the testimony and the exhibits were favorable to appellant, and no prejudice could have resulted.
Appellant challenges the sufficiency of the converse provision of the verdict directing instruction on stealing, and he also asserts that error resulted from the failure of the court to give sua sponte an instruction on circumstantial evidence and to poll the jury.
The factual situation and the contention as to each of these points are the same as the factual situation and the contention made in Case No. 57,041, and there ruled adversely to appellant. We need not restate our rulings, but reference is made to the opinion in that case for the reasons in holding the contentions to be without merit.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur. |
sw2d_482/html/0439-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOUSER, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Dorothy MARSHALL, Plaintiff-Appellant, v. James Edward BOBBITT, Defendant-Respondent, Thomas J. Cavanaugh, Administrator of Estate of John Marshall, Deceased, Defendant-Appellant.
No. 55865.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
Padberg, Raack, McSweeney & Slater, Godfrey P. Padberg, Spitznagel & Todt, Charles P. Todt, St. Louis, for appellant.
Murphy & Kortenhof, Edward E. Murphy, Jr., St. Louis, for respondent, James Edward Bobbitt.
HOUSER, Commissioner.
Dorothy Marshall brought this action for damages for personal injuries against James Edward Bobbitt and the Administrator of the Estate of John S. Marshall, Deceased, arising out of a collision between a pickup truck in which she was riding as a passenger, driven by her husband John, and a Dodge automobile driven by Bobbitt. The cause was submitted against defendant Bobbitt under an instruction directing a verdict for plaintiff upon belief that Bobbitt either failed to keep a careful lookout or drove at an excessive speed; that Bobbitt’s conduct in any one or more of these respects was negligent and that such negligence caused the collision. The jury found for plaintiff and against both defendants in the sum of $25,000. Both defendants filed motions for new trial. The court sustained Bobbitt’s motion for error in submitting the case on excessive speed and ordered a new trial as to Bobbitt on the issue of liability only. The court overruled the administrator’s motion and ordered that the judgment against the administrator be held in abeyance pending a new trial of plaintiff’s case against Bobbitt. Both plaintiff and administrator appealed.
From the evidence favorable to the prevailing party the jury could have found the following facts: The collision occurred in the afternoon of July 11, 1967 on Highway 49 in Crawford County. It was a clear, warm day. The asphalt highway, 23 feet in width with a 5-foot shoulder on each side, ran north and south at point of collision (hereafter “PC”) and was straight for several hundred feet south. Bobbitt was northbound; Marshall southbound. The scene of the accident is visible from a point 800 feet to the south, but proceeding north the highway descends into a valley and a northbound motorist cannot see it again until, ascending from the valley, he reaches a point 375 feet to the south, at which position the scene of the accident again comes into view. At a point roughly 200 feet south of PC a northbound motorist reaches a plateau and the highway is generally level for 200 feet to PC. PC was 10 feet south of an unused side road that formerly led to a now abandoned farmhouse. Debris at PC was found in the highway centered around the center line. The side road intersects the highway at right angles and runs east from the highway. There was a tree along the side road hut a vehicle moving westwardly thereon toward the highway could be seen by a motorist northbound on the highway.
Bobbitt, born and raised in that area, was familiar with the roads and with the fact that there was a “dip” in the highway and a side road as one ascends from the dip. He had driven the highway many times previously.
Marshall’s pickup truck moved west-wardly on the side road, emerged from the side road into the highway just prior to the collision, and at moment of impact the pickup was either on a 45° angle headed southwest, or had just reached the west (southbound) lane and straightened out in that lane.
The daytime speed limit was 65 m. p. h. Bobbitt’s speed was 60-65 m. p. h. according to Bobbitt; from 65-85 jm. p. h. according to other witnesses. Counting reaction time the total stopping distance at 60 m. p. h. is 306 feet; at 65 m. p. h., 352.5 feet; but with all four wheels locked by the brakes and the car skidding this is reduced to 294 feet at 60 m. p. h. and 338.5 feet at 65 m. p. h. At 75 or 80 m. p. h. the stopping distance would be a great deal longer . up in the 400’s or 500’s.
At the earliest instant at which Bobbitt could have seen the pickup truck approaching the highway the Dodge was 375 feet south of PC. Bobbitt actually saw the pickup truck for the first time when the Dodge was 160 to 170 feet south of the side road. Leon Skaggs, son-in-law of the Marshalls, had emerged from the side road in advance of the Marshalls. Skaggs, driving a camper truck, was proceeding slowly southwardly at 10 m. p. h., waiting for the pickup truck to catch up with him. Skaggs saw the oncoming Dodge coming north at a high rate of .speed. Skaggs estimated the speed of the Dodge at no less than 80 m. p. h. He said the Dodge was “bouncing” — its front end raising and lowering as it approached on the highway. Knowing that the pickup truck was entering onto the highway and sensing the danger Skaggs attempted to attract the attention of the driver of the Dodge by blinking his headlights, waving his arm out of the window and blowing his horn, but the speed of the Dodge continued unabated. The Dodge passed Skaggs’ camper truck at a point 200 feet south of the side road.
Bobbitt testified that when he first saw the pickup truck it was traveling west-wardly in the side road at from 10-25 m. p. h., 15 to 40 feet short of PC. It kept coming out, without stopping. There was other testimony that the pickup truck stopped 4-5 east of the edge of the asphalt pavement before pulling out onto the highway. As soon as Bobbitt saw the pickup truck he immediately swerved to the left and slammed on the brakes which locked, leaving two skid marks on the asphalt 100 feet in length, in a generally straight line parallel to the center line of the highway. These skid marks “led right up to” PC. When Bobbitt swerved and put on the brakes the back half of the pickup truck was still in the driveway and the front half was out in the highway. The pickup was moving and it continued to move until the collision occurred. The Dodge’s left skid mark was laid down in the southbound lane, 1 foot 7 inches west of the center line, its right skid mark in the northbound lane, east of the center line. When brakes are applied and a vehicle goes into a skid the vehicle proceeds directly straight ahead in the direction it was going and as long as this condition continues the driver has absolutely no control over the movement of the vehicle.
Skid marks on the gravel side road, commencing 15 feet east of the east edge of the asphalt pavement, ran southwestwardly across the asphalt 19 feet to the PC.
Estimates of the speed of the Dodge at PC ranged from 45-59 m. p. h.; that of the pickup truck at from 4 to 20 m. p. h. The Dodge came to rest headed generally west by southwest, its front end near the center of the asphalt pavement, leaving 50 feet of skid marks from PC to the place where it came to rest. The pickup truck came to rest north of PC, headed generally east, its front end slightly east of the west edge of the asphalt pavement. It left 59 feet of skid marks from PC to the place where it came to rest. The speed of the Dodge after PC was 28 m. p. h.; the speed of the pickup truck after PC was 19.6 m. p. h. Both vehicles were demolished beyond repair. The main force of the impact took effect on the left front fender and left front of each vehicle. Mr. Marshall was killed and plaintiff Dorothy Marshall was seriously injured.
I. On plaintiff Marshall’s appeal.
The questions raised on this appeal: whether the case was properly submitted on excessive speed and/or failure to keep a careful lookout; whether there was evidence that excessive speed and/or failure to keep a careful lookout was a proximate cause of the collision, must be answered in the affirmative.
The proper test of speed as a proximate cause of a collision is whether the speed prevented the driver from avoiding the collision. Buzbee v. Greyhound Lines, Inc., Mo.Sup., 467 S.W.2d 933, and five cases cited l. c. 935. The proper test of failure to keep a careful lookout as a proximate cause is whether in the exercise of the highest degree of care the driver of the defendant’s vehicle could have seen the other vehicle in time to have taken effective precautionary action in avoidance. O’Neill v. Claypool, Mo.Sup., 341 S.W.2d 129; Zalle v. Underwood, Mo.Sup., 372 S.W.2d 98. The evidence in this case, considered in the light most favorable to plaintiff, warrants a jury finding that in both respects (speed and lookout) Bobbitt was negligent. There was evidence that the driver of a northbound vehicle could have seen the top of a vehicle in the side road when the northbound vehicle was 375 feet south of the side road. Bobbitt says that when he first saw the pickup truck he was 160-175 feet south of the side road at which time the pickup truck was back in the side road several feet, proceeding toward the highway. From his testimony it was apparent to him that the pickup truck was moving inexorably toward and would enter the highway (without stopping). Other testimony (from plaintiff and the other passenger in the pickup truck) indicates that as the pickup truck approached the highway it stopped 4 or 5 feet east of the pavement; that the driver looked to his left and said it was all clear on his side; that plaintiff looked in both directions and the other passenger looked to the right; that none of the three saw any traffic, whereupon the pickup truck moved out onto the highway. Under the latter version of the facts the jury could find that the two vehicles came into view of each other shortly after the pickup 'started forward from its stopped position and that Bobbitt could have seen it entering the highway at a time when the Dodge was nearly 375 feet south of the side road. The jury was not obliged to credit Bobbitt’s testimony that he turned to the left (presumably causing his left wheels to leave the northbound lane, cross the center line and run in the southbound lane) when he first saw the pickup truck. The jury could find that Bobbitt was already running with his left wheels across the center line when the Dodge was 375 feet south of the side road. The jury could further find that if at the time the pickup truck first became visible to Bobbitt the latter had seen it and taken precautionary action by reducing his speed and moving back entirely within the northbound lane, the collision could have been avoided. The trouble is that Bobbitt did not see the pickup truck until he was 160-175 feet south of the side road, as he himself admitted, and that at the high speed he was traveling he was prevented from taking effective preventive measures. Bobbitt argues that he acted as soon as he saw the pickup truck; he concedes (and asks for exoneration on the basis that) once he applied the brakes and commenced to skid he lost all control of the Dodge and there was nothing further he could do to avoid the collision. As pointed out by appellant, even under Bobbitt’s version of the facts, the latter had 100 feet after reaction time within which to slacken the brake pressure, regain control and move back into the northbound lane, and the jury could have found that if his speed had not been excessive he could have done so, but due to his tardy lookout and “excessive speed, he hit his brakes, went into a skid and became a deadly instrumentality.” Under the favorable evidence, if Bobbitt had maintained a careful lookout ahead and laterally as required in the exercise of the highest degree of care he could have seen the pickup truck, sensed the danger and taken preventive measures at a point 200 feet south of the point where Bobbitt says he first saw the pickup truck. Had he done so and had he been traveling at a reasonable speed it could reasonably be found that he could have applied the brakes sooner than he did, thereby giving the driver of the pickup truck more time to escape the path of the Dodge or turn the pickup truck to his right so the vehicles would miss each other, and Bobbitt would have had more time to steer to the right in avoidance or, having locked the brakes and gone into the lock-in collision course, more time within which to release the brakes, regain control and bring the Dodge entirely back into the northbound lane. Under all the circumstances of this case, including the fact that Bobbitt was thoroughly familiar with the area and the side road, and is held in the exercise of the highest degree of care to anticipate the possibility of vehicles suddenly emerging from side roads; that he had the duty of maintaining sufficient lookout and control over his vehicle as to be able to avert an accident in such a contingency; that he was not entitled to wait until the moment of actual peril before beginning to reduce speed; having in mind the estimates of high speed at which the Dodge was traveling; the considerable distance and time available to him to take preventive action after the pickup truck first became visible to Bobbitt; Bobbitt’s failure to see the pickup truck at the earliest possible moment — that he could have seen it when the Dodge was 200 feet farther south than it was when he did finally see it; the length of skid marks laid down by the Dodge prior to PC; Bobbitt’s failure to swerve to the right back into his own lane; the fact that Bobbitt locked his brakes when the Dodge was in a fixed course with its left wheels west of the center line; the absence of evidence that Bobbitt released his brakes prior to PC in an attempt to swerve the Dodge to the right in avoidance; the speed of the Dodge at PC; the violence of the impact; the speeds of both vehicles as they continued north after the momentum-absorbing impact; and the length of the skid marks of both vehicles from PC to where they came to rest, we are firmly of the opinion that the evidence was sufficient to support an inference of failure to keep a careful lookout, and excessive speed, and to authorize submission of lookout failure and excessive speed as causative factors. Buzbee v. Greyhound Lines, Inc., supra; Hamilton v. Slover, Mo.Sup., 440 S.W.2d 947, 956[11]; Baumle v. Smith, Mo.Sup., 420 S.W.2d 341, 345 [4]; Wolfe v. Harms, Mo.Sup, 413 S.W.2d 204, 210[2-7]; Burks v. Leap, Mo.Sup, 413 S.W.2d 258, 263[3]; Calvert v. Super Propane Corporation, Mo.Sup, 400 S.W.2d 133, 139[5-7]; Bramblett v. Harlow, Mo.App, 75 S.W.2d 626, 630[7-9].
II. On the Administrator’s appeal.
Invoking the exclusionary rule laid down in Housman v. Fiddyment, Mo.Sup. en Banc, 421 S.W.2d 284, the administrator claims error in the admission over his objection of the opinion testimony of Highway Patrol Trooper Keck that the skid marks leading out of the side road were laid down by the Marshall pickup truck. Assuming that this testimony was inadmissible under Housman v. Fiddyment and that its admission in evidence over proper and timely objections would have been error, the administrator is in no position to complain for the reason that testimony of the same tenor had been received without objection. On the direct examination of Trooper Keck, without any objection by counsel for the administrator, Keck testified extensively about tire marks, location of debris, location and direction of skid marks made by the Bobbitt automobile leading up to the point of impact and by both vehicles following impact, using in connection with his testimony a blackboard copy of the chart he prepared in the course of his investigation. That copy of the chart, prepared for exhibition to the jury, showed skid marks made by both vehicles both before and after impact, probable point of impact, and skid marks made by the Marshall pickup truck, 15 feet in length on the gravel side road and 19 feet in length on the highway. Among other things counsel for defendant Bobbitt then elicited from the trooper that he found other tire marks laid down at the scene, coming out of the side road onto the highway, 15 feet on the gravel road and 19 feet on the paved portion of the highway, to the point of impact where the debris was centered, and that the witness had marked these skid marks down on the official plat he prepared as having been made by the pickup truck. Cpunsel for the administrator made no objection to these several references to the skid marks notwithstanding they were directly connected with the Marshall pickup truck on the plat, which was in plain view of the jury. Having failed to object to this evidence when it first entered the case the administrator waived the right to have it excluded. Sullivan v. Union Electric Light & Power Co., 331 Mo. 1065, 56 S.W.2d 97, 104[17], and numerous other cases cited in State ex rel. State Highway Commission v. Warner, Mo.App., 361 S.W.2d 159, 164, fn. 3. This is the only point made by the administrator on this appeal. The court did not err in overruling the administrator’s motion for a new trial.
Accordingly, the order sustaining defendant Bobbitt’s motion for a new trial is reversed; the order overruling the administrator’s motion for new trial is affirmed; and the cause is remanded with directions to reinstate the verdict of the jury and enter final judgment for plaintiff and against both defendants for $25,000.
STOCKARD, C., concurs.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and LEWIS, Special Judge, concur. |
sw2d_482/html/0444-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HENRY I. EAGER, Special Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. James Clarence HAYNES, Appellant.
No. 56494.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Robert H. Wendt, Robert A. Hampe, St. Louis, for appellant.
HENRY I. EAGER, Special Commissioner.
Defendant was convicted of first degree murder and the punishment imposed by the jury was life imprisonment. The appeal is here on a late notice permitted by order of this Court. Defendant was represented at the trial and here by appointed counsel. No question is made on the sufficiency of the evidence, so a brief review of the facts will be sufficient. There will be some reference to additional evidence, received and proffered, in our discussion of one point.
The following facts were shown by the State’s evidence. On March 13, 1970, one Leroy Visor, the deceased, and Anthony Shinault drove in Visor’s car to his apartment at 621 Laurel Avenue in St. Louis at about 7:15 or 7:30 p. m. and parked in front of the apartment. Leroy got out and went over to his mother’s residence next door, also an apartment; she was standing in the door. He “approached” her, then rushed over to his own home; as he opened the door “these two suspects” (so designated by Shinault) were trying to run out, and Visor seemingly gave one of them a shove; very shortly a shot was heard and also screaming. At this point we pick up the testimony of Leroy’s “common law wife,” Laberta Hopson, who was inside. She heard three fast knocks on the front door, opened it a little, and two men forced their way in. One she positively identified as the defendant, and the other as a man whom she had known as “Johnny.” She had known defendant about four months and he had been in her home perhaps 20 times. Defendant had a sawed-off shotgun, “threw” it in her face, shoved her back, hit her in the face with his hand, and made her lie down on the floor. He placed his foot in the middle of her back and jabbed at her head with the gun; he asked for money and was told that she did not have any. At that time “Johnny” went into the bedroom and brought out a portable television and then started taking some guitars out of the closet in the front room. At this stage of the proceedings Leroy Visor came to the front door and started in; defendant was there and Leroy grabbed him by the shoulders. Defendant “jerked back,” put the gun to Leroy’s head as he came in, and shot him; Leroy fell on the living room floor. Defendant then started “backing” out of the door. Neither defendant nor Leroy had said anything. La-berta heard two more shots in front of the home; she positively identified the defendant in a lineup and at the trial as the one who shot Leroy.
Shinault, still sitting in the car, saw “one suspect” run out the door and down the street; then the other one came out, and ran or “backed” toward the car then “swerved” toward Leroy’s mother’s home; he heard a “click,” laid down across the front seat, heard two shots, and stayed there until the police came. This witness did not, and indicated that he could not, identify either man and did not see their faces. He had known the defendant for about eight years, but made no pretense of identifying him.
Lucille Visor, Leroy’s mother, called the police as her son left her house; she went to her front door and opened it slightly when she heard the shot in Leroy's home. She testified: that she saw James Haynes, pointing him out as the defendant, backing along the sidewalk in front of her door; that he faced her, had a gun, and shot twice, once up the street and again toward her son’s car; the lighting was good, and she had known defendant for about three months, as he had been coming to her son’s home; that she recognized defendant as soon as she opened the door. She identified him definitely at the trial.
The police came promptly, interrogated Laberta and took various photos of the scene. Leroy was pronounced dead upon arrival at the hospital. The photos were received in evidence. Defendant was not at his home when the officers went there, but he was arrested about 3:00 a. m. the next morning at a restaurant. His coat or jacket, his trousers, and his shirt were taken as evidence and offered at the trial. Laberta and the mother identified the coat as looking like the one defendant was wearing at the time of the shooting.
Defendant took the stand, denied all connection with the murder, and testified to facts which placed him elsewhere at the time in question. Several witnesses, members of defendant’s family and friends, testified to facts placing him elsewhere before, after, or at the time of the killing. Some of these identified clothes as the ones defendant was wearing on that day or evening.
Defendant’s first point is that he was deprived of due process and a fair and impartial jury because the Court excluded for cause four prospective jurors, upon their responses to inquiries regarding the death penalty. The point is denied for two reasons: (1) the death penalty was not imposed; and (2) the questions were not improper. Defendant relies on Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, and State v. Thursby, Mo., 245 S.W.2d 859. Thursby is in nowise applicable. In Witherspoon the death penalty had been imposed and the Court held unconstitutional an Illinois statute which provided, in substance, that conscientious scruples against capital punishment or the fact that one “is opposed to same” should be cause for challenge. The Court stated that the case did not involve the exclusion of jurors who say that they “would refuse even to consider” the death penalty. In Bumper v. North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, decided on the same day, the Court held expressly that the Witherspoon rule did not apply where defendant had received a life sentence and not death. The Court there also declined to hold that such a jury would be biased as to guilt, although inquiry had been made and certain members excused because they had conscientious scruples against imposing the death penalty or were opposed to capital punishment. In fact, the Court in Witherspoon reached that same conclusion, and reversed only as to the penalty.
Missouri has followed the Bumper ruling (or the principle announced) several times. State v. Richards, Mo., 467 S.W.2d 33; State v. Quinn, Mo., 461 S.W.2d 812; State v. Pollard, Mo., 447 S.W.2d 249; State v. Coyne, Mo., 452 S.W.2d 227. It is unnecessary to consider these cases individually, for the rule in Missouri is settled. Defendant says that this jury was “stacked and conditioned” to a verdict of guilty. The cases hold to the contrary. Wither-spoon, Bumper, Quinn.
We further hold that the questions asked of the veniremen were not improper under any of the cases. They were, generally: whether the prospective jurors had any conscientious scruples or religious beliefs which would prevent them from considering the death penalty. Those excused stated that they did have. Even the With-erspoon case did not disapprove that form of question and inferentially approved it. Our cases, just cited, have also voiced full approval of that form of question.
Defendant cites Section 546.130, RSMo 1969, V.A.M.S., which is as follows: “Persons whose opinions are such as to preclude them from finding any defendant guilty of an offense punishable with death, shall be ineligible to serve as jurors on the trial of an indictment or information charging any such offense, unless such disqualification is waived by the representative of the state when selecting the jury in any such case.” Counsel say that the questions here did not follow the wording of that statute in that they did not ask for opinions regarding guilt. In State v. Pinkston, 336 Mo. 614, 79 S.W.2d 1046, cited by defendant, prospective jurors were asked whether under certain circumstances they would vote for the death penalty. The Court held that counsel should not have thus asked the veniremen to speculate upon what they would do. However, after quoting the statute, the Court held specifically at loe. cit. 1049 that “If a prospective juror’s opinion were such that would preclude him from assessing the death penalty in a capital case, then he would be disqualified as a juror in that case,” regardless of what his reason was. The Court then indicated that the proper form of question would be whether the juror had such an opinion “as would preclude him from returning a verdict with the death penalty * * The Court there approved, in substance, the very questions asked here and required nothing else under the statute. The statute does not require more, nor do our subsequent and very recent cases. The jurors here were not asked to commit themselves or speculate on either guilt or punishment. There was no error.
The second and remaining point involves an attempted impeachment of the witness Shinault, who was sitting in the car, saw the men come out, and laid down in the front seat. Shinault testified, initially : that it was dark, that he did not see either man’s face, and particularly that he did not see the face of the second man identified otherwise as the defendant; that he would not have known him if the man passed him on the street; that he did not notice which of the two was “bigger” or their height; and that he could not identify their clothing. Although defendant’s counsel cross-examined this witness at length he asked nothing concerning a supposed telephone conversation with defendant’s brother on the early morning of March 14th. However, counsel later sought to impeach this witness by showing the alleged phone conversation. The Court, on objection, excluded this testimony of the brother on the ground that no foundation had been laid. Impeachment may only be made where the witness has been asked the specific question upon which he is sought to be discredited. State v. Dent, Mo., 473 S.W.2d 370. Still later counsel for defendant sought to recall Shi-nault to lay such a foundation. Whether defendant “reserved” the right to recall the witness, as he sought to do, cannot affect the discretion vested in the Court as we shall discuss it, and as the facts then appeared. After much colloquy and argument the Court agreed that Shinault might be recalled, but as defendant’s witness. We note here that we fail to see why defendant urges that the Court erred in refusing to recall the witness and, contrariwise, the State argues that such refusal was not error. The record clearly shows that the witness was recalled and he was examined, whether it be called cross-examination or not. He then testified: that he did call defendant’s brother and told him of defendant’s arrest; that he did not think he told the brother that the person who did the shooting "was not James”; that he did not tell him that the person “did not look like” defendant; that he did tell him that he “couldn’t identify who it was.” Some of this questioning was actually in the form of cross-examination, as “Did you * * * tell him * * *?” The ruling that Shinault be recalled only as defendants witness really made no substantial difference.
With this as a supposed foundation for impeachment, defendant produced the brother, Larnelle Haynes; he was examined out of the presence of the jury, actually as an offer of proof. This testimony was, in substance: that in the telephone conversation Shinault told him that the police had James and that “he couldn’t believe it at first,” and “that it couldn’t be James you know”; that the man “wasn't as tall as James,” and was stouter, but that Shinault changed his story at the Circuit Attorney’s office. He further testified that he had told defendant’s counsel of this conversation three or four months before trial and again during trial. Objection to this offer was originally sustained as hearsay and because no foundation for impeachment had been laid, but in the colloquy the Court added that Shinault had never identified the defendant, or said that the man was the defendant. As we read the record, the Court did not exclude the evidence because it was upon a collateral matter, as defendant now claims. But, be that as it may, if the ruling was correct, the reasons are immaterial. See State v. Hughes, discussed later. The substance of Shinault’s testimony, throughout, was that he did not and could not identify the man and that, in the conversation, he did not exclude or include him. The testimony of the brother involved matters about which Shinault was not specifically asked. Thus, there was no substantive inconsistency, and no proper foundation for impeachment existed.
Such matters are universally held to be within the sound discretion of the trial court. State v. Neal, 350 Mo. 1002, 169 S.W.2d 686. Defendant insists that the discretion was abused here. We disagree. Counsel cite many cases on the general subject of the discretion, its abuse, and the right of review for abuse. They deal in generalities and it would be futile to review them here. They cite nothing which they claim to be on similar facts. The rule from defendant’s own cited cases is that there is no error unless it is manifest that the Court’s discretion has been abused and that the appellant has been injured. Counsel specifically refer to State v. Malone, Mo., 301 S.W.2d 750. There, with no further statement of facts, the Court merely held that it was not an abuse of discretion for the trial court, after first refusing defendant’s request to recall certain State’s witnesses, to authorize their recall and examination as adverse witnesses. The opinion has no real application here. A closer case upholding the Court’s discretion here in refusing impeachment because no proper foundation had been laid is State v. Hughes, Mo., 460 S.W.2d 600; and there it was also held that if the Court was correct in excluding the evidence the action is not erroneous, whatever reason may have been given. The action of the Court in excluding the testimony of defendant’s brother was well within its discretionary powers. We further note that defendant’s counsel conceded that the supposed impeaching testimony would not have been admissible to prove the truth of the statements said to have been made by Shinault. In view of that proposition, and the fact that defendant was positively identified by two witnesses who knew him, we have the most serious doubt that the exclusion could have been prejudicial in any event. However, our ruling is based upon the Court’s discretion. This point is denied.
Finding no error, the judgment is affirmed.
PER CURIAM:
The foregoing opinion by HENRY I. EAGER, Special Commissioner, is adopted as the opinion of the Court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and SCHOENLAUB, Special Judge, concur. |
sw2d_482/html/0449-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HIGGINS, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Jack Virgil CAFFEY, Appellant, v. STATE of Missouri, Respondent.
No. 56699.
Supreme Court of Missouri, Division No. 3.
July 17, 1972.
Jack Virgil Caffey, appellant, pro se and C. M. Hulen, Jr., Moberly, for appellant.
John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Rule 27.26, V.A. M.R., to vacate and set aside judgment of conviction of stealing property of a value of at least fifty dollars. §§ 560.156, 560.-161, V.A.M.S.
On October 10, 1967, Jack Virgil Caffey was convicted of stealing property of a value of at least fifty dollars ($175 in currency), Sections 560.156 and 560.161, supra, and complaints at trial were limited to the question of jurisdiction of the circuit court to try the case based on assertions of denial of a speedy trial. The judgment of conviction was affirmed, and a credit against the sentence was ordered for time spent in the Randolph County jail awaiting preliminary hearing. State v. Caffey, Mo., 438 S.W.2d 167.
Subsequently, Jack Virgil Caffey filed a petition for writ of habeas corpus in the United States District Court for the Western District of Missouri. As grounds for relief, petitioner asserted:
“(a) * * * denied his Sixth Amendment right to a speedy trial.
“(b) * * * denied his Sixth Amendment right to the effective assistance of counsel.” That court noted that petitioner had neither raised nor briefed his contention (b), and dismissed the petition for failure to exhaust state remedies, observing further that petitioner “should therefore file a motion to vacate his sentence under Missouri Criminal Rule 27.26 in the state trial court in which he raises all the grounds and presents all evidence known to him for his contention that his state conviction was secured in violation of his federally protected rights.” Caffey v. Swenson, D.C.W.D.Mo., 310 F.Supp. 16, 20.
On February 18, 1970, Jack Virgil Caf-fey filed his motion under Rule 27.26, alleging as grounds for relief: “(a) * * * denied his Sixth Amendment right to a speedy trial * * *. (b) * * * denied his Sixth Amendment right to the assistance of counsel * * *. (c) * * * denied state procedural due process * * *.”
On February 19, 1970, the trial court denied the motion without a hearing. An appeal (No. 55,505) was taken and, on December 14, 1970, after its submission, this court set aside the submission and remanded the cause for evidentiary hearing on any claims for relief known to movant, noting, in particular, the appearance of an issue of fact whether movant was denied effective assistance of counsel.
The evidentiary hearing was accorded February 16, 1971, at which time movant was represented by Mr. C. M. Hulen, Jr., who, following conference with movant, announced the hearing would proceed on the original motion without amendment.
Jack Virgil Caffey gave his version of events prior to trial. On July 18, 1966, he was taken before the Magistrate Court of Randolph County from the Missouri state penitentiary to answer a complaint of felonious stealing (over $175 in currency). He requested immediate preliminary hearing and appointment of counsel — inasmuch as he was otherwise in prison on other convictions. The court set the matter for the 25th of July and remanded him to custody of the sheriff and “counsel would be in touch with me.” By way of next contact with court or counsel, “there were two times that I did speak to a lawyer in the county jail and attempted to get some kind of an agreement with them.” One of them, Mr. Henderson, subsequently was appointed as counsel for him. “ * * * then a Mr. Blaeuer * * * I wrote a letter and had him come over * * * and I told him what my position was and he said he would look into it, and he advised me by letter what his thoughts were on the subject.” He was unable to make the necessary financial arrangement with Mr. Blaeuer. He thought this was after the latter part of 1966.
His next contact with court or counsel was “probably May the Sth (1967),” following a letter in the nature of a petition for writ of habeas corpus which he wrote to the magistrate May 3, 1967.
He was taken before the magistrate court on the 16th of May. The magistrate advised him “that he had appointed a Mr. Walden, that he was going to continue the case again and that Mr. Walden would be in touch” with him. Movant, over his objection, was again remanded to the custody of the sheriff. On May 23, 1967, he was again taken before the magistrate court and was advised there was some reason Mr. Walden was not there and the case was continued. He again requested immediate preliminary hearing and, upon leaving court, saw Mr. Walden and they conferred briefly. This was Mr. Walden’s first knowledge of his appointment. He told Mr. Walden of a pending application in the Missouri Supreme Court for writ of habeas corpus and Mr. Walden was to “look into it for me and consult with me later.” On May 30, 1967, he had not yet heard from Mr. Walden. “I figured this was leading to another continuance, and so I told him I couldn’t have another continuance and I asked him to withdraw.” Mr. Walden honored the request.
On June 7, 1967, Mr. Arthur O’Keefe was appointed as counsel. Within two or three days, and after conference with Mr. O’Keefe, he withdrew as counsel. “I may have fired him later, but I was intending to have my contentions presented. * * * the denial of a speedy trial and assistance of counsel * * *. He was for the position that I would get bound over real quick * * *»
On June 13, 1967, Mr. Richard Chamier was appointed as counsel for movant. They conferred concerning movant’s contentions and appeared in magistrate court June 14, 1967. Mr. Chamier presented movant’s motions going to denial of speedy trial and counsel. A disagreement arose regarding the method of presentation which resulted in Mr. Chamier’s withdrawal. “ * * * he just didn’t argue the motions. He just made the bare allegations that the preliminary had been delayed for more than ten days at one time. * * * he should have made, I thought, a more forceful argument * * * then I represented myself at the preliminary hearing and there was a separate hearing for the misdemeanor charge.” He cross-examined witnesses and argued his motions. At this appearance, he was found guilty of the misdemeanor, was bound over on the felony, and was remanded to custody of the sheriff.
On June 15, 1967, he was arraigned in circuit court on the felony charge, and Mr. Marion E. Lamb was appointed counsel. He had opportunity to confer with Mr. Lamb. “I told Mr. Lamb I could not go to trial on the merits of the case and all I was interested in was presenting my motions to dismiss.” At trial October 10, 1967, he presented evidence on his motion to bar prosecution for failure to accord speedy trial. He stated witnesses were not available; and he now names them as his father, who died in October, 1966, and a man called “Spanky.” He says now that his father would have testified that movant was in possession of the two bags of coins, subject of the prosecution, before the alleged stealing occurred, and that “Spanky,” a professional gambler holding a Kansas liquor license, who he last saw in April, 1966, would have testified that subject coins were given him by “Spanky” in March, 1966, prior to the date of the alleged offense.
Movant also complained of loss of “blood time” and library services during his jail stay which would have been available in the penitentiary.
Mr. O’Keefe and Mr. Chamier were called in response to the motion.
Mr. O’Keefe, upon learning of his appointment, conferred with movant. “ * * * we sat down and started to talk about it, and he at the time said that he wanted me to guarantee or to assure him that I would ask certain questions at the time of the trial, and that as I remember Mr. Walden had not, or he had been represented by someone before that he said had not asked questions that he thought pertinent and that he had required them and the lawyer refused to ask the questions that he wanted asked. I told him that I could not do that, all I could do was to assure him that I would ask such questions that I thought proper, that I had been practicing law for so many years, and for his best interest and welfare and his protection that I would ask certain questions that I thought proper and if I thought the ones he wanted to ask were proper I would, but I would not guarantee that I ask all questions that he requested me to do so. Then if I remember he became rather indignant, I don’t know what happened, but the sum total was that in my view there was an absolute conflict of theories on how to try a lawsuit and if he is going to demand certain things such as that that I couldn’t stay in the lawsuit because I couldn’t make these promises that I would ask any question he demanded of me, and I came back in and requested the court to be relieved for that reason. * * * I remember we were going along famously, and the nature of the case I thought probably he might have a chance, I don’t know, I remember that far. It was a very pleasant relationship. I advised him on various matters, and then we got to this case, asking these questions, and I remember I asked him what kind of questions, and he was very vague, and then he gave me some examples, and some were probably proper questions, and some others, those questions shouldn’t be asked at all, and he said you’ll have to ask those questions, and I said I don’t have to do anything, and then the relationship deteriorated from there on down. * * * I would say that the first IS or 20 minutes was taken up by giving him a review of the case. Also he said * * * something about the preliminary hearing, but I don’t remember exactly all the details.”
Mr. Chamier “started out pretty much with a disagreement and proceeded from a disagreement to a point where we, I think, pretty well understood each other, and where we have, at least I have, some warm feeling for him. But at the preliminary, if I remember the facts correctly, I found that Mr. Caffey was a man who had an idea as to how his case ought to be handled and we didn’t agree on how it ought to be done, and I am sure that at about that point I might have had a belly full and I wasn’t going to go any further. I wasn’t used to having clients telling me how to handle the lawsuit, and I didn’t know at that time how, and I am serious when I say, this, I didn’t know at that time how well versed Mr. Caffey was, I didn’t know how mature his judgment was, and I was disinclined to walk down the road to justice with Mr. Caffey because he wouldn’t listen to me * * With respect to presentation of certain of his motions, “I did not agree to do the method of presentation that he had in mind and this is what resulted in our mutual agreement to disagree.”
In denial of relief, the trial court made these pertinent findings and conclusions:
“ * * * that movant’s constitutional right to a speedy trial was not violated. State v. Caffey 438 S.W.2d 167. Petition for Writ of Certiorari to Supreme Court of Missouri [U.S.] denied on October 13, 1969, 396 U.S. 853, 24 L.Ed.2d 102, 90 S. Ct. 114. * * * that movant’s testimony as to his father and one ‘Spanky’ as witnesses testifying in his defense is not true and finds that movant failed to sustain the burden of proving that as a result of the delay in holding a preliminary hearing and not effectively appointing counsel for him that he was hindered or prejudiced in the presentation of a valid defense at his trial. * * * Movant contends that none of his court appointed counsel advised him that he had the burden of proving that he had been denied a speedy trial and so testified at the hearing on this motion. The court rejects this contention and finds that he did receive effective assistance of counsel. The trial transcript reveals that1 prior to his trial in Circuit Court a Motion in Bar of Prosecution was filed. This motion was based primarily on the claim defendant had been denied due process and his right to a speedy trial under the U.S. Constitution. That defendant and two other witnesses were placed on the stand and testified to support the motion. This evidence was presented by defendant’s attorney. The court specifically finds that there is no credible evidence to show that movant’s trial attorney did not advise him that he should assume the burden of proof and present evidence in support of his pretrial motion. The court further finds that there has been no evidence presented by movant that he had ineffective assistance of counsel at his trial or in the preparation for said trial or at any critical stage of the proceedings against him in the case.”
Appellant’s first contention, as briefed by counsel, is that defendant was denied his right to a speedy trial as guaranteed by Amendment VI, United States Constitution. The supporting argument asserts that the right to speedy trial arose July 18, 1966, "if not sooner”; that the state delayed prosecution unreasonably, either negligently or deliberately, and that the delay prejudiced his rights through loss of witnesses.
This issue was presented by defendant in his motion to bar prosecution upon which hearing was held before trial October 10, 1967, Caffey v. Swenson, supra; and defendant testified to the same time lapse, other incidents of the proceedings, and inability, due to the delay, to obtain witnesses for trial. The only difference from that evidence and that adduced in this evidentiary hearing is that movant is now willing to name such witnesses and suggest what testimony they might have been expected to give. The court overruled the pretrial motion to bar prosecution; the trial resulted in conviction; and, upon appeal, the denial of the motion and conviction were affirmed. State v. Caffey, supra, 438 S.W.2d 167, cert. den. 396 U.S. 853, 90 S.Ct. 114, 24 L.Ed.2d 102. The attempt on this evidentiary hearing to bolster the vague allusions to prejudice as a result of absent witnesses by now naming them was not believed by the trial court. Shoemake v. State, Mo., 462 S.W.2d 772, 775 [4]. The prior decision is controlling, and Rule 27.26 does not permit a second appeal on an issue presented on original appeal. Crawford v. State, Mo., 436 S.W.2d 632.
Appellant also briefs this point, pro se, recognizing, as he must, the impact against him of his prior appeal on this issue. In order to avoid the difficulty thus imposed, he submits the court should overrule State v. Caffey, supra, 438 S.W.2d 167. The invitation is declined.
Appellant’s second point, as presented by counsel, is that defendant was denied his right to have assistance of counsel. The supporting argument asserts that he was denied assistance of counsel through the failure of the magistrate to communicate to Mr. Walden his appointment as counsel for defendant, and the short times that other lawyers conferred with him. Appellant also briefs this contention pro se. It is recognized that defendant did have counsel at preliminary hearing, Mr. Chamier, and at trial, Mr. Lamb. There is no evidence that either of these lawyers, or any of the others appointed at various times to represent defendant, did not render effective assistance in what they were permitted to do. Each of them was burdened and hindered by the limits and demands imposed by defendant himself. With the evidence on this issue in such posture, it may not be said that the trial court’s denial of relief on this ground was “clearly erroneous.” Rule 27.26, supra; Crosswhite v. State, Mo., 426 S.W.2d 67. See also the prior ruling on this issue in State v. Caffey, supra, 438 S.W.2d l. c. 173 [8], with respect to “delay in the ‘effective assignment of counsel.’ ” Caffey v. Swenson, supra.
Appellant, by pro se brief and pro se supplement, contends also that this court should revise its judgment on the original appeal by which defendant was given “credit on his penitentiary sentence and judgment in our Case No. S1S96 for the time spent in confinement in the Randolph County jail awaiting the preliminary hearing * * State v. Caffey, supra, 438 S.W.2d l. c. 174 [13]. Appellant’s presentation of this request appears by his brief to involve an “order of the Circuit Court of Cole County, entered December 13, 1971,” in a petition for “Declaratory Judgment” filed February 4, 1970, and a “Motion for Court Order Allowing Credit on Sentence for Pre-trial Confinement” filed December IS, 1971, in the Circuit Court of Randolph County, alleged to have been overruled February 10, 1972. Neither of these orders appears in the transcript, nor is there any transcript of any such proceedings upon which to review this assertion. Accordingly, it is not presented for consideration on this appeal.
Judgment affirmed.
WELBORN, C., not sitting.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
BARDGETT, Acting P. J., SEILER, J. and JENSEN, Special Judge, concur.
HOLMAN, P. J., not sitting.
. See State v. Caffey, Mo., 445 S.W.2d 642, affirming conviction on the misdemeanor charge.
. On original appeal, it was noted that defendant was unwilling to name witnesses or suggest what testimony they might give. His testimony with respect to existence of a defense and availability of witnesses to substantiate was characterized as “vague, indefinite and unconvincing” ; and the opinion observed, “Evidently the trial court did not believe this testimony and on this review we find that Caffey failed to sustain the burden of proving that as a result of the delay he was hindered or prejudiced in the presentation at the trial of a valid defense.” State v. Caffey, supra, 438 S.W.2d l. c. 172-173 [7].
|
sw2d_482/html/0454-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Eugene Robert TUCKER, Appellant, v. STATE of Missouri, Respondent.
No. 57143.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
James F. DeNeen, Joplin, for appellant.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.
STOCKARD, Commissioner.
Eugene Robert Tucker has appealed from the order of the Circuit Court of Jasper County overruling his motion pursuant to Rule 27.26, V.A.M.R. We affirm.
Appellant was found guilty by a jury of first degree robbery and the jury assessed punishment at imprisonment for a term of fourteen years and one day. No motion for new trial was filed and no appeal taken.
Appellant’s first point is that his court-appointed trial counsel was ineffective in that he was “inexperienced in criminal trials and incorrectly advised appellant that filing a motion for new trial could get appellant a more severe sentence.”
Appellant’s counsel had previously practiced law in Dallas, Texas, and Little Rock, Arkansas. At the time of trial he was a practicing attorney in Joplin, Missouri. He had been appointed as defense counsel in approximately a dozen cases. His practice, other than by appointment, consisted primarily of civil work, and included the trial of cases. The trial court, who had witnessed the conduct of appellant’s trial, made an extensive review of the facts and concluded: “This case was carefully prepared and well tried by Mr. Dermott and defendant’s rights were carefully and fully protected to an extent far exceeding the standards set out in the opinion in Jackson v. State, [Mo.], 465 S.W.2d 642.” We note that appellant stated at the time of allocution that he had no complaint as to the services of his counsel.
Lack of previous experience in the trial of criminal cases, as distinguished from civil cases, does not, standing alone, demonstrate ineffectiveness of counsel, and appellant points to nothing in his point to support his assertion other than that a motion for new trial was not filed. Appellant testified at the hearing on the motion pursuant to Rule 27.26 that his counsel advised him that if a motion for new trial was filed he would “receive more time.” His counsel testified that he advised appellant that in his professional judgment theie was no reversible error in the trial, but that if a new trial was obtained there would be the risk of a more severe sentence if appellant was found guilty. Appellant argues that by reason of the rule announced in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, a more severe punishment could not have been imposed on a second trial, and that the advice of his counsel demonstrates ineffectiveness of counsel in the constitutional sense. First, appellant admits that the Pearce case was decided subsequent to his trial, and that the advice was correct when given. See Spidle v. State, Mo., 446 S.W.2d 793. Second, as stated in the Spidle case, North Carolina v. Pearce “dealt with constitutional limitations upon the imposition by a judge of a more severe sentence upon a defendant after a new trial,” and that when the second sentence is imposed by a jury without knowledge of the prior trial, “considerations found to require the result reached in Pearce are not applicable.” Although not directly in point, see Colten v. Kentucky, (decided June 12, 1972) 405 U.S. — , 92 S.Ct. 1953, 32 L.Ed. — . Ineffectiveness of counsel cannot result from the giving of correct advice.
Although not set forth in his motion in support of his assertion of ineffectiveness of counsel, appellant testified that in his opinion his counsel should have “pressed that illegal search and seizure,” that he should have challenged the sentence of fourteen years and one day, and that in support of his motion for a change of venue his counsel should have presented evidence that at about the time of the robbery of which he was charged, a policeman had been killed in Joplin. In the argument under the first point no mention is made of these contentions. We note that subsequent points in appellant’s brief pertain to these matters, and they will subsequently be discussed. In any event, these matters pertain only to trial strategy and do not form the basis for a finding of ineffectiveness of counsel in the constitutional sense. The trial court’s finding of effective representation is not clearly erroneous.
Appellant’s second point is that he was “denied access to law material and in particular a copy of the Constitution of the United States and of Missouri and access to a legal library.”
The only evidence in support of this contention is the testimony of appellant in reference to what actions, other than those taken by his counsel, he thought could have been taken. Appellant testified that “He [counsel] could have also gave me a copy of the Constitution of Missouri, also a copy of the Constitution of the United States of America, which was denied me.” He further testified that he requested copies of the constitutions in “front of the judge” and that the judge told him that he would see that he obtained copies. He also testified that he “requested access to the legal library for my own case.”
If there were merit to this contention it would present the unique situation where legally educated and trained counsel must be appointed to represent an indigent accused, but the untrained and uneducated, as to legal matters, accused must be furnished a law library to prepare his own case independent of his counsel. We need not determine to what extent an accused awaiting trial and in confinement must be afforded access to available legal material, or to what extent he must be permitted to acquire his own material. The only evidence of any request was appellant’s testimony, which the trial court was not required to believe, and if a request was made as testified to by appellant it would have been of record, but the record does not show any such request. Under these circumstances it is sufficient for the determination of this point to rule that the finding of the trial court that appellant was not denied access to law material is not clearly erroneous.
Appellant’s third point is that the trial court “erred in denying appellant a change of venue from Jasper County because the inhabitants of Jasper County were bias[ed] and prejudice[d].”
This was a matter subject to correction on appeal if the denial of a change of venue was erroneous, but no appeal was taken, and a motion pursuant to Rule 27.26 is not to serve as a substitute for an appeal, at least on matters not of constitutional dimensions. In addition, at trial the court ruled that the basis for the motion for a change of venue was not proved, and in its findings on the 27.26 motion the court again so found. That finding is not clearly erroneous.
The above three grounds, are all that were set forth in appellant’s motion pursuant to Rule 27.26. However, in its findings of fact and conclusions of law the trial court mentioned that in appellant’s oral testimony and in a letter or memorandum from appellant which was filed with the court after the hearing on the motion, he made other and additional complaints. The court then stated that it had “tried to deal with each contention as though it were contained in the motion.” We shall consider the following contentions which are presented in points of appellant’s brief, and which were ruled by the trial court, on the same basis as did the trial court; as though they were contained in the motion.
Appellant asserts that the sentence of fourteen years and one day is illegal because it consists of two sentences, and he must serve the fourteen years before he can start serving the one day sentence. No authority is cited in support of this contention, and it is not correct. There was, and could be, only one sentence for the offense of which appellant was found guilty. In State v. Turner, Mo., 123 S.W.2d 105, a sentence of three years and one day was held not to be illegal, though unusual. Appellant asks, in argument, that we. “rule that he is eligible for parole so that the Probation and Parole Board will not deny him a parole on the basis of his unusual sentence.” There is nothing to indicate that a parole has been denied for this reason, and such requested action is not within the scope of Rule 27.26. The trial court’s finding that the sentence was not illegal is correct.
Appellant asserts that the showing of photographs to witnesses for identification purposes “without presence of appellant’s counsel violated his constitutional rights to have the assistance of counsel at all critical stages of trial.” Appellant cites and relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, but that case does not require the presence of counsel when photographs are viewed for purpose of identification. In Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, the court held: “[E]ach case must be considered on its own facts, and * * * convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Appellant presented no evidence tending to show that the viewing of the photographs was suggestive. We note that the identifying witnesses testified that they observed appellant at the scene of the robbery. He was also identified by a highway patrolman who stopped an automobile in which appellant was riding and in which the fruits of the robbery were found. The trial court found that the photograph identification was independent of and did not taint the in-court identification, and that finding is not clearly erroneous.
At the hearing on the motion appellant was asked if there was anything else he cared to say, and he replied that he understood that his appointed counsel for the motion pursuant to Rule 27.26 was the prosecutor for the City of Joplin, and that it was illegal for him to represent appellant at the hearing on the motion. The trial court found that as city prosecutor the appointed counsel had no connection with the Jasper County prosecuting attorney’s office which represented the State at the hearing on appellant’s motion, and that there was no conflict of interest. This was correct. See State v. Hamblin, Mo., 448 S.W.2d 603.
Appellant next contends that the jury verdict was not unanimous, apparently because prior to returning its verdict, and while in the courtroom, one juror stated that he had not then agreed to a verdict. However, the jury subsequently returned a verdict of guilty, and when polled each juror in open court affirmatively stated that the verdict of guilty was his verdict. The record shows a unanimous verdict, and the trial court correctly so found.
Appellant testified that he had hepatitis during the trial, and that his illness was a matter of record made by the doctor at the county jail. The doctor was not called and no record was offered in evidence. Appellant’s trial counsel testified that he did not recall that appellant appeared to be ill, but instead he appeared to be mentally alert during the trial. No complaint was made by appellant to the court that he was ill. The trial court’s finding that the alleged illness, if any, of appellant did not prejudice him in the trial of his case is not clearly erroneous.
Appellant’s last point is that the motion to suppress a gun as evidence should have been sustained because it was seized during an illegal search.
A motion to suppress was made prior to trial, a hearing was held, and the motion was overruled. If this was error it was subject to correction on appeal, but no appeal was taken. Although appellant is not entitled to use a motion pursuant to Rule 27.26 to obtain a review of trial errors correctible on appeal, we note that appellant and two companions were arrested after the arresting officer had been notified of a robbery, and the description of robbers fitted the occupants of the automobile, and the automobile fitted the description of the automobile in which the robbers left the scene. As an incident of the arrest, the occupants were searched for weapons. One was wearing a gun in a shoulder holster, and another gun was on the front seat of the automobile in plain sight. Appellant was wearing an empty shoulder holster, but a gun was found on the front seat under the same clothing. The court found that the arresting officer had reasonable grounds to believe that a robbery had been committed, that appellant and his companions had committed that robbery, that the arrest was lawful, and that the search which revealed the guns was a reasonable incident to the arrest. This finding is not clearly erroneous.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
All of the Judges concur. |
sw2d_482/html/0459-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Barney J. MORRIS, Respondent, v. STATE of Missouri, Appellant.
No. 56845.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.
Kenneth L. Waldron, Jackson, John P. Lichtenegger, Columbia, Assisting under Supreme Court Rule 13 for appellant.
STOCKARD, Commissioner.
Barney J. Morris has appealed from the order of the trial court overruling his motion to withdraw his plea of guilty to stealing a hog of the value of $58. We reverse and remand.
At the time of arraignment appellant entered a plea of not guilty, and in the discussion with the court concerning the hiring of an attorney he stated: “Well, Your Honor, I don’t know nothing about it [the charge of stealing] only what I’ve heard. I was out when that all taken place.” About a month later appellant appeared in court with counsel and the following occurred:
BY THE COURT: Now, Mr. Morris, your attorney says you want to withdraw your plea of not guilty and enter a plea of guilty, is that right?
DEFENDANT: Yes, sir.
BY THE COURT: This is your own choice to do this?
DEFENDANT: Yes, sir.
BY THE COURT: And are you doing this because you are guilty?
DEFENDANT: Well, from what I’ve heard, been told—
BY THE COURT: Well, now, listen, you don’t need to be heard or told, if you know you are guilty, you are guilty, if you don’t, why, I don’t want you pleading guilty. I don’t want you saying you are guilty.
DEFENDANT: It was done in my truck and I was along, so I am guilty for being there.
BY THE COURT: That’s right. Now, has anybody threatened you to make you plead guilty?
DEFENDANT: No.
BY THE COURT: Has anybody promised you anything to get you to plead guilty ?
DEFENDANT: No.
There was no explanation of the range of punishment; there was no determination whether counsel had explained the consequences of a plea of guilty; and there was no determination of the facts which appellant was admitting by his plea, and that those facts would result in him being guilty of the offense charged. At most, the plea was equivocal. State v. Williams, Mo., 361 S.W.2d 772; State v. Arnold, Mo., 419 S.W.2d 59. It amounted to a legal conclusion on the part of appellant which may or may not have been correct depending on the facts which were not related to the court by the prosecutor or appellant.
Although it may be established at the hearing on the motion that the plea was voluntarily and understandingly made, even though the record made at the time does not show full compliance with Rule 25.04, V.A.M.R., State v. Mountjoy, Mo., 420 S.W.2d 316, no such showing was made in this case. At the hearing appellant testified that on the day of the alleged offense he had been drinking, and that the last thing he could recall that evening was when he was in a tavern. The next thing he could remember was the following morning when he “was back in Van Burén at [his] home in the truck.” He denied he was guilty of stealing the hog. He admitted that when the hog was stolen by someone he was in the truck, “otherwise [he] didn’t know how [he] got from Lutesville back to Van Burén.” Appellant was the only witness at the hearing on the motion, and the above testimony stands unrefuted. The court was not required to believe appellant’s testimony, but if it does not, that leaves the record made at the time the plea was accepted affirmatively showing an equivocal plea of guilty. Under these circumstances we are constrained to rule that the trial court’s finding that the plea was understandingly entered is clearly erroneous.
The order denying the motion to withdraw the plea of guilty and vacate the sentence is reversed and the cause remanded.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, C., is adopted as the opinion of the Court.
MORGAN, P. J., and DONNELLY, J., concur.
HENLEY, J., concurs in result. |
sw2d_482/html/0461-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HENLEY, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Rose FENDELMAN, Administratrix of the Estate of Erwin Fendelman, Deceased, et al., Plaintiffs-Appellants, v. FENCO HANDBAG MANUFACTURING CO., Inc., a Corporation, et al., Defendants-Respondents.
No. 55282.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
Thompson, Walther & Shewmaker, Bernard N. Frank, Paul M. Fletcher, St. Louis, for appellants.
Susman, Stern, Agatstein & Heifetz, Sylvan Agatstein, St. Louis, for respondents.
HENLEY, Judge.
This is a suit in equity to recover for the benefit of a corporation alleged excessive compensation paid to its officers, who, as directors of the corporation, determined and fixed their own compensation. Plain-iffs appeal from a decree in favor of the individual defendants.
The Fenco Handbag Manufacturing Company (hereinafter Fenco), nominal defendant, was organized as a corporation in February, 1961, by Erwin Fendelman, Ann Wittner Lazaroff, Meyer Lazaroff and Norman Rosenblum. Its business is the manufacture of-women’s handbags for sale at wholesale. Plaintiff Rose Fendelman is the widow-administratrix of the estate and plaintiff Maxine Levin is the daughter of Erwin Fendelman who died at the age of 74 on January 1, 1968, leaving them as his sole heirs. They own approximately 22% of the outstanding shares of stock of Fen-co. The individual defendants (hereinafter defendants) are Ann Wittner Lazaroff, sister of the deceased, Erwin Fendelman; Meyer Lazaroff, husband of Ann; Howard A. Wittner, son of Ann; Barbara Ro-senblum, daughter of Ann; and Norman Rosenblum, husband of Barbara and son-in-law of Ann. They own the remainder of the stock of Fenco and since April 1, 1963, have been the only members of its board of directors. Erwin Fendelman was the first president of Fenco. He was a member of its board of directors until April, 1963. In February, 1963, he was injured in an automobile accident; in March he was not reelected to the board of directors. Defendants were elected directors for the fiscal year 1964. At the March, 1963, meeting the board elected Ann Laza-roff to succeed Erwin Fendelman as president of the company. At that meeting Erwin Fendelman was elected assistant treasurer, and continued in that post until his death, but he performed no duties as such. He continued to work for the corporation as a lining cutter, employment he began with it in February, 1961.
As indicated, Fenco is a close corporation; it began business and was operated more or less as a family organization.
The substance of the allegations of plaintiffs’ petition is that for and during the six fiscal years 1964 through 1969, defendants, as directors and officers of Fen-co, in violation of their fiduciary obligations as such to the corporation and its shareholders, authorized the payment and paid to themselves salaries and bonuses grossly in excess of the reasonable value of their services to the damage of the corporation. By their answer, defendants denied that the compensation paid them was excessive, but alleged that if it was, plaintiffs, standing in the shoes of the deceased Fendelman, are estopped and barred by laches from maintaining this suit, because Erwin Fendelman knowingly acquiesced in and consented to the fixing of the compensation paid defendants, and, in fact, participated in the plan of compensation fixed by defendants in that he accepted salaries and other benefits in excess of the reasonable value of his services as lining cutter, a mere manual laborer.
The court made extensive findings of fact and conclusions of law and, as indicated, entered a decree in favor of defendants. In general, the court found and concluded (1) that the compensation paid the defendants was not excessive, but was fair and reasonable; that it was “ * * * not so disproportionate to the value of services performed as to be actionable on behalf of the corporation * * * ”; (2) that Erwin Fendelman did not complain but acquiesced in the compensation paid to the officers and acquiesced in the management of the corporation by Norman Rosenblum; (3) that he (Fendelman) was paid compensation in excess of the reasonable value of his services and, therefore, he and his successors were estopped from complaining; (4) that “[a]ny laches of Fendelman or es-toppel * * * would not, standing alone as a matter of equity be sufficient to bar plaintiffs’ remedy, if defendants were chargeable with fraud, misconduct, or other oppressive acts.”
On this appeal we review the case de novo, weigh the evidence and determine on the whole record the relief, if any, to which plaintiffs are entitled. In making our determination of the facts from conflicting testimony, we give due regard to the opportunity of the chancellor to judge of the credibility of the witnesses and defer to his findings of the facts unless from examination of the record we are compelled to conclude that his findings are clearly erroneous. Ramacciotti v. Joe Simpkins, Inc., Mo., 427 S.W.2d 425, 426, 433 [2,4, 11].
Plaintiffs assert that the evidence shows that defendants, as the board of directors of the corporation, set salaries and bonuses paid to themselves as officers of the corporation. They contend that in these circumstances the burden is upon the defendants to justify their salaries and bonuses and show the reasonableness thereof; that the evidence shows that defendants failed to meet this burden and, therefore, the court erred in entering judgment for defendants. Plaintiffs further assert that the evidence shows that compensation paid defendants was excessive in the aggregate sum of $242,427 and that judgment in that amount should be awarded to plaintiffs for the benefit of Fenco.
The parties agree that defendants, as directors, set the salaries and bonuses paid to themselves each year as officers of the corporation. They are also in agreement that the law is that “In suits by stockholders to recover for the corporation, salaries claimed to be excessive and paid to officers, who are also directors, and these officer directors have set their own salaries, or whose votes were necessary to set their own salaries, the burden is upon the director officers to justify their salaries and show the reasonableness thereof.” Binz v. St. Louis Hide and Tallow Company, Mo.App., 378 S.W.2d 228, 230 [1]; Ruetz v. Topping, Mo.App., 453 S.W.2d 624, 627 [2]; Ramacciotti v. Joe Simpkins, Inc., supra, 427 S.W.2d at 432; 5 Fletcher, Private Corporations, pp. 561-562, § 2129 and p. 581, § 2133. Their primary disagreement is in whether or not defendants met their burden. Defendants claim that they did, and the trial chancellor so found. Plaintiffs, as indicated, claim that defendants failed to meet their burden.
The parties agree that the total compensation (salary and bonus) paid by Fenco to each defendant, except Barbara Rosen-blum, each year was as follows :
1. Norman Rosenblum
Year ending March 31:
1969 — $39,796 (salary $39,796; bonus, none)
1968 — $41,977 (salary $41,977; bonus, none)
1967 — $86,977 (salary $41,977; bonus, $45,000)
1966 — $49,977 (salary $41,977; bonus, $8,000)
1965 — $54,988 (salary $41,488; bonus, $13,500)
1964 — $54,000 (salary $41,000; bonus, $13,000)
1963 — $25,000 (salary $13,000; bonus, $12,000)
1962 — $8,255 (compensation for part of year)
2. Ann Lazaroff
Year ending March 31:
1969 — -$15,058 (salary $15,058; bonus, none)
1968 — $15,577 (salary $15,577; bonus, none)
1967 — $26,577 (salary $15,577; bonus, $11,000)
1966 — $24,577 (salary $15,577; bonus, $9,000)
1965 — $27,788 (salary $15,288; bonus, $12,500)
1964 — $26,000 (salary $15,000; bonus, $11,000)
1963 — $12,000 (salary $ 7,800; bonus, $4,200)
3. Meyer Lazaroff
Year ending March 31:
1969 — $14,962 (salary $14,962; bonus, none)
1968 — $14,538 (salary $14,538; bonus, none)
1967 — $16,538 (salary $14,538; bonus, $2,000)
1966 — $16,538 (salary $14,538; bonus, $2,000)
1965 — $17,269 (salary $14,269; bonus, $3,000)
1964 — $16,000 (salary $14,000; bonus, $2,000) 1963 — $12,000 (salary $ 7,800; bonus, $4,200) 1962 — $ 4,200 (compensation for part of year)
4. Howard Wlttner
Year ending March 31:
1969 — $27,681 (salary $27,681; bonus, none)'
1968 — $ 8,235 (salary $ 8,235; bonus, none)
1967 — $19,235 (salary $ 8,235; bonus, $11,000)
1966 — $18,340 (salary $ 6,340; bonus, $12,000)
The parties agree also that the following is a resumé of the sales, profits (or loss) and total compensation paid by Fenco to the defendants, except Barbara Rosenblum, for each of the years shown:
Year Ended Profit (or Loss) Before Respondents' Compensation Total Compensation of all Respondents Profit (or Loss) Before Taxes
1969 $2,139,975 $120,823 $ 97,497 $ 20,063
1968 1,098,420 72,346 80,327 ($11,307)
1967 1,867,463 185,835 149,327 33,880
1966 1,670,795 142,055 109,432 32,623
1965 1,603,491 206,321 100,045 106,276
1964 1,265,902 127,805 96,000 31,805
1963 997,848 84,056 49,000 35,056
1962 409,783 32,376 12,455 19,921
They agree too that no dividends have been paid to the stockholders.
What is the test by which the reasonableness of the compensation of corporate officers is to be measured? This question was presented to the St. Louis Court of Appeals in 1970 in Ruetz v. Topping, 453 S.W.2d 624, a case involving a close corporation. That court speaking through Doer-ner, C., said at l. c. 628-629:
“It is said that, like the reasonableness of an attorney’s fee, the reasonableness of the compensation paid to an employee is a question of fact. Black v. Parker Mfg. Co., 329 Mass. 105, 106 N.E.2d 544; Smith v. Dunlap, 269 Ala. 97, 111 So.2d 1; Pacific Grains, Inc. v. Commissioner [of Internal Revenue], 9 Cir., 399 F.2d 603. Ordinarily, like an attorney’s fee, it is not subject to a precise determination by any known mathematical formula; there is no hard and fast rule to be used in deciding what is reasonable in all cases and each must be decided on its own facts and circumstances. Unlike the determination of a reasonable attorney’s fee, where the elements which may properly be considered are specified in our Civil Rule 4.12, V.A. M.R., no authority has been found which undertakes to give an all-inclusive statement of the factors which may properly be used in arriving at a conclusion as to the reasonableness of an employee’s compensation.
“This is not to say that we are wholly without some guidelines, for the question of what is reasonable compensation, especially at the executive level, has received attention from both the text writers and the courts. Fletcher, in his Cyclopedia Corporations, Vol. 5, Section 2133, p. 577, quotes from a New York case that:
“ ‘ “To come within the rule of reason the compensation must be in proportion to the executive’s ability, services and time devoted to the company, difficulties involved, responsibilities assumed, success achieved, amounts under jurisdiction, corporate earnings, profits and prosperity, increase in volume or quality of business or both, and all other relevant facts and circumstances.” ’
“Section 162(a) (1) of the Internal Revenue Code, 1954, allows a corporation to deduct as an ordinary and necessary expense in carrying on a business ‘a reasonable allowance for salaries or other compensation for personal services actually rendered,’ and that provision has proven to be a more prolific source of litigation as to what was or was not reasonable compensation. In that area, also, no set formula has been devised, and as in Mayson Mfg. Co. v. Commissioner [of Internal Revenue], 6 Cir., 178 F.2d 115, various factors to be considered are mentioned: the employee’s qualifications; the nature, extent and scope of the employee’s work; the size and complexities of the business; a comparison of salaries paid with the gross income and the net income; the prevailing general economic conditions; a comparison of salaries with distribuion to stockholders; the prevailing rates of compensation for comparable positions in comparable concerns; the salary policy of the taxpayer as to all employees; and in the case of small corporations with a limited number of officers the amount of compensation paid to the particular employee in previous years.”
Defendants assert in argument that the following demonstrates that they have met their burden of justifying and showing the reasonableness of their salaries and bonuses.
1.“[T]hat through the sole efforts of Rosenblum, the volume of Fenco’s business increased five-fold over its volume during the initial year of operation * * * that without him no such business results could have been achieved.”
2. That “[tjaking into * * * consideration that had he [Rosenblum] been compensated only for his sales efforts, disregarding his other duties, he would have been entitled to commissions of 10% of the sales he procured * * *. Had he been compensated upon that basis in a year in which the sales were approximately $1,500,000, 10% of $750,000, the sales attributable solely to him, would have amounted to $75,000 * * *.”
3. That Joel Massie, Fenco’s accountant, who advised with the officers and directors on financial matters and assisted them in determining the amount of salaries and bonuses to be paid, said “ * * * that he took into consideration, among other things, that had the sales been conducted by someone other than Rosenblum, the usual commission rate would have been required to be paid * * * and that rate, he said, was normally between 7% and 10%.”
4. “That * * * in small [close] corporations working with limited capital [such as Fenco], the minimizing of taxable corporate income is a proper consideration in determining salaries and bonuses. * * * [T]hat profits could justifiably be devoted to the payment of bonuses when these bonuses [are] loaned back to the company, thus making available additional [short term] operating capital * * a part of which would not have been available for company use had it been paid out in income taxes.
5. That “[a]fter the payment of salaries and bonuses, unusually high returns on capital were realized, resulting in an increase in corporate net worth from $8,000 in * * * [1962] to almost $200,000 in * * * 1969. * * * that the return on capital after the payment of salaries was unusually high * * *; that [for example] in * * * 1964 * * * [it] was over 100%.”
6. That “ * * * the payment of * * * [these] salaries and bonuses in no way impaired the company * * that Fenco “ * * * appears to be well organized and properly managed * * and has grown “ * * * in a relatively short time ‘to a very nice size.’ ”
7. That both Massie and Louis Welt-man, another certified public accountant, testified that based on the above factors “ * * * the salaries and bonuses were justified.”
There is evidence which would support the above conclusions drawn by defendants. However, we find that the evidence from which those conclusions may be drawn is for the most part applicable only to the salaries and bonuses paid to Norman Rosenblum and, somewhat to a lesser degree, to Ann Lazaroff. These two obviously were the “brains” and “driving force” behind the rapid growth of Fenco’s business from a little over $400,000 in 1962 to more than five times that amount in eight years. It was Rosenblum and Mrs. Lazaroff who had the experience and “know-how” in the handbag manufacturing business necessary to build a potentially successful company. Both came to Fenco from Smart Handbag Company; Rosen-blum, a young man in his early thirties, with eleven years’ experience in the sale of handbags at wholesale; and Mrs. Laza-roff, who had been “ * * * raised in this business * * * ”, with years of experience as vice-president of Smart Handbag. Mr. Rosenblum’s compensation at Smart Handbag for 1961 was $25,000; Mrs. Lazaroff’s was $15,600.
Rosenblum was vice-president of Fenco. He did all the selling, bought all the leather and frames, and handled the styling and customer relations. There were two methods of sale: (1) sales through the salesmen of shoe manufacturing companies to retailers, and (2) sales directly to retailers. The total sales volume was about evenly divided between the two methods. It was through Rosenblum that arrangements were made for the handling of sales by the salesmen of shoe manufacturing companies. He also was responsible for design of the bags to coordinate in style with the shoes manufactured by the shoe companies. In addition he made all of the direct sales to retailers. If he were paid a 10% commission on the direct sales alone (one-half of the total), his compensation each year would have been more than he actually received. We hold that, under the facts of this case, sales made by this corporate executive and reasonable commission on those sales may be considered as a factor in determining whether the total compensation paid him is justified and reasonable. See Putnam v. Juvenile Shoe Corporation, 307 Mo. 74, 269 S.W. 593.
We are of the opinion, and hold, that considering this factor and the factors discussed in Ruetz v. Topping, supra, defendants have sustained their burden of showing that the compensation paid to Norman Rosenblum was reasonable. We also hold that they have sustained their burden of showing that the compensation paid to Mrs. Lazaroff was reasonable.
Mrs. Lazaroff’s salary as vice-president of Smart Handbag Company for the year before she joined Fenco was $15,600. In her first year with Fenco she took a reduction in compensation of $3,600. Furthermore, contrary to the inflationary trend in the economy during the years 1963 through 1969, her total compensation for each of the last two of those years was less than her salary at Smart Handbag in 1961. She has been president of Fenco since the beginning of fiscal year 1964, the year after she joined the company. Her total compensation for her first year as president was increased to $26,000 and it remained at substantially that same amount for the following three years. She apparently was no mere figurehead as president. Her responsibilities as such officer included the day to day direction, supervision and management of all aspects of the business, except sales, but including production, records, shipping, collections and some purchasing. Like the other defendants and the production, shipping and receiving employees, her day began at 6:30 a. m. and, on occasion, it ended when the night shift quit at 10:00 p. m. There is no evidence to show what would be reasonable compensation for such an officer in a comparable company for the four years when her total compensation was in the neighborhood of $26,000 per year. However, in view of the fact that her duties and responsibilities as president of this new company were greater than those she had as vice-president of Smart Handbag, and in view of the fact that her compensation for the first year and the last two years at Fenco was less than her salary for her last year at Smart Handbag, we conclude, and hold, that the total compensation paid her for all years was not unreasonable.
As indicated, practically all of the evidence referred to by defendants as demonstrating that they have met their burden of showing reasonableness of salaries and bonuses is applicable primarily to Norman Rosenblum and Ann Lazaroff; very little is applicable to Meyer Lazaroff or Howard Wittner.
Meyer Lazaroff’s duties were not those of an executive; his responsibilities may be described as merely those of a head shipping clerk. He “received the handbags when they were ready for delivery and he would fill the orders. * * * He compared the bills of lading with the invoices and determined the manner in which they would be shipped and selected the carrier * * * [and] took care of insurance claims for losses.” Howard Wittner is a member of the Missouri Bar. He is a member of the board of directors and secretary of Fenco. Apparently he was engaged in the general practice of law from his admission to the bar in 1960 until 1966 when he joined Fenco and Annette Handbag Company. In 1964 and 1965 the law firm by which he was employed was paid $10,385 and $15,200, respectively, by Fenco, all of which went to Mr. Wittner. In 1966, 1967 and 1968, he divided his time between these two companies, handling all of the sales of Annette. He handled all of the legal matters of Fenco, including arrangements for financing by factoring accounts receivable. He negotiated, prepared and handled its leases and labor contracts. He handled its differences with suppliers and labor grievances, including one strike, and tried such cases as it had before the National Labor Relations Board. No effort has been made by defendants to show a comparison of the compensation paid to Meyer Lazaroff or Howard Wittner with compensation paid to a like employee or executive having similar duties in comparable companies. Like that in Ruetz v. Topping, supra, this failure on defendants’ part is a fundamental weakness in their case. We find, and hold, that the findings and conclusions of the trial judge as to these two defendants are clearly erroneous ; that defendants failed to sustain their burden of showing that the compensation paid them was reasonable and justified.
Plaintiffs request that we determine from this record the amount of excessive compensation paid defendants and direct the entry of judgment for that amount. We do not believe that the evidence presented by this record relative to Meyer Lazaroff or Howard Wittner is of sufficient substance and clarity to support a finding of (1) the amount of compensation which would be reasonable for their services, and (2) the amount of the excess, if any. There is evidence that Meyer Laza-roff’s income in previous unrelated employment was $7,800 to $10,400 per year. Plaintiffs’ expert witness testified that reasonable compensation for him would range from $7,800 to $12,000 per year. Plaintiffs’ expert witness also testified that reasonable compensation for Howard Wittner for his services to both Fenco and Annette Handbag would range from $16,000 to $27,000 per year. However, this witness would not express an opinion as to how much of this should be paid by each company. Plaintiffs argue, without eviden-tiary support, that $300 per month should be sufficient for the legal services of Mr. Wittner for the fiscal years 1962 through 1968. In this state of the record we are certainly in no position to direct the entry of a judgment for plaintiffs for an amount certain.
Having found that defendants failed to sustain their burden of proof that the compensation paid Meyer Lazaroff and Howard Wittner was reasonable, it now becomes necessary that we consider whether the late Erwin Fendelman acquiesced in and agreed to the compensation paid them and, if so, whether plaintiffs are thereby estopped from recovering the alleged excess. Plaintiffs contend in their second point that the court erred in finding that Mr. Fendelman acquiesced in and agreed to the compensation paid all individual defendants. However, it is necessary that we consider this point only in connection with the compensation paid these two defendants, because, as to the others, we have found that defendants sustained their burden.
Plaintiffs limit their claim and complain only that excessive compensation was paid beginning with the commencement of fiscal year 1964 on April 1, 1963, the date Mr. Fendelman became a mere employee and inactive assistant treasurer. There is no evidence that Mr. Fendelman knew anything about the amount of compensation paid any of the defendants after April 1, 1963. There is no evidence that he had anything to do with or knew anything about the financial affairs of the company; on the contrary, the evidence is that he did not. He had a right to rely on the directors and managing officers of the company to pay only reasonable compensation in the proper conduct of the business. Boulicault v. Oriel Glass Co., 283 Mo. 237, 223 S.W. 423. We hold that in these circumstances Mr. Fendelman did not acquiesce in the compensation paid these defendants after April 1, 1963, and that plaintiffs are not estopped from maintaining this action. Ruetz v. Topping, supra, 453 S.W.2d at 627; Boulicault v. Oriel Glass Co., supra, 223 S.W. at 427.
The judgment is reversed and the cause remanded with directions (1) that the court proceed to hear evidence and determine the amount of the excess, if any, of the compensation paid Meyer Lazaroff and Howard Wittner above reasonable compensation for their services, and (2) for entry of judgment consistent with this opinion.
All of the Judges concur.
. The fiscal year of the corporation was from April 1 to the following March 31. Reference to fiscal year 1964 means the year beginning April 1, 1963, and ending March 31, 1964. Further reference to fiscal year means the 12 months ending March 31 of the year mentioned.
. Plaintiffs do not complain of compensation paid prior to fiscal year 1964.
. The amount of the alleged excess is not pleaded. Plaintiffs state in their brief that the proof shows that the salaries of Norman Rosenblum, Ann Lazaroff, Meyer Lazaroff and Howard Wittner were ex-cesssive in the aggregate amount of $242,-427. They abandon their claim that excessive compensation was paid to Barbara Rosenblum. The evidence shows that the aggregate compensation paid by Fenco to Norman Rosenblum, Ann Lazaroff and Meyer Lazaroff during the six years involved and to Howard Wittner during four of those six years was $632,628. There is evidence from plaintiffs that the aggregate maximum reasonable compensation for these four defendants during this period would have been $401,406, a difference of $231,222, which may be said to be the minimum amount in dispute when this appeal was lodged in this court in December, 1969.
. A company owned by liimself, his mother, Ann Lazaroff, and his sister, Barbara Rosenblum, which was merged into Fenco in 1969.
|
sw2d_482/html/0468-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STOCKARD, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Omega DAVIS, Respondent, v. STATE of Missouri, Appellant.
No. 56863.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for appellant.
Respondent, pro se.
STOCKARD, Commissioner.
Omega Davis has appealed from the order of the trial court overruling his motion filed pursuant to Rule 27.26, V.A.M.R.
On January 10, 1951, appellant was found guilty by a jury of rape, and pursuant to the procedure then in effect pertaining to the habitual criminal act, the jury also found that appellant had previously been convicted of three felonies, and it assessed the punishment at life imprisonment. This court affirmed. State v. Davis, Mo., 251 S.W.2d 610.
By appellant’s amended motion he asserts that he is entitled to relief pursuant to Rule 27.26 because (1) he was denied due process and equal protection of the law for the reason that the prosecutor did not proceed against him pursuant to the Criminal Sexual Psychopath Act, RSMo 1969, V.A.M.S., §§ 202.700-202.770; (2) the “incriminating and provocative exposure of the specific nature of [appellant’s] prior convictions [rape and sodomy] before the jury was unnecessary to enforce the habitual criminal act and therefore denied appellant a “fundamentally fair trial;” (3) the trial court deprived appellant of argument to the jury by improperly answering a question of law asked by the foreman of the jury after it had retired to deliberate and thereby denied appellant a fair trial; and (4) appellant was denied due process of law by the admission in evidence of the pretrial and in-court identification of appellant by the prosecuting witness as the person who had committed the rape.
Following a pretrial conference pertaining to the issues presented in the motion, counsel for appellant filed a written memorandum in which the following appeared: “The Court requested that counsel determine if an evidentiary hearing was necessary. Since this trial took place twenty (20) years ago the movant and the mov-ant’s trial counsel, Mr. Hirsch, stated that they do not recall the details of what took place before and during the trial. Counsel respectfully requests that the court rule on this motion on the basis of the record and transcript of the trial and arguments of counsel and the circuit attorney.” Pursuant to this request the trial court reviewed the contentions of appellant and the trial record, and entered its findings of fact and conclusions of law. We have in the records of this court, of which we may take judicial notice, the transcript filed in the original appeal, and to which we have made reference. We do not have before us the arguments of counsel to the trial court, but the issues are briefed to this court.
What appellant has done is to assert in his motion four alleged trial errors, and then has attempted to bring them within the scope of Rule 27.26 by further alleging that those trial errors resulted in a denial of due process of law or equal protection of the law, or that they resulted in denying him a fair trial. Each of the contentions, except possibly the fourth, could be summarily dismissed on the basis that Rule 27.26 is not a means of obtaining a review of trial errors correctible on appeal. However, there is another impelling reason why appellant is entitled to no relief as to the first three issues. Each was decided adversely to him on his direct appeal. The fourth was also considered on the previous appeal, but the implications of Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199, possibly require further consideration.
In his first contention appellant asserts that because the circuit attorney had knowledge of appellant’s previous sexual crimes, he was required to proceed under the Criminal Sexual Psychopath Act, and his failure to do so was arbitrary and capricious. We shall first point out that in State v. Tartenaar, Mo., 371 S.W.2d 192, this court ruled that “Even though the prosecuting attorney has reason to believe that a person charged with a crime is a criminal sexual psychopath, as that term is defined in Section 202.700, it is discretionary with him whether or not to file the petition authorized by Section 202.710, and invoke the authorized proceedings thereunder." Next, on appellant’s direct appeal, this court, for the purposes of that opinion, assumed the circuit attorney had no discretion, but held that record before this court contained nothing to show that appellant had taken the necessary steps to bring himself within the provisions of the Act. That is the precise factual situation of the record now before us. Appellant’s first contention is without merit.
Appellant’s second contention is that the trial court erred in permitting the prosecution to relate the nature of appellant’s previous felony convictions. If this did occur, it was a trial error correctible on appeal. However, the precise issue was presented on appellant’s direct appeal, and it was there ruled that no reversible error occurred. It was there pointed out that “all that was read in evidence as to the prior offenses were the judgment entry in each case, the records of confinement in the respective institutions, and the records of discharges therefrom." The court then considered the contentions that the jury panel was told on voir dire examination that appellant had three previous convictions, and that it was told what they were for, and that the trial jury was again so told in the state’s opening statement. It was ruled that “we may not say that the prejudice to defendant * * * went beyond that prejudice which is inherent in a trial involving the ‘habitual criminal issue’.” 251 S.W.2d 613-615. This issue may not now be relitigated by asserting that these alleged trial errors deprived appellant of a fair trial. State v. Brown, Mo., 461 S.W.2d 743; State v. Adams, Mo., 403 S.W.2d 604.
Appellant’s third contention, that the prosecutor made a misstatement of law in argument and that the trial court “enhanced” this misstatement by reading a portion of the argument, presents only a trial error correctible on appeal if meritorious, and in fact the issue was presented on the previous appeal and ruled on the basis that the objection made and set forth in the motion for new trial was not the objection presented on appeal. However, the contention now made could have been preserved and presented on appeal, and this asserted trial error cannot now be presented in a proceeding under Rule 27.26 on the basis that the alleged trial error denied appellant a fair trial. Gailes v. State, Mo., 454 S.W.2d 561; Selman v. State, Mo., 454 S.W.2d 530.
The remaining point is that the identification of appellant by the prosecuting witness was improperly admitted in evidence because the “method of identification,” based on the totality of the circumstances, was unnecessarily suggestive and conducive to misidentification.
In the opinion on direct appeal the court pointed out that the prosecuting witness had a good opportunity to observe her assailant, that in her efforts to remove his hands from her throat she felt the index finger of his left hand and was able to discern that it was deformed, and that a handkerchief used as a mask slipped from his face and she obtained a good look at his face. The record of trial shows that prior to her identification of appellant, the police brought “a couple of men” for her to view, and she did not identify either as her assailant. On the day following the attack, she viewed a man at the police station whom she stated was not her assailant. She also viewed a photograph of a man whom she could not identify as her assailant, and there was no evidence that any of the men shown to the prosecuting witness was appellant or that the photograph was of him. The following day the prosecuting witness identified appellant as her assailant in a one-man lineup, and at trial she stated that she identified him because of his “big, bulgy eyes” and his crooked finger. There were no suggestive comments made to the prosecuting witness by the police. Her identification at trial was positive.
The trial court found, from a review of all the testimony and the record concerning the out-of-court identification, that there was no objection to the in-court identification, that the prosecuting witness was cross-examined at length concerning the basis for her identification, and that the record did not show that the pretrial identification dictated or tainted the in-court identification. In view of the total circumstances, there was a basis for the identification independent of the lineup, and the finding and conclusion of the trial court is not clearly erroneous. Crosswhite v. State, Mo., 426 S.W.2d 67; State v. Mountjoy, Mo., 420 S.W.2d 316.
The judgment is affirmed.
HOUSER, C., concurs.
PER CURIAM:
The foregoing opinion by STOCKARD, G, is adopted as the opinion of the Court.
All of the Judges concur. |
sw2d_482/html/0472-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOLMAN, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Fred H. MUDGETT, Plaintiff-Appellant, v. Donald B. PETERSON, M.D., Superintendent, Fulton State Hospital, Fulton, Missouri, Defendant-Respondent.
No. 56725.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
Morris, King, Stamper & Bold, M. Randall Vanet, Kansas City, for plaintiff-appellant.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
HOLMAN, Presiding Judge.
Appellant, Fred H. Mudgett (hereinafter referred to as plaintiff) has appealed from the judgment of the trial court denying his petition for release from Fulton State Hospital. We have appellate jurisdiction because the case involves issues which, if decided, would require a construction of certain constitutional provisions. Art. V, § 3, Mo.Const., V.A.M.S. We deem it advisable to state at the outset, however, that we will not decide this appeal on the merits because the case has been rendered moot by developments occurring since the appeal was taken. For that reason we will not state the evidence in detail.
Plaintiff, with a history of sex offenses, was committed to the State Hospital in Fulton on July 2, 1953, as a criminal sexual psychopath and has been confined there most of the time since that date. See §§ 202.710 to 202.770. His psychiatric treatment there does not appear to have been effective since he has demonstrated propensities for the commission of sex offenses on a number of occasions since his confinement. In 1956 he was transferred from the maximum security Biggs Building to a minimum security area and thereafter apparently raped a female employee, stole her car, and escaped. He was returned to the hospital in June 1957.
It appears that in 1965 he committed some sort of assault upon another female employee of the hospital. In October 1966 plaintiff was placed on probation in order to receive psychiatric treatment in Kansas City. He was returned, however, in December 1966 after allegedly assaulting a woman in Lawrence, Kansas. Since returning to the hospital he has received some group psychotherapy; has been kept busy with occupational and recreational therapy; and has proved helpful to the ward administration by assisting in ward self-government and in tutoring younger patients. He has taken correspondence courses from the University of Missouri and acquired 29 hours of credit.
Plaintiff complains that he has not been given sufficient psychiatric treatment or psychotherapy and is being imprisoned in violation of the Eighth and Fourteenth Amendments to the U. S. Constitution because, without more effective treatment, he will never recover and will be imprisoned indefinitely. In his petition he requests (1) his unconditional release, or (2) that he be transferred to a minimum security area in order to prepare for eventual release, or (3) that he be ordered returned to Buchanan County for trial on the original criminal charge. He presented evidence indicating that he has not received extensive psychiatric treatment or psychotherapy since his return to the hospital in 1966.
The State presented the testimony of Dr. Absten, Director of the Biggs Unit, who stated that in his opinion plaintiff is a sadist, as well as a rapist, and that he is not capable of controlling his actions; that he considers plaintiff dangerous to others, particularly to females, and that he could not safely be transferred to a less secure unit; that he has not recovered but remains a sexual psychopath. He further testified that the hospital has psychotherapy available for plaintiff and is willing to administer such to him.
The trial court, in denying the relief plaintiff sought, made a finding that “petitioner has not recovered from his mental illness, and his present mental condition is such that his release from the maximum security portion of the state hospital would constitute a present and pressing danger to society.”
At the time of oral argument of this case the attorneys stated that since this appeal was taken plaintiff and two other inmates have been charged with the first degree murder of a doctor who was on the staff of the hospital, which allegedly occurred when the three attempted to escape. Since the date of the alleged offense plaintiff, according to the attorneys, has been confined in jail awaiting trial.
We have concluded, as we did in the recent case of Gershman Investment Corp. v. Danforth, Mo.Sup., 475 S.W.2d 36, that this is a case that has been rendered moot by developments occurring after the appeal was taken.
This court has said: “That some relief is sought which may be granted is the only reason the courts recognize for the prosecution of causes. If no relief can be granted, either because it appears that such relief has already been obtained, or because the situation has so changed that the relief sought cannot be granted, the court will not go through the empty formality of determining whether or not the relief asked for might have been granted, if it had not already been granted, or could have been granted but for changed conditions.” State ex rel. Myers v. Shinnick, Mo.Sup., 19 S.W.2d 676, 678. See also the cases cited in Gershman, supra. In order to determine whether the questions presented by an appeal have become moot, we are permitted to consider matters outside the record. Eicholz v. Davis, Mo.App., 289 S.W.2d 433.
In this case plaintiff is no longer in the custody and under the control of defendant. For that reason it is obvious that no relief can be granted at this time. And it is very doubtful that practical relief of any kind could be granted for future administration. It is speculative as to whether plaintiff will ever be returned to the custody of defendant, and if so it may be in a capacity other than as a sexual psychopath. See §§ 552.010 to 552.080.
In view of the situation presented we rule, as indicated, that this case has become moot and that it would not be appropriate to decide the appeal on the merits.
The judgment is reversed and cause remanded with directions to the trial court to dismiss the case.
SEILER, J., and STUBBS, Special Judge, concur.
BARDGETT, J., not sitting.
. Statutory references are to RSMo 1969, V.A.M.S.
|
sw2d_482/html/0474-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOLMAN Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
James Robert CAFFEY, Movant-Appellant, v. STATE of Missouri, Respondent.
No. 57261.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
James Robert Caffey, appellant, pro se, and Miller, Fairman, Sanford, Carr & Lowther, F. William Joyner, Springfield, for movant-appellant.
John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.
HOLMAN Presiding Judge.
Movant (hereinafter referred to as defendant) has appealed from an order of the circuit court, made without an eviden-tiary hearing, dismissing with prejudice his motion to vacate filed pursuant to S.Ct. Rule 27.26, V.A.M.R. We affirm.
On February 9, 1962, defendant was convicted of unlawful control of narcotic drugs and his punishment was fixed by the jury at imprisonment for a term of 20 years. Upon appeal that judgment was affirmed. State v. Caffey, Mo.Sup., 365 S.W.2d 607. In May 1969 defendant filed a motion to vacate the judgment under S.Ct. Rule 27.26, which was overruled after an evidentiary hearing, and defendant appealed. Thereafter, this court set aside its earlier judgment of affirmance of the original conviction because defendant had not been represented by counsel on that appeal and ordered the case reheard. The cases were consolidated and we thereafter affirmed both judgments. State v. Caffey, Mo.Sup., 457 S.W.2d 657.
In the present (second) 27.26 motion the grounds relied upon by defendant are as follows: “(a) Movant was denied his right to a fair trial by reason of the fact the sheriff, the State’s chief witness, who remained in the courtroom during trial at the invitation of the Court and despite defendant’s request to invoke the Witness Rule, took charge of the jury throughout the entire trial and during jury deliberations, contrary to the Fourteenth Amendment to the U. S. Constitution. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424; State v. Tyarks, Mo.Sup., 433 S.W.2d 566. (b) Movant was denied the effective assistance of counsel at his trial by reason of counsel’s failure to object to the State’s chief witness, the sheriff, remaining in the courtroom during trial after the Witness Rule was invoked, and failing to object to the sheriff being placed in charge of the jury throughout the entire trial and during jury deliberations, contrary to the Sixth Amendment of the U. S. Constitution.” Upon the filing of the motion Judge Greene, who presided at the original trial and decided the first motion to vacate, disqualified because he anticipated that if an evidentiary hearing were granted he would likely be called as a witness. The case was sent to another division of the Greene County Circuit Court where the judge made rather extensive findings and dismissed the motion because the grounds alleged were included in the prior motion and were known to defendant, or could have been known to him, both at the time of original trial and at the time the first 27.26 motion was filed and determined.
Defendant is represented on this appeal by an appointed attorney who has filed a brief in his behalf. In addition defendant has filed a pro se brief. We have considered both briefs.
At the outset of our consideration of this case it should be noted that the trial court is not required to hold a hearing upon the motion if “the files and records of the case conclusively show that the prisoner is entitled to no relief.” S.Ct. Rule 27.26(e). Also, said rule further provides that “[T]he sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion * * S.Ct. Rule 27.26(d).
Defendant concedes that the grounds alleged in his motion were included in the grounds relied on in his first motion and that ordinarily Rule 27.26(d) would preclude consideration of this motion. He seeks to escape the application of that provision by contending that he did not have a full and fair hearing on his ’ first motion because all of the evidence was not developed. He says he has newly discovered evidence bearing on the issue as to whether Sheriff Hendrix had charge of the jury during his trial. This evidence is said to be a certified copy of the judgment which recited that “the jury * * * now retires in charge of the Sheriff who is first duly sworn touching their duties * * The only exception contained in 27.26(d) is that a second motion may be maintained where the movant shall carry the burden of establishing that any new ground raised could not have been raised by him in the first motion. Note that such refers to a new ground, not new evidence to prove the same ground previously raised. We find no provision in the rule for permitting a new motion because of newly discovered evidence.
In this case, however, we need not decide the question as to whether newly discovered evidence could be a basis for maintaining a second 27.26 motion. This for the reason that the evidence relied on is not newly discovered. It appears from an affidavit filed by defendant that he had the certified copy of the judgment in his possession and delivered it to his inmate legal advisor for use in preparing his first motion. He says the inmate misfiled the copy and failed to return it to him until after the hearing of that motion. It is our view that defendant had possession of the copy (either personally or through his inmate-agent) prior to and at the time of the hearing of the first motion. Moreover, he and his (licensed) attorney were present at the hearing of the first motion and could have examined the original record and, if desired, could have offered that record into evidence at that time. It is therefore obvious that the evidence he seeks to offer in support of his second motion was available to him at the time of the hearing of the first motion.
The remaining point in the brief filed by defendant’s counsel is that in a memorandum attached to his second motion defendant attempted to raise a new question, i. e., that the trial judge, at the prior 27.26 hearing, relied upon his own recollection and observations in making the factual determination as to whether the sheriff did in fact take charge of the jury during deliberations, and by reason thereof, appellant was denied his right to confront a witness on cross-examination. They say such was contrary to the principles set forth in Tyler v. Swenson (8th Cir.), 427 F.2d 412. It is also said that the court should have appointed counsel to develop that point.
We do not know the precise purpose of defendant in attaching the memorandum to the motion, but it seems to be a brief designed to support the motion. He does mention therein that the judge, in deciding the first motion, made a statement concerning his recollection that Sheriff Hendrix did not take charge of the jury, and Tyler is cited. Although we need not decide this point on the merits it perhaps should be mentioned that Tyler would not apply in this case because there were two witnesses who testified at the hearing of the first motion that Hendrix did not have charge of the jury. It would also appear that this alleged error should have been raised by objection in the trial court and briefed on the appeal from the decision of the first motion.
We rule that the trial court was not required to appoint counsel to develop a point which was not alleged in the motion but was mentioned in the attached memorandum brief. In that connection we think it appropriate to mention that our system of jurisprudence contemplates that there should be some reasonable point when a judgment determining criminal responsibility should become final. It appears from information listed in defendant’s motion that this is the sixth proceeding that this court has considered which sought to attack defendant’s conviction; that two motions have been filed by defendant in the Federal District Court; one in the U. S. Court of Appeals; and one in the U. S. Supreme Court. We observe that this defendant has been accorded every reasonable opportunity to attack the validity of his conviction and has exhausted those remedies.
We have considered other points raised in the pro se brief but find them to be without substance.
Judgment affirmed.
BARDGETT, J., and RUSSELL, Special Judge, concur.
SEILER, J., not sitting. |
sw2d_482/html/0477-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HIGGINS, Commissioner. PER CURIAM.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Allen Curtis HAWKINS, Appellant.
No. 56990.
Supreme Court of Missouri, Division No. 1.
June 12, 1972.
Rehearing Denied July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Richard S. Sundeen, Kansas City, for appellant.
HIGGINS, Commissioner.
Allen Curtis Hawkins was convicted by a jury of felonious possession of marijuana (Cannabis Sativa). The jury was unable to agree on defendant’s punishment; the court assessed his punishment at two years’ imprisonment, and rendered judgment and sentence accordingly. §§ 195.010, 195.020, 195.200, RSMo 1969; Rule 27.03, V.A.M.R.
Appellant does not question the sufficiency of evidence to sustain his conviction ; and the facts relative the single question on appeal demonstrate also that the State made its case.
Appellant contends the court erred in overruling a motion to suppress as evidence the quantity of marijuana taken from his automobile at the time of his arrest. He argues that the seizure of marijuana was illegal because he first was arrested for a parking violation, he was outside his automobile when it was searched and, therefore, there was no reasonable basis for the search and seizure. For support, appellant cites State v. Witherspoon, Mo., 460 S.W.2d 281, dealing with an uncon-sented-to search of the locked trunk of an automobile.
The evidence bearing on the question shows an independent and reasonable basis for the search and seizure, and a situation in which the cited case has no application.
On August 26, 1970, at approximately 10 p. m., Allen Curtis Hawkins was operating his automobile on the streets of Kansas City, Jackson County, Missouri. He parked the vehicle neat 1140 Forest and, as he left it, he was approached by Patrolmen James Conners and Clark Hamilton. He was cited by Officer Conners for parking too far from the curb in violation of a Kansas City ordinance. While being so cited, Officer Hamilton went to the front of the vehicle to obtain the Kansas City license number affixed by “sticker” to the windshield. Officer Hamilton shone his flashlight on the sticker and observed on the front seat of the vehicle a hand-rolled cigarette which he reasonably believed to contain marijuana. “In past experience with narcotics in that area the only time I have run across a hand-rolled cigarette such as this with the same crimped edges and its size, the have— each time it contained marijuana and at no time has a cigarette such as that, that I have come across, contained tobacco, to my knowledge from the lab report.” Officer Hamilton further described the cigarette as being two to three times smaller in diameter than hand-rolled cigarettes containing tobacco. He had seen similar cigarettes on ten to fifteen other occasions. Prior to the arrest for possession, he also recognized the presence of the odor of smoked marijuana.
On the basis of these observations, Officer Hamilton arrested defendant for possession of marijuana. Search of the vehicle subsequent to the arrest produced the hand-rolled cigarette containing marijuana, a package of Zig Zag cigarette papers, two pipes, ashes, and six hand-rolled cigarette butts found to contain traces of marijuana. Search of defendant’s person subsequent to the arrest produced four packages of marijuana varying in weight from two and one-half grams to four and one-half grams.
With the evidence in this posture, seizure of the marijuana cigarette was permissible under the “plain view doctrine.” State v. Harre, Mo., 280 S.W.2d 41, 43; Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067. The marijuana cigarette was open to the plain view of Officer Hamilton as he stood outside defendant’s automobile, and a search is not made when the officer simply looks at that which can be seen. Nor is the impact of the plain view doctrine altered by the officer’s use of his flashlight to first inspect the windshield sticker. United States v. Callahan, D.C.Minn, 256 F.Supp. 739.
Thus, although defendant was first detained and cited (or arrested) for a traffic violation, there was no search of his vehicle until the marijuana cigarette had been observed on the seat of the vehicle. Defendant was then lawfully arrested for possession of marijuana; and the subsequent search of his person and automobile, during which the other items of evidence were found, was reasonable as an incident of the lawful arrest. State v. Hohensee, Mo., 473 S.W.2d 379, 381 [4],
Appellant also argues that Officer Hamilton was unjustified in his conclusion that the hand-rolled cigarette contained marijuana. His conclusion, however, is amply supported by the evidence of his prior experience with such cigarettes and in such cases.
Judgment affirmed.
WELBORN, C., concurs.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court.
HOLMAN, P. J., BARDGETT, J., and RUSSELL, Special Judge, concur.
SEILER, J., not sitting.
ON MOTION FOR REHEARING
PER CURIAM.
Appellant’s motion for rehearing seeks the alternative relief of remand to the circuit court for assessment of punishment and rendition of judgment consistent with § 195.200, RSMo 1969, V.A.M.S., as amended 1971, effective September 28, 1971, and in support thereof cites State v. Reiley, Mo., 476 S.W.2d 473, decided January 10, 1972, and § 1.160, V.A.M.S.
Appellant’s conviction of possession of marijuana occurred April 21, 1971, at a time when the first conviction of that offense was a felony regardless of the amount of marijuana involved. Sec. 195.-200, RSMo 1969, V.A.M.S.
While appellant’s case was pending on appeal and before a final determination was made, § 195.200, RSMo 1969, V.A. M.S., as amended 1971, became effective. Sec. 195.200, subd. 1(1) (a) provides: “For the first offense of possession of thirty-five grams or less of marijuana or five grams or less of hashish, such person shall be confined in the county jail for a term of not more than one year, or be fined not more than one thousand dollars, or be punished by both such confinement and fine.”
The state agrees and the record clearly demonstrates that the amount of marijuana found in possession of appellant was less than 35 grams and that this is appellant’s first conviction. Thus this case falls squarely within the holding of State v. Reiley, supra, in which this court, in a factual situation practically identical to this, remanded the case for assessment of punishment and rendition of judgment consistent with Chapter 195, V.A.M.S., as now enacted.
No error was committed during the trial of this cause and, therefore, there is no occasion to set aside the verdict of guilty of the jury.
Appellant’s motion for rehearing is overruled. Appellant’s prayer for the alternative relief is sustained; the judgment is reversed and this cause is remanded for assessment of punishment and rendition of judgment consistent with Chapter 195, V.A. M.S. (Sec. 195.200, V.A.M.S., 1969, as amended 1971) and for further proceedings consistent with this opinion and order. Sec. 1.160, V.A.M.S. |
sw2d_482/html/0480-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WELBORN, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Robert Lee ENDRES, Appellant.
No. 56509.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Joseph E. Rebman, St. Louis, for appellant.
WELBORN, Commissioner.
Appeal from conviction on jury verdict which fixed punishment at 15 years’ imprisonment on finding of guilt on charge of robbery, first degree, with a deadly weapon.
The issue on this appeal is whether or not the charge against appellant should have been dismissed because he was denied a speedy trial. The transcript here relates only to that issue and the facts from which the charge arose do not appear.
An information was filed in the St. Louis Circuit Court on March 22, 1966, charging Robert Lee Endres with robbery in the first degree with a deadly weapon, committed March 17, 1966. Endres was in custody and arraignment was set for March 31, 1966. Sometime prior to that date, he escaped from custody. On April 5, 1966, he was arrested in California on a robbery charge. He was convicted on the California charge and received a sentence of from five years to life imprisonment. On April 13, 1966, the Missouri charge was placed on the inactive docket because defendant had escaped from custody and was still at large. At some date, Missouri authorities caused a detainer to be placed against defendant with California authorities. On June 10, 1970, defendant was paroled from his California sentence and returned for trial in Missouri.
In one of his numerous pro se motions for speedy trial filed in the St. Louis Circuit Court and affidavits in support, appellant asserts that, in July, 1966, he wrote the Attorney General of Missouri, requesting a speedy trial of the Missouri charge, but that official replied that Missouri was not a party to the interstate Agreement on Detainers and was not obliged to try him until the California sentence had been satisfied. By affidavit in support of his motion for new trial in this case, appellant stated that, in mid-1966, he had written the Circuit Attorney for the City of St. Louis requesting that the State of Missouri bring him to trial as soon as possible, to which he received a reply signed by a member of the circuit attorney’s staff saying “sorry.”
Appellant states that, in June, 1968, he mailed to the Clerk of the Circuit Court for the City of St. Louis a “Motion for Speedy Trial.” However, the first record evidence of such motion is found in a letter dated December 10, 1968. The motion was filed on December 16, 1968, and was overruled on February 24, 1969.
On March 14, 1969, appellant filed another pro se motion for speedy trial together with affidavit and memorandum in support. The court requested the Public Defender Bureau to represent defendant on the motion and a representative of that office corresponded with defendant about it.
On October 20, 1969, appellant pro se filed a motion to dismiss the charge for failure to prosecute. His memorandum in support of the motion stated that it was based “on the recent U. S. Supreme Court ruling in supra, Smith v. Hooey, '# 198 1968 Oct. * *
On December 22, 1969, appellant filed a motion to dismiss on the grounds that he had not been brought to trial within three terms after the filing of the information. § 545.920, RSMo 1969, V.A.M.S. On February 27, 1970, the motion was overruled.
Defendant was arraigned in the St. Louis Circuit Court on June 16, 1970. On August 7, 1970, another motion to dismiss based on the passage of three terms of court was filed.
On September 29, 1970, the trial court heard the motions to dismiss and overruled them. The trial court considered that the motions previously relied upon had been refiled. It held that, insofar as the state statutes are concerned, the acts of defendant had tolled the statutes and he was not entitled to relief under them. Insofar as claimed denial of federal constitutional guaranties was concerned, the court concluded that the only evidence before it was that defendant’s communication of December, 1968, was the first notice the state had of defendant’s whereabouts and that the delay at the most amounted to a little over a year and that, taking into consideration defendant’s escape and his conviction in California, his federally guaranteed right to a speedy trial had not been violated.
Trial was then held and defendant found guilty. After his motion for new trial had been overruled, he appealed.
In this court, appellant argues that he has been denied the right to a speedy trial in violation of the guaranties of federal and state constitutions. He alludes to § 18(a) of Article I of the Constitution of Missouri, 1945, V.A.M.S., but his brief relies upon federal guaranties and that is the question for consideration.
In Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1, the United States Supreme Court made applicable to the states through the Fourteenth Amendment the Sixth Amendment guarantee of right of an accused in a criminal case to a speedy trial. Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607, holds that the absence of the defendant from the state by reason of his incarceration under a conviction in another jurisdiction does not excuse the state from its obligation under the federal constitution to accord a speedy trial. Upon the demand of the accused in such circumstances, the state must make a diligent good-faith effort to obtain his presence for trial. 393 U.S. 382-383, 89 S.Ct. 575. In Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26, the state charge had been filed in June, 1960. The defendant was removed from the state and imprisoned in a federal institution beginning in September, 1960. He made numerous and repeated demands for trial of the state charge. He was eventually returned and tried in February, 1968 and found guilty. In reversing the conviction, the United States Supreme Court found that actual prejudice to the defendant by the delay had occurred in that two potential witnesses in his behalf had died, another had become unavailable and police records had been lost. “On this record the delay with its consequent prejudice is intolerable as a matter of fact and impermissible as a matter of law.” 398 U. S. 38, 90 S.Ct. 1569.
These cases provide the general guidelines which are controlling on this court in the resolution of the question here presented. However, they do not answer the precise problem. The delay here is not of the duration involved in Dickey, nor has there been any showing of prejudice of the nature which existed there by reason of the delay. In Smith, the charge had been filed in 1960. The 1969 decision was in a mandamus action to compel dismissal of the charge. The judgment refusing the writ was set aside and the case remanded to the Texas Supreme Court “for further proceedings not inconsistent with this opinion.” As pointed out by Justice Harlan in a separate opinion, that conclusion was enigmatic and did not disclose what was expected of the state on remand. Justice White in a concurring opinion stated that upon remand the state court could consider “the other facets” of the speedy trial question which it had failed to do originally because of its conclusion that the incarceration elsewhere eliminated that question. Justice Black “would make it absolutely clear to the Supreme Court of Texas that so far as the federal constitutional question is concerned its judgment is set aside only for the purpose of giving the petitioner a trial, and that if a trial is given the case should not be dismissed.” In any event, there is no holding in Smith that the 9-year delay which had occurred at the time of the Supreme Court’s decision compelled dismissal of the charge.
In Lillibridge v. Swenson, 326 F.Supp. 1104, the United States District Court for the Western District of Missouri considered the application of Smith and Dickey in a case involving a 13-month delay in a Missouri prosecution. The court stated (l. c. 1110-1112):
“[4] * * * ‘There can be no doubt that if the petitioner * * * had repeatedly demanded that he be brought to trial, the State would have been under a constitutional duty to try him.’ Smith v. Hooey, supra, 393 U.S. 374, 377, 89 S.Ct. 575, 576, 21 L.Ed.2d 607, 611. It is said in the same case that:
“‘[A]t least three basic demands of criminal justice [are sought to be furthered by the concept of speedy trial] * * * “[1] to prevent undue and oppressive incarceration prior to trial, [2] to minimize anxiety and concern accompanying public accusation and [3] to limit the possibilities that long delay will impair the ability of an accused to defend himself.” ’ Id., 393 U.S. at 378, 89 S.Ct. at 577, 611, quoting from United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627.
“It was further established in United States v. Ewell, supra, that the time of delay alone is not in itself determinative of whether a petitioner has received a speedy trial. In that case it was stated:
“ We cannot agree that the passage of 19 months between the original arrests and the hearings on the later indictments itself demonstrates a violation of the Sixth Amendment’s guarantee of a speedy trial. This guarantee is an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself. However, in large measure because of the many procedural safeguards provided an accused, the ordinary procedures for criminal prosecution are designed to move at a deliberate pace. A requirement of unreasonable speed would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself. Therefore, this Court has consistently been of the view that “The right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances. It secures rights to a defendant. It does not preclude the rights of public justice.” Beavers v. Haubert, 198 U.S. 77, 87, 25 S.Ct. 573, 576, 49 L.Ed. 950, [954]. “Whether delay in completing a prosecution * * * amounts to an unconstitutional deprivation of rights depends upon the circumstances * * * The delay must not be purposeful or oppressive,” Pollard v. United States, 352 U.S. 354, 361, 77 S.Ct. 481, 486, 1 L.Ed.2d 393, [399]. “[T]he essential ingredient is orderly expedition and not more speed.” Smith v. United States, 360 U.S. 1, 10, 79 S.Ct. 991, 997, 3 L.Ed.2d 1041, [1048], 383 U.S. at 120, 86 S.Ct. at 776, 15 L.Ed.2d at 631.
* * * * * *
“The cases were processed and tried, however, in an average time for cases of this type. Plaintiff has not stated, nor has he shown in the briefs nor does the record of the trials independently show, that petitioner was in any way prejudiced at the trial of these cases. There is no contention anywhere made or inferable from the transcript that the passage of time hindered or disabled petitioner in his ability to meet and confront the evidence against him or to present evidence in his own behalf. It is not contended either that petitioner was subject to undue and oppressive incarceration or that the pendency of the charges caused undue anxiety. It is necessary to a contention of denial of speedy trial that petitioner state and show prejudice in some one of the above forms. See United States v. DeLeo (C.A.1) 422 F.2d 487, 495. Petitioner has not done this. Petitioner rather states that the rule of Dickey v. Florida, supra, ‘indicates that a showing of actual prejudice is only required when the delay is not per se unreasonable.’ Under federal standards, however, the delay in these cases is not per se unreasonable. Further, in Dickey, supra, the Supreme Court held that prejudice resulted as a matter of law from a delay of seven years. The magnitude of delay in this case does not approach that in Dickey. It more nearly approximates the permissible ranges of delay noted in United States v. DeLeo, supra, 422 F.2d at 494. It is worthy of mention that actual prejudice was found in the Dickey case, supra, ‘in the death of two potential witnesses, unavailability of another, and the loss of police records.’ 398 U.S. at 38, 90 S.Ct. at 1569, 26 L.Ed.2d at 32. The per se approach to the speedy trial aspect of the Sixth Amendment has been rejected recently by one court. See United States v. DeLeo, supra, in which the Supreme Court recently denied certiorari at 397 U.S. 1037, 90 S.Ct. 1355, 25 L.Ed.2d 648.”
In United States v. DeLeo, 422 F.2d 487, a 29-month delay was involved and found, in the circumstances, not to constitute denial of a speedy trial. In its opinion the court stated (1. c. 494):
“[5] Appellant would have us forego such scrutiny and rule that the mere passage of time in this case — being so much longer than that held permissible in Fleming v. United States, 378 F.2d 502 (1st Cir.1967) (11 months after indictment), and Carroll v. United States, 392 F.2d 185 (1st Cir. 1968) (10 months before arraignment) —was in itself enough to constitute a denial of his Sixth Amendment right to a speedy trial. No authorities are cited for this proposition except various state statutes and the normative goal proposed by the President’s Commission on Law Enforcement and Administration of Justice of four months from arrest to trial. The Challenge of Crime in a Free Society, p. 155, 1967. We reject any per se approach to this aspect of the Sixth Amendment. See United States v. Ewell, 383 U.S. 116, 120, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); United States [ex rel. Solomon] v. Mancusi, 412 F.2d 88, 90 (2d Cir. 1969).
“[6] In our review of the federal cases, we have found occasional references to a rule that after some period of time, prejudice to the defendant will be presumed and it becomes the government’s burden to show that no prejudice to the defendant arose from the delay. Pitts v. North Carolina, 395 F.2d 182, 184-185 (4th Cir. 1968); Smith v. United States, 135 U.S.App.D.C. 289, 418 F.2d 1120 (1969); see United States v. Lustman, 258 F.2d 475, 477-478 (2d Cir. 1958), cert. denied, 358 U.S. 880, 79 S.Ct. 118, 3 L.Ed.2d 109 (1958). Having read these cases, as well as United States v. Ewell, supra, Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (1967), and Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), we are not persuaded that a presumption of prejudice arising from the mere passage of time is either prevailing doctrine or the most effective way fully to assure the Sixth Amendment’s speedy trial. Given the panoply of circumstances which can arise between crime and trial, we prefer to give close scrutiny to the three factors discussed in Ewell, supra, 383 U.S. at 122-123, 86 S.Ct. 773; length of delay, effect thereof on defendant before and at trial, and nature of the government’s conduct in prosecuting the case.”
In this case, petitioner’s concern with a speedy trial arose only after he had been convicted in California. He had no such concern when he escaped while Missouri was in the process of according him a determination of his guilt. The escape of the appellant does not excuse the entire delay but it is a factor to be weighed along with the other circumstances. Appellant does not contend that the state’s conduct was in any way occasioned by purposeful or deliberately oppressive action on the part of state officials. Appellant’s request for trial began at a time when the obligation of the state in a situation such as this had not been definitively established. See 21 Am.Jur.2d Criminal Law, § 250, p, 285. When the obligation of Missouri to act had been clarified in Smith v. Hooey, supra, the circuit attorney’s office, in October, 1969, offered its cooperation in the return of appellant to Missouri. The record does not disclose whether or not any steps were ever taken to obtain appellant’s custody by extradition.
However, the overriding consideration which supports the ruling of the trial court was the failure of appellant to demonstrate that the delay so prejudiced him as to call for his discharge. Search of the record here reveals that, in one of his communications, appellant in an affidavit stated that he had a crucial alibi witness 73 years of age who was suffering from a heart condition. The record here is silent as to whether or not that witness testified at the trial, and, if not, why not. The affidavit further stated that “each year makes it more difficult for petitioner to find witnesses,” but at no place is there any elaboration on this complaint. The affidavit also recites that the Missouri de-tainer precluded appellant from certain rehabilitation programs in the California Department of Corrections, including certain vocations requiring lower custody classification, transfer to road or forestry camps, and “statistically established lower terms accruing to reductions in custody and the programs thereafter available.” A speculative assertion such as this, not otherwise supported, does not demonstrate prejudice required to be shown as a basis for relief. United States v. Taddeo, 2d Cir., 434 F.2d 228, 229-230[3], It does appear that, despite the Missouri detainer, appellant’s original indeterminate sentence of from five years to life was set at eight years, with the last three years to be spent on parole and the pending Missouri charge not affecting his parole status.
Appellant here argues that he has suffered the psychological pressures and other possible disadvantages referred to by the court in Smith v. Hooey, supra, including loss of possibility that any Missouri sentence might run at least partially concurrent with the California sentence, a loss which need not have occurred here since he was tried while the California sentence was still being served, although on parole. Such claims are always arguable in a case such as this, but to grant relief on the basis solely of such assertions would be, in effect, to adopt a per se rule.
There is no necessity to further lengthen this opinion by detailed consideration of all of the authorities relied upon by appellant here. His authorities from other states, dealing with state requirements, such as Jacobson v. Winter, 91 Idaho 11, 415 P.2d 297, and State v. Couture, 156 Me. 231, 163 A.2d 646, are of little persuasive value inasmuch as federal guaranties are here relied upon. In Glasgow v. State, Alaska, 469 P.2d 682, the Alaska Supreme Court accepted a pro se rule, based upon the Alaska state constitution. 469 P.2d 686[5, 6]. The statement in the opinion of the Second Circuit Court of Appeals in United States v. Lustman, 258 F.2d 475, 477-478, “* * * [W]e think that a showing of prejudice is not required when a criminal defendant is asserting a constitutional right under the Sixth Amendment” has not been followed in subsequent decisions by that court. United States v. Alo, 2d Cir., 439 F.2d 751, 756, footnote 11. In Pitts v. North Carolina, 4th Cir., 395 F.2d 182, the court did state that delay may be so long as to make a prima facie showing of prejudice. 395 F.2d 185. However, the court was there dealing with a 16-year delay.
It may be noted that the problem presented in this case will be less likely to arise in the future. In 1971, the Missouri General Assembly enacted legislation by which Missouri has become a party to the “Agreement on Detainers.” Laws 1971— 1972, p. -, §§ 222.160-222.220, RSMo 1971 Cum.Supp., V.A.M.S. This agreement provides the machinery for disposition of detainers among the parties to the agreement and fixes time limits for state action.
Judgment affirmed.
HIGGINS, C., concurs.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
HOLMAN, P. J., and BARDGETT, J., concur.
SEILER, J., dubitante. |
sw2d_482/html/0486-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WELBORN, Commissioner. SEILER, Judge",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Ezra Owen DAVIS, Appellant.
No. 56633.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, .for respondent.
John L. Sullivan, St. Louis, appointed counsel for defendant.
WELBORN, Commissioner.
Appeal from 15-year sentence on jury verdict finding Ezra Owen Davis guilty of robbery in the first degree by means of a deadly weapon. The punishment was fixed by the court when the jury could not agree on the punishment.
At around 2:00 P.M. on July 14, 1970, Debra Love and her sister, Jessie, were among the passengers on a Lee Avenue bus, operated by the Bi-State Transit Authority, traveling on 20th Street in the City of St. Louis. The bus stopped at a bus stop in the vicinity of the Pruitt-Igoe housing project and three boys carrying handguns boarded the bus. One of them pointed his weapon at the driver and announced a holdup and told the passengers to place their purses in the aisle. Debra and Jessie were on a seat immediately behind the driver. Jessie who was carrying Debra’s purse placed it on the floor of the bus at Debra’s feet. One of the robbers picked it up. The robbers fled taking Debra’s purse and the purses of other passengers.
Ezra Owen Davis was arrested by police on suspicion that he was involved. He was released when evidence to support charges against him was insufficient. He told the police that he perhaps could assist them and went to the juvenile detention center to view a lineup of suspects. Debra and the bus driver saw Davis at the detention center and both recognized him as the person who held the gun on the driver. Both identified Davis at his trial on the charge.
Appellant’s first two points on this appeal are interrelated. He argues that there was a fatal variance between the information which charged that the purse was taken from the person of Debra and the proof which showed that Jessie was in possession of the purse when the holdup was announced and that Jessie was the person who surrendered its possession at the direction of the robbers. He also contends that when the trial court attempted to remedy the situation by requiring the jury to find that the purse was taken from the person of the sister it submitted an instruction not based upon the information which charged that the purse was taken from the person of Debra.
Section 560.120, RSMo 1969, V.A.M.S., requires as elements of the offense of robbery in the first degree the felonious “taking the property of another from his person, or in his presence, and against his will, by violence to his person, or by putting him in fear of some immediate injury to his person; * * The information in this case charged the taking of the purse of Debra Love “from the person and in the presence of, and against the will of, the said Debra Love * *
Under the statute, the offense of robbery may be committed in two separate ways, by taking from the person or in his presence the property of another. State v. Flynn, 258 Mo. 211, 167 S.W. 516, 518 [3]. The two methods are not repugnant and are therefore properly chargeable in a single count of an information which uses the conjunction “and” rather than the disjunctive “or” of the statute. Under such a charge proof of the commission of the offense by either of the methods will sustain the charge. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 203 [1, 2]; State v. Johnson, Mo.Sup., 457 S.W.2d 795, 799 [7]; State v. Craft, 299 Mo. 332, 253 S.W. 224, 277 [5].
The evidence here showed a taking of Debra’s purse in her presence and against her will. Jessie placed the purse on the floor of the bus at Debra’s feet. She was crying, scared, trembling. One of the robbers picked up the purse and it was taken from the bus. The purse was within Debra’s reach and she could have exercised her right to dominion over it but for the fear caused by the robbers. See 77 C.J.S. Robbery § 9, p. 455.
Therefore, accepting appellant’s position that the evidence showed a taking from the person of Jessie, such variance from the charge could not have been prejudicial to the appellant inasmuch as the state’s evidence, in any event, had adequately supported the charge, proof of taking from Debra’s person not being essential. Appellant has not demonstrated that such variance was “material to the merits of the case and prejudicial to the defense of the defendant.” Supreme Court Rule 26.04, V.A.M.R., § 546.080, RSMo 1969, V.A.M.S.
The principal instruction did call for a finding of taking from the person of Jessie, rather than Debra, as charged in the information. However, inasmuch as the instruction also conjunctively called for a finding of a taking in the presence of Debra, no prejudice could have resulted. The jury was required to find the essential taking from the presence of Debra, along with the other elements of violence and putting in fear. The required additional finding of taking from the person of Jessie was surplusage, having no bearing on the proof of the offense charged and in no manner burdening the defense of the cause. See State v. Hawkins, Mo.Sup., 418 S.W.2d 921, 925 [7, 8],
Two police officers testified that they conducted an investigation into the holdup which resulted in appellant’s being taken into custody, interrogated and released. At the close of each of the officer’s testimony, defense counsel moved that the entire testimony be stricken “as it is in no way relative to the issues raised in this proceeding” and the testimony did not connect the defendant with the case. The motion was overruled in each instance. By his motion for new trial, appellant attacked the unfavorable ruling on the grounds that it “was introduced merely to incite the jury based on the implied fact that there was reason to charge the defendant but that for technical reasons such evidence was insufficient.” On this appeal, the ruling of the trial court is urged as error on the grounds that the testimony was irrelevant and immaterial and “offered for the improper purpose of creating in the mind of the jury and opinion evidence of (sic) such police officers as to the guilt of the defendant.” In addition, for the first time on this appeal, appellant in his argument singles out one item of testimony by one of the officers which he asserts was hearsay.
These varying, shifting grounds of objection at trial, assignment of error in motion for new trial and assignment of error on appeal present no basis for review in this court. State v. Washington, Mo.Sup., 320 S.W.2d 565, 568 [7, 8]; State v. Hernandez, Mo.Sup., 325 S.W.2d 494, 496 [3, 4], The original objections related to materiality and relevancy. No suggestion was advanced that the testimony was designed to show police opinion of appellant’s involvement in the crime. There is nothing in either officer’s testimony which in any way intimates a technical insufficiency in the evidence which might have been cause for his originally being taken into custody. Likewise, the trial objection in no manner reflected any such complaint regarding the testimony, so that the assignment of error in the motion for new trial was wholly without basis. A new ground of error may not be here advanced. This is true particularly of the hearsay assertion, made in this court for the first time. State v. Washington, State v. Hernandez, supra.
Appellant attacks the instruction on “reasonable doubt” because of the language that “a doubt to authorize an acquittal * * * ought to be a substantial doubt touching the defendant’s guilt * * * The contention is that such language negates the requirement that acquittal should result if the jury had “reasonable doubt of the defendant’s guilt.” This complaint has been frequently raised and found not meritorious. See State v. Edwards, Mo.Sup., 435 S.W.2d 1, 7 [11]. The only authority cited by appellant in support of his contention, State v. Miller, 190 Mo. 449, 89 S.W. 377, does not discuss this proposition and provides no reason for the acceptance here of this consistently rejected objection.
Judgment affirmed.
HIGGINS, C., concurs.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
HOLMAN, P. J., and BARDGETT, J., concur.
SEILER, J., concurs in separate concurring opinion filed.
SEILER, Judge
(concurring in result).
I concur in the result reached, but with respect to the instruction on reasonable doubt do so only for the reason that the instruction has been previously approved and so the trial court cannot be criticized for using it. Examination of some twenty or thirty decisions approving the instruction shows it is usually done without discussion of reasons or justification other than precedent, bringing to mind the words of Holmes, J., in Hyde v. United States, 225 U.S. 347, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114, “. . . It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis
However, in the future, I would hope something could be done to eliminate from the approved instruction on reasonable doubt the qualification that it should be “a substantial doubt touching the defendant’s guilt and not a mere possibility of his innocence.”
The trial court is required to instruct on reasonable doubt and once it tells the jury “The defendant is presumed to be innocent unless and until proved guilty beyond a reasonable doubt” that ought to be sufficient. No definition of reasonable doubt should be given. Definitions lead to comments on the evidence and efforts to get an edge one way or the other.
Here, for example, the definition qualifies and changes reasonable doubt to substantial doubt if applied to acquittal, while leaving it at reasonable doubt if applied to conviction. This does not seem to me to be an even-handed application of the rules of the contest between the contending parties. “Reasonable” and “substantial” are not synonymous, as can be seen by referring to any of the standard dictionaries. The point was well put by counsel in argument recently where he pointed out that if one had to undergo a serious operation and were querying the doctor as to the prospects for a successful outcome, how differently the person would feel if the doctor told him there was only a reasonable chance of success as opposed to being told there was a substantial chance of success.
It is noteworthy that the instruction as now phrased is invariably requested by the state and opposed by the defendant. While empirical knowledge is hard to come by in a question of this sort, it would seem the practical effect of this instruction would be to strengthen the state’s chances of doing no worse than a hung jury and to reduce the defendant’s chances of doing better than a hung jury.
I would be in favor of eliminating from future instructions on reasonable doubt this qualification that it must be a substantial doubt to acquit. |
sw2d_482/html/0490-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOUSER, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. Ronald Lee GOODMAN, Appellant.
No. 56698.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent.
John J. Cosgrove, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Paul T. Miller, Executive Director, Willard B. Bunch, Chief Defender, Kansas City, of counsel.
HOUSER, Commissioner.
Ronald Lee Goodman, convicted by a jury of assault with intent to do great bodily harm under § 559.190, RSMo 1969, V.A. M.S. (without malice), and sentenced to 2 years’ imprisonment, has appealed.
Appellant’s complaint is that the evidence was insufficient to establish that he was guilty of assaulting and wounding the victim, either acting alone or assisting, aiding or abetting his brothers, and therefore it was error to give Instruction No. 3, authorizing conviction upon a finding that appellant “either alone or knowingly acting in concert with others, did” make an assault on one Robert Eugene Garrett.
The jury could have found these facts: Three Goodman brothers, Ronald (this defendant), Harold and Carroll, were fighting at 537 Hocker Terrace, Kansas City, where Garrett (the victim of this assault) had gone to meet his girl friend. Garrett threatened to call the police. Ronald “took a swing” at Garrett without striking him and Harold intervened. Garrett and friend then went to 530 Hocker for a few minutes and then on to 525 Hocker, to visit the Clarks. Later Harold and Carroll came to 525 Hocker. Garrett and friend decided to leave and go out for the evening. As they left Garrett said to the Goodman brothers, “Take it easy,” to which one of the Goodman brothers responded, “What do you mean by that?,” whereupon Carroll took a swing at Garrett, struck him in the eye and knocked him to the ground, Garrett tripping over a bush as he went down. When Garrett hit the ground one of the brothers kicked him; then both kicked him, and the two continued to kick and heat Garrett for 10-15 minutes. Garrett eventually wound up in the back of 525 Hocker, at the bottom of a 15-20 foot hill. A police sergeant, called to the scene, found Harold Goodman standing over Garrett, beating him with his fists and kicking him. The officer called for him to stop. Harold Goodman stopped the assault and ran up to the sergeant, who arrested and handcuffed him. As Harold desisted and approached the officer, defendant came out of the house and ran down the hill to Garrett’s prostrate form. Garrett was bleeding, could not sit up, and “appeared to be out.” Defendant sat Garrett up in a sitting position, stepped back and kicked him in the face. Defendant had on shoes. Defendant reached for Garrett and started to kick him again and as he did so the sergeant yelled for him to halt, that he was under arrest and drew his revolver and told “them” to halt or he would fire. Harold Goodman shouted to defendant telling him to get down on the ground; that the officer was going to shoot. Defendant then stepped back, and submitted to arrest on suspicion of aggravated assault. Garrett was taken to Independence Sanitarium for an hour and a half, later to St. Joseph Hospital for three days, during which his jawbone was removed and replaced with a plastic plate and surgery was performed on his eye, leaving scars. At trial time five months later Garrett’s left peripheral vision was limited and he had trouble focusing, testifying that when he first looks at something a short distance away “it’s sort of double . everything runs together.”
The foregoing evidence is sufficient to sustain a conviction of defendant of assault with intent to do great bodily harm under § 559.190, both as an individual and as a principal acting in concert with other actors. Defendant’s contention that there is no evidence that he assisted, aided or abetted his brothers in assaulting and wounding Garrett stands for disapproval. The jury could find that there was a series of connected, concerted assaults knowingly inflicted upon Garrett by the three brothers, culminating in the kick in the face brutally administered by defendant. Defendant’s argument that he is not guilty of any offense, either individually or as joint participant, is unacceptable. Also unacceptable is defendant’s contention that there is no evidence that Garrett was severely injured by the one kick that defendant administered, and no evidence that Garrett suffered “any injury.” Defendant is charged as a principal, acting in concert with the others, and under this evidence he is equally responsible for any and all of their acts and for all resulting injuries, no matter which one of them inflicted any particular injury. Defendant is as responsible as if he inflicted all of the injuries. All persons who act together with a common intent and purpose in the commission of a crime are equally guilty, if they share consciously in the criminal act as something they intend to bring about. State v. Paxton, Mo., 453 S.W.2d 923; State v. Gideon, Mo., 453 S.W.2d 938; State v. Gregory, Mo., 406 S.W.2d 662; State v. Woody, Mo., 406 S.W.2d 659; State v. Slade, Mo., 338 S.W.2d 802; State v. Pflugradt, Mo.App., 463 S.W.2d 566 [5]; 22 C.J.S. Criminal Law § 83, p. 246. That the three brothers were acting together with a common intent and purpose and that they consciously shared in the series of assaults upon Garrett and intended to bring them about may reasonably be inferred from this evidence. It is equally well settled that an assault with fists or feet can be a felonious assault. State v. Crossman, Mo., 464 S.W.2d 36 [4]; State v. Gillespie, Mo., 336 S.W.2d 677; State v. Spradlin, 363 Mo. 940, 254 S.W.2d 660; State v. Rose, Mo., 346 S.W.2d 54, 56; State v. Himmelmann, Mo., 399 S.W.2d 58.
No error appearing, the judgment is affirmed.
STOCKARD, C., concurs.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the Court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and FINCH, C. J., concur. |
sw2d_482/html/0492-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOUSER, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Ronnie Lee ROBINSON, Appellant, v. STATE of Missouri, Respondent.
No. 56987.
Supreme Court of Missouri, Division No. 2.
July 17, 1972.
Robert S. Davis, St. Louis, for appellant.
John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., for respondent.
HOUSER, Commissioner.
This is an appeal from a judgment denying Ronnie Lee Robinson’s Criminal Rule 27.26, V.A.M.S., motion to vacate sentences of 7 years’ imprisonment for attempted robbery in the first degree by means of a dangerous and deadly weapon and 5 years’ imprisonment for carrying a concealed weapon, entered upon pleas of guilty.
I.
The first question is whether the sentencing court failed to develop from accused that there was a factual basis for the pleas of guilty. Appellant contends that due process requires that the court elicit from an accused facts showing that he had actual knowledge of the crime to which he pleads guilty; that the record must show that accused gave a full description of the facts upon which the charge is made.
In determining this question we look not only to the 13-page transcript of the proceedings at the time the pleas of guilty were entered but also to the transcript of the 27.26 hearing. State v. Mountjoy, Mo.Sup., 420 S.W.2d 316; State v. Sayre, Mo.Sup., 420 S.W.2d 303; State v. Davis, Mo.Sup., 438 S.W.2d 232; Drew v. State, Mo.Sup., 436 S.W.2d 727; State v. Grimm, Mo.Sup., 461 S.W.2d 746 [2]; Brodkowicz v. State, Mo.Sup., 474 S.W.2d 822, 828-829 [6]; Schuler v. State, Mo.Sup., 476 S.W.2d 596 [3]; Flood v. State, Mo.Sup., 476 S.W.2d 529, 533 [2], We are convinced from a reading of the entire record that there was a factual basis for the pleas of guilty; that accused had actual knowledge of and fully understood the facts upon which these charges were made; that accused in open court, accompanied by his counsel, withdrew previously entered pleas of not guilty and entered pleas of guilty after thoroughly discussing all phases of both cases with family and counsel on several occasions; that accused entered these pleas voluntarily, knowingly and with full appreciation of the implications and possibilities of going to trial or entering pleas of guilty; that the sentencing judge had a sufficient basis upon which to satisfy himself that there was a factual basis for the pleas, and that he was so satisfied.
It is true that the accused, when asked at the beginning of the hearing at which he entered guilty pleas whether the holdup occurred in a house or on the street or where, answered, “Judge, I couldn’t say,” and that accused at first declared his innocence of the charge of carrying a concealed weapon and maintained that he had nothing to do with the attempted robbery. It is clear from the record, however, that in spite of these initial protestations of innocence it was finally his firm will and desire to enter pleas of guilty (whether with conscious knowledge of guilt he was confessing to the truth or whether he was not guilty but was consenting to the imposition of prison sentences as a voluntary and intelligent choice among the alternatives open to him, according to his conception of his best interests, in the situation of the accused in North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162).
There is no question that accused was informed of the charges. The indictments were read to him in open court. In addition, the assistant circuit attorney in open court in the presence of accused, gave the following brief background of the facts relating to the attempted robbery: “This happened in the 700 block of North Euclid, in the rear of the building up there, Your Honor. The victim was approached and would not hand over his money; he threw some books at the defendant, and several shots were fired, and the defendant was then arrested several — approximately three blocks away by two officers.” Thereupon accused acknowledged that the indictment on the charge of attempted robbery was substantially correct; that he did what was “set out and charged in there,” and admitted “doing that.” In answers to questions asked by the court accused affirmed that he desired to plead guilty as charged; that he had no doubts about that “at this time”; that he was “sure of that”; that he was “positive”; that he had discussed the matter with his attorney, who had advised and “explained the whole situation” to him, and that he still desired to plead guilty. He acknowledged that he realized that he had “a right to a full and complete trial by jury” but was waiving that right; that he was pleading guilty of his own free will. Counsel for accused advised the court that he had read and explained the indictments to him and discussed the matter thoroughly with him; that accused wanted to withdraw his previous pleas of not guilty and plead guilty as charged.
Although accused's responses to the questions propounded to him by the court (reported in the 13-page transcript) were simply “yes” and “no” answers, and notwithstanding he did not in his own words frame narrative answers demonstrating per se that there was a factual basis for the pleas, the trial judge’s actions may not be declared clearly erroneous on this basis. That an accused understands charges with which he is confronted may be deduced from yes and no answers as well as from descriptive factual recitals by accused. Whether accused was telling the truth when he proclaimed his innocence at the beginning of the hearing or later when he confessed his guilt, in either event the record is clear that there was a factual basis for the pleas of guilty, and that the pleas were entered by accused voluntarily, knowingly and understanding^, and to the satisfaction of the judge accepting the pleas.
Buttressing these conclusions are the following facts, gleaned from the 27.26 transcript : Robinson conceded that his counsel conferred with him several times before the pleas of guilty were entered; that he was aware of what was going on — aware of what he was doing when he pleaded guilty — aware that if he was found guilty by a jury he “might have a harsher sentence” — that if found guilty by a jury it would “go harder” on him because he had a prior conviction. Appellant testified that he pleaded guilty voluntarily, “under advisement” by his counsel, who advised him to plead guilty; that he accepted the advice and had no complaint about the services rendered by his attorney. At the 27.26 hearing the attorney testified that he and Robinson discussed the facts several times; that Robinson told him a story so improbable that he could not believe it (to the effect that Robinson was walking towards Taylor and Easton Avenues, generally east of the place where the shooting took place; that a man he saw running threw a package into a hedge along the sidewalk; that the man crossed the street and disappeared; that accused retrieved the package because he “did not want the children to get it and be hurt by a gun that might be in it,” and that the police came by and found him carrying this gun). The attorney talked to the victim of the attempted robbery, who told him there was no doubt in his mind that he had identified the correct person (this appellant). Robinson did not give counsel the names of any persons who might have supported his story. In this background counsel, who saw no possibility of successfully defending against the charges, negotiated with the circuit attorney’s office, which reduced its original demand of 12 years on a plea to 7 years. Counsel testified that he did not advise accused to plead guilty but simply advised him as to the consequences of a plea of guilty; that the decision to plead guilty was made by accused.
In its ruling on the 27.26 motion the trial court made this finding: “The Court was able to determine a factual basis for the plea. The same having been described to the Court in the presence of the defendant, and the defendant stating that the recounting of the charge is correct. Therefore, movant cannot complain the Court was unaware of the factual basis for the plea.” On the whole record the ruling is not clearly erroneous.
II.
The sentences should not be vacated under Criminal Rule 25.04 on the ground that the pleas were equivocal. As indicated, before the indictments were read accused expressed ignorance of the place where the attempted robbery occurred, denied participation therein and denied the concealed weapon charge. After the reading of the informations accused, having been informed as to the charges and some of the factual background, expressed no such unfamiliarity and, instead of denying, freely and unequivocally admitted his participation and guilt. Under the record in this case the following finding of the trial judge is not clearly erroneous:
“* * * while obviously during the plea proceedings movant at first equivocated and hedged in his admission of guilt, he later admitted without hesitation that the facts of the occurrences were as stated; and, as he testified on the evidentiary hearing on his motion, he was fully aware of what he was doing.
“It should be kept in mind that this is not unusual for a defendant to first equivocate and show reluctance when the time comes for him to admit the crimes which he is charged, which is overcome when defendant makes positive and definite answers. He did finally make full and unequivocal admissions (Plea Tr. pp. 6, 7, 8) and thus cannot now be heard to complain of his preceding equivocal conduct.”
III.
There was no denial of due process of law based on the alleged unfairness of the one-to-one confrontation between accused and an identifying witness, conducted at the hospital shortly after the commission of the crime. The identification thus made was not used against accused in procuring his conviction. Whether fair or unfair, the evidence of the identification was never used in court. Accused pleaded guilty. As in the case of confessions allegedly illegally obtained so in the case of identifications allegedly illegally obtained, e. g., where not used in evidence in procuring the conviction they afford the convicted person no right to relief in postconviction proceedings upon the bare allegation that the plea of guilty was entered because of the allegedly illegally obtained identification.
IV.
There was no denial of due process of law based upon the conduct of several police station lineups, without the authorities informing the suspect that their purpose was possible identification, and without informing him that he was entitled to have counsel present, and without obtaining a waiver of his right to counsel. These lineups occurred shortly after the occurrence of the crime, and long before the information was filed. The per se exclusionary rule of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, do not apply to preindictment (or preinformation) confrontations. Kirby v. Illinois (decided June 7, 1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411; State v. Chavez, Mo.Sup. (No. 56,971, decided July 17, 1972) 483 S.W.2d 68.
V.
Accused was not subjected to double jeopardy, or double punishment for the same offense, on the ground that he was charged with attempted robbery with a dangerous and deadly weapon and carrying a concealed (the same) weapon. The two crimes were separate and distinct. Although occurring on the same date, they took place at different places and times in the City of St. Louis. The attempted robbery occurred in the 700 block of North Euclid. The concealed weapon charge arose out of an arrest at the intersection of Taylor and Easton Avenues. Movant did not show that the concealed weapon taken from him at Taylor and Easton Avenues was the same weapon used in the attempted robbery on North Euclid earlier that evening. The two charges arose out of separate transactions. In this respect this case differs from the situation in State v. Richardson, Mo.Sup. en Banc, 460 S.W.2d 537, in which this Court held that the rule against double jeopardy was violated where the necessary act toward the commission of an attempted robbery was the identical assault upon which a charge of assault with intent to maim was based, where after conviction of attempted robbery the defendant was prosecuted on the assault charged. There is authority for the proposition that even where a robbery charge and a concealed weapon charge arise out of the same transaction a prosecution for the former will not bar a prosecution for the latter, 22 C.J.S. Criminal Law § 295(6); People v. Cooper, 256 Cal.App.2d 500, 64 Cal.Rptr. 282, cert. den. 391 U.S. 953, 88 S.Ct. 1858, 20 L.Ed.2d 867, but we do not rule that question, since it is not presented on this record. The following finding by the trial court is not clearly erroneous: “Everything in the record shows that these were two separate incidents. Movant failed to controvert the record as it stands or otherwise show affirmatively that he was subjected to double jeopardy.”
Judgment affirmed.
STOCKARD, G, concurs.
PER CURIAM:
The foregoing opinion by HOUSER, C., is adopted as the opinion of the court.
MORGAN, P. J., HENLEY and DON-NELLY, JJ., and FINCH, C. J., concur.
. “The fact that there was an allegedly inadmissible confession in existence which might have been used in evidence against appellant is no sufficient reason to vacate the judgment and sentence entered pursuant to a plea of guilty, where the plea was otherwise voluntarily and understandably made.” Maxwell v. State, Mo.Sup., 459 S.W.2d 388, 392 [2]. And see Abercrombie v. State, Mo.Sup., 457 S.W.2d 758 [2]; State v. Brown, Mo.Sup., 449 S.W.2d 664; Parker v. North Carolina, 397 U.S. 790, 796, 90 S.Ct. 1458, 25 L.Ed.2d 785, 791.
|
sw2d_482/html/0497-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HIGGINS, Commissioner. SEILER, Judge",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Joseph WARREN, Jr., Appellant, v. STATE of Missouri, Respondent.
No. 55494.
Supreme Court of Missouri, En Banc.
July 17, 1972.
Fortis M. Lawder, Keefe,, Schlafly, Griesedieck & Ferrell, St. Louis, for appellant, Joseph Warren, Jr.
John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent.
HIGGINS, Commissioner.
Appeal from denial, after evidentiary hearing, of motion under Criminal Rule 27.26, V.A.M.R., to vacate and set aside judgment of conviction of forcible rape.
Joseph Warren, Jr., with two prior convictions for burglary, second degree, and convictions for larceny from the person and robbery, first degree, by means of a dangerous and deadly weapon, was indicted for the forcible rape of Mary Tate. He went to trial before a jury February 13, 1962. The state’s evidence showed that defendant forced his way into Mary Tate’s apartment about noon September 15, 1961; that he “tusseled” with her throughout the apartment; that he held her by the throat while attempting to remove her clothing; that she freed herself and ran into her kitchen; that defendant pursued her, struck and knocked her to the floor, put a butcher knife to her neck, threatened to kill her if she did not submit and, by such means, accomplished an act of intercourse. The victim called the police, who arrived around 12:30 p. m., found her screaming, and took her to the hospital. The hospital found her neck to be sore and that she had a pelvic superficial laceration about ½ cm to the left of her vaginal opening. Defendant admitted the act of intercourse but defended on the theory that prosecutrix consented to the intercourse and that it occurred in midmorning after which both parties washed themselves, thus to account for the lack of any evidence to show spermatozoa present. The jury resolved the issues against defendant; the court, Judge Mayfield, sentenced defendant to forty-five years’ imprisonment, and the verdict, judgment, and sentence were affirmed. State v. Warren, Mo., 366 S.W.2d 311. See also State v. Warren, Mo., 406 S.W.2d 605, affirming denial of relief on two prior motions under Rule 27.26.
In this collateral attack on his conviction, movant asserted, as grounds for relief: (1) that the prosecutor failed to reveal contents of a “newly discovered” laboratory report and was thus guilty of suppression of evidence, and that the failure of the trial court to permit inspection of police reports as requested by counsel denied defendant a fair trial; and (2) that he was represented at trial by incompetent counsel.
Appellant now contends there was a suppression of evidence and denial of a fair trial in the alleged failure of the state to produce a purported laboratory report and in the alleged failure of the court to permit inspection of police reports as requested by counsel; and that the court erred in concluding defendant was represented by competent counsel.
Although characterized by appellant as a “sterile approach,” nevertheless this review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Criminal Rule 27.26(j), V.A.M. R.
In support of his allegations of newly discovered evidence and suppressed evidence, movant had a document marked for identification as “Movant’s Exhibit 1, 6-10-69, ERG,” which, according to movant, “is a medical report which I have an attorney to purchase from the police department and sent to me in prison and they don’t have any record of it in the transcript.” The state’s objection to admission of the document on grounds “there’s been no attempt to verify it, its accuracy, to establish what it really is,” was sustained. Movant stated further that no one attempted to introduce the exhibit at trial, nor did his attorney attempt to obtain a copy of it.
With respect to trial counsel’s alleged incompetency, movant testified, “the counselor at one time did object to the hearsay evidence which was the Judge himself going out of the courtroom to obtain evidence to — he proposed to talk to some doctor out of the courtroom and * * * come back in and tell what the doctor said to him. Now, he objected to this but it was all true. * * * No one in the courtroom could understand that report so the Judge asked the prosecuting attorney to go out of the courtroom and said he talked to some doctor and the doctor told him this and the other and he read it into the record.” He felt all the state’s evidence was hearsay “because there wasn’t anyone present but she and I,” and his attorney never objected to use of hearsay. He conceded that his attorney did object to admission of the medical report and the judge overruled him. He referred also to a matter upon which witness James Jackson testified. He conceded that counsel obtained “changed” answers from the witness on cross-examination, and seems to say had this been known to the police, “then there would never be a warrant issued * * He charged also that his attorney “should have investigated the case and got those records from the police department because it was in my favor.” His final complaint was with counsel’s decision to disclose defendant’s prior convictions on his cross-examination. He admitted that the matter was discussed and that counsel -stated his reasons; however, he could not recall counsel’s reasons.
Hugh J. White testified in response to the motion. He was retained by Joseph Warren, Jr., to defend him on the rape charge. “ * * * after consultation with my client, I followed each of the leads which he gave me. I made personal trips to the place of employment of the State’s chief witness and did all things that I could in preparation of the case before it came to trial.” He talked to his client prior to trial “at least a half dozen times.” He cross-examined the state’s witnesses, and he was “inclined to doubt” the asserted failure to object to hearsay statements. He objected to admission of the “medical card.” With respect to the problem of defendant’s testifying, he “had previously talked to the Defendant * * *, and I suggested to him that it would be probably better in the eyes of the jury if I as his counsel brought out his prior record' * * * I was certain the State would bring it up and I proceeded with that in mind. * * * We had no disagreement about that and his taking the stand * * Defendant made no complaints of counsel’s handling of the case during course of the trial. Upon cross-examination counsel reiterated his investigation of all leads given him by defendant “or from any other source. * * * The usual sources would be to review the police record, if you could get your hands on it, to review any statements, if you could get to them, that may have been attributed to the Defendant, talk to him, talk to others who might know him, as fully investigate the case as you can before your trial. That’s what I did.” He believed he saw the police report, and “would have talked to anyone I thought of, after discussing with the Defendant, might have been of benefit to him. * * * I tried to find a couple of those people to get in. I wasn’t able to get any of them to come in.”
It may not be said on the foregoing record that the court’s denial of relief was “clearly erroneous.”
With respect to the alleged suppression of evidence, the document with which movant would support his allegation is so patently without identification that the trial court properly ruled it to be of no probative force. There is no evidence from the attorney who “purchased” the document from the police, if such be the fact; the emphasized recital is inadmissible hearsay, and the purported author of such statement was made known to the defense by endorsement. Such circumstances do not show the suppression of evidence in denial of a fair trial envisioned by appellant’s authorities, e. g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v. Thompson, Mo., 396 S.W.2d 697; State v. Reynolds, Mo., 422 S.W.2d 278; State v. Napolis, Mo., 436 S.W.2d 645.
On the asserted failure of the court to permit defense inspection of the police records, note that trial counsel stated his belief that he saw the record and acted accordingly.
On the asserted incompetency of counsel, note the conflict with respect to the wisdom of counsel’s actions depending on whether the movant or the lawyer is believed. Movant’s assertions are general and are refuted if counsel’s testimony is accepted. The court properly could resolve the conflict against movant on this record. See State v. Wilkinson, Mo., 423 S.W.2d 693.
Judgment affirmed.
PER CURIAM:
The foregoing opinion by HIGGINS, C., is adopted as the opinion of the court en Banc.
FINCH, C. J., DONNELLY, HOLMAN, BARDGETT and HENLEY, JJ., concur.
SEILER, J., dissents in separate dissenting opinion filed.
MORGAN, J., dissents and concurs in separate dissenting opinion of SEILER, J.
SEILER, Judge
(dissenting).
One of the grounds asserted by defendant in his pro se 27.26 motion was “Mov-ant discovered new evidence deliberate suppression of evidence favorable to Defendant.”
There was no finding of fact or conclusion of law made by the trial court as to this ground as required by Rule 27.26 (i) and our decisions, State v. Brown (Mo. Sup.), 436 S.W.2d 724; Thomas v. State (Mo.Sup.), 465 S.W.2d 513. This deficiency prevents the type of review prescribed by Rule 27.26 and requires at least a remand.
A brief statement of defendant’s side of the evidence in the original trial is necessary to bring the issue into focus. Defendant’s defense to the charge of rape was consent. He presented evidence at the original trial that he had become acquainted with the prosecutrix, who was twenty-two years of age, married, but living apart from her husband, by “picking her up” on a street corner in St. Louis. She voluntarily entered his automobile, although she had never seen him before, and permitted him to take her to her apartment and let him help her get in the apartment, having locked herself out. Prosecutrix admitted all this. She also admitted he said he would like to know her better, asked her if she ever went out, and that she did not tell him he should not expect to see her again.
Defendant’s evidence was that he returned to her apartment several times, all with her consent. One of the prosecutrix’s downstairs neighbors testified prosecutrix introduced defendant to her on the day he helped open the apartment and a few days later she saw prosecutrix admit defendant to the apartment. Another witness testified prosecutrix met defendant and the witness one evening for a drink at a “transit house” where, according to defendant, defendant and prosecutrix also had intercourse in a rented room in the basement. At that time, prosecutrix asked him for $25 so she could “get her phone back on” at her apartment. He promised to give it to her later if she would submit.
As to the occasion of the alleged rape, defendant testified an act of voluntary intercourse occurred in the apartment bedroom between 9:30 and 10:30 a. m., and “after that was over, we went to the bathroom and got ourselves cleaned up.” Later in the morning the prosecutrix committed a sodomonitical act on defendant. He refused to respond in kind, and she became angry and upset. The subject of the promised $25 came up. Defendant gave her $10 and then left the apartment. He said he departed about 11:30 or 11:45 a. m.
At the 27.26 hearing, defendant produced a carbon copy of what purported to be a St. Louis police laboratory report. He testified he had a lawyer get it for him from the police department and send it to him in prison. It bore the name of the prosecu-trix ; also had a laboratory number (28269), the name of the examiner (Me-Knight, 3048), referred to two specimens (panties" and pajamas of the prosecutrix), and contained this statement: “A vaginal smear was taken at Homer Phillips by Dr. M. R. Banton and no Spermatoaa were found.” Defendant was endeavoring to show that when the prosecutrix was examined at Homer G. Phillips Hospital a vaginal smear was taken and no spermatozoa were found. This statement supported his story that the intercourse had occurred around 10:30 a. m., following which prose-cutrix had cleansed herself, so that it was to be expected that no sperm would be found on the vaginal smear, whereas had events occurred as prosecutrix claimed there should have been sperm present in the vaginal smear, because her testimony was that defendant arrived at her apartment about noon and that the forcible intercourse occurred soon thereafter; that immediately after defendant’s departure, she put on some clothing, went to another apartment and called police. They arrived in a few minutes and she was taken straight to the hospital.
On objection of the state at the 27.26 hearing, this exhibit was excluded as not properly identified. Defendant’s appointed counsel made no offer of proof or statement as to what had been done to locate the original document. Dr. Banton was not called as a witness by either side.
In the original trial Dr. Banton was listed as a witness for the state, but the prosecutor said, “ . . . I’m not going to have the doctor in, and I purposely excluded certain testimony because — ,” at which point the court interrupted him. Later, however, the prosecutor put into evidence, over defendant’s objection, a hospital “D and S” card on prosecutrix, signed by Dr. Banton, which contained, among other entries on her physical examination, the following: “ . . . marital intriotus, vaginal vault of about 5 plus ccs of whitish muco serous.” The record of the original trial shows counsel tried to obtain access to the police report, but this was denied by the court on the ground that police reports are not admissible. There are some 15 pages of colloquy and argument by counsel trying to get the report, to no avail. Trial counsel also subpoenaed the police records on Mary Tate (he had been trying to show various specific acts of misconduct committed by her, arrests, and fights) and the court did permit him to inspect her police record.
The trial court did not make findings of fact or conclusions of law on the assertion that “Movant discovered new evidence deliberate suppression of evidence favorable to Defendant.” The “new evidence” and the evidence allegedly suppressed refer to the police laboratory report and what it would lead to. The 27.26 motion to vacate the judgment is not a request for a new trial based upon a claim of newly discovered evidence, but a constitutional claim that evidence had been suppressed at the original trial and an explanation that the evidence concerning the denial of due process was discovered subsequently to the original trial. The 27.26 motion must be decided upon a consideration of the constitutional claim.
The responsibility of a court in evaluation of a motion for a new trial on the grounds of newly discovered evidence or in a 27.26 motion to vacate judgment because of the suppression of evidence, to some degree, is similar. In each case, the court must consider the impact the evidence would have upon the jury. In the first situation, the court will, assuming the other criteria are met, State v. McLaughlin, 27 Mo. Ill, 112, grant a new trial if the newly discovered evidence “would have a tendency to shape the verdict of the jury in a new trial”, State v. Bailey, 94 Mo. 311, 7 S.W. 425, 427; State v. Jennings, 326 Mo. 1085, 34 S.W.2d 50. In the second situation, the court, upon a finding that evidence has been suppressed, must determine if the evidence is “ . . . favorable to defendant and which might be persuasive to a jury . . . ”, State v. Thompson, (Mo.Sup., banc) 396 S.W.2d 697, 700, following Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. In this case, the evidence that no sperm were found in the vaginal tract of the prosecu-trix would meet either standard.
As the record now stands, there is no finding on the issue as to whether there actually was a laboratory report showing no sperm in the vaginal tract and whether the state knew this and instead of calling Dr. Banton as a witness, put the “D and S” card in evidence with its reference to “5 plus ccs of whitish muco serous”, which the jury might take to mean that semen was found in the vaginal tract.
Therefore, I respectfully dissent. I would withhold our decision and send this case back to the trial court for a further evidentiary hearing for a complete airing of the laboratory report, if it does exist; whether it was a part of the police file; what the state knew and did about it, and what Dr. Banton will say about it, to be followed by specific findings of fact and conclusion of law on the issue, together with whatever modifications, if any, as should be made in the judgment in light thereof, and for return to this court together with the supplemental transcript, for review as prescribed by Rule 27.26.
. The document, filed in this court, is a carbon copy on onionskin-type paper and purports to be a laboratory report bearing tbe name of the St. Louis Police Department. The report purports to convey results of a laboratory examination of clothing said to be the property of Mary Tate. However, appellant emphasizes the purported hearsay recital, “a vaginal smear was taken at Homer Phillips by Dr. M. R. Banton and no spermatozoa was found.” Dr. Banton, although endorsed as a witness, was called by neither the state nor the defendant.
. The trial transcript shows that counsel cross-examined vigorously and in detail, and the questioning demonstrates a sound grasp of the prosecution and defense theories of the case.
. The trial transcript shows that counsel, throughout trial, sought to inspect police records, and that the court did permit him to inspect the police records, reports, etc., concerning the victim, Mary Tate.
|
sw2d_482/html/0503-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WELBORN, Commissioner.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE of Missouri, Respondent, v. James NUNLEY, Appellant.
No. 56320.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
Ronald A. Brown, St. Louis, for appellant.
WELBORN, Commissioner.
Appeal from two-year sentence on jury verdict of guilt on charge of assault with intent to kill with malice.
At approximately 1:30 A.M. on Sunday, January 25, 1970, a melee occurred outside a tavern in St. Louis. In the course of a fight Simon McCloud was shot. He told police officers that four or five men were fighting with him but he could not identify them. A few days later, he learned the name of the appellant, James Nunley, whom he had seen frequently before the affray but he did not know Nunley’s name. He told police officers that Nunley had fired the gun. About a month later Nunley was arrested. He was identified at the trial by McCloud and another person present at the fight as the person who fired the shot.
Nunley’s wife testified on his behalf that Nunley was ill on Saturday before the shooting, suffering from a bad back and a cold and fever. She testified that her husband was at home all day, lying around on a sofa and that at around 7:30 or 8:00 P.M. he went upstairs and went to bed. At around 11:00 P.M., Reverend Jones and his wife called on them and went upstairs and visited with her husband for about an hour. They came downstairs and stayed until about 1:30 and her husband did not leave the house and was in bed when she retired at 2:00 A.M. Nunley testified to the same facts and denied that he shot McCloud.
A police officer testified that he arrived at the scene of the shooting at about 1:15 A.M. He spoke to McCloud at the hospital a half-hour or 45 minutes later. McCloud could not give him the name of any of the persons involved and did not indicate that he knew any of them. The officer said McCloud told him he was fighting with four men and would not know who shot him.
The trial had begun on the afternoon of October 20, 1970. The state presented some evidence that day and additional evidence the following morning. Nunley, his wife and the police officer had testified for the defendant prior to the noon recess on October 21. When court resumed following the noon recess, defense counsel requested a continuance until the next morning because Reverend Jones would not be able to come in that afternoon. Counsel explained to the court that he and the appellant had spoken to Reverend Jones during the noon recess and asked him to come in to testify at 2:00 P.M. Reverend Jones said he was going to the union hall and could not come in. Counsel said that he explained to Jones that his testimony was vital. The court inquired whether or not Jones had been subpoenaed and counsel said he had not done so because he did not wish to force him in. The court denied the request for a continuance. Defense counsel made an offer of proof showing that Jones’s testimony would support that of defendant and his wife and moved for a mistrial, which was denied. The defense then rested and the case was submitted to the jury.
On this appeal, the sole ground of error specified is the trial court’s refusal to grant the continuance requested by defendant when Reverend Jones failed to appear. Appellant emphasizes that the continuance sought would only have terminated that day’s court activity at 2:00 P.M. instead of the usual adjournment time. He contends that in view of the vital nature of Jones’s expected testimony, the refusal of the continuance was an abuse of discretion and prejudicially erroneous.
Appellant acknowledges that the denial of a continuance is rarely reversible error and that it is a matter which rests with the sound discretion of the judge. He has cited only civil cases in which the refusal of a continuance wa§ held not error. Those cases are of no value in passing upon the question here presented.
Review of the circumstances of the trial court’s action compels the conclusion that no abuse of discretion has been here demonstrated. Defense counsel acknowledged that he was aware the previous day that the defense case would have to be presented on the second day of the trial. There is no showing that any effort was made to get in touch with Reverend Jones prior to the noon recess on the second day of the trial. Appellant declined to subpoena Jones and made no offer to do so in connection with the request for a continuance. There is nothing on the record here which shows that, had a continuance been granted as requested, Jones would have appeared the following day. The lack of diligence and the absence of assurance that a continuance would have resulted in the presence of the witness preclude a finding of abuse of discretion by the trial court. See State v. Shaw, Mo.Sup., 357 S.W.2d 894, 895-896[ 1 ]; State v. Scott, Mo.Sup., 338 S.W.2d 873, 876[4-6].
Judgment affirmed.
HIGGINS, C., concurs.
PER CURIAM:
The foregoing opinion by WELBORN, C., is adopted as the opinion of the Court.
BARDGETT, Acting P. J., SEILER, J., and FINCH, C. J., concur.
HOLMAN, P. J., not sitting. |
sw2d_482/html/0505-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "HOLMAN, Presiding Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
MISSOURI PACIFIC RAILROAD COMPANY, a Corporation, (Plaintiff) Appellant, v. Harold KUEHLE, Tax Collector of Cape Girardeau County, Missouri, (Defendant) Respondent, Cape Girardeau School District No. 63 et al., Intervenors-Respondents. ST. LOUIS SOUTHWESTERN RAILWAY COMPANY, a Corporation, (Plaintiff) Appellant, v. Harold KUEHLE, Tax Collector of Cape Girardeau County, Missouri, (Defendant) Respondent, Cape Girardeau School District No. 63 et al., Intervenors-Respondents. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY, a Corporation, (Plaintiff) Appellant, v. Harold KUEHLE, Tax Collector of Cape Girardeau County, Missouri, (Defendant) Respondent, Cape Girardeau School District No. 63 et al., Intervenors-Respondents.
Nos. 56653, 56654, 56680.
Supreme Court of Missouri, Division No. 1.
July 17, 1972.
James E. Reeves, Ward & Reeves, Ca-ruthersville, John F. McCartney, St. Louis, for plaintiff-appellant, St. Louis-San Francisco Ry. Co.; John McCullough, St. Louis, of counsel.
Harry C. Blanton, David E. Blanton, Blanton, Blanton, Rice & Sickal, Sikeston, for plaintiffs-appellants, Missouri P. R. Co., St. Louis S. W. Ry. Co.
Jack O. Knehans, Finch, Finch, Knehans & Cochrane, Cape Girardeau, Paul A. Mueller, Jr., Mueller & Statler, Jackson, for intervenors-respondents.
A. J. Seier, Prosecuting Atty., Cape Girardeau, for Harold Kuehle.
HOLMAN, Presiding Judge.
In each of these three cases, consolidated on appeal, plaintiff filed suit against the Tax Collector of Cape Girardeau County for refund of alleged excess school tax payments. The school districts of Cape Girardeau County intervened and judgments were rendered in favor of the defendant and the intervenors. Plaintiffs have appealed. We have jurisdiction because the case involves the construction of a state revenue law. Art. V, § 3, Mo. Const., V.A.M.S.
The case was submitted on an agreed statement of facts which discloses the following: After the school boards of the various school districts in Cape Girardeau County had determined the rate of levy on real property necessary to raise needed revenues for 1969, the State Tax Commission increased the assessed valuation of the real property in the county by approximately 16%. This increase brought into play § 137.073 which provides for a readjustment of the prior levy when the county assessment has been increased by 10% or more. That section reads as follows:
“Whenever the assessed valuation of real or personal property within the county has been increased by ten per cent or more over the prior year’s valuation, either by an order of the state tax commission or by other action, and such increase is made after the rate of levy has been determined and levied by the county court, city council, school board, township board or other bodies legally authorized to make levies, and certified to the county clerk, then such taxing authorities shall immediately revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be pro-educed by the original levy. Where the taxing authority is a school district it shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation. The lower rate of levy shall then be recertified to the county clerk and extended upon the tax books for the current year. The term ‘rate of levy’ as used herein shall include not only those rates the taxing authorities shall be authorized to levy without a vote, but also those rates which have been or may be authorized by elections for additional or special purposes. No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.”
All of the school districts except one submitted revised rates of levy. Because plaintiffs are railroad companies the tax levy rate applicable to them is the average of all the school district levy rates in the county. See § 151.150. Prior to revision of the rates this average for Cape Girar-deau County was $3.12 per hundred dollar valuation (hereinafter all references to the rate are on the basis of a hundred dollar valuation). The average rate after the revisions was $2.95. The total amount of taxes that would have been produced under the original levy was $3,169,434. The revised rates would have produced $3,471,356. In each school district the amount of taxes that would have been produced after the increased valuation and revision of rates was greater than that which would have been produced under the original rate of levy and valuation. In the largest school district, Cape Girardeau School District No. 63, the increase in the amount of taxes produced under the revised rates over the original rates amounted to $134,727.00. Maintaining that the reductions in rates were insufficient to comply with § 137.073, plaintiffs paid part of the taxes under protest and filed these suits to recover that portion of the taxes pursuant to § 139.031.
Plaintiffs contend that the rates set forth in Exhibit A (hereinafter referred to as plaintiffs’ rates) should have been used instead of the revised rates fixed by the school districts. Plaintiffs’ rates would produce in each school district an amount of taxes which is more than the amount originally estimated as needed. In each instance these rates are lower than the revised rates submitted by the school districts. The average of plaintiffs’ rates is $2.68. If plaintiffs’ rates were used in all of the school districts, $3,290,238 in taxes would be produced. For the individual plaintiffs the amounts by which the actual taxes assessed exceed the amount that would be assessed under plaintiffs’ rates are: Missouri Pacific Railroad Company, $3,117.46; St. Louis Southwestern Railway Company, $1,403.90; and St. Louis-San Francisco Railway Company, $2,964.12.
A preliminary issue must be decided before we can determine whether plaintiffs’ rates or the school districts’ revised rates should have been used. This issue concerns the loss in supplemental state aid which would result in three of the school districts if plaintiffs’ rates were used. Under either plaintiffs’ rates, or the school districts’ revised rates, all of the school districts meet the basic eligibility requirements for state aid (§ 163.021 requires a minimum rate of $1.00 in order to be eligible for state aid). In order to qualify for additional state aid in the amount of $14 per resident pupil in average daily attendance, higher rates of levy are required. See § 163.031. Some of the school districts qualified for this additional state aid under either plaintiffs’ rates or under the revised rates, and some qualified under neither. The problem which confronts us here concerns those three school districts which would qualify for this additional state aid under the revised rates but not under plaintiffs’ rates. In those three districts the rate necessary to qualify for additional state aid was $3.48. The plaintiffs’ rates for each school district were less than that amount and the revised rates were more. The resulting losses in supplemental state aid to the school districts under the plaintiffs’ rates would be: Jackson R-2, $31,810.00; Nell-Holcomb R-4, $2,727.00; and Oak Ridge R-6, $4,141.00. In plaintiffs’ Exhibit A compensation for this loss in state aid is made in the following manner: The loss in supplemental state aid is added to the amount of taxes that would have been produced from the original rate of levy. A rate of levy that would produce that sum is then determined. Plaintiffs contend that this is the scheme envisioned by § 137.073, which provides, in part, “[The school districts] shall only be required hereby to revise and lower the rates of levy to the extent necessary to produce from all taxable property substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation.”
However, defendant and the intervenors (hereinafter respondents) argue that there can be no reduction in the rate of levy below an amount that would entitle the school districts to participate in the additional state aid. In support of their contention respondents point to the last sentence of § 137.073, which provides, “No levy for public schools or libraries shall be reduced below a point that would entitle them to participate in state funds.” Respondents contend that this sentence is referring to all state funds available to the school district, and that it prohibits a reduction in the rate of levy which would result in a loss of supplemental state aid under § 163.031.
Respondents’ interpretation of the sentence in question would probably be correct if it were not for the specific reference in a previous sentence of the statute to “such additional amounts as may be necessary approximately to offset said district’s reduction in the apportionment of state school moneys due to its increased valuation.” This sentence obviously contemplates possible reductions in supplemental state aid and provides a means to compensate for the reduction.
“ 'It is an elementary and cardinal rule of construction that effect must be given, if possible, to every word, clause, sentence, paragraph, and section of a statute, and a statute should be so construed that effect may be given to all of its provisions, so that no part, or section, will be inoperative, superfluous, contradictory, or conflicting, and so that one section, or part, will not destroy another.’ [Citation omitted.] Moreover, it is presumed that the legislature intended every part and section of such a statute, or law, to have effect and to be operative, and did not intend any part or section of such statute to be without meaning or effect.’ ” Graves v. Little Tarkio Drainage Dist. No. 1, 345 Mo. 557, 134 S.W.2d 70, 78. To construe § 137.073 in the manner respondents advocate would result in part of the statute being inoperative and superfluous. If the statute were construed to prohibit a reduction in levies which results in loss of supplemental state aid, then the provision for compensation under those circumstances would have no effect.
Plaintiffs maintain that the last sentence in § 137.073 only prohibits a reduction in the rate of levy to a point where no state funds would be available (i. e., a reduction below a rate of $1.00 since no state aid would be available if the rate were less than that amount. § 163.021). We have concluded that this is the correct construction to be placed on the statute. This interpretation harmonizes the various sentences and sections and provides a workable plan consistent with the intent and purpose of the statutes. McCord v. Mo. Crooked River Backwater Levee Dist., Mo.Sup., 295 S.W.2d 42, 45. It also gives effect to each part of the statute. Stewart v. Johnson, Mo.Sup., 398 S.W.2d 850; Graves v. Little Tarkio Drainage Dist. No. I, supra.
Having ruled in favor of plaintiffs on this point the question we must now resolve is whether the school districts’ revised rates produced “substantially the same amount of taxes as previously estimated to be produced by the original levy, plus such additional amounts as may be necessary approximately to offset [the loss in supplemental state aid].” § 137.073. Respondents argue that the amount of taxes collected from the plaintiffs is substantially the same since the amounts paid under protest are less than 7% of the total amount of taxes plaintiffs paid. Although this may be correct, it is irrelevant because the statute requires that the total amount of taxes produced be substantially the same; it says nothing about the amount of taxes paid by a particular taxpayer. In this case, after the adjustment for the loss in supplemental state aid has been made, the school districts’ revised rates would produce $263,244.00 more than was originally estimated as needed.
The primary rule of construction of statutes is to ascertain the lawmakers’ intent. Union Electric Co. v. Morris, Mo.Sup., 222 S.W.2d 767, 770. We have the view that the words “substantially the same amount” were used in § 137.073 with the recognition that a rate which would yield precisely the same amount would be virtually impossible to determine. However, the purpose of the section is obviously to prevent “windfalls” in school taxes to the school districts merely because the assessed valuation of the real property in a county increases. The legislature recognized (in the emergency clause of § 137.-073, which made the Act effective upon passage) that such an increase could result in hardship for the taxpayers. Section 2 of the original Act provides:
“Emergency — Because the State Tax Commission has announced that it is going to order a large increase in the assessed valuations of property in many counties in this state which will result in hardship for the citizens of this state unless the rate of levies are correspondingly reduced, and because the present law does not adequately protect the people of this state * * Laws of 1955, p. 836.
It is a well settled rule that a taxing statute must be strictly construed in favor of the taxpayer and against the taxing authority. Union Electric Co. v. Morris, supra, l. c. 770; United Air Lines, Inc. v. State Tax Commission, Mo.Sup., 377 S.W.2d 444. We also note that under the plaintiffs’ rates, after the adjustment for the loss in supplemental state aid, each school district would still receive more revenue (a total of more than $80,000) than was needed according to the original estimate. Under these circumstances we agree with plaintiffs that an increase of more than $260,000 in revenue produced amounts to an excessive “windfall” which § 137.073 was designed to prevent, and that the trial court erred in holding that the statute had been complied with. We therefore rule that the plaintiffs’ suggested rates would have produced sufficient revenue for the school districts and at the same time meet the demands of § 137.073. Accordingly, we hold that plaintiffs are entitled to the refunds sought in their petitions.
Respondents contend that the trial court’s judgments should not be set aside because they are not clearly erroneous. Civil Rule 73.01(d), V.A.M.R. The cases cited, Smith v. Tracy, Mo.Sup., 372 S.W.2d 925, and Sebree v. Rosen, Mo.Sup., 393 S.W.2d 590, are not in point. Since, in our opinion, the judgments of the trial court were for the wrong parties, it must follow that they were clearly erroneous. This point is ruled against the respondents.
The judgments are reversed and the causes remanded with directions to enter judgments for plaintiffs for the amount of taxes they paid under protest.
BARDGETT, J., and BONDURANT, Special Judge, concur.
SEILER, J., not sitting.
. Statutory references are to RSMo 1969, V.A.M.S.
|
sw2d_482/html/0510-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "PER CURIAM.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
TROUT’S INVESTMENTS, INC., d/b/a Boonville Lumber Co., Plaintiff-Respondent, v. R. Stuart DAVIS, Jr., et al., Defendants-Appellants. Don E. WINNINGHAM, Sr., Plaintiff-Respondent, v. R. Stuart DAVIS, Jr., et al., Defendants-Appellants. Fred OERLY and Frank P. Zoeller, Plaintiffs-Respondents, v. R. Stuart DAVIS, Jr., et al., Defendants-Appellants. Eugene H. GERHARDT, Plaintiff-Respondent, v. R. Stuart DAVIS, Jr., et al., Defendants-Appellants.
No. 25764.
Missouri Court of Appeals, Kansas City District.
June 5, 1972.
Motion for Rehearing and/or Transfer to Supreme Court Denied July 6,1972.
Conway & Blanck, James E. Conway, and Richard J. Blanck, Boonville, for appellants National Bank of Boonville and Richard J. Blanck, as Trustee.
Dale Reesman, of Williams, Reesman & Tate, Boonville, for respondents Trout’s Investments, Inc., Don E. Winningham, Sr. and Fred Oerly and Frank P. Zoeller.
Hampton Tisdale, Boonville, for respondent Eugene H. Gerhardt.
PER CURIAM.
This is an appeal from a judgment of the Circuit Court of Cooper County, Missouri in four separate lawsuits filed in that court wherein the plaintiffs seek to assert mechanic’s liens for work and material on residential property and to have the court declare such liens superior and prior to a first mortgage deed of trust. The cases were consolidated for trial, jury waived, and submitted to the court as the trier of facts. The court entered a judgment finding in favor of the lienors in various amounts, rendering a money judgment against the defendants and decreeing that such mechanic’s liens were superior and prior to the encumbrance of the deed of trust held by the defendant Richard J. Blanck, as trustee for National Bank of Boonville, named as codefendants with the owners of the real estate, R. Stuart Davis, Jr., and Margaret T. Davis. At the conclusion of the evidence, none of the parties requested findings of fact or conclusions of law, but the court did file his own findings and judgment as permitted by Rule 73.01 V.A.M.R.
This appeal was originally lodged in the Supreme Court of Missouri, but was transferred here by that court upon the ground that the appeal was not within the monetary jurisdiction of that court.
The transcript submitted on this appeal shows that the plaintiffs in each of the four cases alleged that the owners, Davis, had become non-residents of the state of Missouri, had absconded, and concealed themselves, so that service of process could not be had upon them personally, and requested the court to order service by publication under Rule 54.08(c) V.A.M.R., but such transcript is silent as to whether the necessary affidavit or verification was filed or such service by publication actually obtained.
Consonant with our duty to determine whether we have jurisdiction, City of Hannibal v. Winchester, Mo.App., 360 S.W.2d 371; Vol. 2 Mo. Digest, Appeal and Error, ®=523, p. S95; and in accordance with the provisions of Rule 81.12(c) (formerly Rule 82.12(c)) V.A.M.R.; and Section 512.110 (3) V.A.M.S., the clerk of the circuit court of Cooper County was directed to send to this court the original files in each of the four consolidated cases, and this was done.
An examination of these files shows that each of the four petitions was duly verified as required by law; that an order of publication was issued by the court in each of said cases; proper legal notice was published in the Boonville Daily News, summoning the defendants Davis, and the publisher’s affidavit was properly filed in each of the cases. Service by publication was therefore completed as to the defendants Davis, but they did not file any pleadings or appear at the trial, either in person or by counsel.
The events which gave rise to this litigation may be summarized as follows :
The defendant, R. Stuart Davis, Jr., was an engineer employed by the McGraw-Edison Company at Boonville, Missouri, and in the early part of 1967, he and his wife, Margaret T. Davis, arranged to purchase a piece of residential property in Boonville, which was described as one of the “show places” in that city, and the president of the defendant bank stated it was his opinion that the property, as it stood when the Davises purchased it, was worth approximately $30,000.
The Davises made arrangements with the defendant Bank to borrow the sum of $27,000 to be secured by a first deed of trust upon said property.
The arrangements with reference to this loan were that $15,000 of the proceeds were given to defendants Davis as part of the purchase price of said property. The remaining $12,000 of the proceeds of the loan was placed into a “blocked account”, denominated “Construction Account”, to be used for material and labor on the property in connection with a remodeling project contemplated by the Davises. The funds from this account could be released only in the amount of $3,000 at any one time, and withdrawals therefrom required the signature of both Davis and an officer of the defendant bank, and could be made only if at the time of such withdrawal Mr. Davis put up $2,000 of his own funds. The funds thus realized from the blocked account and Davis’ money were then placed in a “Special Account” for the purpose of paying labor and material bills. While Mr. Davis could draw on such account under his own signature, such checks drawn by Davis, according to witness Thomas J. Miller, vice president of the defendant bank and the representative of the bank actively in charge of this transaction, would not be charged against such account until they were “viewed” and approved by an officer of the bank, who would check them to make sure they were payable for materials and labor and properly endorsed by the payee. Such checks would not be paid without this approval.
When these loan arrangements had been completed, Mr. Davis, owner of the property, entered into contracts which were apparently oral with each of the four plaintiffs, to furnish certain materials and perform certain work with reference to the remodeling of the house, then situated upon the land involved. It thus is clearly shown in the record that each of the plaintiffs occupied the position of general contractor, as distinguished from subcontractors, laborers or journeymen, as contemplated under the provisions of the Missouri mechanic’s lien law.
The evidence was also abundantly clear that before any of the plaintiffs incorporated any material into, or performed any labor upon, the property in question, numerous inquiries were made by the plaintiffs or their representatives of the defendant bank with reference to the Davis loan.
There is a sharp dispute in the record as to whether or not these inquiries were made and as to the extent thereof and the response of the bank thereto.
The plaintiffs offered substantial evidence that frequent and continuing inquiries were made to Garth Clinkscales, the president of the defendant bank, and to Thomas J. Miller, the vice president, and that, these gentlemen assured the plaintiffs and their representatives that the Davis loan had been made; that the money “was there” and “available” for the construction work; that Davis was a “good risk”; that they had nothing to worry about; that “the money was good”; that they would be paid; and that everything was “all right” and “fine”. This, before any materials were furnished or labor performed. Each of the four plaintiffs relied upon these assurances and representations by the bank and proceeded with the work.
The plaintiffs further offered evidence that when the payment of their accounts submitted periodically to Mr. Davis were not promptly paid, further inquiry was made of the bank officials, and further assurances given to them that the money was or soon would be available; that their accounts were good, and that they would be paid. In reliance upon these further representations and assurances, they continued with the work.
As the work progressed into May, June and July, 1967, the plaintiffs’ accounts were either not paid or only partially paid, which resulted in a cessation of the work and the filing of the liens, followed by these proceedings.
Before trial, the parties to the consolidated actions entered into a stipulation of facts wherein it was agreed that the cases be consolidated and tried as a jury-waived case before the court. Further, it was stipulated that all work done and materials furnished by the plaintiffs was actually performed and furnished on the premises in question by authority of the defendants Davis, and that the charges made therefor were usual and reasonable. It was further stipulated that the Davises became the owners of the fee of the property by deed dated January 18, 1967, and recorded in Cooper County, Missouri on March 10, 1967, at 11:25 o’clock a. m., and that they gave a deed of trust to secure a $27,000 note payable to the defendant bank dated March 8, 1967 and recorded March 10, 1967, at 1:05 o’clock p. m. It was further stipulated that no work had been performed or materials furnished by the plaintiffs prior to March 10, 1967. It was further stipulated that all of the claims of the plaintiffs, except that of Donald E. Winningham, Sr. d/b/a Central Waterproofing Company, were timely filed and the petitions to enforce such liens were timely filed, but that the defendant bank and trustee asserted that the Win-ningham claim was untimely filed.
It thus appears that the only issue between the plaintiffs, other than Winning-ham, is the issue of priority as between their timely filed liens and suits and the lien of the defendant bank under its deed of trust. Since this would also be the only issue between plaintiff Winningham and the defendants bank and trustee, if the Winning-ham lien was timely filed, this matter should be first resolved.
Winningham entered into a contract with owner Davis, which consisted of exterior work of sandblasting to remove the paint from the brick, cutting out the mortar, re-pointing with mortar, caulking around windows, inspection of metal flashings and chimneys, and waterproofing, if the brick was not to be repainted. He undertook this work upon a cost-plus (time-material) basis. He made his billings on a running account commencing April 11, 1967, the total amount of which was $5,878.81, upon which he was paid $1100 on May 22nd and $1200 on July 3rd, leaving an unpaid balance of $3,579.81.
On May 1, 1967, he suspended his work on the contract because of non-payment. On July 14, 1967, at the request of the owner, Davis, he returned to the job because of a purported leak. He did not discover any leak, but did apply four gallons of silicone on the brickwork. This is a waterproofing operation which is usually performed after the sandblasting and pointing but which he had not theretofore done because “he (Davis) was thinking about painting it back over the brick.” For this work on July 14, 1967, he added to his running account $36.88 for time and material.
Under this testimony, the trial court properly found that the limitation period with reference to Winningham’s mechanic’s lien did not commence to run until July 14, 1967, and that he perfected his lien within the mandate of the statutes and in connection therewith stood on an even basis with the other mechanic’s lien claimants.
The law is clear in Missouri, as stated in Badger Lumber Co. v. W. F. Lyons Ice & Power Co., 174 Mo.App. 414, 160 S.W. 49, l. c. 52:
“ * * * But, if the evidence shows that all the items were furnished ‘under and by virtue of’ one contract, then the vendor is entitled to his lien, although there may be facts and circumstances showing that they were furnished at different times, and were rendered necessary by different conditions. A running account is deemed an entire contract, and, for the purpose of fixing the time for filing the account to perfect a mechanic’s lien, each item of the account relates to the last item delivered * * * But, unless there is evidence to show a separate and distinct contract as to the last items, the account will be taken and considered, as it appears, to be, a running account arising under and by virtue of the contract out of which the account originally grew.”
This court further said in Badger Lumber Co., quoting from Phillips on Mechanic’s Liens, l.c. 52:
“ ‘But when material is furnished, all going to the same general purpose, as the building of a house or any of its parts, though such- work be done or ordered at different times, yet if the several parts form an entire whole, or are so connected together as to show that the parties had it in contemplation that the whole should form but one, and not distinct matters of settlements, the whole account must be treated as a unit, or as being but a single contract.’ ”
General Fire Extinguisher Co. v. Schwartz Bros. Commission Co., 165 Mo. 171, 65 S.W. 318, 323; Darlington Lumber Co. v. James T. Smith Building Co., 134 Mo.App. 316, 114 S.W. 77, 79; Tull v. Fletcher, 196 Mo.App. 573, 196 S.W. 436, 439; Christopher & Simpson Architectural Iron & Foundry Co. v. E. A. Steininger Construction Co., 200 Mo.App. 33, 205 S.W. 278, 281; Cleary v. Siemers-Marshall Electric Co., Mo.App., 296 S.W. 448, 451, 452.
All of the above cases are uniform in holding that the mere lapse of time between the items incorporated in a contract on a running account is not sufficient to commence the running of the mechanic’s lien periods of limitation.
Nor is it significant that the last item or labor may be a small item. Harry Cooper Supply Co. v. Rolla National Building Co., Mo.App., 66 S.W.2d 591, 596.
Of course, these authorities and others hold that where material or labor are not part of the contract, or are the subject matter of a separate contract, or are furnished and built fraudulently or in bad faith for the sole purpose of tolling mechanic’s liens limitation periods, the rule does not apply.
There is no evidence in this record that the work performed and the materials furnished by Winningham on July 14, 1967 would fall within this excluded category. On the contrary, these services were furnished at the specific request of the owner Davis and were directly related to the work previously performed by Winning-ham under a single contract and a continuing running account.
The Winningham mechanic’s lien claim should and will be considered as timely filed and on an equal footing with the other three claims. There remains for decision only the matter of priority between the mechanic’s liens and the deed of trust.
The court below in its findings and judgment held that Section 429.050 was applicable to this case, and under the terms of that statute the plaintiffs were given absolute priority over the lien of the prior deed of trust. This section provides in substance that mechanic’s and materialmen’s liens shall be given preference to any prior lien on the land and that in the enforcement of such preferential liens in certain cases the building structures can be removed from the land and sold under execution. Our conclusion is that such statute applies only to new construction and is not applicable to the case at bar.
The great weight of authority in Missouri supports this interpretation of the statute. This, upon the theory that the security of a prior mortgage holder on vacant land is substantially enhanced by the erection of new structures thereon and should not be given any priority over mechanic’s liens for unpaid bills for material and labor that went into such new structure and the removal of such new structure or separate sale thereof leaves the original mortgage holder with the same security for his loan as he had before the new construction.
On the other hand, when a prior mortgage is given upon land and an existing structure, and such structure is improved or repaired, the mechanic’s liens arising incident to such improvement or repair are given no priority nor should the mechanic lienors be permitted to disturb by removal or sale the existing structure so improved or repaired.
In the early case of Haeussler v. Thomas, 4 Mo.App. 463, in analyzing the then statute, now Section 429.050, the court said, l.c. 467:
“It cannot be the intention of the Legislature to carefully regard the interests of third parties as existing in the land, and to totally disregard the interests of third parties as existing in the buildings, at the inception of the mechanic’s lien. * * But where the mechanic builds a new building, here is property on which the prior mortgagee did not rely, and so, in favor of the mechanic, the statute does away with the rule that makes the building follow the land and, quo ad hoc, separates the two * * * But a mortgagee who has paid his money for a lien on buildings cannot be required to abandon his lien as against the lien claim of a mechanic who subsequently puts repairs on the building, because no means are afforded for separating the two interests in the building, and because as between the mortgagee and the lienholder, the rights of the former were vested before those of the- latter came into being * * * ”
Perhaps the most cited authority is the case of Schulenberg v. Hayden, 146 Mo. 583, 48 S.W. 472, where the court considered a claim for priority under the then statute (now Section 429.050 V.A.M.S.), where an existing house encumbered with a prior mortgage was two-thirds destroyed by fire and the lienor’s claim arose from material and labor expended in the reconstruction of the house. The mortgagor was not a party to the contract and there was no question of estoppel or waiver.
The court held that the mechanic’s lien could attach to and extend no further than the owner’s equity of redemption, and that the preference granted him under the statute applied only to new construction and not the restoration of previously encumbered structures.
To like effect, McLaren v. International Real Estate & Imp. Co., 126 Mo.App. 254, 102 S.W. 1105, 1106; Elliott & Barry Engineering Co. v. Baker, 134 Mo.App. 95, 114 S.W. 71, 72, 73; May v. Mode, 142 Mo.App. 656, 123 S.W. 523, 527; Ford v. Dixon, 171 Mo.App. 275, 157 S.W. 99, 101; Orear v. Dierks Lumber Co., 188 Mo.App. 729, 176 S.W. 467, 468; Jones Lumber Co. v. Snyder, 221 Mo.App. 1227, 300 S.W. 850, 851-2; Long v. Kissee, 223 Mo.App. 996, 24 S.W.2d 693, 694; Masterson v. Roberts, 336 Mo. 158, 78 S.W.2d 856, 860.
We conclude, therefore, that the plaintiffs do not enjoy a preferential priority over the bank’s deed of trust by reason of Section 429.050 V.A.M.S. because the material and labor furnished on the Davis home was not new construction, although it must be admitted that the contemplated repairs and improvements to the existing mortgaged residence were substantial in character.
Under the record before us, however, we hold that the defendant bank waived, and is now estopped, to assert any priority of its encumbrance upon the Davis property and hold, as did the court below, that the plaintiffs’ mechanic’s liens are superior and prior to the lien of the defendant bank and trustee.
Although the president of the bank, Clinkscales, testified that the property purchased by Davis was reasonably worth $30,000 before any improvements or repairs, and that he was satisfied with the security for the $27,000 note, both he and witness Miller, vice president of the bank, directly in charge of the Davis loan, testified that they knew of Davis’ plans for improvement and repair of the property and, indeed, had put $12,000 of the loan (to be matched by $8,000 of Davis’ money) in a blocked account, over which the bank retained control. Further, Miller testified that any funds, the source of which was the blocked account plus Davis’ money, were placed in a special or construction account, over which the bank maintained strict surveillance and against which no checks were paid until the bank was satisfied that the funds had been expended upon improvement of their security.
Before any materials were furnished, the manager of the lumber company (plaintiff Trout’s Investment, Inc.), one Denomme, went to the bank and was told that a loan had been made for the improvements and that the “money would be there to pay”, “everything was all right”, “fine”, “money was good”, and that thereafter, when his company’s bills became delinquent, he went to the bank and was assured and reassured that the payment would be forthcoming. He made the inquiries for his company and for the other claimants, and communicated the information to them.
Plaintiff Winningham made inquiry of Clinkscales at the bank and was told that the loan had been made for the purpose of paying for the work; that Davis was a good risk, and that he would be paid. When his account became delinquent, he was advised by both Clinkscales and Miller that he “could expect some money in a short time and that he would be paid.”
Plaintiff Zoeller inquired at the bank about his bill and was encouraged by vice president Miller to continue his work when Miller told him Davis “had a loan and the money is available” for remodeling purposes. When his bills were in arrears, he saw Miller on several occasions and received the same assurances.
Plaintiff Gerhardt, before he had installed any material or done any work, went to the bank and talked to Clinkscales, the president, as to the availability of funds, and was told that Davis had made the necessary arrangement to pay for the improvements; that the “money was there” and “that the money was good”.
And later, on behalf of Gerhardt, witness Henry Schler went to the bank to inquire about payment of the Gerhardt bill and was told by vice president Miller that Davis had a good job with McGraw Electric Company; that the bank had made Davis a loan and that the money would be available to take care of the improvements and “that Gerhardt would not be hurt”. Schler reported these conversations to Gerhardt.
Witness Ed Gerke was “sort of a foreman” on the job and was in contact with several of the plaintiffs and felt a certain responsibility that they be paid and was advised about the bank financing it and assured generally that the workers would be paid.
While both Clinkscales the president, and Miller the vice president, denied that any such assurances had been given (and indeed Clinkscales denied any conversations with anyone aside from Miller about the Davis loan) the credibility of the witnesses could be best judged by the trial court and he, in fact, found that these representations and assurances had been made by the bank and had been relied upon by the plaintiffs. No reason appears before us as to why the trial court’s evaluation of this evidence should not be accepted by us.
Under these circumstances, it seems apparent that all of the elements of waiver and estoppel are present in this case. The bank had full knowledge of the remodeling project, exercised control over the loan funds for this purpose, and fully realized that unpaid bills for material and labor would become lienable. Representations and assurances were made by the defendants’ two principal officers and they were relied upon by the plaintiffs, to their injury and damage. The actions of the bank officials in so doing in fact induced the plaintiffs to furnish the material and labor which form the basis for their respective claims for mechanic’s liens.
It has long been the law, both in Missouri and elsewhere, that a mortgagee may waive the priority of his lien and be estopped from asserting such priority. 57 C.J.S. Mechanics’ Liens § 204(1), p. 768:
“ * * * A mortgagee may, by reason of his having induced the furnishing of labor or material be precluded from asserting the priority of the mortgage over a mechanic’s lien.”
In the case of H. B. Deal Construction Co. v. Labor Discount Center, Inc., Mo., 418 S.W.2d 940, the priority of a mortgage involving new construction of a shopping center was held to have been subordinated, not only under the terms of Section 429-050 V.A.M.S., but also under the doctrine of waiver. The court there said, l.c. 952:
“Under the doctrine of waiver a mortgagee by reason of having induced the furnishing of labor and material may be precluded from asserting the priority of the mortgage over a mechanic’s lien.”
In that case, the officials of the Wellston Bank, mortgagee, controlled the financial arrangements and frequently conferred with the contractors, subcontractors, mechanics and materialmen, and the court held that its actions in so doing extended far beyond merely consent or failure to object to the improvements and concluded, l.c. 954:
“By its acts and conduct the bank caused, procured and induced all of the direct contractors and subcontractors to perform the necessary services and to supply the needed materials for the construction of the improvement. Under these circumstances the bank is in no position to insist upon the subordination of the liens of the mechanics and materialmen and is taken to have waived the priority of the lien of the deed of trust in favor of the liens of the mechanic’s lien claimants. The plaintiff and the other mechanic’s lien claimants, therefore, have a paramount mechanic’s lien not only on the improvements (by virtue of Section 429.-050) but also on the land itself.”
The court in H. B. Deal Construction Company cites with approval and follows the case of Jefferson County Lumber Co. v. Robinson, Mo.App., 121 S.W.2d 209, 212, and Magidson v. Stern, 235 Mo.App. 1039, 148 S.W.2d 144, 153.
We therefore hold that the mechanic’s liens of the plaintiffs are superior and paramount to the lien of the defendant bank and trustee, and that such mechanic’s liens are applicable as superior liens on both the land and the improvements owned by the defendants Davis.
The judgment below should be affirmed in substance, but must be amended as to form. We are empowered to do this under Rule 84.14 V.A.M.R.
As noted above, personal service could not be obtained upon the owners-defendants Davis, but substituted service was obtained upon them by publication under Rule 54.08 V.A.M.R. Such service, however, will not support a personal judgment against them. Under such circumstances, the law is clear as to the type of judgment authorized. Section 429.230 V.A.M.S. (Rule 101.08 V.A.M.R.) provides:
“When the debtor has not been served with summons according to law, and has not appeared, but has been lawfully notified by publication, the judgment, if for the plaintiff, shall be that he recover the amount of the indebtedness found to be due, and costs of the suit, to be levied of the property charged with the lien therefor, which said property shall be correctly described in said judgment.”
Murdock v. Hillyer, 45 Mo.App. 287, 293; Mathews v. Heisler, 58 Mo.App. 145, 147; Vol. 1A, Missouri Practice, Mechanic’s Liens, Section 1142, p. 311; Vol. 10, Missouri Practice Procedural Forms, Rule 101.08, Form 1, p. 612, and Rule 74.09, Form 4, pp. 57-8.
The judgment should include the following:
1.A finding of the issue as to whether or not the claim of plaintiff Don E. Winningham, Sr. was timely filed in favor of said plaintiff and against the defendants.
2. A correct legal description of property involved.
3. That the amount of the indebtedness due each plaintiff is Trout Investments, Inc. d/b/a Boonville Lumber Company, $3,922.94; Don E. Winningham, Sr. d/b/a Central Waterproofing Company, $3,579.81; Fred Oerly and Frank P. Zoeller, a partnership d/b/a Oerly and Zoeller Masonry Contractors, $1,487.24; and Eugene H. Gerhardt, an individual d/b/a Gene Gerhardt Plumbing, Heating and Air Conditioning, $3,703.74.
4. That each of said plaintiffs have and recover from the defendants R. Stuart Davis, Jr. and Margaret T. Davis the amount of such indebtedness and the costs of these suits, to be levied of the property charged.
5. That such judgments constitute and are mechanic’s liens on the improvements and land owned by the defendants Davis, as described, to be levied of such property charged with such liens, and that special execution issue in favor of each plaintiff on his judgment.
6. That such liens, and each of them, are prior and superior to the lien of the deed of trust held on such land by defendant Richard J. Blanck, as trustee for the defendant National Bank of Boonville, securing the promissory note for the face amount of $27,000.00, dated March 8, 1967, and recorded in the office of the recorder of deeds for Cooper County, Missouri on March 10, 1967 at 1:05 o’clock p. m.
The judgment is affirmed and the cause remanded with directions to the trial court to amend the judgment for the plaintiffs in accordance with this opinion. |
sw2d_482/html/0519-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "STONE, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
ROLLA LUMBER COMPANY, a corporation, Plaintiff-Appellant, v. Everett C. EVANS and Barbara J. Evans, Defendants-Respondents.
No. 9106.
Missouri Court of Appeals, Springfield District.
June 20, 1972.
Routh & Turley, B. B. Turley, Rolla, for plaintiff-appellant.
William W. Hoertel, Rolla, for defendants-respondents.
STONE, Judge.
This is a court-tried action in quantum meruit by plaintiff Rolla Lumber Company, a corporation, to recover from defendants Everett C. Evans and Barbara J. Evans, husband and wife, by reason of certain materials sold and billed to one Robert Gardner, defendants’ tenant, and allegedly “affixed ... to defendants’ premises” by Gardner, “thereby increasing the value of defendants’ premises in an amount approximately equal to $1,500.” From the judgment for defendants, plaintiff appeals.
Defendants owned and resided in an old remodeled schoolhouse on a country road some 3½ to 4 miles southeast of Rolla. They also owned on the opposite side of the road a tract of undisclosed size on which there were a house and two outbuildings rented to and occupied by Robert Gardner. During the period from January 10 to February 14, 1969 plaintiff sold and billed to Gardner numerous and sundry items of material for which charges were recorded on the 32 tickets or invoices offered in evidence by plaintiff. The aggregate amount of the charges on those tickets is not stated in the transcript, but witness McConnell, the manager of and a stockholder in plaintiff corporation, opined that “the material” ran “around fifteen hundred dollars and some odd cents.” (All emphasis herein is ours.) It was averred in plaintiff’s petition that “the materials furnished by plaintiff [were] in the total amount of $1,564.49”; but a prayer for a judgment against defendants in that sum was, by leave of court on the day of trial, amended to $1,483.46. In their statement of the case here, plaintiff’s counsel inform us that “the invoice price of goods and materials delivered to the defendants’ premises was $1,433.46.” However, the charges on the 32 tickets or invoices in evidence as plaintiff’s exhibit 1 aggregate $1,540.80. Setting aside this salmagundi of numerical proffers, we note more significantly (a) that there was no averment in the petition and no evidence upon trial that plaintiff’s charges (whatever they may have been) were fair and reasonable, and (b) that all of the tickets or invoices in evidence show that the materials itemized thereon were “sold to” Gardner, that most of those tickets bear his signature acknowledging receipt of the materials listed thereon, and that neither the name nor the signature of either defendant appears on any ticket.
Most of the materials sold by plaintiff to Gardner — as much as ninety per cent thereof, so plaintiff’s manager thought— were delivered by plaintiff to the premises rented by Gardner. Being steadily employed elsewhere from 8 A.M. to 5 P.M. during the regular work week, defendant Everett did not witness the delivery of any of those materials. However, when he noticed materials on the rented premises and observed that some repairs and improvements were being made, he talked with tenant Gardner, who stated that “he [Gardner] was going to pay for it.” Plaintiff’s manager McConnell frankly conceded that he was looking to Gardner for payment and that he had not seen or talked with either defendant and did not know who owned the rented premises until “sometime,” perhaps as long as two months, after the last materials had been delivered “when we begin to wonder why” Gardner had not paid for them. Thus motivated by Gardner’s failure to pay, plaintiff’s manager talked with defendant Everett for the first time and then learned that he and his wife owned the rented premises. On some later date not fixed in the record, plaintiff’s manager and David Hall, the home office credit manager for the chain of lumber yards of which plaintiff was one link, went to Gardner’s home and conversed with him, then walked across the road and talked to defendant Everett in his yard, and in the course of that conversation informed him (so Hall testified) that “Mr. Gardner had not yet paid us . and if Mr. Gardner didn’t pay we would possibly look to [him].” Neither plaintiff’s manager McConnell nor home office credit manager Hall ever saw or communicated with defendant Barbara.
The statement of plaintiff’s counsel in the “Argument” section* of their brief that “some of the material [sold by plaintiff to Gardner] was added to the [rented] premises” fairly reflects the state of the record on this subject. Admittedly and for obvious reasons, no witness upon trial was able to say that all such materials either were incorporated in, or were utilized in improving, the rented premises, and no one undertook to itemize or list the materials so incorporated or utilized. The person best situated to illuminate this subject, namely, tenant Gardner, had vacated the rented premises on a date not disclosed in the transcript. His father-in-law, plaintiff’s witness Elbert L. Reed, who as a truck driver for plaintiff had delivered much of the materials to the rented premises, stated that at the time of trial Gardner was at Gray Summit, Missouri, but his testimony was not offered in person or by deposition. We observe parenthetically that defendant Everett said he had seen three new unopened gallon buckets of paint removed from the rented premises in Reed’s automobile—a matter here recognized in plaintiff’s statement of the case by the concession that “the invoice price” of the materials sold to Gardner may be reduced by “the value of three buckets of paint that may not have been applied to the [rented] premises.”
As recorded in the findings and judgment of the trial court and confirmed in plaintiff’s brief on appeal, recovery herein is sought on quantum meruit. “Quantum meruit means ‘as much as he has deserved,’ and the burden is on the claimant to plead, prove, and [where trial by jury has not been waived] have the jury instructed, that his charges are fair and reasonable.” Rodgers v. Levy, Mo.App., 199 S.W.2d 79, 82(5); Adams v. Smith, Mo.App., 307 S.W.2d 525, 527(1); Williams v. Cass, Mo.App., 372 S.W.2d 156, 161(10, 11); Woodley v. Esslinger, Mo.App., 458 S.W.2d 869, 873. See Otte v. McAuliffe, Mo.App., 441 S.W.2d 733, 736(2). Hence, failure to prove the reasonable value of services rendered or materials furnished is fatal to recovery therefor in quantum meruit. Bybee v. Dixon, Mo.App., 380 S.W.2d 539, 543(12); Williams v. Cass, supra, 372 S.W.2d at 161; Knoch v. Frye, Mo.App., 363 S.W.2d 737, 741(5); Hutchinson v. Swope, Mo.App., 256 S.W. 134, 135(4). See Service Construction Co. v. Nichols, Mo.App., 378 S.W.2d 283, 289(9).
In the case at bar, plaintiff’s petition (as amended on the day of trial) averred that “materials [were] furnished by plaintiffs in the total amount of $1,438.-46” and the tickets or invoices received in evidence upon trial, which listed amounts aggregating $1,540.80, purported to reflect plaintiff’s charges for those materials. But, passing the discrepancy between those pleaded and evidentiary figures, the indisputable fact remains there was not a scintilla of evidence that any of those charges were fair and reasonable. In these circumstances, the above-stated principles and supporting authorities dictated the judgment nisi for defendants.
In reaching this conclusion, we have not overlooked the novel and ingenious argument of plaintiff’s counsel, wholly unsupported by cited authority, that the fair and reasonable value of the materials sold and billed to Gardner should be “that value or amount by which the defendants’ property has been increased because of the application of the material.” Even if that theory be recognized arguendo, brief reference to the transcript before us will serve to indicate that the same result would be impelled. Over the timely and repeated objections of defendants’ counsel, plaintiff’s manager McConnell was examined in this wise: “Q. Now, what is your judgment as to the increased value of the property of the defendants by the application of the - materials which you testified were put on there? ... A. Well, your value is going to be approximately somewhere around twice the value of your material .... Labor, otherwise, will practically always run as much as the material on—going on a job [F]om put a hundred dollars of material into a building, usually you’ll have a hundred dollar increase if you just disregard the labor. Q. What would be your judgment is the increased value of the defendants’ property because of the application of your material only? ... A. Well, I would say it would be approximately the same amount of dollars as the material Around fifteen hundred dollars and some odd cents.” Since a showing as to plaintiff’s charges sans evidence that they were fair and reasonable would not support a judgment for plaintiff in quantum meruit, a fortiori approximations and generalizations as to “increased value of defendants’ property” roughly equated with, and wholly depending upon, a naked showing as to plaintiff’s charges would not support such judgment.
For an even more fundamental reason not reached in the briefs, plaintiff was not entitled to recover on the evidence presented. Quantum meruit is one of the common counts in general assumpsit [1 Am.Jur.2d Actions § 13, p. 553; 73 C.J.S. Quantum, p. 1269; 7 C.J.S. Assumpsit, Action Of § 2, p. 109], the remedy for the enforcement of quasi-contractual obligations [Laughlin v. Boatmen’s Nat. Bank of St Louis, 354 Mo. 467, 476, 189 S.W.2d 974, 979(13, 14)], i. e., “legal obligations arising, without reference to the assent of the obligor, from the receipt of a benefit the retention of which is unjust, and requiring the obligor to make restitution.” Woodward, The Law of Quasi Contracts § 3, p. 4. See 17 C.J.S. Contracts § 6, p. 566.
“The term ‘quasi contracts’ may with propriety be applied to all noncontrac-tual obligations which are treated, for the purpose of affording a remedy, as if they were contracts”; and, when so interpreted, the term includes “(1) judgments and other so-called contracts of record; (2) a number of official and statutory obligations . . . , and (3) obligations arising from ‘unjust enrichment,’ i. e., the receipt by one person from another of a benefit the retention of which is unjust.” Woodward, op. cit. supra § 1, pp. 1-2. See Donovan v. Kansas City, 352 Mo. (banc) 430, 448, 175 S.W.2d 874, 884(17), modified 352 Mo. 430, 179 S.W.2d 108, appeal dismissed 322 U.S. 707, 64 S.Ct. 1049, 88 L.Ed. 1551. However, for the sake of convenience, the term “quasi contracts” ordinarily should be applied to obligations of the third class alone [Woodward, op. cit. supra § 1, l.c. 2], and instant plaintiff here seeks to recover on an alleged obligation in that category.
Emphasizing that “[i]t is of the essence of quasi-contractual obligation that the retention of the benefit received by the defendant would be unjust,” benefits of that character were identified and classified by Professor Woodward as those conferred (a) “in misreliance on a right or duty,” or (b) “through a dutiful intervention in another’s affairs,” or (c) “under constraint.” Woodward, op. cit. supra § 9, pp. 9-10. Granting that a substantial portion of the materials sold and billed to Gardner was incorporated in, or was utilized in improving, the rented premises, and that as a result thereof defendants were benefited to some extent (although the measure thereof is not clearly shown or fairly ascertainable from the record), it does not follow that they thereby became burdened with a quasi-contractual obligation to pay plaintiffs therefor, since the transcript before us forecloses any finding that such benefit was conferred by plaintiff upon defendants in misreliance on any right or duty, or through dutiful intervention in defendants’ affairs, or under constraint.
Other authority points out that “[a] valid claim for unjust enrichment can be based only on an element of misconduct or fault or undue advantage taken by one party of another . . . . ” 17 C.J.S. Contracts § 6, l.c. 573. See Brown v. Thornton, 150 Mont. 150, 432 P.2d 386, 390(7). Furthermore, for a promise to pay to be implied, “the person benefited must do something from which his promise to pay may be fairly inferred . . . must be in a situation in which he is entirely free to elect whether he will accept the work, and the election must influence the conduct of the [other] party with reference to the work.” 17 Am.Jur.2d Contracts § 4, l.c. 338-339. Thus, high authority long ago declared that even when “a structure is permanently affixed to real property belonging to an individual, without his consent or request, he cannot be held responsible because of its subsequent use. It becomes his by being annexed to the soil; and he is not obliged to remove it to escape liability. He is not deemed to have accepted it so as to incur an obligation to pay for it, merely because he has not chosen to tear it down, but has seen fit to use it.” United States v. Pacific R. Co., 120 U.S. 227, 240, 7 S.Ct. 490, 496, 30 L.Ed. 634, 638; Sutton v. United States, 256 U.S. 575, 580, 41 S.Ct. 563, 565(4), 65 L.Ed. 1099, 1102-1103(7). To the same effect, see particularly Chatfield v. Fish, 126 Conn. 712, 10 A.2d 754; Hughes v. Monnahan, 282 Minn. 407, 165 N.W.2d 231, 233-234(4); Snider v. Dunn, 11 Mich.App. 39, 160 N.W.2d 619(3); 98 C.J.S. Work & Labor § 7, p. 723; id. § 42, p. 779.
The judgment for defendants should be and is affirmed.
TITUS, C. J., and HOGAN, J., concur.
. “The term ‘misreliance,’ coined by Professor Wigmore, is used for the sake of convenient brevity to denote a reliance which results from a mistake of fact, i. e., an erroneous belief that a certain fact exists or will exist.” Woodward, op. cit. supra, § 10, pp. 11-12.
|
sw2d_482/html/0523-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "CROSS, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
I_, Plaintiff-Appellant, v. I_, Defendant-Respondent.
No. 25667.
Missouri Court of Appeals, Kansas City District.
June 5, 1972.
Rehearing Denied July 6, 1972.
Paul E. Panek, Belton, for plaintiff-appellant.
Thayer, Gum, Ernst & Wickert, John E. Wickert, Belton, for defendant-respondent.
CROSS, Judge.
Plaintiff is the mother and defendant is the father of K_, a female child born of their legal union. Plaintiff was granted a divorce on June 23, 1970, but legal custody of the child, then four years of age, was awarded to defendant. Thereafter, on August 29, 1970, plaintiff filed a motion to modify the divorce decree by changing the child’s custody from defendant father to herself as the child’s mother. Upon hearing, the trial court found “that there has been no substantial change in the conditions, and the best interests of the child require that she remain with her father as presently set forth in the decree.” On the basis of those findings, the motion was denied. Plaintiff has appealed.
Plaintiff contends here that the trial court erred in failing to find that she has proven substantial and material changes of circumstances requiring a change of the child’s custody.
At the original (divorce) hearing plaintiff appeared in person and by her counsel. Defendant at that time was stationed at Fort Bragg under military orders in U. S. Army Service and appeared only by his counsel. As shown by a transcript of the divorce hearing (introduced in evidence at the subsequent hearing on the motion to modify the decree), plaintiff was the sole witness to testify in the original proceeding. After narrating alleged general indignities ascribed to defendant as grounds for divorce, she testified, relative to the custody-question, that the parties separated October 9th, 1967 after residing together as husband and wife for approximately a year; that at the time of the divorce hearing, the child was and had been, for the previous six months, residing with her father at Fort Bragg; and that although plaintiff had the child in her custody when she filed the petition for divorce on October 18, 1968, prior to the hearing, she voluntarily turned the cutody of the child over to defendant. Plaintiff further testified as follows:
“DIRECT EXAMINATION:
“Q Now, with regards to the minor child, what are you asking the Court to award there, with regards to custody of the child?
A I think she should stay with the father.
Q Would you explain the reason that you are asking this?
A Financially he’s more capable of providing for her, and giving her a more stable environment.
Q And he is providing a home that’s stable ?
A Yes, he is.”
* ⅜ sj« * * ⅛
“Q He has had the child since December?
A Yes.
Q And you are satisfied with the provisions and how he’s taking care of the child; is that correct?
A Yes, sir.”
******
“CROSS EXAMINATION:
“Q * * * Is it your opinion that the child is better off with her father?
A Yes.
Q Do you think that she would have better care and better facilities with her father.
A Yes I do.
Q And it’s not merely because of the financial aspect then; you think that because of the surrounding facilities, that the child is better off with her father?
A Yes, I do.”
******
‘Q Are you perfectly satisfied with the provisions that are made for the child; that have been made ?
A Yes, I am.
Q Now, do you realize that this decision shouldn’t be taken lightly by you; that this Court will not readily change the custody of the child once custody has been granted to a party; do you understand this ?
A I do.”
* * * * * *
‘THE COURT:
Q What are the conditions under which the child is in your husband’s custody; what are the living arrangements since he is in the Army?
A They have a house— * * * She and my husband. * * * She attends nursery school during the day, and he takes care of her at night in the house.”
‘THE COURT: You are not giving up the custody of this child so that you can get a divorce from this man, are you?
A No, sir.
THE COURT: You are not sacrificing the custody question so that he won’t contest the divorce?
A No, sir.
“THE COURT: No inducement involved in this custody situation except your feeling that he is the best person to have custody of this child?
A No, sir.”
Evidence adduced at the hearing on plaintiff’s motion to modify clearly delineates the conditions surrounding the parties both at the time of the original decree and subsequent thereto. It is shown by defendant’s testimony that after the divorce was granted, he was discharged from the U. S. Army, in which he had served as a Chief Warrant officer, on flying status as an attack helicopter pilot for twelve months in Vietnam. Together with his child, he then moved to Pittsburg, Kansas, where he had attended college before enlisting in the U. S. Army. At the time of the modification hearing he had re-enrolled in the college at Pittsburg and had two semesters of work to complete in order to receive a degree in biology. Defendant was also enrolled in a Veterans Administration program in Joplin, Missouri, for training to qualify as a certificated single and multi-en-gine commercial air pilot. He was financing his schooling and flight training through the Veterans Administration Education Allowance, unemployment compensation, and additional income of approximately $200.00 per month received for his service in the Kansas National Guard as an air pilot. Upon completion of his college work and flight training he planned to fly commercially to support himself and his child.
Defendant and the child live in an attractive, carpeted mobile home near Pitts-burg. The child has a room of her own and a yard in which to play. The home and premises are well kept. There are other families with children living nearby in mobile homes. The child is enrolled in school and attends regularly. Defendant describes her as a very happy, very healthy, very alert individual, with no problems of health or otherwise. She gets along well with other children in the neighborhood and attends church and Sunday School regularly. When defendant is attending college classes and his aviation course, his child is cared for by his sister, Mrs. A — , age twenty-four, who lives with her husband and three year old child in Pittsburg. Ordinarily Mrs. A_ cares for the child between 3:00 P.M. until 6:30 P.M., at which time defendant picks her up and returns home with her. Mrs. A_ testified that the child was growing “just beautifully” that her hair was always combed, that her father dresses her “just beautifully”, that she is perfectly happy and well adjusted, and that among other children she is “the leader”. The minister of the church attended by defendant and his child testified that defendant maintained “a very impressive home situation”, and that K_ was a happy, normal, well adjusted child.
It appears from the testimony of both parties that by October of 1967 the parties had become estranged. At that time, plaintiff stopped having sexual relations with defendant. She admits she had “absolutely no relationship with him after that date.” In August of 1968 she entered into a sexual relationship with one Major C., who at that time was also married. Plaintiff and her paramour continued having sexual relations up to the time both of them obtained divorces. The described liaison resulted in plaintiff’s pregnancy and she gave birth to a daughter in Richmond, Virginia, on May 7, 1969, at which time she was still legally married to defendant. The child’s birth certificate recites her surname as that of her biological father, Major C. Plaintiff admitted that defendant, who had no “access” after October of 1967, “couldn’t physically be the father of this child in Virginia.” (Hereinafter this child will be referred to as child C_) On July 29, 1969, (36 days after she was granted a divorce) and at Keflavah, Iceland, plaintiff was married to Major C., who by that time had obtained a divorce in Texas.
Plaintiff’s “household” (as of November 10, 1970, the date her custody motion was heard) consists of herself, her husband (Major C.) and their daughter C_The family lives on an air force base in Virginia in a “large” house furnished by the government. As advantages the child K_ would enjoy, if a member of her present family group, plaintiff testified: “We have a three bedroom house, base housing. It’s large; it’s three bedroom, two baths; it’s all government, with all the utilities and appliances furnished. We have got a large backyard; it’s two miles from the main base where the hospital and dental clinic and Commissary and P.X., naturally which we use, are located. * * * I’m home all the time, living in the house. She would be eligible for military benefits, the hospital, some free dental care such as checkups and fluoridation; the school is just two blocks from our house; it’s an accredited school operated by the York County School System in Virginia. Our house is large; it’s in a nice neighborhood; it’s patrolled at all times by the military police; there are children her age living out there. There is a lot of love, and she would have a full time mother, and supervision of a man also.” Asked to describe where defendant and the child were living, plaintiff stated she could do so because she “used to live in it”. She referred to it as a “two bedroom trailer”, — a nice little trailer. She has no personal knowledge otherwise as to what “their living conditions are in Pittsburg, Kansas.” Again referring to her new home with Major C., she commented, “The house that we have to offer is much larger and I would be home all the time with (the child). She wouldn’t have to be left with baby sitters ever.” Upon examination by the court, plaintiff admitted that she had sworn falsely in her affidavit in support of her petition for divorce.
Called as a witness for plaintiff, Major C. identified himself as a career air force officer, not currently on flying status, with base pay of $1,054.00 per month. He had four children by his previous marriage for whom he pays $400.00 child support monthly. He admitted having sexual relations with plaintiff “from after the time you met her until she and you both obtained your divorces.” He acknowledged that the child C_ was his child, conceived while plaintiff was married to defendant. He stated he would be “receptive” to having the child K_ placed in his home.
It is a thoroughly settled rule of law that an order as to child custody is as conclusive as any other judicial decree, and may be disturbed only upon convincing proof that there has been a substantial, material change of conditions since the previous order of the court, coupled with a showing that modification of the order would promote the best interests of the child or children involved. The burden of such proof is upon the party seeking a change of custody. Mo.Digest, Divorce, In our opinion plaintiff has not borne her burden of proof in either respect. The fitness of defendant as a custodian of his child was thoroughly established at the original hearing by plaintiff’s testimony that he was providing the child a suitable home and a stable environment and was giving her proper and adequate care. The resulting decree gave rise to a rebuttable presumption of defendant’s continuing fitness as the child’s custodian. No evidence to the contrary was produced at the hearing on this motion. In fact, the evidence at that proceeding has confirmed the trial court’s original view that defendant is a suitable and fit person to have the child’s custody, that he has sufficient and adequate facilities for that responsibility, and that he has given her proper care. The evidence was abundant that the child was happy, healthy and well adjusted.
The only change of conditions worthy of note is that plaintiff was remarried. It is universally held that remarriage of one, or both of the parents, is not in itself a controlling consideration of sufficient reason for changing custody of a child. See Kennedy v. Carman, Mo.App., 471 S.W.2d 275, and cases cited. In the case of Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364, there were changed conditions in that plaintiff wife had remarried; that she and her then present husband had acquired a comfortable five room bungalow; and that she had terminated her employment and was in a position to devote her full time to her home and children. The court held such changed conditions were not enough to warrant a change of custody, because it must also be shown that the welfare of the child affected demanded a change of custody. Plaintiff argues that, by reason of her remarriage, facilities beneficial to the child’s interests have become available, in that plaintiff is able to provide a “much larger” home than defendant’s modest mobile home, and the child would be eligible to share the generous military benefits available to Major C.’s family if she became a member of that household. We are not impressed by those suggested considerations. The size or opulence of the dwelling place provided for the child is a factor of minor significance. It is sufficient that defendant maintains for her an abode that adequately satisfies the needs for her proper care, keep, guidance, education and development — absent a showing that the child’s best interest requires her placement otherwise. Furthermore, it does not appear that the child lacks any of the essential services being received by Major C.’s family from the government as fringe benefits.,
Plaintiff’s main argument for the custody change sought is that her remarriage has made it possible for her to be “home all the time” with the child and give her the care of a natural mother. So contending, she directs our attention to cases holding that when parents vie for custody of a child of tender years, and if all else be equal, the child should be given into the mother’s custody. We are familiar with that rule, as well as numerous others which have guided the courts in resolving the many contests that have arisen over child custody. As the court said in M_ L_ v. M_ R_, Mo.App., 407 S.W.2d 600, “(A) profusion of cases convincingly demonstrates that the courts are not reluctant to entrust children into their father’s care and custody, where the best interests of the children will be served thereby * * * (citing cases). The only rigid, inflexible and unyielding principle in custody cases is that the welfare of the child is paramount and supreme * * *. (P)erplexing problems of custody must be resolved not by applying academic rules or by mouthing pious platitudes but rather by determining, insofar as is humanly possible, what will best serve and promote the child’s welfare.”
We are not persuaded that the child’s best interest and welfare would be benefited by the “full time” care plaintiff belatedly offers to give. Plaintiff by her own testimony has clearly delineated herself to be a person deficient of moral sense and rectitude. We can visualize no greater breach of basic morality than to bear a child, during marriage, that was conceived in illicit sexual union by a father other than the lawful husband. That breach was compounded by plaintiff’s concealment of the child’s birth from her own lawyer and from the court which granted her a divorce. Plaintiff’s moral dereliction is further demonstrated by her admittedly false affidavit made in support of her divorce petition, in which she perjured herself by swearing that she had faithfully demeaned herself as defendant’s wife. Such an admission of false swearing reflects on plaintiff’s fitness to have the child’s custody. S_ v. G_, Mo.App., 298 S.W.2d 67. Shepard v. Shepard, Mo.App., 194 S.W.2d 319. It is also a fundamental verity that “(T)he morals of the respective parents properly become the subject of inquiry as an important factor to be considered in determination of the motion to modify.” Hurley v. Hurley, Mo.App., 284 S.W.2d 72. The result of our inquiry into plaintiff’s morals leads us to believe that it would be an ill-conceived experiment to entrust the child into the “full time” care of plaintiff. “The court should not indulge in experiments with so important a trust, especially where the child is in a home where it receives good treatment and moral training.” Birrittieri v. Swanston, Mo.App., 311 S.W.2d 364. Furthermore, we are not convinced that the child’s needs would be better served in the household of Major C. than in her father’s home. If custody of the child were so changed, instead of being under the authority of her blood father who has proven his suitability for its exercise, she would be living in a home presided over by a stepfather concerning whom we know very little except what is narrated above. Being in agreement with the trial court, we adopt as our own its findings that “there has been no substantial change in conditions and the best interests of the child require that she remain with her father as presently set forth in the decree.” Consequently, we will not disturb the judgment.
Plaintiff makes the rather startling assertion in her brief that “it was in the Court’s knowledge, that the custody of the minor daughter was only obtained by the respondent through fear, fraud, and coercion in the first place and therefore, the judgment of the Circuit Court was so contrary to the Law that the appellant was denied due process of Law contrary to the Fifth and Fourteenth Amendments to the United States Constitution and Article I, Section 10, of the Missouri Constitution as Amended.” The only evidence to support that charge came from plaintiff herself. She testified that “she gave up” K_’s custody at the original hearing only because defendant had threatened that if she did not consent that he have custody of the child, he would try to take “both children.” The foregoing was flatly denied by defendant. Deferring to the trial court who saw and heard the witnesses, we resolve this matter of credibility in favor of defendant and hold that plaintiff has failed to substantiate her charge of “fraud, fear and coercion”. The only fraud in this controversy disclosed by the record was perpetrated by plaintiff. We refer to her obtention of a divorce decree under a false affidavit and false testimony, representing that she had faithfully demeaned herself as defendant’s wife; also her concealment, from the court, of any knowledge that a second child had been born during the subject marriage.
The judgment is affirmed.
SHANGLER, C. J., concurs.
DIXON, J., not participating.
PRITCHARD, SWOFFORD, and. WASSERSTROM, JJ., not participating because not members of Court at time cause was submitted. |
sw2d_482/html/0529-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "SMITH, Judge. BRADY, Chief Judge",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
STATE ex rel. AUTO FINANCE COMPANY, a corporation, d/b/a Consumer Acceptance Company, Relator, Appellant, v. Honorable Oliver M. COLLINS, Magistrate, Division I, Magistrate Court, City of St. Louis, Respondent.
No. 33947.
Missouri Court of Appeals, St. Louis District.
June 20, 1972.
Jack B. Schiff, Clayton, Kramer, Chused & Kramer, Burton H. Shostak, Milton P. Goldfarb, St. Louis, for appellant.
Stein & Seigel, B. C. Drumm, Jr., St. Louis, for respondent.
SMITH, Judge.
This case reaches us upon appeal from the ruling of the circuit court denying relator’s “Petition for Rule On the Magistrate.” Auto Finance Company was the judgment creditor of Arthur L. and Opal Brown. In aid of execution Auto Finance caused a garnishment to be issued from the magistrate court and served against Cerro Corporation. Cerro filed its “motion to quash service of summons and to dismiss garnishment proceedings.” This motion was based upon improper service of the garnishment upon Cerro. That motion was coupled with one requesting “Allowance of Compensation to Garnishee” which was a request for attorney’s fees.
On May 14, 1970, the motion to quash was heard and sustained by respondent magistrate. The allowance motion was passed until May 25. On May 21, Auto Finance filed its petition for rule on the magistrate directed to the magistrate’s action in quashing the service and dismissing the garnishment. The circuit court issued its order to show cause on the same date directing the respondent to certify the complete court file and ordering respondent to take no further action in the cause. The record is silent as to when this order to show cause was served on respondent. On May 25, respondent sustained the garnishee’s motion for compensation in the amount of $200 for attorney’s fees. After respondent had filed his return, relator amended his petition for rule to include an attack on the allowance of attorney’s fees. The trial court after hearing, denied relator’s petition.
A rule on the magistrate is a proceeding to quash the record in magistrate court by writ of certiorari. It warrants the court in which the relief is sought to search the record to determine whether the lower tribunal has acted without jurisdiction. If it has the record must be quashed; if it has not the writ must be dissolved. State ex rel. Missouri Baptist Hospital v. Nangle, Mo.App., 230 S.W.2d 128 [1-5].
We turn first to the contention that the magistrate was without jurisdiction to quash the garnishment. Magistrate courts are courts of limited jurisdiction and they possess only the powers expressly granted them by law. No inference can be indulged to enlarge their jurisdiction. State v. Anderson, Mo., 413 S.W.2d 161 [2, 3], By constitutional provision their practice, procedure, administration and jurisdiction is as was formerly provided for justices of the peace until otherwise provided by law. Mo.Const. Art. V., Sec. 20, V.A.M.S. Justices of the peace possessed no jurisdiction to entertain motions to quash an execution. State ex rel. Modern Finance Co. v. Bledsoe, Mo.App., 426 S.W.2d 737 [11]. The Supreme Court, however, under its rule making power has enacted Civil Procedure Rule 76.60, V.A.M.R. That rule provides that upon compliance with certain conditions the magistrate court may entertain and decide motions to quash executions. Garnishment is a form of execution. The garnishee may not by his consent waive defects in service so as to confer jurisdiction over the res. State ex rel. Shaw State Bank v. Pfeffle, 220 Mo.App., 676, 293 S.W. 512 [12-17], It follows that the garnishee can and should raise such defects by motion to quash. We conclude, therefore, that pursuant to Rule 76.60 the magistrate court has the jurisdiction to hear and decide a motion to quash a garnishment. The record of the magistrate court does not affirmatively show any exercise of jurisdiction in regard to the motion to quash in excess of that which it possessed.
Certiorari is not a substitute for appeal and it reaches only to jurisdiction. State ex rel. Missouri Baptist Hospital v. Nangle, supra, [1-5]. The action of the magistrate court in sustaining the garnishee’s motion to quash and dismiss was final and appealable. Flynn v. First National Safe Deposit Company, Mo., 284 S.W.2d 593 [4—7]. The magistrate court had the jurisdiction to make the ruling and if the ruling was erroneous it could be corrected on appeal. We therefore need not consider or discuss the asserted reasons why the magistrate quashed the garnishment.
The allowance of attorney’s fees presents a different problem. Chapter 525 RSMo 1969, V.A.M.S., which governs garnishments, is divided into two parts. The first, containing §§ 525.010 through 525.310 relates to garnishments generally. The second, containing §§ 525.320 through 525.-480, deals specifically with garnishments in magistrate courts. In the first part there is provision for recovery by the garnishee from the plaintiff of a “sum sufficient to indemnify him for his time and expenses, and reasonable attorney’s fees . . . ” where the plaintiff fails to recover judgment against the garnishee. Section 525.-240. No such provision appears in the second part of the chapter. Section 525.390 provides that the issues between plaintiff and garnishee shall be tried as ordinary issues between plaintiff and defendant “and costs may be adjudged for or against either party, as in ordinary actions.” (Emphasis supplied). The rule in this state is that attorney’s fees are not assessed as costs in ordinary actions except where provided by statute. Munday v. Thielecke, Mo., 290 S.W.2d 88 [6, 7], The legislature has simply not provided for reimbursement of attorney’s fees to a successful garnishee in a contested case in the magistrate court. That this was the legislative intention is demonstrated by the provisions of § 525.-400 which specifically make the provisions of §§ 525.220 and 525.230 applicable to magistrate court garnishments but make no reference to § 525.240. Section 525.230 permits recovery by a garnishee of “a reasonable allowance for his trouble and expenses in answering, to be paid out of the funds or proceeds of the property or effects confessed in his hands.” But such recovery may be had only where the garnishee has by answer admitted possession of property or effects of the defendant. § 525.-220. There is no statutory (or rule) authority for a magistrate court to assess attorney’s fees of a garnishee against an unsuccessful plaintiff in a garnishment proceeding. In the absence of such authority the magistrate court has no jurisdiction to make such order.
The two motions presented to the magistrate court and sustained by it sought different relief and were treated separately by the magistrate court. The rule sought from the circuit court was in two courts, each directed at a separate portion of the magistrate court record. The action of the trial court in refusing to quash that portion of the magistrate court record sustaining garnishee’s “Motion to Quash Service of Summons and to Dismiss Garnishment Proceedings” was correct and is affirmed. The action of the trial court in refusing to quash that portion of the magistrate court record granting garnishee’s “Petition for Allowance of Compensation to Garnishee” was erroneous and is reversed. The cause is remanded with directions to enter a judgment quashing that portion of the magistrate court record.
PER CURIAM:
The foregoing opinion by Smith, J., a commissioner when the case was submitted to the court, is adopted as the opinion of this court. Accordingly, the action of the trial court in refusing to quash that portion of the magistrate court record sustaining garnishee’s “Motion to Quash Service of Summons and to Dismiss Garnishment Proceedings” is affirmed. The action of the trial court in refusing to quash that portion of the magistrate court record granting garnishee’s “Petition for Allowance of Compensation to Garnishee” was erroneous and is reversed. The cause is remanded with directions to enter a judgment quashing that portion of the magistrate court record.
BRADY, C. J., dissents in separate opinion.
DOWD, J., and CAMPBELL, Special Judge, concur.
BRADY, Chief Judge
(dissenting).
I respectfully dissent from that portion of the majority opinion which holds the magistrate court has jurisdiction to quash the garnishment here involved.
Justice of the peace courts — the predecessors of magistrate courts — were of limited competency and clearly possessed no jurisdiction to entertain a motion to quash an execution. Brownfield v. Thompson, 96 Mo.App. 340, 70 S.W. 378; Carr v. Pennsylvania R. Co., 108 Mo.App. 388, 83 S.W. 981. In State ex rel. and to Use of Berra v. Sestric, 349 Mo. 182, 159 S.W.2d 786, 787, the limitations on the powers of the justice courts have been expressed by the Supreme Court as follows: “It is a familiar principle that justice courts are of statutory and limited jurisdiction not proceeding according to the course of the common law. They can take nothing by implication, but must show the power expressly given them in every instance." (Emphasis supplied.)
When magistrate courts were created by the Constitution of 1945, it was provided in Article V, Section 20: “Until otherwise provided by law consistent with this constitution, the practice, procedure, administration and jurisdiction of magistrate courts, and appeals therefrom, shall be as now provided by law for justices of the peace; * * * ” (Emphasis supplied.) Thus it has been held that: “Magistrate courts are inferior courts of limited jurisdiction possessing only those powers which are expressly granted by statute. * * * No presumptions or inferences will be invoked to enlarge their jurisdiction and they cannot assume or take powers by implication.” (Emphasis supplied.) Bauer v. Rutter, Mo.App., 256 S.W.2d 294, 295. Also quoted in State ex rel. Inland Finance Corp. v. Felder, Mo.App., 370 S.W.2d 696, 697.
The majority opinion relies upon Rule 76.60, V.A.M.R. to reach the result that magistrate courts have jurisdiction never possessed by justice of the peace courts. It is true that Rule 76.60 speaks of “any judge or magistrate” in the first part of the rule; however, at the end thereof, when granting authority to hear such matters, the rule speaks only of “such judge”. It is further to be noted that the statute (§ 513.360, RSMo, V.A.M.S.) nowhere contains the word “magistrate”. It refers only to a “judge”. The purpose of the rule was obviously to carry out the provisions of the statute. That being so, a wording different from that of the statute cannot, in my opinion, constitute a sound basis for an enlargement of magistrate court jurisdiction.
The majority opinion cites State v. Anderson, Mo., 413 S.W.2d 161 [2,3], That case is diametrically opposed to the result reached in the majority opinion. It is in fact the strongest authority for this writer’s dissent. Anderson involved the question whether the magistrate court had jurisdiction not only to record the default but also to enter the judgment against the surety for defendants charged with felonies. All the principles recited above dealing with the limited nature of magistrate court jurisdiction were restated in Anderson. The case is particularly pertinent in that at 1. c. 163[5] the court dealt with the argument here advanced; i.e., that by rule the jurisdiction of the magistrate court can be changed. It was there argued that Rule 32.12, V.A.M.R. was sufficient to confer jurisdiction upon the magistrate court to enter the judgment of forfeiture just as it is here contended Rule 76.60 confers jurisdiction upon the magistrate court to quash garnishments. In both cases the court did not have such jurisdiction under the Constitution or by statute. The opinion holds : “ * * * That rule does appear to authorize the court in which the default occurs to enter judgment upon the security given for the appearance of the defendant. However, that rule cannot enlarge the jurisdiction of the magistrate court, which must depend upon legislative enactment. § 20, Art. V, Const, of Mo. 1945, V.A.M.S.” (Emphasis supplied.) In Anderson the Supreme Court interpreted the language “[ujntil otherwise provided by law” found in § 20, Art. V to mean legislative enactment, not Supreme Court rule. That case is binding upon this court. It follows that the magistrate court has no jurisdiction to quash an execution.
Since I deem the majority opinion and the opinion of this court in State ex rel. Modern Finance Co. v. Bledsoe, Mo.App., 426 S.W.2d 737, to be in conflict with the opinion of the Supreme Court in State v. Anderson, supra. I hereby certify this case to the Supreme Court for its determination pursuant to the provisions of Article V, § 10 of the Constitution of Missouri (Rule 83.01).
. Mo.Const. Art. V., Sec. 5.
. The dissent cites State v. Anderson, supra, as contrary to this holding. Anderson involved an addition of substantive jurisdiction by Rule, clearly prohibited by Art. Y Sec. V, Mo.Const. Rule 76.60 is an expansion of procedural jurisdiction. Magistrate Courts have substantive jurisdiction over garnishments by statute. The procedure they must follow may be regulated by rule under Art. V, Sec. V, Mo. Const.
|
sw2d_482/html/0534-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "DOWD, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
Joe Bill CARTER, Plaintiff-Respondent, v. Martha STENDEBACK, a/k/a Martha F. Stendeback, and John D. Powell, Administrator of the Estate of John R. Hardcastle, Defendants-Appellants.
No. 34209.
Missouri Court of Appeals, St. Louis District.
June 20, 1972.
Jack A. Alfeld, Carrollton, Ill., Schurr & Inman, Clayton, for defendants-appellants.
Schramm & Morganstern, Paul H. Schramm, M. Harvey Pines, Clayton, for plaintiff-respondent.
DOWD, Judge.
An attorney’s fee case. The action arises out of a contingency fee contract entered into by the plaintiff, Carter, an attorney, and the defendant Martha Stendeback. In this court tried case, a judgment was entered in favor of the plaintiff in the amount of $17,500 against Martha Stende-back and also against John D. Powell, Administrator of the estate of John R. Hard-castle, Martha’s stepfather. The judgment was declared to be a lien upon Martha’s distributive share in her stepfather’s estate. Both defendants appeal.
On January 8, 1968, defendant Martha Stendeback’s stepfather, John R. Hardcas-tle, died. In addition to Martha, his second wife, Nellie, survived him. During the two week period following the death, Martha’s aunt contacted attorney Carter and arranged for a meeting between him and her niece.
The purpose of the meeting was to discuss some problems concerning the estate of John R. Hardcastle. The deceased had drawn a will in 1954, leaving his entire estate to his first wife Virginia, Martha’s mother. In the event she predeceased him which she in fact did, the estate was left to Martha. However, the attorney who had drawn the will, William Boles, had informed Martha that he only had a copy of the will and did not know the whereabouts of the original. At the time of this first meeting, Martha knew that her stepfather’s estate had been opened in the Probate Court, wherein John R. Hardcastle’s second wife, Nellie, was listed as sole distrib-utee of the estate, resulting in Martha’s complete disinheritance. Nellie’s son John D. Powell, was Administrator of the estate, which was estimated to be between $100,000.00 and $200,000.00.
The question of Carter’s fee was discussed at the meeting, Martha and her husband indicating that they could not pay either hourly rates or a fixed sum. The contingency basis was thereupon agreed to by both sides. By the terms of the contract, dated January 23, 1968, Martha Stendeback employed Carter “to represent her and to prosecute for her her claim for inheritance and other matters from John Robert Hardcastle, deceased, and Virginia Lane Hardcastle, deceased.”
The contract provided that the attorney fee was to be “ * * * ONE-THIRD (½) of any sum received by me or my heirs, devisees or assigns by way of suit or compromise, inheritance or devise, or in any other form. In the event nothing is received, the said attorneys are to receive nothing for their services. All necessary court costs are to be deposited by me.” The contract was signed “accepted” for the law firm by the plaintiff.
Within a week after the contract was signed, Carter and Mrs. Stendeback went to Carrollton, Illinois to talk to one Jack McDonald, the deceased’s attorney in that state. McDonald himself had never drawn a will for the deceased, although they had discussed it. At the time of the meeting of McDonald, Carter, and Stendeback, McDonald stated he did not know the whereabouts of the will. McDonald also told them in this conversation that the wills had been destroyed and it was “too bad for Martha” and Martha was not taken care of. McDonald in fact had no separate file on the deceased, having primarily handled the estates of the deceased’s first wife and his sister. Carter asked to examine McDonald’s files, but was told that he would have to come back at a less busy time. February 1.6, 1968, was agreed upon, but Carter subsequently cancelled upon discovering a prior commitment.
About February 15, Carter sent out identical registered letters to four persons, requesting information as to the existence and whereabouts of a will belonging to the deceased. After McDonald received his letter, he discovered the deceased’s original will in the file of John Hardcastle’s deceased sister, Margaret Hardcastle. McDonald thereupon notified both Carter and Mrs. Stendeback, and delivered the will to the Probate Court. The will was subsequently admitted to probate and the surviving spouse, Nellie (not named in it) elected to take against the will. She thereupon became entitled to one-half the estate, and Martha became entitled to the other half.
At the trial below, Carter testified that he expended between 70 and 80 working days on behalf of Mrs. Stendeback during the period January 22, 1968 and May 16, 1968, when his services were formally terminated. He estimated his research time to exceed 80 to 100 hours. In those 70 or 80 days, Carter made three trips to Illinois, some 45 to 60 long distance calls, held numerous conferences with various people, filed an action and conducted a trial for disclosure of assets and removal of the Administrator, and hired an Illinois attorney for assistance in a partition action, filed in that state.
In the latter part of April, Mrs. Stende-back telephoned the plaintiff to advise him that his services were terminated. She subsequently wrote him a letter to the same effect, dated May 16, 1968.
After Carter’s services were terminated, he and Mrs. Stendeback discussed his fee, but could not agree on an amount.
Thereafter, on July 11, 1968, plaintiff instituted an action against his former client and against John D. Powell, Administrator of the estate of John R. Hardcastle. The petition alleged the existence of a written employment contract with the defendant Stendeback, and the performance of numerous legal services by the plaintiff in accordance with this contract and in furtherance of defendant’s claim to a share in this estate, as a result of which the defendant became entitled to a share in the said estate. Plaintiff further alleged that he was thereby entitled to one-third of whatever the defendant received, the amount of which could not be determined since the estate was still in probate. The relief prayed for against the defendant Stende-back was an accounting of her inheritance and a money judgment of one-third of the total value, and an attorney’s lien on all estate property which she received. The relief prayed for against the defendant Powell was an injunction against distribution of the estate until plaintiff’s judgment was satisfied and an attorney’s lien on all estate property in his charge.
The court below rendered judgment in favor of the plaintiff using the following words:
“The Court finds that the attorney is entitled to receive a judgment for services rendered, but not entitled to receive compensation in accordance with the employment contract. The Court finds that the attorney expended a large amount of time, talent and effort in behalf of the defendant and is entitled to be compensated therefore in the sum of Seventeen Thousand Five Hundred Dollars ($17,500.00).
“WHEREFORE, the Court orders and decrees a judgment in favor of the plaintiff and against the defendants in the sum of Seventeen Thousand Five Hundred Dollars ($17,500) and the costs expended in this cause.
“The Court further orders that this judgment be a lien upon the distributive share of Martha Stendeback in the Estate of John Robert Hardcastle, Cause Number 39259, St. Louis County Probate Court.”
As said* both defendants appeal from this judgment. The dispositive issues are:
1. Whether a money judgment was proper against the defendant Powell, the Administrator of the estate of John R. Hardcastle;
2. Whether an attorney’s lien may be had against the undistributed assets of an estate based on a judgment obtained against a beneficiary, and if such a lien is valid, whether proper notice of it was given by the plaintiff;
3. Whether the amount of the judgment was proper in view of the services rendered;
4. Whether appellants’ failure to file a motion for a new trial precludes them from raising on appeal Point 2, supra.
Both sides agree, and so do we, that the Court below erred in entering a money judgment against the defendant Powell. No such relief was prayed for in the plaintiff’s petition and there is no evidence even suggesting that the estate could possibly be liable for legal services rendered by the plaintiff to defendant Stendeback. This part of the judgment is accordingly reversed.
Before considering the propriety of the attorney’s lien, we come to the question raised by respondent regarding appellants’ standing to raise this issue on appeal. Respondent contends appellants having failed to file a motion for a new trial in this court tried case are precluded from raising this contention on appeal. This contention is answered by Russell v. Russell, Mo., 427 S.W.2d 471 which holds that no motion for a new trial is necessary for appellate review of a case tried without a jury.
As to the issue itself, we conclude that an attorney’s lien does not properly lie against the undistributed assets of an estate, based on a judgment rendered against a beneficiary. The contract which was the basis for this action was only between the plaintiff and the defendant Stendeback. If the defendant received any assets of the estate, the contract provided that the plaintiff would be entitled to one-third of the total value received. Thus, the assets of the estate could not be reached by the plaintiff, but only those assets which the defendant actually would receive as her distributive share.
Also after carefully examining the attorney’s lien statute (Section 484.130 RSMo 1969, V.A.M.S.) we find no authority for an attorney’s lien on an undistributed share of an estate.
This reasoning is substantiated by the garnishment statute (Section 525.030 RSMo 1969, V.A.M.S.) which sets out those exceptions, that is, those persons or classes of persons who are not liable to be summoned as a garnishee: “ * * * or any administrator or executor of an estate, prior to an order of distribution, or for payment of legacies, or the allowance of a demand found to be due by his estate * * (Emphasis supplied). Since the record shows that this matter is still pending in the Probate Court, there has obviously been no order of distribution. And, as indicated, supra, this is not a debt owned by the estate, but by a beneficiary of the estate. Concluding that an attorney’s lien does not properly lie against the undistributed assets of an estate, there is no need to discuss the issue of whether plaintiff gave proper notice of his lien.
The final issue concerns the amount awarded to the plaintiff by the Court below — $17,500.00. The defendant Stendeback does not contest the finding that plaintiff is entitled to some compensation. She does contend that the amount awarded is exorbitant. The Court found that the plaintiff was not entitled to compensation in accordance with the contingent fee contract, but that he was entitled to a reasonable fee commensurate with the actual services rendered. However, here the attorney plaintiff had a contract with the defendant Stendeback which is specifically authorized by Section 484.140 RSMo 1969, V.A.M.S. The plaintiff performed substantial legal services based upon this contract. According to the evidence the defendant’s share of the decedent’s estate will amount to over $90,000. Under the terms of the contract, plaintiff would have been entitled to one-third of this amount, or over $30,000. The trial court could have properly awarded this amount to the plaintiff. In light of this figure, we cannot say that $17,500 was either exorbitant or unreasonable.
Likewise, an examination of the extensive legal services performed by plaintiff as set out in this opinion also convinces us that the attorney fee awarded was not unreasonable. “ * * * The court below should have considerable latitude of discretion on the subject, since it has far better means of knowing what is just and reasonable than an appellate court can have. * * * ” German Evangelical St. Marcus Congregation of St. Louis v. Archambault, Mo., 404 S.W.2d 705, 712.
Accordingly, that part of the judgment awarding a judgment against John D. Powell, Administrator of the estate of John R. Hardcastle, is reversed and that part of the judgment declaring the judgment to be a lien upon the distributive share of defendant Stendeback in the estate of John R. Hardcastle is reversed. The judgment in favor of plaintiff for $17,500 against defendant Stendeback is affirmed. It is so ordered.
BRADY, C. J., and SMITH, SIM-EONE, and WEIER, JJ., concur.
. The nametl attorneys in the contract was the law firm by whom Carter was employed; however, there is no contention here that Carter is not the attorney employed.
. Virginia Lane Hardcastle was defendant Stendeback’s mother and there is no claim that plaintiff is entitled to compensation in her mother’s estate.
|
sw2d_482/html/0538-01.html | Caselaw Access Project | 2024-08-24T03:29:51.129235 | 2024-08-24T03:29:51.129683 | {
"author": "WEIER, Judge.",
"license": "Public Domain",
"url": "https://static.case.law/"
} |
George H. FREESE, Plaintiff-Respondent, v. Charles Eugene KELLISON, Defendant-Appellant.
No. 34291.
Missouri Court of Appeals, St. Louis District.
June 20, 1972.
Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown; Daniel T. Rab-bitt, Jr., Joseph B. Dickerson, Jr., Russell N. MacLeod, St. Louis, for defendant-appellant.
Niedner, Niedner & Moerschel, St. Charles, for plaintiff-respondent.
WEIER, Judge.
In this automobile negligence case plaintiff George H. Freese sued defendant Charles E. Kellison for $50,000.00 damages for the death of Ida Margaret Freese, plaintiff’s passenger wife. Plaintiff, a left-turning driver, submitted his case on defendant’s humanitarian negligence in failing to slacken speed, and received a verdict and judgment of $15,000.00. After an unavailing after-trial motion, defendant has appealed, contending the evidence failed to support plaintiff’s humanitarian submission and the court erred when it failed to direct a verdict for defendant.
The collision occurred on April 12, 1969, on U.S. Highway 40-61, near Wentzville, at the west entrance of Cindy’s Motel. At this point the highway had two twelve-foot lanes, one eastbound and the other westbound. The entrance was sixty feet wide. At about 6:00 p. m. o’clock, Mr. Freese approached this entrance from the west and slowed, preparing to make a left turn across the westbound lane in his Ford station wagon. He and his wife, who was seated in the right front seat, planned to eat dinner at the motel restaurant. He turned on his left-turn indicator lights, slowed to about two to three miles per hour, and turned left. He noticed an oncoming west-bound car “around 700 or so feet” east of his position on the highway but had no estimate of its speed. It was after observing the car at that distance that he made his left turn. In making his turn, he accelerated from 2 to 3 miles per hour to 6 to 10 miles per hour. Freese did not again see the oncoming vehicle after starting his turn, until the time of impact. From where he started his turn to the place where the collision occurred, his station wagon travelled in an arc about 55 to 60 feet. The rear of his vehicle was 5 to 6 feet off the pavement when struck by defendant’s car. The impact occurred at the right front door and part of the right rear door. Because of injuries received at this time, Mrs. Freese died four days later.
Billie Joe Daffron, a truck driver and plaintiff’s witness, had been following Mr. Freese for about two miles before the collision occurred. His speed was about 45 miles per hour. As Freese approached the motel driveway, he reduced speed to 7 to 8 miles per hour and turned on his left-turn blinker lights about 20 feet west of the driveway. Daffron, also slowing, turned on his left-turn light and remained about 200 feet to the rear. He first observed the oncoming automobile of defendant about 300 feet east of the driveway. At that time the Freese vehicle was 4 feet off the hard surface of the highway. The westbound car started to skid, first partially into the trucker’s or eastbound lane, about the width of a tire, and then the driver cut to his right and his car left the highway, striking the station wagon in the right front door and front half of the right rear door. This westbound car was approximately six feet off the highway at the time of collision. Neither he nor Mr. Freese had any estimate of the speed of defendant’s car as it approached. On cross-examination, Daffron stated the defendant’s car was skidding when he first saw it.
At the scene of the collision, shortly thereafter, Patrolman William Coy of the Missouri State Highway Patrol measured skid marks of the left tires of the Kellison car at 108 feet, commencing in the eastbound lane just over the center line and running thence across the westbound lane to the north edge of the highway. From this point scuff marks of the left tire continued across the gravel of the driveway 45 feet to the position occupied by the Kelli-son car past the point of impact. The skid marks left by the right tire on the pavement measured 60 feet before it left the pavement. The debris from the impact was 8 feet from the north edge of the pavement and 12 feet from the west edge of the driveway.
Upon an analysis of plaintiff’s evidence and his theory of his lawsuit, it is obvious that plaintiff did not make a sub-missible humanitarian case against defendant because of failure to slacken speed, and hence it was error to submit his case to the jury on a humanitarian negligence instruction. From the time plaintiff left a position of safety, on his side of the highway, he crossed the path of the approaching car operated by defendant and then travelled out of it into a position of safety on the driveway of the motel. When plaintiff started across, according to his testimony, defendant was around 700 feet distant. He accelerated his speed and had cleared the highway by 5 to 6 feet when the collision occurred. Plaintiff’s witness, the truck driver, placed plaintiff’s car off the pavement and completely in the driveway when defendant was about 300 feet away. Obviously, according to his testimony and his theory of the case, plaintiff had cleared the westbound lane before the defendant’s car would have arrived, if it had remained in that lane. In this state of the facts, plaintiff was not in a position of immediate danger, or imminent peril, in the intended path of defendant’s car, because plaintiff was moving in a direction and at a speed which removed him from the path of the defendant’s vehicle before a collision could occur. As in Davis v. Quality Oil Company, Mo., 353 S.W.2d 670, the collision occurred not because the defendant driver did not stop or slacken the speed of his vehicle, but rather because he swerved and changed the direction of its travel so that it struck the claimant’s automobile after claimant had left defendant’s path and after plaintiff had driven to what would have been a position of safety, except for the change of direction of defendant’s vehicle. And thus, as in Davis claimant’s evidence established as a matter of law that the failure of the defendant to slacken speed “was not, and could not have been the proximate cause of the collision.”
The peril to Mrs. Freese arising from the oncoming vehicle of Mr. Kellison was not certain, immediate and impending. Before she could have been injured, Kelli-son would have had to change the direction of his car. The chance that she might be injured was merely a possibility contingent on some other occurrence. As has been said, “A likelihood or bare possibility of injury is not sufficient to create imminent peril.” Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420, 421. Imminent peril, or immediate danger, the first and basic element in a humanitarian negligence case, must be certain, immediate and impending. It may not be remote, uncertain or contingent. Hastings v. Coppage, Mo., 411 S.W.2d 232, 236 [6]; Ewen v. Spence, Mo.App., 405 S.W.2d 521, 524 [5].
We are aware that defendant and his passenger witness gave a different version of the facts. Kellison placed Freese only 150 feet in front when Freese made his left turn. Kellison testified he was going 65 miles per hour. His passenger estimated the speed at 50 to 70 miles per hour. Both place Freese off the highway at the time of impact. But the reliance upon a separation distance of 150 feet would not assist plaintiff. In the first place, it is contrary to and in direct conflict with plaintiff’s testimony and the fundamental theory of his case. This being true, this evidence of distance may not be relied upon by plaintiff to make his case. Fisher v. Gunn, Mo., 270 S.W.2d 869, 874 [4]. Secondly, even if plaintiff could rely on it, his humanitarian submission could not be sustained because, after accepting the slowest estimate of his speed at 50 miles per hour, reaction time of three-fourths of a second, (Vietmeier v. Voss, Mo., 246 S.W.2d 785, 788 [5]), would cause Kellison to travel almost 55 feet before he could apply brakes. There was no evidence of stopping distance, but, with brakes fully applied, Kellison travelled 108 feet on the pavement and then some unes-timated distance on the driveway before impact.
We conclude that under any theory, plaintiff should not have submitted his case on the humanitarian negligence doctrine and that the use of the humanitarian negligence instruction was reversible error. We now turn to the contention by defendant that plaintiff was guilty of contributory negligence as a matter of law and that defendant’s motion for directed verdict at the close of all the evidence should have been sustained.
A driver is charged with a duty to look. To look is to see, and a failure to see that which is plainly visible, constitutes negligence as a matter of law. Branscum v. Glaser, Mo., 234 S.W.2d 626, 627 [2]. A motorist who drives onto a through highway in the direct path of an oncoming vehicle in clear view, or turns left across a lane in which another vehicle approaches so closely as to constitute an immediate hazard, is negligent as a matter of law. Section 304.351, RSMo 1969, V.A.M.S.; Davis v. Quality Oil Company, supra, Mo., 353 S.W.2d 670, 676 [6]; Wilkins v. Stuecken, 359 Mo. 1047, 225 S.W.2d 131, 133 [1]. But the application of these rules is justified only if the approaching vehicle is so close that reasonable minds could not differ on the proposition that this vehicle constitutes an immediate hazard. If the distance is sufficient that reasonable minds might draw different conclusions as to the negligence of a left-turning driver, turning in front of an oncoming vehicle, then the plaintiff’s negligence in turning when he did is a question for the jury. Steele v. Goosen, Mo., 329 S.W.2d 703, 708 [2]; Johnson v. Bush, Mo.App., 418 S.W.2d 601, 605 [6],
Although plaintiff’s evidence differed from that of defendant in the case before us, its salient facts, developed in the testimony of plaintiff, placed Kellison around 700 feet from plaintiff at the time plaintiff made his left turn. Daffron corroborated this testimony, when he estimated Kellison to be 300 feet from plaintiff at the time plaintiff had cleared Kellison’s west-bound lane and was completely on the driveway. Under these circumstances, plaintiff’s contributory negligence is an issue for the jury, after hearing the evidence of both plaintiff and defendant.
Disposition must now be made of this appeal. Plaintiff in his petition alleged acts of primary negligence as well as humanitarian negligence. It may be that plaintiff can sustain in another trial a case of primary negligence, as to which defendant may desire to submit the defense of contributory negligence. “The furtherance of justice requires that a case should not be reversed without remanding unless the appellate court is convinced that the facts are such that a recovery cannot he had; * * Smith v. Terminal R. R. Ass’n. of St. Louis, Mo.App., 160 S.W.2d 476, 479. Although plaintiff submitted his case on humanitarian negligence, this appears to have been a misadventure brought about by a mistaken legal theory rather than an abandonment of primary negligence assignments to secure a strategic advantage. As to misadventure, see: Katz v. Slade, Mo., 460 S.W.2d 608, 614 [3]; Blaser v. Coleman, 358 Mo. 157, 213 S.W.2d 420, 423 [8]; East v. McMenamy, Mo., 266 S.W.2d 728, 732 [7-9]. As to abandonment for strategic advantage, see: Smith v. St. Louis Pub. Service Co., 364 Mo. 104, 259 S.W.2d 692. For a discussion of the authorities in this area, see: Grissom v. Handley, Mo.App., 410 S.W.2d 681, 690 [14-18]. Since it must be reversed for the giving of plaintiff’s verdict-directing instruction, in the exercise of our discretion the case is remanded for trial of the issues on primary negligence. But on remand there is no justification to retry the issue of damages. Appellant makes no contention on this appeal that the verdict was excessive or that the error in giving the verdict-directing instruction in any manner affected the amount of damages assessed by the jury. Accordingly, there is no need for a new trial on that issue. Rule 83.13(c), V. A.M.R.; Woods v. Chinn, Mo.App., 224 S.W.2d 583, 587 [5]; Grissom v. Handley, supra, Mo.App., 410 S.W.2d 681, 691 [21].
The judgment is reversed and the cause remanded for a new trial on the issue of liability only. The trial court is further directed to hold in abeyance the verdict as to damages until the issue of defendant’s liability is retried, and then to enter judgment against defendant for the amount of the verdict, $15,000.00, if defendant be found liable at retrial, but to discharge defendant if there be a verdict in his favor.
BRADY, C. J., and DOWD, SMITH and SIMEONE, JJ., concur. |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.