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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Enorris BRYANT, Appellant, v. The STATE of Texas, Appellee. No. 48154. Court of Criminal Appeals of Texas. April 17, 1974. C. C. Divine, Houston, for appellant. Carol S. Vance, Dist. Atty., James C. Brough, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DAVIS, Commissioner. Appeal is taken from a conviction for unlawfully carrying a pistol. Punishment was assessed by the jury at three hundred sixty-five (365) days’ confinement in jail. In his sole contention, appellant urges that the court erred in denying his motion for instructed verdict. Appellant’s argument is bottomed on the exception to Article 483, Vernon’s Ann.P. C., set forth in Article 484, V.A.P.C., which excludes from the operation of the statute “the carrying of arms on one’s own premises.” Israel Martin, Jr., manager of the Chateau Apartments in Houston where appellant lived, testified that he saw appellant standing in the apartment parking lot with a pistol in his hand on November 23, 1972. Martin stated that parking spaces were not assigned to tenants and a tenant used whatever space was available. Officer Hogan testified^that he and his partner were dispatched to the Chateau Apartments on the date in question and upon arrival saw appellant “standing at the end of the apartments with a pistol in his hand.” After Martin and Hogan testified, the State rested and appellant made a motion for an instructed verdict, which was overruled by the court. In Wilson v. State, 418 S.W.2d 687, it was noted that, “There was no direct testimony that appellant was seen with the pistol at any place other than the driveway adjacent to the building in which he lived.” In rejecting defendant’s contention that he was upon his own premises, this court in Wilson v. State, supra (on motion for rehearing) stated: “We are unable to agree that a tenant who carries a pistol upon the grass, sidewalks, driveway, and parking lot jointly used by all tenants of a large apartment complex such as the one described herein, is on ‘one’s own premises’ within the meaning of the statute.” In the instant case the evidence places appellant with a pistol in his hand in a parking lot shared by other occupants of the apartment complex. We reject appellant’s contention that the court erred in denying his motion for instructed verdict. The judgment is affirmed. Opinion approved by the Court. . Article 483, Y.A.P.C., provides: “Whoever shall carry on or about his person, saddle or in his saddle bags, or in his portfolio or purse any pistol, dirk, dagger, slung-shot, blackjack, hand chain, night stick, pipe stick, sword cane, spear or knuckles made of any metal or any hard substance, bowie knife or any other knife manufactured or sold for the purposes of offense or defense shall be punished by a fine of not less than One Hundred Dollars ($100) nor more than Hive Hundred ($500) or by confinement in jail for not less than one (1) month nor more than one (1) year.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Ardis Roy MELTON, Appellant, v. The STATE of Texas, Appellee. No. 48098. Court of Criminal Appeals of Texas. April 17, 1974. Pat McDowell, Dallas, (On appeal only), for appellant. Henry Wade, Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION MORRISON, Judge. Conviction is for assault with intent to murder with malice; the punishment, 25 years. The sufficiency of the evidence is not challenged. Ground of error number one urges that the trial court was not shown to be authorized to preside. Judge Louis T. Holland presided at this trial in lieu of Judge R. T. Scales, the regular judge of the court. We have only recently noted that Judge Holland is a qualified retired District Judge. Kincaid v. State, Tex.Cr.App., 500 S.W.2d 487. In Peach v. State, Tex.Cr.App., 498 S.W.2d 192, we held: “The Court of Criminal Appeals will take judicial notice of the fact that the judge who presided at the trial of the accused was retired on a certain date and had timely filed his election to continue in a judicial capacity. Buchanan v. State, 471 S.W.2d 401 (Tex.Cr.App.1971). And such judge is a ‘district judge’ within the rule that no formal order need be entered for a judge of one district court to preside over a case in place of a duly elected judge and no formal order is required for him to preside. Buchanan v. State, supra.” No error is shown. Ground of error number two alleges that the trial court erred in refusing to grant a mistrial when a police officer testified that he got a mug shot of the appellant from another agency. This information was contained in an unresponsive answer and an instruction to disregard the same will normally cure the error. Haggerty v. State, Tex.Cr.App., 491 S.W.2d 916. The appellant having combined his motion to disregard with a motion for mistrial, failed to obtain a separate ruling from the trial court on the motion to disregard. No reversible error is shown. Haggerty v. State, supra. Ground of error number three complains of the refusal of the trial court to grant a mistrial when the witness Gos-sett testified as to some bad checks appellant had given him. Appellant on direct examination testified about Gossett coming to his apartment to see about some checks he had gotten back from the bank marked insufficient funds. Admission of improper evidence is not reversible error if the same facts are proven by other testimony, as where defendant voluntarily gives testimony substantially the same as that testimony improperly admitted. 5 Tex.Jur.2d, Appeal and Error — Criminal, Sec. 446; Carew v. State, Tex.Cr.App., 471 S.W.2d 860. Ground of error number four complains that the State was allowed to ask the appellant if he knew he could be arrested for illegally carrying a pistol. Appellant’s objection was “Object to that. Nothing to do whatsoever with this offense.” The appellant had just testified that he carried the pistol downstairs in the apartment complex. The question was proper. The area into which the appellant admittedly carried the pistol was a public place. Bryant v. State, Tex.Cr.App., 508 S.W.2d 103, (this day decided). Ground of error number five complains of a display of the pistol before the jury. At the time this occurred no objection was interposed, and nothing is presented for review. Ground of error number six urges that the trial court should have granted the appellant’s pro se motion for continuance filed on the day of the trial. The motion alleges in substance that the appellant’s court appointed counsel was not prepared for trial. There is no evidence in the record to support the allegations of the motion. The court qualified the bill by stating that the appellant’s attorney made “no complaint with reference to the lack of time in which to prepare for trial.” The trial court did not abuse his discretion in overruling appellant’s pro se motion for continuance. Ground of error number seven urges that the State failed to disprove an exculpatory confession of appellant introduced by the State. We note first that no charge on exculpatory statements was requested. We next note that the alleged exculpatory statement was not relied upon for a conviction. It arose during the State’s examination of a rebuttal witness. See Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084; and Weedon v. State, Tex.Cr.App., 501 S.W.2d 336. We find other evidence which refutes the alleged exculpatory statement. In Vaughns v. State, 172 Tex.Cr.R. 465, 358 S.W.2d 133, we held that where an accused testified before the jury in accordance with such exculpatory statement (as did appellant in the case at bar) and his defensive theory is fairly submitted to the jury, the general rule as to exculpatory statements has no application. Ground of error number eight complains of the court’s failure to instruct the jury on the law of aggravated assault. No objections were made to the court’s charge and nothing is presented for review. Finding no reversible error, the judgment is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Waldemar WINKLER, Individually and dba Winkler Automotive Service, Appellant, v. SAR MANUFACTURING COMPANY, INC., Appellee. No. 16257. Court of Civil Appeals of Texas, Houston (1st Dist.). March 14, 1974. C. B. Stanley, Fred D. Jamail, Houston, for appellant. Philip P. Mabry, Houston, for appellee. EVANS, Justice. In a non-jury trial, SAR Manufacturing Company, Inc., appellee herein, was awarded judgment in the amount of $1582.60 against appellant, Waldemar Winkler, for breach of contract and warranty in failure to properly overhaul and repair appellee’s diesel truck engine. The trial court’s findings and conclusions, following the allegations of plaintiff’s petition, found that Winkler had entered into a contract with SAR Manufacturing to repair and restore the engine to operating condition and had guaranteed the engine’s operating condition “under normal and reasonable usage.” The court found that after the repair work had been completed and the truck had been returned to plaintiff, the engine had been used under normal and reasonable usages, but “broke down” and “ceased operating in a serviceable manner.” Appellant requested additional and amended findings and excepted to the court’s findings on the ground there was no evidence as to the nature of the defects in the engine after the final repairs; nor as to the cost of repairs needed to place the engine in the condition of repair guaranteed, nor as to the amount of damages suffered by reason of appellant’s failure to make further repairs; nor that such repairs rendered the engine wholly unsuitable for use; nor that appel-lee did not derive any benefit from such repairs. In eight points of error, appellant raises these same objections and asserts the trial court erred in rendering judgment against him. The original Winkler Automotive Service invoice dated May 22, 1968, under the heading “Description of Work” recites: “Remove cylinder head and oil pan. Check for water leak and low oil pressure. Remove engine and send out for repairs. Reinstall engine assembly. Replace hoses and clamps. Run rack. Run and check out pump pressure and injectors. Check battery cables and repair. $220.00.” Under the designation “Materials Used” appear the following: "One engine rebuilt. Replace pump kits. Grind shaft and rod bearings. Replace cam shaft and bearings. Replace cam gears. Replace cam followers. Replace block. Repair cracks in cylinder head. Test and magnaflux and resurface head. $1,279.97 One rebuilt water pump, net 30.00 2 hoses $7.60 net 5.70 1 fuel line 1.60 net 1.20 15 quarts of oil 7.00 net 5.25 3 hose clamps 1.05 net .79 Total $1,322.91" Of the two amounts indicated above the sum of $220.00 was indicated as a labor charge and the balance as a charge for parts; after adding a State tax of $39.69, a total bill for $1,582.60 was submitted. Winkler testified that when he removed the cylinder head and oil pans to check the engine he found that low oil pressure was caused by loose beams and rod bearings and that he also found that the head seams were cracked and were letting water into the crank shaft. He said he removed the engine assembly and sent it out to a machine shop and had it completely reconditioned and reassembled there. He said when the engine came back it was reassembled and reinstalled in the truck. At the bottom of the invoice Winkler wrote the words “Guaranteed for 50,000 miles” and signed his name. He testified that this was a guarantee of the repair work he had done, provided the vehicle subject only to “normal wear and tear.” Winkler said by “normal wear and tear” he meant if the vehicle was operated for the purpose for which it was intended and at the same time maintained and kept full of water and oil. Subsequent to the original repair work, the truck was brought back to Winkler and the driver told Winkler that the engine was using quite a bit of oil. Winkler told the driver he would check it out and he called Galloway’s Machine Shop and told them the truck was using more oil than it should. Galloway attempted to have the matter repaired but apparently the engine continued to use excessive oil and the truck was again brought back to Winkler. Upon this occasion, Winkler said he looked at the engine and saw that it had been overheated, that it was discolored and he decided it had not been driven under normal wear and tear. Winkler said he called Galloway’s Machine Shop and discussed it with them and was informed that Galloway would refuse to work on it again. When the truck was brought back the last time Winkler did not repair the engine. Galloway’s testimony tended to confirm Wink-ler’s view that the engine had been subjected to excessive use. Mr. Roy Turner, President of SAR Manufacturing Company, testified that the work done on the engine the first time was a “complete overhaul, new sleeves, pistons, rings and bearings.” He said the vehicle was returned within two to three weeks after the first work and it was noticed that the engine continued to use an excessive amount of oil. He said he called Winkler about the vehicle and was told to drive it a few days to see if the rings would not seat and that if they did not he should bring the vehicle back. He said the vehicle was returned to Wrinkler in June and again in July and that after the second repair work, when the engine continued to use an excessive amount of oil, Winkler again stated the rings “will set on the thing” and that it was again driven for another few weeks. After the truck was taken hack for repairs the last time, Turner said he again talked to Winkler, who said he would check into it and contact him, and that after a week or so without being contacted, he again contacted Winkler who said he was not going to honor the guaranty. Turner further testified that on trips the truck made in June, it used 25 quarts of oil in 654 miles and 41 quarts of oil in 909 miles, and 29 quarts of oil in 486 miles; in July, it used 24 quarts in 435 miles, and during a total of 8,800 miles since the first repair work, it used 146 quarts of oil. Turner further testified the truck was used for hauling his company’s foam products which weighed only a fraction of the truck’s maximum carrying capacity, and that the truck had been used under normal conditions. He said Winkler never mentioned anything to him about the driver having abused the vehicle. We overrule appellant’s first four points of error which, in effect, assert there was no evidence to support the trial court’s findings that the engine ceased to operate in a serviceable manner. We sustain appellant’s fifth point of error to the effect that the trial court erred in rendering judgment for the full amount of the sum paid by appellee to appellant for the initial repairs because there was no showing that the repairs made by appellant were entirely worthless to appellee. The original repair work which appellant undertook to perform on appel-lee’s truck was a general engine overhaul as indicated by the terms of the invoice. The appellant in effect guaranteed the engine would perform in a serviceable manner for the number of miles of service indicated. Upon a breach of the contractual warranty, appellee’s measure of damages would be the difference between the amount paid for the repairs and the amount necessary to complete the work as guaranteed. Manzer v. Barnes, 213 S.W.2d 464 (Tex.Civ.App.—Amarillo 1948, n. w. h.) ; Patten v. Richardson Ford, Inc., 466 S.W.2d 820 (Tex.Civ.App.— Tyler 1971, n. w. h.). However, appellee was not entitled to judgments for the full amount of the payment for the original work unless the pleading and proof established that the repairs were entirely worthless. Manzer v. Barnes, 237 S.W.2d 686 (Tex.Civ.App.— Amarillo 1950, n. w. h.). The evidence at best tended only to indicate that the vehicle continued to use an excessive amount of oil after the repair work and that such condition was never remedied by the appellant. While this evidence might support the trial court’s conclusion that the engine ceased to perform in a serviceable manner, there was no evidence that the engine wholly failed to perform ; conversely, there is no showing that appellee failed to receive any benefit from the repair work. We are of the opinion that the evidence on this question was not fully developed and since an improper measure of damages was utilized in rendering judgment for appellant for the full amount of the payment made for the repair work, the judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Basil Ray WILLIS et al., Appellants, v. Gabina CONTRERAS et al., Appellees. No. 16288. Court of Civil Appeals of Texas, Houston (1st Dist.). March 21, 1974. Rehearing Denied April 18, 1974. Gardner S. Kendrick, Houston (Clemens, Weiss, Spencer & Welmaker, San Antonio, counsel), for appellant Robert Hershel Long. Wiley, Plunkett, Gibson & Allen, Lewin Plunkett, San Antonio, for appellant Basil Ray Willis. Byrd, Davis, Eisenberg & Clark, Don L. Davis, Austin, for appellee. EVANS, Justice. In this venue matter, appellants, Basil Ray Willis and Robert Long, appeal from a denial of their respective pleas of privilege seeking transfer to Caldwell County, Texas, where they reside. Appellees, Gabi-na Contreras, Individually and as Adminis-tratrix of the Estate of Matt Contreras, Deceased, and W. O. Sipes, d/b/a Sipes Oil Field Service, brought this suit for damages under Article 5525, the Texas Survival Act and Article 4671, the Texas Wrongful Death Act, for the death of Matt Contreras caused by a pipeline fire when a bulldozer operated by the decedent for the appellee Sipes ruptured a gas pipeline during the digging of a fresh water pit. Appellees alleged that defendant, Texas-New Mexico Pipeline Company, was the owner of the 12-inch pipeline and easement and that defendant, Oil, Gas & Minerals Development Corporation, owned the leasehold estate upon which the incident occurred and had control and direction of exploration, drilling and production operations thereon through the defendants, Lad-son Operating Company, Inc. and Willis and Long. Texas-New Mexico Pipeline Company filed cross-action seeking indemnity and alternatively contribution from the other defendants for the value of the oil lost and the cost of replacing the damaged pipeline. Appellees asserted in their controverting affidavits that they had a bona fide claim against Texas-New Mexico Pipeline Company, a resident of Harris County, Texas and that Long and Willis were proper parties to the suit under Subdiv. 4, Article 1995, V.A.C.S. It was stipulated that Texas-New Mexico Pipeline Company, was a resident of Harris County, Texas. Appellants Long and Willis contend that appellees failed to plead and prove a cause of action against the resident defendant, Texas-New Mexico Pipeline Company, and therefore failed to maintain venue in Harris County as to the appellants under Subdivision 4, Art. 1995, V.A.C.S. Appellant Long further contends that appellees failed to plead a cause of action against him. Appellants’ original petition alleged that defendant, Oil, Gas & Minerals Development Corporation, upon acquiring the lease in question “became the occupier of those premises for oil and gas exploration, drilling and production purposes with attendant rights and duties involved in the use of the surface”; that said defendant had commenced a drilling program on the lease which “was being directed and performed by the defendants, Ladson Operating Company, Inc., Basil Ray Willis and Robert Hershel Long,” and that at all relevant times said defendant “was in control of the premises and had the legal right to control operations thereon, and actively did control, oversee and direct those operations through defendants, Ladson Operating Company, Inc., Basil Ray Willis and Robert Hershel Long.” It further alleged that defendant, Texas-New Mexico Pipeline Company had purchased an easement and constructed an underground pipeline through the lease and under the terms of its easement “was responsible for the proper maintenance, care and designation of the pipeline’s location upon the surface of the ground.” Appellees further alleged that during the initial stages of the drilling program Sipes was hired to do various bulldozer work on the premises and that the decedent Contreras was in the process of digging a fresh water pit at a location designated by Willis and Long when the blade of the bulldozer struck and ruptured the pipeline as a result of which crude oil escaped and caught on fire causing the death of Contreras and the destruction of the bulldozer. Appellees further asserted that such injury and destruction was proximately caused by the negligence of all defendants ; that said defendants “were guilty of many acts of negligence each of which was the proximate cause” of such injury and destruction and asserted that damages had been sustained by appellees in some amount unspecified except that such damages would exceed the minimum jurisdictional requirements of the court. In McDonald, Texas Civil Practice, Rev. 1970, Vol. 2, Sec. 6.16.12 at pp. 112-113, it is stated: “ . . . In a suit grounded upon negligence, it is sufficient to state the acts or omissions alleged to constitute the breach of duty, to characterize them as negligent, and to allege that as a proximate result certain injuries followed. The allegations must show a breach of the defendant’s duty to the plaintiff, and hence a petition which describes acts or omissions of the defendant, but fails to allege circumstances that would disclose a breach of duty, is insufficient. . . . “ . . . But a petition which shows a relationship between the plaintiff and the defendant imposing upon the latter a duty to exercise ordinary care, and which states, without elaboration, that the defendant negligently acted or failed to act, breaching such duty, and that such negligence proximately caused damages, states a ‘cause of action’. This short form of pleading on special exception obviously may be deemed insufficient to give fair notice; but it nevertheless alleges a ‘cause of action’.” We believe this statement applicable to the case at bar. Appellants made no objection to appellees’ pleadings or to the evidence offered by the appellees on the venue hearing. Any deficiency in the pleading was therefore waived and the pertinent venue issues are deemed to have been tried by consent. Rule 67, Texas Rules of Civil Procedure; Darr Equipment Company v. Owens, 408 S.W.2d 566 (Tex.Civ.App.—Texarkana 1966, n.w.h.). The principal question before us is whether appellants proved a cause of action against the resident defendant under Subdiv. 4, Art. 1995, Texas Revised Civil Statutes. Appellants contend the evidence establishes, as a matter of law, that the pipeline company owed no duty to the decedent. Appellants assert that Mr. Contreras’ act in constructing a fresh water pit with his bulldozer constituted an unusual or extraordinary use of the surface, and that it was therefore his responsibility to avoid striking the pipeline or to make reasonable inquiry as to the location of the line. Appellant cites Pioneer Natural Gas Company v. K. & M. Paving Company, 374 S.W.2d 214, 219 (Tex.Sup.1963), involving an excavation along an urban street; and Phillips Pipe Line Company v. Razo, 420 S.W.2d 691 (Tex.Sup.1967), where a bulldozer, which had become mired on a little used rural road, struck a Phillips pipe line while being extricated from the mud. The Supreme Court held there was no evidence to support the jury’s finding that the movement of a 50,000 pound dragline and a 40,000 pound bulldozer over such road was not an extraordinary use of the surface. The evidence in the case before us indicates that the fresh water pit was being excavated on a general rolling slope near a creek bed which ran through the leasehold. This portion of the leasehold was relatively open and apparently was not overgrown with brush. There was some cultivation about a half mile south of the pipeline and the remainder of the land was being used to graze cattle. To the north is a dirt stock tank. The evidence further established that the pipeline was generally straight through the lease and was marked by signs and painted fence posts. However, at the particular point of rupture, there was an unmarked angular curvature in the line which could not be ascertained on the ground. There was no evidence as to any awareness which Mr. Contreras or his employer had with respect to the location of the pipeline or its markings. The testimony showed that the pipeline was 18 inches deep at the location where it was struck by the bulldozer. No findings of fact or conclusions of law were made or requested of the trial court. In South Texas Natural Gas Gathering Co. v. Guerra, 469 S.W.2d 899 (Tex.Civ.App.—Corpus Christi 1971, writ ref. n.r.e.), the plaintiff Guerra was injured when a bulldozer struck a gas transmission line while excavating a cattle tank near the main ranch road on a south Texas ranch. The court held that the evidence was sufficient to support the jury’s finding that the excavation of the cattle tank was not an extraordinary use of the surface and that it could not say, as a matter of law, that such use was an extraordinary use. While the evidence in the record before us is not as detailed as that discussed in the Guerra case, we believe it sufficiently establishes the nature of the land as general pasture land suitable for grazing cattle. As in the Guerra case we cannot say as a matter of law that the excavation of a fresh water tank constituted an extraordinary use of the premises. There is an additional basis upon which the judgment of the trial court may be sustained. In this case, the question is not so much whether there was a duty to mark the location of the pipeline, as was the case in the authorities cited by appellants, but whether the location of the line was marked in such manner as to mislead appellees as to its true location. As stated by the court in the Guerra case (page 910): “ . . . The jury could also have given weight to the fact that, at a comparatively short distance from the scene of the accident, appellant’s pipeline did not run in a straight line as called for by the easement and believed that ordinary care would require markers or warning signs to enable persons working in the area to locate the underground line.” Having affirmatively assumed the responsibility of marking the line, the failure of the resident defendant to mark its location at the point of the angular curvature could only tend to mislead a person attempting to ascertain its location on the ground. See Harding v. Sinclair Pipeline Company, 480 S.W.2d 786 (Tex.Civ.App.—Houston, 14th, 1972, writ ref. n.r.e.). Under the circumstances, and in the absence of findings or request for findings, we must conclude that the trial court found a duty owing on the part of the resident defendant to appellees which it breached by its failure to designate the location of the pipeline at the point of the accident. While the petition does not detail the particulars of the alleged negligent acts, we believe it does sufficiently allege that the defendants’ negligent acts united to produce a “single and indivisible injury” which would not have occurred except for the concurrence of their acts. See McDonald, Texas Civil Practice, rev. 1965, Vol. I, Sec. 4.10.2, p. 437; Stockyards Nat. Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936). Accordingly, we find that the petition asserts a cause of action against the appellants which “entangles him in the controversy” between appellees and the resident defendant and that appellants are proper parties to the action under Subdivision 4, Art. 1995, V.A.C.S.; McDonald, Texas Civil Practice, supra, at p. 436. We overrule the first two points of error of appellant Willis and the first three points of error of appellant Long. Appellants further assert that the trial court erred in overruling their respective pleas of privilege to the cross-action of the resident defendant, Texas-New Mexico Pipeline Company. Appellants argue, in addition to their contentions as to failure to plead and prove a cause of action against the resident defendant, that the cross-plaintiff failed to establish venue against the appellants in Harris County. In its cross-action Texas-New Mexico Pipeline Company alleges that Oil, Gas & Minerals Development Corporation became the operator of the leased premises for oil and gas exploration, drilling and production purposes with attendant right to use the surface; that said corporation had commenced a drilling program on the premises and in connection therewith had engaged the services of its controlled subsidiary Ladson Operating Company, Inc. and of Basil Ray Willis and Robert Hershel Long who in turn had engaged the services of other drilling contractors, including the appellee W. D. Sipes, d/b/a Sipes Oil Field Service Company; that at all relevant times said cross-defendants were in control of the premises and the operations thereon and that they either knew or should have known of the route and location of such pipeline and that said cross-defendants breached the duty they owed to the decedent, Matt Contreras, in permitting, without due inspection or inquiry, the digging of said fresh water pit directly over said pipeline and in failing to warn appellees of the location of such pipeline. The cross-action further asserts that because of “the occurrence made the basis of this suit” the cross-plaintiff is entitled to indemnity from said cross-defendants, or alternatively, for contribution from said cross-defendants as provided by Article 2212, V.A.C.S. Said cross-action further asserts that by reason of the occurrence cross-plaintiff suffered damages in the amount of $37,697.89 representing the value of the crude oil lost and replacement of the pipeline which was damaged as a result of the accident. The determination of these points depends upon whether the resident defendant’s cross-action is severable and distinct from the action asserted by the appellees against the other defendants. In McDonald, Texas Civil Practice, rev. 1965, Vol. I, Sec. 4.39, p. 565, it is said: “Where the cross-claim has the same primary purpose, arises out of the same transaction, and involves the same issues of law and fact as the plaintiff’s claim to be determined on the same evidence, and the plaintiff’s action is properly maintainable in the county of suit, the policy of avoiding a multiplicity of suits has been invoked on occasion to defeat a plea of privilege directed to such cross-claim.” We are of the opinion that the allegations contained in the cross-action in this case show an interrelation of the issues between the claims asserted in the appellees’ petition and the claims asserted in the cross-action. Having determined that venue is properly maintainable against the resident defendant, we find that venue may also be maintained on the cross-action and that appellant’s pleas of privilege to the cross-action were properly denied. Kirksey v. Warren, 348 S.W.2d 33 (Tex.Civ.App.—Dallas 1961, n.w.h.); see also authorities collated in 100 A.L.R.2d 693, 716, Sec. 11; Jefferson Chemical Company v. Forney Engineering Company, 466 S.W.2d 361 (Tex.Civ.App.—Houston 1971, writ dism’d). Appellants’ points asserting error of the trial court in denying their respective pleas of privilege to the resident defendant’s cross-action are overruled. The judgment of the trial court is affirmed.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

ERIC ERIKSSON, INC., Appellant, v. William T. CROOKS et ux., Appellees. No. 5320. Court of Civil Appeals of Texas, Waco. March 28, 1974. Abney, Burleson, Bondies, Conner & Mills (Richard E. Glaser), Dallas, for appellant. Kenneth D. Chesnutt, Dallas, for appel-lees. OPINION McDONALD, Chief Justice. This is an appeal by defendant Eriksson from $7000. judgment against it in favor of plaintiffs Crooks, in a suit for damages for breach of warranty of title. Plaintiffs Crooks sued defendants Eriksson and Sunnyvale Building Corporation for damages allegedly suffered by plaintiffs as the result of the sale of 1.832 acres to plaintiffs by defendants on August 11, 1971. Plaintiffs alleged breach of warranty of title among other matters. Trial was to a jury which in answer to Special Issues found: 1) On August 11, 1971 there existed on and under the surface of the property a storm sewer drainage pipe. 2) Such storm sewer drainage pipe had existed there for 7 years and two months prior to August 11, 1971. 3) After August 11, 1971, the existence of the storm sewer drainage pipe on and under the surface of the property did not interfere with plaintiffs’ right to ownership and enjoyment of the use of the property. 10) The fair reasonable cash market value of the property on August 11, 1971, at a time when there existed on and under such property a storm sewer drainage pipe, was $2000. 11) On August 11, 1971 plaintiff Crooks had no actual knowledge of the existence of the storm sewer drainage pipe on the property. 12)On August 11, 1971 the storm sewer drainage pipe did not constitute an apparent easement as defined herein. (“Apparent easement” is one that is ordinarily understood to be open and visible. Apparent’ however, does not mean actually visible, but rather susceptible of ascertainment on reasonable inspection by persons of ordinary prudence.”) Plaintiffs filed motion for judgment on the verdict; defendants filed motion for judgment on the verdict; and motion to disregard Issue 10. The trial court sustained plaintiffs’ motion for judgment as to defendant Eriksson, overruled defendant Eriksson’s motion for judgment, and defendant’s motion to disregard the finding on Issue 10; and rendered judgment for plaintiffs against defendant Eriksson for $7000, and decreed plaintiffs take nothing as to defendant Sunnyvale. Defendant Eriksson appeals on 5 points contending: 1) The trial court erred in not granting defendant’s motion for judgment on the verdict for the reason the findings of the jury clearly entitle defendant to judgment against plaintiffs. 2) There is no evidence, or insufficient evidence to support the jury finding on Issue 10, that the reasonable cash market value of the property on August 11, 1971 was $2000; and such finding is against the great weight and preponderance of the evidence. 3) The trial court erred in allowing plaintiffs’ witness Russell to testify to the value of the property over defendant’s objection as to such witness’ qualifications as an expert. We revert to contention 1. Defendants Eriksson and Sunnyvale developed the Fawn Ridge Addition in a joint venture partnership. A schematic diagram of Fawn Ridge Addition together with the property purchased by plaintiffs from defendant Eriksson follows: Fawn Ridge Addition surrounds the property purchased by plaintiffs on 2 sides. Sunnyvale originally owned both the Fawn Ridge property and the 1.832 acres purchased by plaintiffs. Sunnyvale contracted for the utilities in the subdivision, including a 30-inch storm sewer across from Lot 25, and from Morning Springs Trail and which empties onto the 1.832 acres sold plaintiffs. The utilities and drainage engineering changed the natural flow of drainage in the area, and drained a 16 acre portion of Fawn Ridge Addition onto the property sold plaintiffs. The subdivision was platted and plans for utilities and drainage were submitted to the City of Dallas in 1963 for approval, and were approved. Thereafter the lots in the Fawn Ridge Addition were sold off to various buyers. On August 11, 1971 defendant Eriksson sold plaintiffs the 1.832 acres across Morning Springs Trail from Fawn Ridge Addition, for $9000, delivering plaintiffs a general warranty deed. On that same day defendant Eriksson obtained deed to the property from defendant Sunnyvale. The storm sewer outlet was partially covered with vegetation, and not discovered by plaintiffs until shortly before Christmas 1971. The jury found that the drainage pipe existed on the property sold by defendant to plaintiffs; had been there 7 years and 2 months; that the fair market value of the property with the drainage pipe was $2000; that plaintiffs had no actual knowledge of the drainage pipe; and that the drainage pipe did not constitute an apparent easement (as such term was defined) on the date of purchase by plaintiffs. Defendant Eriksson sold the property to plaintiffs for $9000, delivering plaintiff a General Warranty Deed. If a drainage easement existed on the property on August 11, 1971, then defendant is liable to plaintiffs for breach of such warranty. There was no recorded drainage easement on the property, and the pipe had not been in place long enough to establish an easement by prescription. But the record does establish the existence of an implied easement appurtenant on the property. The circumstances under which there may be a grant of an implied easement appurtenant are set out in Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 676: “Where an owner of an entire tract of land or of two or more adjoining parcels employs a part thereof so that one derives from the other a benefit or advantage of a continuous, permanent, and apparent nature, and sells the one in favor of which such quasi easement exists, such easement, being necessary to the reasonable enjoyment of the property granted, will pass to the grantee by implication.” See also: Drye v. Eagle Rock Ranch, Inc., Tex., 364 S.W.2d 196, 207-208; Westbrook v. Wright, Tex.Civ.App., NWH, 477 S.W.2d 663, 665. In the instant case the dominant estate consists of the lots in Fawn Ridge Addition which drain onto the property purchased by plaintiffs, which is the servient estate. Common ownership of the dominant and servient estate was in Sunnyvale. As Sunnyvale sold the lots in the 16 acres of Fawn Ridge Addition which drain onto the 1.832 acres (and through the 30-inch storm sewer) such lots carried with them grant of the use of such easement; and when Sunnyvale sold the 1.832 acres to Eriksson (which sold to plaintiffs) such 1.832 acres were subject to the implied drainage easement appurtenant. The finding by the jury in Issue 3 is not a determination that no easement existed on the property. Contention 2 is that there is no evidence, or insufficient evidence to sustain Finding 10, that the reasonable market value of the 1.832 acres was $2000 on August 11, 1971; and Contention 3 is that the trial court erred in permitting witness Russell to testify to the value of the property. Witness Russell testified he was a land developer in the same type of building activity in the same portion of Dallas as defendants; that he was developing land 2 miles west of the subject tract; that for 20 years he had dealt with the City of Dallas to get plats and subdivisions approved; that he had inspected the 1.832 acres; that in his opinion it had a value on August 11, 1971 of $500 or $1000. The witness was qualified to give the testimony; and in any event the testimony was not objected to. Plaintiffs paid $9000 for the tract. The jury found the value to be $2000. Such answer is supported by ample evidence, and is not against the great weight and preponderance of the evidence. All defendant’s points and contentions are overruled. Affirmed.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

Hugh T. ECHOLS, Appellant, v. Von S. WELLS, Appellee. No. 16192. Court of Civil Appeals of Texas, Houston (1st Dist.). Nov. 15, 1973. Rehearing Denied Dec. 13, 1973. Writ of Error Granted and Order Published March 28, 1974. Byrnes, Myers, Adair, Campbell, Sinex & Coffman, Ronald G. Byrnes, Houston, for appellant. Engel, Groom, Miglicco & Gibson, David A. Gibson, Houston, for appellee. PEDEN, Justice. Suit to recover the accumulated run payments from certain oil and gas leases and for other relief. There was attached to the petition of plaintiff Dr. Wells and introduced in evidence an agreement by which defendant Mr. Harrop, for ten dollars and other good and valuable consideration, purported to assign to Dr. Wells a 2% working interest and a 1% overriding royalty interest in a described tract of land in Lea County, New Mexico, including all benefits under the terms of an operating agreement executed May 10, 1967 between Meadco, Ltd., and Bill C. Cotner, as well as all obligations thereunder in proportion to the interest assigned. The instrument did not name any mineral leases, and the terms of the operating agreement are not in evidence. Plaintiff’s petition alleged that on or about November 1, 1967 he became the owner of a 2% working interest and a 1% overriding royalty interest in the Bagley Lease evidenced by the assignment which we have noticed. Plaintiff further alleged : “During all times material hereto Defendant George B. Harrop was and is receiving the run payments from the Bagley leases for Plaintiff. Prior to August 1969, Defendant Harrop monthly as the run payments were received by him, disbursed Plaintiff’s proportionate amount to Plaintiff. However, Defendant Harrop wrongfully stopped disbursements to Plaintiff, and instead, has withheld said funds from Plaintiff. Defendant Harrop’s assignments and/or agreements to assign said Bagley interests are solely and entirely to and for the benefit of Plaintiff, Defendant Echols having no rights thereto as between Plaintiff and Harrop. Defendant Harrop, even though demanded to do so, wholly fails and refuses to deliver unto Plaintiff any and all money wrongfully held and continuing to accrue that which is owing to Plaintiff. Such action by Defendant Harrop constituted a wrongful conversion of Plaintiff’s money. “That in August, 1969, the Defendant Hugh T. Echols notified the Defendant Harrop to stop paying the oil run payments from the Bagley leases to Plaintiff, such notification being based on Echols’ wrongful claim to said runs. “That Plaintiff has been damaged by the actions of the Defendants Hugh T. Echols and George B. Harrop in wrongfully withholding the oil payments due him under the attached assignment for which Plaintiff now sues plus interest and reasonable attorney fees for the conversion of said funds legally due Plaintiff.” Plaintiff Dr. Wells also pleaded that he had been induced by Mr. Echols to purchase additional oil and gas interests in leases known as the North Four Lakes and the Thompson leasehold interests on the strength of Echols’ oral guarantee that he would hold Wells harmless on any losses resulting from these investments, but that Echols had breached this agreement with Wells to Wells’ loss in the amount of $21,662.89. Plaintiff’s prayer for relief included: “WHEREFORE, Premises Considered, Plaintiff prays that the Defendants be duly cited to appear and answer herein that upon final hearing hereof Plaintiff be deemed the legal owner and holder of a Two Percent (2%) working interest and One Percent (1%) overriding royalty interest in and to the ‘Bagley Leases’ and all funds held by the Defendant, George B. Harrop; that the Defendants Hugh T. Echols and George B. Harrop be found to have wrongfully converted the funds of Plaintiff and that he be awarded judgment for such funds plus interest . . . against said Defendants jointly and severally and that . he have judgment against Hugh T. Echols . . . for the sum of at least $21,666.89 . . Defendant Echols’ answer contained a general denial plus allegations in paragraph 1 that there was no privity of contract between Wells and Echols as to the “Thompson Well,” that any contracts are between Wells and Meadco Properties, Ltd., and that Echols received none of the funds “allegedly paid by Plaintiff, nor did Plaintiff (sic) derive any benefit therefrom.” In paragraph 2 Echols pleaded the Statute of Frauds, and in paragraph 3 he denied Wells’ allegations that he was ever a partner of another defendant, Robert E. Best. In paragraph 4 Echols alleged that Wells is suing for money not belonging to him but belonging to persons not parties to this suit. Finally, in paragraph 6, Echols stated that Wells has been acting in a fiduciary capacity for Echols since Echols invested approximately $6,000 in the first “Bagley Well” and is entitled to reimbursement for it. Mr. Harrop filed an interpleader and paid the accumulated oil runs, amounting to $12,813.37, into the registry of the court. Appellant’s first point of error is that the trial court erred in entertaining jurisdiction in this cause. He contends that before a determination of ownership of the funds allegedly converted can be made, ap-pellee must first show his title to the 3% interest arising out of the land; that to do so he must plead and prove a regular chain of title to the sovereign or to a common source as required in a trespass to try title suit and that such title has not been and cannot be proven in the courts of this state. It is a universal principle that real or immovable property is exclusively subject to the laws of the country or state within which it is situated and no interference with it by any other sovereignty can be permitted. 16 Am.Jur.2d 27, Conflict of Laws, § 14. It is also well settled that the interest, or the nature and extent of the interest, created by a conveyance of land is determined by the law of the state where the land is situated. 16 Am.Jur.2d 34, Conflict of Laws, § 19. However, where a party fails to introduce proof at the trial that the law of the situs of the property differs from the law of the forum and does not request the court to take judicial notice of the law of the situs, the law of the situs will be presumed to be the same as the law of the forum. Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963). Since neither party offered proof as to how the law of New Mexico differs from ours as applied to the facts of this case and did not request the court to take judicial notice of it we presume that as to this matter the law of the State of New Mexico is the same as the law of this State. It is well settled in this State that interests retained by the landowners under an oil and gas lease, including royalty, are interests in land. Garza v. De Montalvo, 147 Tex. 525, 217 S.W.2d 988 (1949). However, once minerals have been severed from the soil they no longer retain the characteristics of realty and are then classified as personalty. W. B. Johnson Drilling Co. v. Lacy, 336 S.W.2d 230 (Tex.Civ.App.1960, no writ) ; Chapman v. Parks, 347 S.W.2d-805 (Tex.Civ.App.1962, writ ref. n. r. e.); Lone Star Gas Co. v. Murchison, 353 S.W.2d 870 (Tex.Civ.App.1961, writ ref. n. r. e.) ; Phillips Petroleum Co. v. Mecom, 375 S.W.2d 335 (Tex.Civ.App.1964, no writ). While appellant seriously urges that this was a suit to try title, the record reflects that it was not tried on that basis. Echols admitted in his testimony that Harrop assigned to Wells a 3% interest in the Bagley Leases in 1967 and that he (Echols) had never owned an assignment of any written instrument reflecting them and, in particular, that he had never owned any assignment of an interest Wells may have had in the Bagley Lease. Echols also testified that Harrop had been record owner of a 5% interest in those leases and that he (Echols) had authorized Harrop to issue an assignment to Wells so Wells could borrow money. Wells had married Echols’ sister. He said Wells had never made a written assignment to him of any of Wells’ 3% interest. Echols explained that he was claiming his original risk money and that at the time he advanced it no written agreements were available to show his participation. He has been buying and selling oil and gas leases for the past ten years. Mr. Harrop testified that he has an interest in four producing wells on the Bag-ley Lease. He was working in New York in April, 1967 when Mr. Echols came up and told him about the Bagley Lease. Echols proposed, and he agreed, that he buy a 2% working interest, and that Echols was going to hold a 2% working interest and have a 1% overriding royalty interest for turning the deal. Echols gave him the money for Echols’ share of the 2%. Harrop said he purchased the 5% in his own name with the understanding that he was only buying 2%. He did not utilize all his own money in buying the 5% interest. About four months later Mr. Echols put him in touch with Dr. Wells, who paid $1320.72 for completion costs of the first wells. A few weeks later Harrop sent the assignment to Wells. Wells did not fully pay for it, but someone did. That when production began, he sent a check to Wells each month except that in December, 1968, he sent that month’s check to Echols with the approval of both Echols and Wells. He stopped sending the checks when Echols notified him of the dispute with Wells. Harrop further related that he received a total of $4,635 from Echols between April 25, 1967 and July 21 of that year. $3,000 of this went to drilling costs on the first well, $1,000 went to a third party as a finder’s fee and $635 towards completion costs of the first well. Harrop introduced in evidence this copy of a letter, explaining that when he received it he first learned of the dispute between Echols and Wells: “August 8, 1969 “Dr. Von S. Wells 1022 South Tatar Pasadena, Texas “RE: North Bagley Field Wells Lea County, New Mexico “Dear Von: “Reference is made to the captioned interest. “A total initial investment of $22,686.17 has been spent in the Meadco Properties, Ltd. four wells, the Cabot State, Cabot State A, the Dallas, and the Cabot B. by-you and I. “To date the records reflect that the initial investment in Cabot State A, the Dallas, and the Cabot B, being your portion, $15,965.54, has to date been paid. July runs will further reduce the payments into the initial investment made by me into the Cabot State, the first well. The total outstanding debt to date is $6,720.63 of which I contributed in the beginning $6,475.50. “Therefore the initial well in North Bagley, The Cabot State, remains to be paid out in the amount of $6,475.50. To complete the total payment, along the same lines as the $15,965.54 was paid out, Bert will issue to me runs in the future from these wells in the amount of $6,475.50. Sincerely yours, /s/ Hugh T. Echols Hugh T. Echols Acknowledged by: Dr. Von S. Wells One copy to Bert Harrop. ” Dr. Von S. Wells testified that he acquired the 3% interest from Harrop through Echols, but he didn’t pay any money directly to Echols. He thinks Echols invested some money in the No. 1 well on the Bagley Lease. Wells testified that he has gotten back nearly as much as his costs were, about $15,000. That he is entitled to the $12,813.37 paid by Harrop into the registry of the court because it represents money based on his 3% interest in the Bagley Lease. It may thus be seen that the appellant did not dispute the validity of the assignment of the 3% interest from Harrop to Wells. The only claim he,-testified about was that he was entitled to be repaid from the run payments for what he called "risk money” he had paid out when the wells were being drilled. Neither party offered any evidence about the Thompson or North Four Lakes matters on which a recovery or offset could have been based. The trial court lacked jurisdiction to determine title to the mineral interests. Although this issue was raised by the pleadings, it was not raised by the evidence, and it was not essential to the determination of ownership of the fund deposited in court. The trial court’s error in denying the plea to the jurisdiction was thus harmless. However, the trial court’s judgment, by reciting that all relief not expressly granted was denied, did by implication rule on title to the mineral interests. That issue should have been dismissed. Appellant’s next point of error is that the trial court erred in admitting into evidence over objection a copy of the purported assignment of the mineral interests from Harrop to Wells because it did not bear an authentication as provided by Article 373la(4), Vernon’s Ann.Texas Civil Statutes and Title 28, U.S.C.A., Sec. 1738. It is true that the copy bore only the certificate of the County Clerk of Lea County, New Mexico. The objection was well taken when made, Hutchins v. Seifert, 460 S.W.2d 955 (Tex.Civ.App.1970, writ ref. n. r. e.), but the instrument was later identified as authentic by the appellant and by both parties who executed it, Mr. Harrop and Dr. Wells, so admitting it into evidence did not constitute reversible error. Appellant’s third and last point of error is that the trial court erred in withdrawing the case from the jury and granting judgment in favor of Wells without allowing the appellant to put on testimony in accordance with his second amended answer or to support his defense. This cause proceeded to trial before a jury. When the plaintiff rested the trial judge conferred with the attorneys off the record, then discharged the jury and asked the attorney for appellant (Echols) for a statement “which would preclude or take the place of any evidence on your part . ” The court then dictated into the record: “It’s stipulated and agreed by and between the parties that, in place and instead of testimony on behalf of Defendant Hugh Echols, the following stipulation between counsel is now made: “That if testimony on behalf of the plaintiff (sic) had been elicited, the following proof would have been made:” Mr. Lord (attorney for Mr. Echols) then responded: “That defendant, Hugh T. Echols, had approximately $7,000 in what has been referred to as the Bagley No. 1 Well. However, there is no written instrument evidencing same.” The court replied: “All right, no written agreement between plaintiff Von S. Wells and defendant Hugh Echols.” Mr. Lord answered: “With regards to any reimbursement.” The court then stated that such testimony was or would have been excluded by the court under the statute of frauds, and entered judgment awarding the funds in the registry of the court to plaintiff Dr. Wells less certain fees awarded. Since the conference by the court with the attorneys, when the plaintiff rested his case, was off the record we are not informed as to whether appellant might have waived any right to proceed. However, the appellant’s original brief states that he was not allowed to put on his evidence; this statement was not challenged by the opposing party, so we may accept it as correct. Rule 419, Texas Rules of Civil Procedure. The stipulation severely limited the scope of any offer of evidence by the appellant. But in any event, absent a showing, by bill of exception or other means, of any evidence the appellant would have offered other than that described in his stipulation, we are unable to say that the trial court committed reversible error. This case was tried as an action to determine whether it was Echols or Wells who was entitled to a fund accumulated under an assignment whose validity was undisputed and whose meaning was not questioned. The evidence Echols would have offered, according to his stipulation, would have added no basis for a more favorable determination of the suit. We affirm the judgment of the trial court in all respects except its implied determination of title to the mineral interests; we order that issue severed, reversed and dismissed.

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Caselaw Access Project

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Kenneth F. MILLER, Appellant, v. RIATA CADILLAC COMPANY, Appellee. No. 15277. Court of Civil Appeals of Texas, San Antonio. March 27, 1974. Rehearing Denied April 17, 1974. James R. Warncke, San Antonio, for appellant. Horace P. Shelton, San Antonio, for ap-pellee. BARROW, Chief Justice. Plaintiff, Kenneth F. Miller, brought this suit to recover a pro-rata share of an annual bonus allegedly owed under his oral contract of employment as used-car manager for Riata Cadillac Company. Miller was discharged on October 20, 1971, and seeks to recover a pro-rata share of the 1971 bonus. A partial summary judgment was granted defendant, and a take-nothing judgment was rendered non obstante vere-dicto after a trial on the merits. Miller asserts four assignments of error in this appeal. The first three points complain of the trial court’s action in disregarding the jury finding that the general manager did not have good cause to terminate Miller’s employment and in rendering a take-nothing judgment. Under these points, Miller urges that the take-nothing judgment should be reversed and judgment here rendered for appellant, whereby he recover 293/365th of the stipulated net profits owed the used car manager. His fourth point complains of the trial court’s action in sustaining a special exception to his alternative plea for recovery on a quantum meruit and under this point, he seeks a remand. Miller was employed as a used-car manager for Riata on February 10, 1968, pursuant to an oral agreement with Hubert Riley, president and general manager of Riata. Under the terms of this agreement, Miller was to receive a monthly salary of $350.00, plus a monthly bonus based on the gross profits of the new and used-car departments under a fixed graduated scale. These emoluments were paid in full up to the termination of Miller’s employment, whereby he received the sum of $37,455.07. Miller alleged that a bonus of two and one-half percent of the annual net profits of appellee was to be paid the used-car manager at the end of March following such year. Annual bonuses were paid to him for the years 1968, 1969, and 1970. Riata contended that such bonus was payable to the person holding such position on December 25, and since Miller left on October 20, 1971, nothing was owed him for 1971. Plaintiff’s successor received such bonus, but in accordance with the terms of the agreement, received same only on a pro-rata basis for the period he had held such position. Riata sought a summary judgment on its plea that the oral contract sought to be enforced came within the statute of frauds, and was, therefore, unenforceable. It also urged that Miller had admitted in his oral deposition that the bonus was payable only if he held the position of used-car manager on December 25. A partial summary judgment was entered, whereby the trial court found that the contract was not within the statute of frauds, and ordered that the cause be tried only on the question of whether Miller was entitled to a proportionate share of the annual bonus for the proportionate part of the year he actually worked for Riata. The court also sustained Riata’s special exception to Miller’s alternative plea for recovery on a quantum meruit and ordered same stricken. The jury found, in response to the only issue submitted, that Riley did not have good cause to terminate the employment of Miller on October 20, 1971. Miller concedes that he was employed on a month-to-month basis, or for an indefinite period of time, and, therefore, could be discharged for any reason at any time. See Scruggs v. George A. Hormel and Company, 464 S.W.2d 730 (Tex.Civ.App.—Dallas 1971, writ ref’d n.r.e.). He urges, however, that Riata’s right to discharge is without prejudice to his own right to receive a pro-rata part of the promised annual bonus for the period he had actually worked since he was discharged through no fault of his own. Although commonly referred to as a “bonus,” a general bonus, profit-sharing, or other incentive plan forms an integral part of many employer-employee contracts and is binding upon the employer as soon as the employee has rendered any substantial service under same. Marvin Turner Engineers v. Allen, 326 S.W.2d 200 (Tex.Civ.App.—Austin 1959, no writ); Corbin on Contracts, Volume 1A, Section 153 (1963). A more difficult question, and one on which there is a division of authority, is the effect on such bonus of the termination of the employee’s services, either voluntarily or involuntarily, prior to the time specified for the distribution of the bonus. See Anno.: Bonus or Profit-Sharing Plan, 81 A.L.R.2d 1066, 1069. We have found no Texas decision which squarely considered this question. Nevertheless, the only Texas authorities which have considered the subject permitted the employee to recover on a pro-rata basis where the employment was terminated prior to the time specified for payment of the bonus. In Haggar Co. v. Rutkiewicz, 405 S.W. 2d 462 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.), the court, although it upheld a jury finding that the employer agreed to pay employee for his services for time less than a year, quoted with approval the rule from 56 C.J.S. Master and Servant § 112, p. 554, as follows: “Ordinarily an employee entitled to a per cent of the profits may on termination of his employment within a compensation period recover his share of profits earned up to the date of termination.” This rule was followed by the Fifth Circuit in determining the rights under Texas law of two employees who quit their employment before the end of the fiscal year when a profit-sharing bonus was to be computed. In Marvin Turner Engineers v. Allen, supra, an employee was permitted to recover ll/12th of a bonus where he was discharged in early December. See also Eisenbeck v. Buttgen, 450 S.W.2d 696 (Tex.Civ.App.—Dallas 1970, no writ). We conclude, and here adopt as the Texas rule, that an employee who is discharged without good cause prior to the time specified for payment of a bonus is entitled to recover a pro-rata part of such bonus for the period he actually worked. Riata urges, however, that in any event, the bonus provision of the oral contact could not be fully performed within one year and, therefore, was not enforceable under the statute of frauds. Miller specifically alleged that the bonus was not payable until March following the end of such calendar year. Presumably, time would be needed for an audit to determine the net profits. Thus, the full performance of the contract could not be had within one year, and the provision comes within the terms of the statute. Bratcher v. Dozier, 162. Tex. 319, 346 S.W.2d 795 (Tex.1961); 147 Tex. 106, Chevalier v. Lane’s, Inc., 213 S.W.2d 530 (1948); 26 Tex.Jur.2d, Statute of Frauds, Section 32 (1961). Nor is this rule changed by Miller’s performance under the contract. Chevalier v. Lane’s, Inc., supra; Paschall v. Anderson, 127 Tex. 251, 91 S.W.2d 1050 (1936); Jackman v. Anheuser-Busch, Inc., 162 S.W.2d 744 (Tex.Civ.App.—Dallas 1942, writ ref’d). The trial court did not err in concluding that Riata’s promise to pay a profit-sharing bonus in March of 1972 for Miller’s services in 1971 is not enforceable. Miller’s first three points are overruled. Miller’s final point complains of the trial court’s action in sustaining Riata’s special exception and striking his alternative plea for recovery on a quantum mer-uit. Such point has not been properly preserved for review on appeal. This was a jury trial, and Miller did not file a motion for new trial. He is, therefore, limited on appeal to his complaint of the court’s action in rendering judgment non obstante veredicto. Rules 324 and 325, Texas Rules of Civil Procedure. He may not complain of the court’s action in sustaining Riata’s special exception. First National Life Insurance Co. v. Herring, 318 S.W.2d 119 (Tex.Civ.App.—Waco 1958, no writ). The judgment of the trial court is affirmed. . The parties stipulated that two and one-half percent of the net profits for 1971 were $15,-519.33. . Section 26.01, Business & Commerce Code, Tex.Rev.Civ.Stat.Ann.; Article 3995(5), Tex. Rev.Civ.Stat.Ann.

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ALLRIGHT PARKING SYSTEM, INC., Appellant, v. William S. DENIGER, Jr., Appellee. No. 4682. Court of Civil Appeals of Texas, Eastland. March 22, 1974. Rehearing Denied April 12, 1974. David C. Waldrep, Richard S. Geiger, Inc., Dallas, for appellant. John M. Gillis, Dallas, for appellee. WALTER, Justice. William S. Deniger, Jr., recovered a judgment against Allright Parking System, Inc., for damages to his automobile after it had been stolen from Allright’s parking lot. Allright has appealed and contends there is no evidence to support the jury’s answers to issues four, seven and ten. The jury found that the car had been stolen from the parking lot; that Allright failed to exercise reasonable and ordinary care to protect the car against theft; that it failed to attend the premises with an adequate and prudent number of employees; that it failed to keep the ignition keys to the automobile in a safe place; and that these acts constituted negligence and a proximate cause of the damages to the car. In Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (Tex.Sup.1951) at page 159 the court said: “The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, but as stated in Wigmore on Evidence, 3rd Ed., § 2508, Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon his negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession or control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care. It is evidently supported by the weight of authority in the United States, including our own state.” William S. Deniger, Jr., testified substantially as follows: I began parking my car at Allright’s lot in August prior to November 11, 1971, when my car was stolen. They have only one attendant at this lot and his name is Gabriel and he’s about 50 years of age. I left my car at the parking lot at about 8:30 in the morning, which was about the time I always arrived at the parking lot. I would drive my automobile into the parking lot, get out of my car and leave. I would leave my car at the parking lot all day. When I would come back to get my car, it would not necessarily be in the same spot where I left it in the morning. The attendant moves them around. He had to park “an awful lot of cars in a very short period of time, and he was usually —he was always extremely busy when I would drive in, and — ■” When I would come for my car in the evening, the attendant did not bring my car to me but I would drive my car from wherever he had parked it. My car would never be in the same spot 2 days in a row and sometimes he had to move cars for me to get out. I would leave my keys in the car when I parked it in the morning. One time I accidentally took my keys out. of my car and the attendant told me that if I did that again, he would roll my car out in the street and leave it there. After he told me this, I always made an effort to leave the keys in the car as he had instructed me to do. On November 11 when I came back to get my car, I couldn’t find it. I looked for it and it wasn’t there. Gabriel looked for it and he couldn’t find it. The next time I saw my car it was at Lee Jarom Ford. David L. Carothers, President of All-right Parking System, testified substantially as follows: We operate 44 parking lots in Dallas including the lot at Camp and Field. We operated this lot in November of 1971. Willis Gabriel was the only employee on the lot. The footage of our lot on one side is approximately 125 feet and the depth from one street to another is about 190 feet. We have an office on the lot which is roughly a building 4 by 4 where Gabriel maintained his office. We accommodate all day parkers, in and out parkers and interim-type parkers, and we have a lot of traffic. Approximately 80 per cent of the people stay with us all day on this particular lot. We can accommodate roughly 125 cars at this place. During the day, we will probably park from 150 to 160 cars. Approximately 80 percent of our parkers arrive between 7:30 and 9:30 in the morning. The bulk of Gabriel’s work was performed during the 2 hours in the morning and 2 hours in the afternoon. Gabriel could be as far as 190 feet away from a car while working on the lot. When asked ‘‘but in any event this man had more than you could say grace over in the morning and afternoons,” Mr. Carothers testified, “he had to keep up with it.” We find some evidence of probative force which supports the jury’s answer to Special Issue No. 7, that Allright failed to attend the premises where Deniger’s automobile was kept with the adequate and prudent number of employees; and Special Issue No. 4, that Allright failed to exercise reasonable and ordinary care to protect Deniger’s car against theft and resulting damage. Allright Texas, Inc. v. Simmons, 501 S.W.2d 145 (Tex.Civ.App. Houston (1st Dist.) 1973, writ ref. n. r. e.). We have examined all of appellant’s points and find no merit in them. The judgment is affirmed.

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Kate RYAN, Appellant, v. W. B. RYAN et ux., Appellees. No. 5312. Court of Civil Appeals of Texas, Waco. March 28, 1974. Rehearing Denied April 18, 1974. James R. Catón, Jerry D. Bolin, McKinney, for appellant. Moses & Truett (Luther Truett), McKinney, for appellees. HALL, Justice. By warranty deed dated February 2, 1960, the plaintiff-appellant, Mrs. Kate Ryan, conveyed ,7-acre to her nephew, W. B. Ryan. She instituted this suit against him in August, 1972, to cancel the deed. Trial was to a jury. Judgment was rendered on the verdict that plaintiff take nothing. We reverse and render. Although the wife of plaintiff’s nephew was joined as a defendant, he is the primary defendant and we shall refer to him as such. In 1952, plaintiff conveyed to defendant 2.89 acres off the north end of a larger tract owned by her, and retained the balance. The ,7-acre in question is a strip 70 feet wide which runs the length of the original common boundary between- these two tracts. Defendant built his home on the southern part of his 2.89 acres. An addition was later made to the house. Plaintiff pleaded that the defendant falsely represented to her that the addition to his house was inadvertently constructed across their common boundary and onto her land, and that she was induced thereby to convey the .7-acre to him. Defendant answered with a general denial and pleas of laches and limitations. The jury found that the defendant made the false representation attributed to him by plaintiff; that plaintiff believed and relied upon the representation when she executed the deed in February 1960; and that plaintiff actually discovered the fraud in July, 1972. Additionally, the jury was called upon by Special Issue No. 5 to find, by stating the month and year, “when it ought to have been discovered by Kate Ryan that [the representation was false] had due care been exercised by her.” The jury answered, “February, 1960.” The single question we must decide is whether there is any evidence to support the answer to Special Issue No. 5. We hold there is none. The material facts are without dispute. Defendant and his brother and sister are plaintiff’s closest living relatives. At the time of the conveyance, and until 1971, the relationship between plaintiff and the defendant and his wife was close, virtually familial. At the time of the conveyance, plaintiff was living in California. She received no consideration for the conveyance. The south end of defendant’s house is located five feet north of the north line of the ,7-acre tract. At the time of the conveyance in 1960, and until a survey in 1970, the plaintiff and defendant and defendant’s wife did not know the location on the ground of the north or south boundary of the .7-acre. Although an action to cancel a deed is an equitable proceeding, the bringing of it is controlled by Article 5529, Vernon’s Ann.Civ.St., a four-year statute of limitation. Slaughter v. Qualls, 139 Tex. 340, 162 S.W.2d 671, 674 (1942). If the suit to cancel is grounded on fraud, the period of limitation begins to run from the time of the discovery of the fraud, or from the time it might have been discovered by the use of reasonable diligence. “Stated in another form, fraud will prevent the running of the statute of limitation until discovered, or by reasonable diligence might have been discovered. Knowledge of facts that would cause a reasonably prudent person to make inquiry which would lead to a discovery of the fraud is in law a knowledge of the fraud.” Glen v. Steele, 141 Tex. 565, 61 S.W.2d 810 (1933). However, the mere fact that the defrauded party has available means to discover the fraud is not sufficient to set the statute in motion absent circumstances that would prompt a reasonably prudent person to make an investigation. Isaacks v. Wright, (1908, writ ref.) 50 Tex.Civ.App. 312, 110 S.W. 970, 972. In support of the challenged finding, the jury must have concluded that plaintiff could have discovered defendant’s fraud with a ground survey in 1960, just as she did in 1970. And, of course, she could have. A very cautious and suspicious person might have done so. But there are no facts shown by this record that should have aroused plaintiff’s slightest suspicions regarding the defendant’s representation. And, there are no circumstances shown that would have prompted a person exercising due care to make a survey or to investigate the matter in 1960 or at anytime prior to the time actual discovery of the fraud by plaintiff. The judgment is reversed. The case was fully developed on the trial. Judgment is rendered that the deed in question be, and it is hereby, canceled.

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E. Foster ATKINS, et ux., Appellants, v. Wm. E. FINE, Jr., et al., Appellees. No. 12108. Court of Civil Appeals of Texas, Austin. April 3, 1974. Rehearing Denied April 24, 1974. Donald P. Dorsey, Gray, Aaron & Dorsey, San Angelo, for appellants. Philip R. Lane, Marschall, Hall & McLaughlin, San Angelo, for appellees. PHILLIPS, Chief Justice. The question before us is whether appellants in moving a mobile home onto certain restricted lots and then altering it violated the restrictions. Trial was to the court sitting without a jury on stipulated facts. The trial court held that the restrictions were violated and issued a mandatory injunction ordering appellants to remove the structure. We affirm this judgment. Appellants purchased their mobile home in March of 1970 and lived in this mobile home on South Jackson Street in San Angelo from the time of purchase until June of 1971. In May of 1972 appellants moved the mobile home onto the lots in question. The stipulations state that appellants “ . . . had actual knowledge and constructive notice that the said restrictive covenants were imposed upon the lots in question prior to their purchase of said lots.” Within two weeks after the mobile home was moved onto the lots, appellants were delivered a letter wherein the restrictions running with the lots were called to their attention: “ . . .in order to give you an opportunity to avoid the expenditure of funds which will not be of any permanent value to you.” After warning appellants that they were breaching the hereinafter described restrictions, the appellants were requested “ . . .to cease with any further work on the placing of the trailer house, and ... to remove the trailer house from the lot.” The letter went on to state that if the appellants failed to comply with this request, legal action would be taken against them. Within two weeks after appellants moved the mobile home upon the lots, they were also presented with a petition signed by property owners in the subdivision demanding an immediate removal of the trailer house and threatening legal proceedings for damages and/or injunctions in the event of appellants’ non-compliance. In spite of the warnings given them, appellants refused to remove the mobile home and then proceeded to remove the wheels and bolt it to a concrete foundation. Following this, appellants added the following improvements thereto: new den with fireplace constructed and attached to the rear of the mobile home, a carport, sun porch, entire structure enclosed under gabled roof with brick veneer and wooden walls, entire structure attached to steel beams in the gabled roof, front and back steps and other miscellaneous improvements were added. The stipulations disclosed that some of the houses in the subdivision were constructed at the site while others were new conventional houses constructed at a builder’s business location and then moved onto the property in the subdivision. Appellants are before us on four points of error which, in substance, urge the error of the court in holding them in violation of the restrictions, and in holding as a matter of law that the allowance of the mobile home on the property was contrary to the intentions of the dedicators of the subdivision. Appellants’ basic position is that the language of the restrictions is broad enough to include the altered mobile home. One of the restrictions provides: “That no buildings of any character are to be moved onto said property herein conveyed except new ready-built homes.” The court then held as a matter of law that appellants’ mobile home was not a “ready-built home” within the meaning of the restriction when it was moved upon the restricted property; that only a “ready-built home,” under the terms of the restrictions, could be moved onto the property within the meaning of the restriction; and that the meaning of the term “ready-built home,” as used in the restriction, is a conventional home completely constructed by a builder at a temporary location for the purpose of selling it and moving it to the buyer’s permanent location. The court further held that its definition of a “ready-built home” is the ordinary meaning of such terms in the building and home construction industry. The court then held, as a matter of law, that a mobile home is not a “ready-built home.” Appellants contend that the court’s own definition of “ready-built home” would include a mobile home “ . . . except maybe [for the] word 'conventional.’ ” Appellants then cite Baker v. Henderson, 137 Tex. 266, 153 S.W.2d 465 (1941) for the proposition that restrictive clauses in instruments concerning real estate must be construed strictly, favoring the grantee and against the grantor, and all doubt should be resolved in favor of the free and unre-strictive use of the premises. Appellants contend that the opinion of the Court of Civil Appeals in Hussey v. Ray, 462 S.W. 2d 45 (Tex.Civ.App.1970, no writ) controls the case at bar. In Hussey the Court refused to hold that the restrictions before it had been violated by placing a mobile home on the property in question. Without going into the specific facts there, the rationale of the Court was that under the wording of the restrictions, it was doubtful that a mobile home was excluded. Consequently, the Court held all doubts should be resolved in favor of a free use of property and against restrictions. We have no quarrel with Hussey as the law is applied to the facts of that case. We hold that the moving of the mobile home onto the property was in violation of the restrictions for the reason that it was not a “ready-built” home. A “ready-built” home is the only type of building that may be moved onto the property. Other types of buildings on the property must be constructed there. In this regard, see Foos v. Engle, 295 Ky. 114, 174 S.W.2d 5 (1943). In their stipulations, the parties agreed that a Mr. C. J. Poulter, a resident of San Angelo who along with his father and brother had been engaged in the constructing and selling of ready-built homes for over 20 years, would testify that ready-built homes constructed by them and their competitors in West Texas are simply conventional homes constructed at various business locations, then moved onto a buyer’s property with standard housemoving equipment. Words used in restrictive covenants are to be taken in their ordinary and popular sense. 26 C.J.S. Deeds § 163. A further aid to construction, if necessary, is expert testimony. It may be considered to establish the meaning of trade terms or terms that are used in a local sense, if the meaning is not otherwise plain. Harrison v. Frye, 148 Cal.App.2d 626, 307 P.2d 76 (1957). C. J. Poulter is an expert in the field of ready-built home construction, and he defines a ready-built home as being one of conventional construction. His testimony is uncontradicted. The rule of strict construction against parties enforcing a restrictive covenant relied on by appellants is secondary to the determination of the intent of the restrictions and takes precedence only where the parties have failed to express their meaning with' sufficient clarity to enable the Court to determine the intent of the instrument. 26 C.J.S. Deeds § 163. In view of our holding with regard to the restriction discussed above, we deem it unnecessary to discuss the remaining restrictions held breached by the trial court. The appellees, owners, have a valuable right to be protected in this case. They have given appellants every warning possible to encourage them to abide by the restrictions. Appellants have disregarded these warnings; consequently, the right to injunction to prevent the violation of the restrictions is well settled. Green v. Gerner, 283 S.W. 615 (Tex.Civ.App.1926). The judgment of the trial court is affirmed.

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Glaydell F. BROWN, Appellant, v. CITY OF DALLAS, Appellee. No. 18319. Court of Civil Appeals of Texas, Dallas. April 4, 1974. J. Michael Tibbals, G. Frank Brown, Dallas, for appellant. N. Alex Bickley, City Atty., Gary B. Hall, Asst. City Atty., Dallas, for appellee. CLAUDE WILLIAMS, Chief Justice. The City of Dallas, for and in behalf of the Dallas Independent School District, brought this action against Glaydell F. Brown to recover delinquent ad valorem taxes for the years of 1971 and 1972 on a 1968 Bonanza aircraft owned by Brown. The City filed its motion for summary judgment supported by a certified copy of the delinquent tax rolls of the City of Dallas showing the delinquent taxes due on the property in question to the Dallas Independent School District by Brown for the years 1971 and 1972. Also supporting the motion for summary judgment was the affidavit of the Director of Revenue and Taxation for the City of Dallas, certifying the correctness of the assessment and the levy of taxes on the property in question for those years and certifying the exact amount of said taxes due. Brown’s answer to the City’s motion was supported by his personal affidavit. The trial court sustained the City’s motion and rendered judgment against Brown for the delinquent taxes due, penalty and interest, in the total sum of $394.76. From such judgment Brown perfects this appeal. Appellant concedes in his brief that the City of Dallas established a prima fa-cie case entitling it to recover judgment for the delinquent taxes due by introducing as summary-judgment evidence, certified copies of the appropriate delinquent tax records of the City of Dallas. Alamo Barge Lines, Inc. v. City of Houston, 453 S.W.2d 132 (Tex.1970). Appellant also concedes that once having established this prima facie case the burden of introducing evidence to show that the airplane in question had acquired a tax situs in another jurisdiction then shifts to the taxpayer. Lawson v. City of Groves, 487 S.W.2d 439 (Tex.Civ.App.—Beaumont 1972, no writ). Therefore, the question presented to us is whether appellant Brown, through the medium of his affidavit in opposition to the City’s motion for summary judgment, has presented sufficient evidence to create questions of fact concerning the taxable si-tus of the property within the Dallas Independent School District. We hold that appellant taxpayer has not met this burden. Since appellant seeks to negate the prima facie case made by appellee City solely on the basis of the contents of his affidavit in opposition to the City’s motion, we think it essential to summarize the contents of said affidavit. The affidavit begins with the following statement: For the year 1971 and until April of 1972, I was the owner of N7150N 1968 E33 Bonanza aircraft which was registered in my name at 9767 Wisterwood, Dallas, Texas, which is located in the Richardson Independent School District of the City of Richardson, Dallas County, Texas. I am a taxpayer and pay school taxes to the Richardson Independent School District. The affidavit then relates that in 1971 and 1972 Brown rented a hangar at Addison Airport but did not keep the aircraft hangared there at all times. He said that he owned an apartment at Nueces County, Texas; that he had many business activities in Corpus Christi and other parts of Texas and the United States “where I rent hangar facilities.” He went on to relate that he had parked his airplane at Victoria, Rockport, Rocksprings, Rockwall, Airpark, Kerrville, Sulphur Springs, Bonham, Athens, Junction and other places in Texas. He said he hangared his airplane in Corpus Christi for over two weeks about the middle of January 1972. He said: There is nothing permanent in the location of my airplane merely because I have a hangar at Addison Airport. The aircraft were [sic] not hangared at Addison Airport for enough time to be considered part of the general mass of property in Addison. In fact, the aircraft have [sic] not been in any one place for a sufficient amount of time to be fairly considered part of the general mass of property of any certain area. Airplanes which are used as frequently as I use my planes simply do not have the permanent character or nature, and therefore are not part of the general mass of property of any limited area except perhaps the North American Continent or the United States. Appellant contends this case is controlled by the doctrine of mobilia sequun-tur personam. This doctrine was announced by our supreme court in Great Southern Life Ins. Co. v. City of Austin, 112 Tex. 1, 243 S.W. 778 (1922) as follows : Under the common law, “mobilia se-quuntur personam” was a well-established maxim, and personal property of every description was taxable only at the domicile of its owner, regardless of its actual location. This is still the basic principle upon which the taxation of personal property rests. 26 R.C.L. § 241, pp. 273-74. Appellant contends that since his affidavit demonstrates that the airplane in question was not kept or hangared at the Addison Airport with any degree of permanency during the taxable years in question that such property did not acquire tax situs within the Dallas Independent School District and therefore, pursuant to the doctrine of mobilia sequuntur personam the property should be taxed where appellant-owner resides. He argues that his affidavit demonstrates conclusively that during the two years in question he was a resident of the Richardson Independent School District. We cannot agree with appellant that his affidavit does reveal this fact. A careful analysis of his affidavit demonstrates that (1) the airplane was registered in his name at 9767 Wisterwood, Dallas, Texas, which is located in the Richardson Independent School District of the City of Richardson, Dallas County, Texas, and (2) he was a taxpayer and paid school taxes to the Richardson Independent School District in 1971 and 1972. Neither of these statements constitutes evidence that the appellant Brown was a resident of the Richardson Independent School District. A person may well pay taxes to a taxing authority and yet not be a resident of that district. Appellant does not state in his affidavit that he resided at 9767 Wisterwood in Dallas, Texas. He merely states that the aircraft was registered in his name at that address. We therefore hold that appellant’s affidavit is completely insufficient to establish appellant’s residence for taxation purposes in the Richardson Independent School District during the years in question. Again, in an effort to overcome the taxing authority’s prima facie case, appellant seeks to establish by his own affidavit that the airplane was not kept at the Addison Airport, within the Dallas Independent School District, for a sufficient period of time during the taxable years so as to acquire tax situs within that taxing authority. In City of Dallas v. Overton, 363 S.W.2d 821 (Tex.Civ.App.—Dallas 1962, writ ref’d n. r. e.) we reviewed the authorities and set forth the well-established rule that tangible personal property acquires a tax situs in a jurisdiction apart from its owner if it is kept there with sufficient permanency that it may fairly be regarded as being a part of the general mass of property within the jurisdiction. The question of “permanency” requires an analysis of the facts of the particular case, if a fact issue is properly raised. Appellant’s affidavit contains the general conclusory statement that “the aircraft were [sic] not hangared at Addison Airport for enough time to be considered part of the general mass of property in Addison.” At no place in the affidavit does appellant set forth exact or even approximate times when the aircraft was not kept or hangared at Addison Airport. Therefore, appellant does not support his conclusory statements with sufficient allegations of fact from which a court or jury may find on the question of permanency or tax situs of the property. Appellant’s counter-affidavit is therefore insufficient, as a matter of law, to demonstrate the existence of fact issues which would defeat the motion for summary judgment. Texas Rules of Procedure, rule 166-A. Our resolution of the questions above presented renders it unnecessary for us to discuss or pass upon the points relating to the appellee’s reliance upon the doctrine of estoppel by rendition. The judgment of the trial court is affirmed. . This rule has been applied more recently by the supreme court in Nacogdoches Independent School District v. McKinney, 504 S.W.2d 832, 838 (Tex.1974). . Loomis v. City of Dallas, 472 S.W.2d 809, 811 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.).

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ELECTRONIC DATA SYSTEMS CORPORATION, Appellant, v. Douglas W. POWELL, Appellee. No. 18267. Court of Civil Appeals of Texas, Dallas. Feb. 28, 1974. Rehearing Denied April 25, 1974. E. Eldridge Goins, Jr., Coke & Coke, Dallas, for appellant. Royal H. Brin, Jr., Strasburger, Price, Kelton, Martin & Unis, Dallas, for appel-lee. BATEMAN, Justice. This is an action by appellant to enforce by injunction certain restrictive covenants in an employment contract against its former employee. The employer prevailed below in the hearing for a temporary injunction but, being dissatisfied with the limited scope of the temporary injunction, has perfected this appeal. Appellee Douglas W. Powell worked for appellant (herein referred to as EDS) from May 1970 until August 1972, after which he went to work for Systems Resources, Inc., (herein called SRI), a competitor of EDS. EDS employs systems engineers who write computer programs for its customers. There are five industry groups which EDS serves, the two which are material here being the health care and public utilities industries. Powell worked in the health care area for EDS as a systems engineer on a team which developed a “system,” or series of computer programs for processing health care claims involving private or non-governmental contracts. The health care industry group was subdivided into the private and governmental sectors. The EDS system which Powell helped to develop, referred to as “Prepayment Utilization Review” or “PPUR,” competes with the “Model System,” which was developed by a governmental agency, and which is employed by Powell’s present employer, SRI. However, at the time of trial, Powell was working in the public utilities area for SRI, an area in which EDS did not even have a data processing system when Powell was employed by it. The restrictive covenant in Powell’s contract with EDS included the following limitations : its computer systems and related data were to remain confidential; EDS retained a proprietary interest in its systems and information; the employee was not to participate in recruiting other EDS employees or in the solicitation of customers of EDS, and was not to compete with EDS or any subsidiary within 200 miles of any city in which it does business until three years after the contract term; and the employee was not to use any method, information or system developed by EDS in competition with EDS, within the same 200 mile radius and for the same period of time. The temporary injunction entered by the trial court restrained Powell from recruiting other EDS employees, and from soliciting past, present and prospective customers of EDS, in substantially the same language as the restrictive covenant. It also restrained Powell from competing with EDS within the 200 miles radius and for the same time period mentioned in the contract, but the court defined the word “competing” as: . conduct by Douglas W. Powell involving the design or use, or providing further information to others concerning the design or use of electronic data processing programs or systems for performing, in whole or in part, the function known as prepayment utilization review in processing health care claims as that function was designed to be performed by the EDS National Regular Business program on August 15, 1972, where such function designed to be performed by the EDS Regular Business program exceed [sic] that which is generally accepted and known in the data processing industry for prepayment utilization review programs. In effect, the trial court enjoined Powell from competing with the EDS system which he had helped EDS to develop. It is this limitation of the scope of the temporary injunction which appellant complains of on this appeal. Restrictive covenants in employment contracts by which employees agree not to compete with the former employer after termination of the contract have traditionally been viewed as being in restraint of trade and not enforceable unless the terms are reasonable. The test of reasonableness is whether the covenant imposes upon the former employee an undue hardship or any greater restraint than is reasonably necessary to protect the former employer’s business and good will. Weatherford Oil Tool Co. v. Campbell, 161 Tex. 310, 340 S.W.2d 950, 951 (1960). The reasonableness of the covenant is generally recognized to be a question of law for the court’s determination. Orkin Exterminating Company, Inc., Co. v. Wilson, 501 S. W.2d 408, 411 (Tex.Civ.App.—Tyler 1973, no writ); Toch v. Eric Schuster Corp., 490 S.W.2d 618, 621 (Tex.Civ.App.—Dallas 1972, writ ref’d n. r. e.). The granting or denial of an injunction, and especially a temporary injunction, and the scope of one which is granted, are largely and peculiarly within the broad discretion of the trial court, whose action will not be disturbed on appeal unless a clear abuse of discretion is shown. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460, 462 (1952); Harris County v. Bassett, 139 S.W.2d 180, 183 (Tex.Civ.App.—Galveston 1940, writ ref’d). From a review of this record, we are unable to say that the trial court abused its discretion in limiting the scope of the injunction as it did here. We cannot say, as a matter of law, that appellant needs a broader temporary injunction to preserve its rights pending a trial on the merits. It must be borne in mind that a temporary injunction is merely a provisional remedy t9 preserve the subject matter of the controversy pending trial. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973 (1931). The court unquestionably had the power to limit the restrictive covenant to the geographic area in which the employee worked for the employer. American Speedreading Academy, Inc. v. Holst, 496 S.W.2d 133, 135 (Tex.Civ.App.—Beaumont 1973, no writ); Royal Industries, Inc., Safelite Div. v. Sturdivant, 497 S.W.2d 479, 482 (Tex.Civ.App.—Dallas 1973, no writ). We see no reason why this same principle should not apply to a limitation of the covenant as to its subject area as well. Weber v. Hesse Envelope Co., 342 S.W.2d 652, 655 (Tex.Civ.App.—Dallas 1960, no writ). Powell worked for EDS on a specialized system for the health care industry. He did not work for it in the public utilities industry area, nor did EDS even have a data processing system for public utilities when Powell worked for it. Although there is some dispute as to the facts regarding whether the technical expertise is common between systems for health care and systems for public utilities, we do not have to resolve that dispute on this appeal. There is some evidence in this record to support an implied finding of fact that there is not enough similarity between the two systems for EDS to be irreparably injured, if injured at all, by Powell’s work in a different system. In reviewing this temporary injunction, we must draw all legitimate inferences from the evidence in the light most favorable to the trial court’s judgment. American Speedreading Academy, Inc. v. Holst, supra; Erickson v. Rocco, 433 S.W.2d 746, 750 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n. r. e.); Construction and General Labor Union, Local No. 688 v. Stephenson, 148 Tex. 434, 225 S.W.2d 958, 960 (1950). It was not an abuse of discretion for the trial court to conclude, under this record, that an impending irreparable injury was not shown by the appellant. West Texas Gulf Pipe Line Co. v. Hardin County, 159 Tex. 374, 321 S.W.2d 576, 577 (1959). Appellant argues that Powell should be enjoined from employment with SRI entirely because the injunction is unenforceable as a practical matter so long as his employment continues, since he is “a telephone call away” from SRI’s work in the health care area and violation of the injunction would be difficult, if not impossible to detect. However, there was no showing of bad faith on Powell’s part, or that his work with SRI was even likely to injure the effectiveness or profitability of the EDS health care system. The appellant’s contention is simply that Powell might assist SRI in the health care area. Such a possibility is not a sufficient ground for extending the scope of an injunction. It is a conjecture by appellant, which is far short of a showing of probable right and probable injury. Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, 552 (1953) ; cf. Orkin Exterminating Company, Inc. v. Wilson, supra. No abuse of discretion being shown, the judgment of the court below is affirmed.

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Neal B. TODD, Appellant, v. The CITY OF HOUSTON et al., Appellees. No. 16235. Court of Civil Appeals of Texas, Houston (1st Dist.). March 14, 1974. Rehearing Denied April 11, 1974. Wandel & Bousquet, R. D. McPherson, Houston, for appellant; T. G. Bousquet, Houston, of counsel. William A. Olson, City Atty., F. William Colburn, Sr. Asst. City Atty., Alan F. Lev-in, Asst. City Atty., Houston, for appellees. ON MOTION FOR REHEARING PEDEN, Justice. On January 17, 1974 we filed two opinions in this case, ordering that one of them not be published pursuant to Rule 452, Texas Rules of Civil Procedure. We now grant the appellant’s motion for rehearing, withdraw both of the opinions filed on January 17, 1974, and substitute for them the opinion that follows. Neal B. Todd appeals from the granting of a summary judgment in favor of the City of Houston and from the denial of his motion for summary judgment. He was a lieutenant in the Houston Police Department when he received a written statement of indefinite suspension on October 24, 1966. Todd gave timely notice to the Civil Service Commission that he was appealing to the Commission from his suspension. After a hearing, the Commission entered an order dismissing him on December 7, 1966. Todd appealed from the Commission’s dismissal order by bringing this suit in the District Court as provided in Sec. 18 of Article 1269m, Vernon’s Ann.Texas Civil Statutes. Appellant’s eighth point of error is that the trial court erred in granting the appel-lees’ motion for summary judgment because the Civil Service Commission did not have jurisdiction to enter its order dismissing him since the Commission did not act within 30 days after it received the appellant’s notice of appeal, as required by law. Appellant’s ninth point is that the trial court erred in denying his motion for summary judgment because the Civil Service Commission failed to act within 30 days after receiving appellant’s notice of appeal, as required by law. We sustain these points of error and do not reach the appellant’s other points. Section 16 of Article 1269m provides that a Chief of Police may suspend indefinitely any officer under his supervision for violation of civil service rules, but in every such case he shall within 120 hours thereafter file a written statement with the Commission, giving the reasons for the suspension. The suspended officer has ten days after receipt of the copy of the statement within which to file a written appeal with the Commission. This provision next appears: “The Commission shall hold a hearing and render a decision in writing within thirty (30) days after it receives said notice of appeal.” The summary judgment evidence shows that the Commission received Todd’s notice of appeal on November 1, 1966 and scheduled a public hearing on the matter for November 17, 1966. The Commission’s order recites that the hearing was then recessed, was resumed on November 28, 1966 and that all the evidence was heard. It was rendered and signed by the members of the Commission on December 7, 1966, some six days beyond the 30 day period allowed by the statute. The Fourteenth Court of Civil Appeals held in Crawford v. City of Houston, 487 S.W.2d 179 (1972, writ ref. n. r. e.), that a Civil Service Commission which has failed to hold a hearing within the thirty day period specified in Sec. 16 of Art. 1269m does not have jurisdiction to hold the hearing at a subsequent date. The statute requires not only that the hearing be held within thirty days but also that the decision in writing be rendered within that period. The validity of this statutory provision is not under attack and it is not ambiguous. It is our duty to follow it. See Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (1959). The Commission’s written decision was not timely filed so it is invalid and the appellant was entitled as a matter of law to the summary judgment which he sought in the trial court even though his motion for summary judgment was rather non-specific. The court is not limited to grounds stated in the motion if there are other grounds which require the judgment as a matter of law. City of Ft. Worth v. Taylor, 427 S.W.2d 316 (Tex.1968). “ . . . when . . . both parties file motions for summary judgment and one such motion is granted, . on appeal the Court of Civil Appeals should determine all questions presented. If reversible error is found, the court should render such judgment as the trial court should have rendered, Rule 434 Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396 (1958). We reverse the judgment of the trial court and render judgment setting aside the order of suspension and ordering the appellant reinstated with his accumulated salary.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Errol D. FRY, Appellant, v. Angus G. SHAW, Appellee. No. 18275. Court of Civil Appeals of Texas, Dallas. March 28, 1974. Rehearing Denied April 25, 1974. Jay M. Vogelson, Steinberg, Generes, Luerssen & Vogelson, Dallas, for appellant. Gerald T. Waters, Carrollton, for appel-lee. CLAUDE WILLIAMS, Chief Justice. Angus G. Shaw brought this action against Errol D. Fry seeking damages for breach of an alleged oral joint venture agreement. Shaw alleged that a group of persons formed themselves into a limited association to acquire stock, stock options and certain mineral interests from Glen Exploration, Inc., a mining corporation with property in Alaska, and that by vir-ture of certain prior business associations he had an opportunity to become a part of said group and to acquire an interest in the mining venture. However, he did not then have the necessary capital for such an investment so he entered into an oral agreement with Fry whereby Fry would make available the necessary capital to acquire the interest and would hold such interest in Fry’s name but for the joint benefit of Shaw and Fry with each to receive one-half of any profits gained from the investment. It was alleged that Shaw and Fry jointly entered into the venture to acquire the interest and that through the efforts of Shaw, Fry did acquire in his own name, 19,200 shares of Glen Exploration, Inc. capital stock, with an option to purchase 38,000 shares of capital stock for $0.25 per share, and a mineral interest from operations of the corporation’s mining properties in Alaska, which property was to be held in Fry’s name for the benefit of Shaw to the extent of one-half of the profits received therefrom. Shaw alleged that Fry converted said shares to his own use and failed to pay Shaw one-half of the profits from said shares. Fry denied that a joint venture agreement was made between the parties and alleged that any cause of action asserted was barred by various Texas statutes requiring that commissions, gifts and trusts to be evidenced by written agreements, which did not exist. He further alleged that Shaw was not licensed to sell securities and therefore could not recover a commission. In answer to special issues submitted the jury found: (1) that Fry and Shaw agreed if Shaw would use his efforts to acquire the interest available, that Fry would furnish the capital to purchase same and they would share profits equally; (2) that Shaw used his efforts to acquire the interest available; (3) that the interest available was acquired by Fry as a result of Shaw’s efforts; (4) that Fry and Shaw agreed that if Fry exercised the option to purchase 38,400 shares of stock Fry and Shaw would share the profits, if any, on said shares; and (5) that the highest value of the shares from April 15, 1969 until October 11, 1971 was a) 19,200 shares — $57,-600 at $3.00 a share; b) 38,400 shares acquired by option — $86,400 at $2.25 a share; and c) 38,400 shares acquired by conversion of mineral interests — $86,400 at $2.25 a share. Based upon this verdict the court rendered judgment in favor of Shaw and against Fry in the sum of $106,608. From this judgment Fry has perfected his appeal. Although appellant presents seventeen points of error the three principal grounds for reversal of the trial court’s judgment are (1) that appellee Shaw failed to establish the existence of a joint venture; (2) that there was no evidence to establish the amount of any “profits” derived from the shares involved and therefore, since there was no jury finding or finding by the court as an omitted issue, there was no basis for awarding money damages; and (3) that the record affirmatively shows that Shaw acted merely as a “broker” and since he did not have a license to act as such broker, he is barred from recovery under the Texas Securities Act. Appellee’s cause of action was predicated solely on his contention of the existence of a joint venture agreement between him and Fry by virtue of which he was entitled to one-half of the profits derived from the investment. If no joint venture ever existed between Shaw and Fry then there could be no recovery of damages for lost profits.The following evidence was offered by Shaw on the question of the joint venture agreement. Jack Fraser was a petroleum engineer and geologist and president of Glen Exploration, Inc. This company was engaged in mineral explorations in the state of Alaska. It proposed to sell certain securities. Shaw had been a long-time friend of one of Fraser’s employees, William Goodson. Sometime prior to August 14, 1968 Shaw was present at a meeting with Fraser at which time Shaw expressed a desire to participate in the investment opportunity presented by Glen Explorations, Inc. Shaw said that he had the desire, but not the wherewithal to participate in this opportunity and told Fraser that he would like to get somebody else involved in it even though he, Shaw, did not have any money to invest. Fraser told Shaw that arrangements could be made to allow an investment if Shaw would bring someone in that Fraser approved. Shaw testified that he had had previous business dealings with Fry; that he got Fry interested in the Glen proposition and introduced Fry to Fraser. Fraser testified that at the meeting between Fraser, Shaw and Fry, held on August 14, 1968, there was never any discussion in his presence about Shaw participating in the investment deal. Fry did proceed to make an initial investment of $2,000 and subsequently exercised an option to obtain other shares of stock as well as mineral interests in Glen Exploration, Inc. Shaw testified that Fry told him that he, Fry, would keep the investment in his name and that they would share the profits equally. The matter of exercising options and the subsequent acquisition of additional mineral interests in the exploration company was left to the option and discretion of Fry; Shaw left all of the decisions concerning the handling of the stock to Fry. He admitted that Fry had complete control over decisions concerning acquisition of stocks, exercise of options, etc. However, Shaw insisted that Fry had agreed with him on a number of occasions that if and when the stock was disposed of one-half of the profits would go to him. Concerning any agreement as to the sharing of losses and expenses, Shaw testified that he did not remember any discussion about this phase of the venture. However, he testified positively in his deposition that he was not responsible for any losses because he “simply didn’t have the money.” He also said that there was very little if any discussion concerning sharing of losses. He testified: Q. You never, at any time, said that you would be responsible for half of the losses, didn’t you ? A. I was never asked whether I would be or not. Q. Well, you didn’t, did you? A. No, I did not. Q. And as the deal was structured, you were never responsible for any part of the losses, were you? A. I presume that is correct. Q. And Mr. Fry, at all times, had complete control over the stock that was issued to him in his name, his part of the venture, didn’t he? A. He did, but I had an implied interest in it — I mean, an implied policymak-ing aspect that I never was able to exercise, but I was in the awkward position in that he was president of the company, so I couldn’t very easily go up and say, “Now, look, I want this cleared up right now.” I was in that position. Q. You left all of those decisions up to Errol Fry as to the handling of the stock, whether to exercise an option, pay more money or not pay more, any kind of a decision like that? A. That’s correct. He said that there was nothing said between him and Fry concerning Fry’s right to dispose of whatever interest in the investment he might see fit and proper without consulting Shaw about such disposition. In this regard he testified: Q. He could dispose of whatever interest he had independently of consulting with you or checking with you? A. Well, there again, it is a hard thing to pass on. I mean, I would have thought that he would have consulted with me, yes, but he had the right under our agreement to handle it in any way he saw fit except to give it away without my knowledge. Q. You never exercised any kind of control at all over this venture. A. No. The testimony is undisputed that Shaw’s principal participation in this deal was to introduce Fry to Fraser. Thereafter, Fry negotiated his own personal investment with Fraser without Shaw’s participation in the negotiations. On several occasions thereafter, Fry invested his own funds to purchase stock and mineral interests and did not consult with Shaw regarding the size of the several purchases. Fry controlled his own personal investment and made his own decisions as to the amounts which he invested. Finally, Fry gave the stock to the Park Cities YMCA. A joint venture agreement is in the nature of a partnership which is engaged in the joint prosecution of a particular transaction for mutual profit. Holcombe v. Lorino, 124 Tex. 446, 79 S.W.2d 307 (1935). A joint venture is governed by the same rules as a partnership. Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.—Dallas 1973, no writ). For a joint venture to exist there must be a community of interest both as to the profits and the losses, if any. Luling Oil & Gas Co. v. Humble Oil & Refining Co., 144 Tex. 475, 191 S.W.2d 716 (1945); Brown v. Cole, 155 Tex. 624, 291 S.W.2d 704 (Tex.1956). In Price v. Wrather, 443 S.W.2d 348 (Tex.Civ.App.—Dallas 1969, writ ref’d n. r. e.), Chief Justice Dixon, speaking for this court, pointed out that whether the given facts constitute a joint venture is a question of law to be determined by the court. He set forth the essential necessary elements of a joint venture as being: (1) a mutual right of control; (2) a community of interest; (3) an agreement to share profits as principals; and (4) an agreement to share losses, costs, or expenses. See also North Texas Lumber Co. v. Kaspar, 415 S.W.2d 470 (Tex.Civ.App.—Dallas 1967, writ ref’d n. r. e.); Kaiser Gypsum Co. v. Jordan, 399 S.W.2d 588 (Tex.Civ.App.—Waco 1966, writ ref’d n. r. e.) and Mummert v. Stekoll Drilling Co., 352 S.W.2d 526 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e.). Hodges & Co. v. Donley County State Bank, 407 S.W.2d 221 (Tex.1966), the supreme court denied a joint venture claim by one Sherrod who asserted that he was to be paid for feed, pasture and services in looking after some cattle by sharing one-half of the profits made on the sale of the cattle. The supreme court pointed out that the agreement completely lacked the essential element of sharing of losses. To the same effect, see Austin Bldg. Co. v. National Union Fire Ins. Co., 403 S.W.2d 499 (Tex.Civ.App.—Dallas 1966, writ ref’d n. r. e.). The facts in this case completely negate the essential element of a joint venture agreement insofar as sharing of losses, costs and expenses are concerned. Another essential element of a joint venture agreement, that of joint control, is also lacking in probative evidence. As demonstrated, the evidence is to the effect that Fry exercised all of the control concerning the acquisition of the interest and never at any time consulted Shaw as to the handling of such interest. As a matter of fact Shaw did not know the nature and extent of the interest acquired by Fry following the introduction of Fry to Fraser. Therefore, we hold that the evidence in this case fails to establish the existence of a joint venture between Shaw and Fry. For this reason the trial court erred in overruling Fry’s motion for judgment non obstante veredicto. It is also apparent from this record that there is no basis for the award of damages. It must be remembered that ap-pellee Shaw sued to recover lost profits. The jury was not called upon to determine the question of lost profits and the trial court made no independent finding concerning lost profits. There was no evidence offered concerning lost profits. The finding of the jury in response to special issue number five concerning the highest sales price for the stock between certain dates is entirely irrelevant to the cause of action asserted by appellee Shaw. Such finding can therefore not support a judgment under the pleadings of this case. A finding of the gross sales value of stock during a period of time is not the equivalent of a finding as to the amount of profit that might result from the sale of stock during the same period of time. The factors to be considered in determining lost profits are different from those to be considered in determining gross stock values on a particular date. In order to determine profit, if any, the jury would have to consider not only the stock quotations but would have to consider the price paid for the shares, other expenses involved in connection with the investment, as well as the availability of purchasers for all or any part of the shares. Shaw’s pleadings assert a cause of action for conversion of the stock based on a proprietary one-half interest as a result of an alleged joint venture. Since we have held that no joint venture relationship existed between Shaw and Fry it necessarily follows that Shaw cannot legally assert a proprietary interest in the securities purchased by Fry. Consequently, Shaw has no cause of action for conversion. Finally, we agree with appellant Fry that the record in this case reveals that Shaw’s role in the transaction was that of a broker, dealer or commission agent and since he was not licensed as a broker, dealer or agent, as required by the Texas Securities Act, he cannot recover a commission for his services. Article 581— 34 of the Texas Securities Act, Vernon’s Ann.Civ.St. plainly and expressly provides that no person shall bring or maintain any action in the courts of this state for collection of a commission or compensation for services rendered in the sale or purchase of securities without alleging and proving that such person was duly licensed under the provisions of the law. Under the record as here presented Shaw’s only cause of action would be for his compensation for services rendered by him in arranging the meeting between Fry and Fraser which resulted in the purchase of the securities by Fry. Pursuant to the plain letter of the statute Shaw cannot recover a commission or compensation since he admittedly was not licensed. Our resolution of the questions here presented render it unnecessary that we pass upon or consider the remaining points presented by appellant. The trial court erred in rendering judgment for appellee Shaw and such judgment is here reversed and now rendered that appellee Shaw do have and recover nothing of and from appellant Fry. Reversed and rendered.

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Caselaw Access Project

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2024-08-24T03:29:51.129683

WESTERN UNION TELEGRAPH COMPANY, Appellant, v. Roy E. McGINNIS, d/b/a Roy McGinnis & Company, Appellee. No. 15264. Court of Civil Appeals of Texas, San Antonio. March 20, 1974. Rehearing Denied April 24, 1974. Gresham, Davis, Gregory, Worthy & Moore, San Antonio, for appellant. George A. Rigely, Wayne I. Fagan, Rigely, Schwartz & Fagan, Inc., San Antonio, for appellee. KLINGEMAN, Justice. This is an appeal from an order overruling Western Union Telegraph Company’s amended motion to set aside a default judgment and for a new trial. The only question presented by this appeal is whether the trial court erred in overruling the defendant’s motion for new trial. The only relief which the defaulting defendant may secure by filing the motion for new trial is a setting aside of the default judgment. The case then pends on the trial court docket for trial on its merits. This suit was filed by Roy E. McGinnis, d/b/a Roy McGinnis and Company against Western Union Telegraph Company in the district court of Bexar County, Texas, on February 26, 1974. Appellee alleged in his petition that during the month of Decern-ber, 1972, the Corps of Engineers of the United States Army was taking bids for construction work to be performed at various bases; that he is a contractor who routinely submits bids on like projects to the Corps of Engineers in Fort Worth, Texas; that it is the policy of the Corps of Engineers to permit a previously mailed bid to be subsequently modified by telegram transmitted and delivered to the department prior to the bid closing; that prior to December 29, 1972, appellee submitted a bid to the Corps of Engineers on a project, which bid was properly received and acknowledged by the Corps of Engineers ; that on December 29, 1972, appellee contacted defendant’s office in San Antonio and was advised that the length of time required to transmit a telegram from San Antonio to be received at the Corps of Engineers’ office in Fort Worth was not more than two hours, if they have a Tele-fax machine; that the Corps of Engineers has a Telefax machine; that he submitted his bid modification to one of defendant’s agents by phone at 11:43 AM on December 29, 1972, after notifying such agent of the 2:00 PM December 29th bid deadline; that said agent advised appellee that the said telegram was transmitted by defendant’s office at 11:44 AM on December 29, 1972, with instructions on the face of the telegram to be delivered by 2:00 PM; that ap-pellee later discovered that the Corps of Engineers did not receive the telegram until 3:33 PM on December 29; that the purpose of the telegram was to increase appel-lee’s bid by $7,500; that appellee was awarded the construction contract in question on the basis of his prior mailed bid; that under the Corps of Engineers regulations, had appellee’s telegraphic bid modification arrived by 2:00 PM, that appellee would still have been awarded the contract in question with an increase in bid price of $7,500; that as a result of the failure of defendant to timely deliver the telegram, he suffered damages in the amount of $7,500. Citation was served on defendant’s agent for service in Dallas, Texas, on March 2, 1973. On March 26, 1973, a default judgment was entered in favor of ap-pellee against defendant in the amount of $7,500. On April 5, 1973, defendant filed a motion to set aside such default judgment and for a new trial; and on April 24, 1973, defendant filed its amended motion to set aside default judgment and for new trial. On June 5, 1973, the trial court, after hearing on such motion, overruled such amended motion. Defendant’s amended motion to set aside such default judgment asserts: (1) the judgment is contrary to the law; (2) the judgment is contrary to the evidence; (3) the amount of damages awarded is exces7 sive; (4) there was no lack of diligence of defendant in permitting the default judgment to be rendered and that the failure to answer and defend the suit was not intentional on defendant’s part, nor was it a result of conscious neglect; (5) that the failure to cause an answer to be timely filed was the result of the loss in the mail of the citation which was posted by the defendant’s attorney in defendant’s principal office in the state of New Jersey to its local attorneys in San Antonio, Texas; (6) that the granting of a new trial in this' cause will not injure plaintiff nor cause unreasonable delay in rendering such judgment as is fair and equitable between the parties; (7) that defendant has a good and meritorious defense to the cause of action alleged in plaintiff’s petition in that (a) defendant did not guarantee delivery of the message within the time alleged by plaintiff; (b) defendant did not guarantee delivery of such message within any specific time; (c) the message was in fact delivered within the period of time that defendant would normally deliver such messages; and (d) the Federal Communications Commission tariffs and the contract under which defendant operates limits the defendant’s liability to a maximum of $500. There are attached to such motion and made a part thereof two affidavits. One is by Peter J. Monaghan, Esq., who deposed and said: (1) that he is the assistant general attorney for defendant in this matter and is authorized to make such affidavit, and that such affidavit is made from personal knowledge of the facts set forth therein; (2) that such suit was filed on February 26, 1973, and service made on defendant’s agent on March 2, 1973, in Dallas, Texas; (3) that on March 6, 1973, the plaintiff’s original petition and citation was received by him on behalf of defendant, and that on March 7, 1973, he transmitted the same by air mail letter to Gresham, Davis, Gregory, Worthy & Moore, attention Mr. Bond Davis, at their office address in San Antonio, Texas; (4) that this letter was posted in the usual course of business with proper postage and properly addressed in the regular United States mail; (5) that the granting of a new trial will not injure the plaintiff, nor cause an unreasonable delay, and that defendant is willing and has instructed the trial counsel, Bond Davis, to agree to an early trial and also to pay all costs that may be accrued as a result of the default judgment; (6) that defendant has a meritorious defense to the cause of action alleged by plaintiff’s petition, in that (a) defendant’s agent who received the message from the plaintiff expressly advised said plaintiff that delivery of the message in question was not guaranteed by or before 2:00 PM on December 29, 1973; (b) both the Federal Communications Commission tariffs and the contract under which defendant operates limits the defendant’s liability to a maximum of $500; (c) the normal time within which the message should have been delivered was four hours, and the message was in fact delivered within such period of time. The other affidavit was made by Bond Davis, who deposed and said: (a) that he is a partner in the firm of Gresham, Davis, Gregory, Worthy & Moore; (b) that he has read defendant’s amended motion, and the matters and facts therein set forth are true and correct to the best of his knowledge and belief; (c) that the letter referred to in said motion was not received by his office; and (d) that the first information which he received was a telephone call from Peter J. Monaghan on April 2, 1973, concerning the law suit and the default judgment entered therein. The testimony given at the hearing in support of such motion may be summarized as follows: (a) the telegram involved was introduced into evidence as Defendant’s Exhibit # 5. In addition to the information hereinabove discussed increasing the bid in the amount of $7,500, such telegram contains a handwritten notation thereon “Deliver by 2 PM” and another handwritten notation thereon “Did not guarantee 2 PM delivery”; (b) there was also introduced into evidence a copy of the letter from Peter J. Monaghan to Gresham, Davis, Gregory, Worthy and Moore dated March 7, 1973, stating that there is enclosed in such letter Plaintiff’s Original Petition and Citation which was served on defendant’s corporate agent on March 2, 1973; (c) a copy of portions of the tariff filed with the Federal Communications Commission and properly certified to by the Commission, relied upon by appellant to support its alleged defense that the maximum liability for mistakes or delays in transmission or deliver would be $500, was introduced as an exhibit. The applicable portion reads as follows: “(1) The Telegraph Company shall not be liable for mistakes or delays in the transmission or delivery, or for nondelivery, of any message received for transmission at the unrepeated message rate beyond the sum of five hundred dollars; nor for mistakes or delays in the transmission or delivery, or for non-delivery, of any message received for transmission at the repeated rate beyond the sum of five thousand dollars, unless specially valued; nor in any case for delays arising from unavoidable interruption in the working of its lines.” Mrs. Bernice Hays testified that she was the employee of the defendant who took the message here involved by telephone from plaintiff, and that she recorded it as it was dictated to her over the telephone (Defendant’s Exhibit # 5); that the handwritten notation thereon was in her own handwriting and that at the bottom of the message she made a note “Did not guarantee 2 PM delivery,” and that in the address portion she added “Deliver by 2 PM”; that they do not guarantee deliveries within two hours of the message; that if she was asked whether the message was to be delivered by 2 PM her answer would have been “we do not guarantee it”; that she did not know why it took more than two hours for the telegram to arrive in Fort Worth; when asked how long it would normally take to deliver such a message to Fort Worth, she answered that it could take up to four hours; that even if a message was given top priority, it could take up to four hours. Both parties acknowledge that the correct rule applicable to a motion for new trial which seeks to set aside a default judgment is set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939), as follows: “A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.” An excellent discussion of the Craddock case and the applicable rules in default judgments is found in Ivy v. Carrell, 407 S.W.2d 212 (Tex.1966), where it is stated: “The rule of Craddock does not require proof of a meritorious defense in the accepted sense to entitle one to a new trial after default; the motion should be granted if it ‘sets up a meritorious defense.’ In this respect the burden a defaulting defendant must assume on motion for new trial is much less onerous than the burden he must assume in a bill of review proceeding filed after expiration of the time for filing a motion for new trial. . . . The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff, and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense. (Cases cited) This much is necessary to prevent the reopening of cases to try out fictitious or unmeritorious defenses. But once these requirements are met, it is improper to try the defensive issues made by the motion or the pleadings.” Broad generalizations are found in earlier cases indicating that appellate courts should intervene only where there has been a clear abuse of discretion in refusing the motion, but recent opinions indicate that the discretion should be exercised somewhat liberally in the light of the guiding principal that new trials should be allowed freely when basic requirements are met. 4 McDonald, Texas Civil Practice, New Trial, Section 18.10.1B., p. 266 et seq. (1971 rev.); Ward v. Nava, 488 S.W.2d 736 (Tex.1972); Republic Bankers Life Insurance Company v. Dixon, 469 S.W.2d 646 (Tex.Civ.App.-Tyler 1971, no writ); Iley v. Reynolds, 319 S.W.2d 194 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.). Tested by the rules of Craddock and other authorities herein cited, the record shows clearly that failure of the defendant and its counsel to answer and appear for the trial was not intentional, or the result of conscious indifference. . Nor was there any evidence that the granting of the motion for new trial in this case would cause an unreasonable delay in bringing this case to trial or in any manner prejudice the plaintiff’s cause of action. A closer question is presented as to whether such motion sets up a meritorious defense. Considering the entire record, including the motion to set aside the default judgment and for a new trial, the supporting affidavits attached thereto, and the other evidence adduced at the hearing on such motion, it is our opinion that a meritorious defense was set up; that the motion alleged facts which, in law, would constitute a defense to the plaintiff’s cause of action and is supported by affidavits and other evidence proving prima facie that the defendant had a meritorious defense. We hold under the record that the trial court abused its discretion in failing to grant defendant’s motion for new trial. The judgment of the trial court is reversed and the cause is remanded for a trial on the merits. .Such motion and supporting affidavits and the other evidence sets up defensive fact issues in three general areas (a) whether or not defendant guaranteed delivery by 2 PM; (b) whether such message was delivered in a normal period of time; (c) whether there was a limitation .of defendant’s liability.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

MILLER SEED COMPANY et al., Appellants, v. A. W. POOL, Appellee. No. 8416. Court of Civil Appeals of Texas, Amarillo. March 25, 1974. Rehearing Denied April 22, 1974. Witherspoon, Aikin, Langley, Woods, Kendrick & Gulley, Earnest Langley, Hereford, for appellants. Richards & Ferguson, Robert C. Ferguson, Dalhart, for appellee. ELLIS, Chief Justice. This suit arose out of a contract between a seed company and a landowner involving the growing of certified hybrid grain sorghum seed. On the basis of certain jury findings, the trial court entered judgment in favor of A. W. Pool, the landowner, against Miller Seed Company, a partnership and its partners, Glenn E. Miller and wife, Ann J. Miller, for lost profits resulting from the seed company’s alleged breach of the contractual condition or warranty by approving the landowner’s tract of land for the seed growing project. Miller Seed Company and the partners thereof, herein known as “Miller,” brought this appeal. Reversed and rendered. In May, 1970, Townsend, an agronomist employed by Miller, contacted Pool, a farmer living in Sherman County, Texas, concerning the production of hybrid seed for Miller. Thereafter, Townsend, on behalf of Miller, and Pool entered into a written “growers” contract. By the terms of this contract, Miller was to pay $4.30 per hundred pounds of “clean seed basis for (ms) seed.” The contract specified that the seed had to be 98.50 pure and contain no noxious weeds. Townsend inspected and approved a 160 acre tract of Pool’s land for the purpose of growing the hybrid seed. Pool was to be paid the market price for grain if the seed failed to meet specifications. Under the contract, 120 acres of the 160 acre tract was to be planted in “ms parent” (male sterile — female) seed and the remaining 40 acres was to be planted in pollinator (male) seed. Generally, the seed company agreed to furnish certain supervisory services and instruction in connection with the growing of the crop by the farmer. The farmer was required to perform the farming operations and to exercise good judgment in conducting such farming operations under the instructions and directions of the seed company. The land was planted and the crop was subsequently harvested. There was an average yield of approximately 834 pounds per acre on 120 acres of the 160 acre tract and approximately 3,200 pounds per acre on the remaining 40 acres. This yield was considerably less than the 6,000 pounds per acre yield which Pool alleged and which the jury found would have been produced on the 160 acre tract had Pool grown commercial milo instead of attempting to grow hybrid seed. Further, an inspection revealed that approximately one-half of the crop grown for seed was infested with Johnson grass and therefore did not meet the standards for purity required by the contract. Miller paid Pool the contract price of $4.30 for that portion of the crop which met the contractual purity standards for the hybrid seed, and Pool was paid the market price of commercial milo for the portion of the crop which did not meet such standards. Pool subsequently brought suit against Miller, alleging, among other matters, that Miller, through his agent Townsend, breached his duties in a number of respects, particularly with regard to his direction as to planting times and in connection with his efforts to coordinate the blooming of the pollinator and female plants, and that all of Townsend’s various acts of incompetence constituted a breach of express and implied contractual warranty. Alternatively, he pleaded that upon the basis that Townsend contacted Pool regarding the growing of the seed, Townsend approved the land for the purpose and thereby induced Pool to raise hybrid seed instead of commercial milo; and that he suffered damages thereby in the sum of $14,971.96, the amount of additional profit he would have made had he grown commercial milo instead of attempting to grow hybrid seed. This cause was submitted to the jury upon special issues. However, with respect to all of Pool’s complaints about improper planting times, improper corrective efforts, and other matters pertaining to the appellee’s conduct with respect to the crop, the jury found in favor of the appellants, or in a manner that afforded Pool no relief, with the exception of the answers to issues nos. IE, IF and 1G, which issues and answers are set out as follows: “Issue # IE “Do you find from a preponderance of the evidence that Townsend approved Plaintiff’s land for the production of hybrid seed in 1970? “Answer: yes “If you have answered issue IE ‘Yes’, and only in that event, answer the following issue: “Issue # _1F “Do you find from a preponderance of the evidence that Pool relied on such approval, if any, in entering into the grower contract? “Answer: yes “If you have answered issue IF ‘Yes’, and only in that event, then answer the following issue: “Issue # _1G “Do you find from a preponderance of the evidence that as a result of such reliance, if any, Pool suffered damages? “Answer: yes” The record reveals that if the judgment entered is to be sustained, it must be done on the basis of the above quoted issues and answers. Both Pool and Miller moved for judgment. The trial court entered judgment in Pool’s favor on the basis of the above findings in the sum of $14,971.96, plus interest, the principal sum being the amount claimed as damages in the form of lost profits by reason of Miller’s approval of the land for the project, and Pool’s reliance upon such approval in entering into the contract. From this judgment Miller brought this appeal upon 22 points of error. Points of error nos. 1-15 include generally the appellants’ contentions that the trial court erred in basing its judgment on the jury’s answers to issues nos. IE, IF and 1G because such answers do not provide any factual basis for any theory of recovery or cause of action against the appellants. Specifically, appellants contend that each of such issues were improper issues, erroneously submitted over the appellants’ objections; and that the findings with respect to Miller’s approval of the land for growing seed, Pool’s reliance upon such approval and damages resulting from such reliance form no basis for judgment against appellants in that (1) there is no finding, pleading nor evidence to support an implied finding that the approval was erroneous or wrongful, (2) appellee’s reliance on such approval was wrongfully induced by appellants, or (3) the damages resulted from any wrongful conduct on appellants’ part. In this connection, appellants contend that such issues should not have been submitted, because the “approval” and “reliance” issues are not controlling issues, since both parties necessarily relied upon the approval of the land as a necessary precedent for entering into the contract, and such approval or reliance would not be actionable or constitute any basis for inquiry concerning damages related thereto unless the approval was wrongful and the reliance wrongfully induced. In points nos. 16 and 17, appellants contend that the court erred in refusing to enter judgment for appellants and in overruling appellants’ motion for judgment in their favor on the verdict of the jury. Point no. 18 relates to appellants’ contention that the court should have set aside the judgment rendered in appellee’s favor, and in point no. 19, the appellants contend, alternatively, that if the judgment should not be reversed and rendered in appellants’ favor, then it should be reversed and the cause remanded for a new trial. Points nos. 20-22, submitted alternatively, relate to the appellants’ contentions regarding erroneous computations of damages and improper award of interest. Appellee contends that appellants’ points concerning the court’s error in basing its judgment upon the jury’s answers to issues IE, IF and 1G should not be considered on appeal because they have not been preserved for appellate review and are therefore waived. In this connection, he contends that Townsend, an “expert,” approved the land without making necessary investigation concerning dormant Johnson grass seeds and represented to Pool that he would make proper investigations and give instructions so that the venture would be a success, and that Pool relied on these representations. Pool contends that the land was in fact unsuitable for raising hybrid seed which fact constituted a breach of a material condition upon which Pool relied in entering the venture. He further argues that Miller did not request or submit any issues regarding the suitability of the land for the production of seed or with respect to the propriety of the approval of the land. He further states that the appellants’ objections to the submission of issues IE, IF and 1G did not meet the requirements of Rules 272 and 274, Texas Rules of Civil Procedure, regarding the objections to the court’s charge, by calling to the court’s attention the alleged vice in the submission of such issues and in failing to submit issues relating to the investigation or approval of the land. The record discloses that in their objections to the submission of issues IE, IF and 1G, the appellants particularily objected to the submission of the issue on “approval” because that matter was uncon-troverted and should not have been submitted. Thus, the finding that the land had been “approved” could not properly form the basis for an implied finding of “wrongful” or “improper” approval. Although the objections concerning the failure to submit the issues concerning the propriety of the approval of the land were not included in the appellants’ objections to the charge, we note that the issue as to whether the land was suitable for approval was not a defensive issue. The appellants and defendants were not required to have this issue answered in their favor to sustain a defensive theory. Such issue was in fact a part of the plaintiff’s suit, for he was required to plead and prove to the trier of the facts that the land was not suitable for the purpose intended and should not have been approved. It is our opinion that findings in this regard are necessary to support the appellee’s “alternate” theory of recovery. Since appellee made no objection to the charge by reason of the court’s failure to submit such issues as a basis for these essential findings, or requested no issues to enable the jury to make the necessary findings as a basis for liability against the appellants, the appellee relies upon “presumed” findings to support the judgment. The “approval” must be shown to be wrongful before liability can be established for damages resulting from reliance upon such approval. It is fundamental that the burden of proof that the appellants’ conduct regarding the investigation or the approval of the land was wrongful, and thus constituted a breach, was upon the plaintiff, and since he requested no issues pursuant to Rules 272 and 274 as a basis to enable the jury to make such finding, he relies upon the implied finding in this regard to support the judgment. In view of the foregoing, we overrule the ap-pellee’s contentions that the appellants’ points regarding the court’s error in basing its judgment on the jury’s answer to issues IE, IF and 1G have not been preserved for appellate review. The substance of Pool’s contention in support of the judgment is that the damages for lost profits arose from the improper approval of the land, which, he contends is a breach of condition or warranty by the seed company that the land was suitable for growing the hybrid seed. Appellee argues that although no issue was submitted regarding the propriety or impropriety of Townsend’s investigation of the land for the purpose of growing hybrid seed, in the absence of appellants’ objection to the failure of the court to submit issues in this regard, the parties waived a jury trial on such issues, and the jury having made findings on other submitted material issues, the court was deemed to have found on such omitted issues in such a manner as to support the judgment. However, the court cannot presume a finding unless there is evidence to support such a finding. Warren Petroleum Corp. v. Martin, 153 Tex. 465, 271 S.W.2d 410 (1954). Likewise, if there is no evidence to support the finding on an omitted issue, such finding cannot be presumed. Heights Savings Association v. Cordes, 412 S.W.2d 372 (Tex.Civ.App.—Houston 1967, no writ). Further, in determining whether there was any evidence to support the implied findings and the judgment, it is proper for the reviewing court to consider the evidence in the light most favorable to the judgment. Alamo Express, Inc. v. Browning Mineral & Ore Co., 457 S.W.2d 588 (Tex.Civ.App.—San Antonio 1970, writ ref’d n. r. e.) ; Calvert, “No Evidence and Insufficient Evidence Points of Error,” 38 Texas L. Rev. 361 (1960). In this case, it is our opinion that “approval” of the land by Townsend would constitute an actionable wrong against Pool only if such approval was wrongful. The fact of approval was uncontroverted. It is here noted that Pool did not allege that the approval was wrongful, but he alleged that Townsend’s investigative efforts were not “fit for the purposes contemplated by the parties” and that Miller had breached a contractual warranty to Pool by reason of Townsend having “inaccurately and improperly carried out the investigation of the land.” The record reveals no evidence upon which a finding of unfit, inaccurate or improper investigation could have been made. Pool had farmed the tract in question since 1963 and knew the extent to which it had been infested with Johnson grass. Townsend, in talking with Pool about any Johnson grass problems, was told by Pool that while there had been some Johnson grass on the tract “several years before,” the tract had been “clean the previous two years.” Townsend also inquired as to what crops had been previously grown on the tract as well as what had been grown and would be grown in 1970 on the neighbor’s land. Townsend walked over the tract and thoroughly inspected it and the barrow ditches to the east and south of the land before he approved the land. It is undisputed that the inspection took place in May when no Johnson grass was visible and Pool admitted that both he and Townsend looked “as carefully as a person would know how to look,” but that no Johnson grass was visible. Even if Johnson grass seedlings were in the ground when the tract was approved, there is no evidence that Townsend could have done anything to detect the presence of such seed, or that Townsend, in any way, inaccurately or improperly investigated the tract or improperly approved it for the purpose of raising hybrid seed. The jury found that Miller approved the land, Pool relied upon such approval and damages resulted from such reliance. These facts found by the jury, and upon which the judgment has been based, in our opinion, are inadequate and insufficient, in that there is no finding that inspection and subsequent approval was improperly or wrongfully made by the seed company. A considerable portion of the information secured regarding the status of the land, in addition to Townsend’s own observation, was obtained from Pool’s representations, and, at the time, there appeared to be no reason why Townsend could not or should not rely upon them. In fact, if both parties had not “approved” the land for the project there would have been no contract. After a review of the entire evidence in a posture most favorable to the judgment, we find no evidence of probative force upon which the trial court could have based an implied finding that Townsend inaccurately or improperly investigated or wrongfully approved the tract in question for the purpose of growing hybrid seed, or that Miller was guilty of any misconduct or breached any duty it might have had to Pool. We sustain appellants’ points 1-19, and such disposition of these points relating to liability pretermits our passing upon the appellants’ remaining points dealing with the computation of damages. The appellee has submitted three cross-points upon which he relies alternatively for a remand in the event of a reversal of the judgment in his favor. These cross-points pertain to the appellants’ objection to the admission of certain evidence or the failure of the court to give requested instructions relative to certain evidence admitted during the course of the .trial. As previously indicated, the appellee based his motion for judgment for lost profits upon the jury’s answers to special issues IE, IF and 1G, including the findings that Miller approved the land for the seed growing operation, Pool’s reliance upon such approval and the damages resulting from such reliance. The remainder of the issues were answered unfavorably to Pool or in a manner which would not authorize recovery by him. We note that the cross-points do not specify answers to specific issues which may have been affected by the admission of the alleged objectionable evidence or by the court’s failure to give the requested instructions. In his first cross-point, appellee contends that Defendant’s Exhibit No. 1 was erroneously admitted for the reason that it was hearsay, the information contained was too remote, and it was not authenticated as business records of Miller Seed Company. Exhibit No. 1 contained certain data relating to “splitting” the planting dates regarding the pollinator and the “ms parent” seed in various localities, along with other general research data appearing to be of a nature normally used by seed companies in connection with the production of hybrid seed. This data appeared to be generally consistent with testimony given by Townsend concerning the details of the operation; however, substantially the same or similar information was provided by other testimony and evidence not objected to, and this data was essentially cumulative of other evidence given concerning the production of hybrid seed. Although the information may be regarded as hearsay, or not sufficiently proven as business records, the burden was upon Pool to show that the evidence would probably cause an improper answer to the questions relating to the procedures about which inquiries were made. The detailed instructions concerning the growing of hybrid seed were given by Townsend who testified directly concerning the matters included in the data, and he was subject to cross-examination regarding all such information. Reversible error is not ordinarily shown in connection with rulings on questions of evidence unless the whole case turns on the particular evidence in question. Bridges v. City of Richardson, 349 S.W.2d 644 (Tex.Civ.App.—Dallas 1961, writ ref’d n. r. e., 354 S.W.2d 366 (Tex.1962)). Also, the introduction of data which was not direct factual evidence on the issues and could not have had more than an indirect or insubstantial bearing on the jury’s answer, does not present a ground for reversal. Cudmore v. Richardson-Merrell, Inc., 398 S.W.2d 640 (Tex.Civ.App.—Dallas 1965, writ ref’d n. r. e., cert. denied 385 U.S. 1003, 87 S.Ct. 705, 17 L.Ed.2d 542 (1967)). Appellee’s first cross-point is overruled. In his second cross-point, appellee contends that an expert witness Doctor Coffey, was erroneously permitted to answer hypothetical questions by appellants’ counsel that did not fully include the evidence in the record at that time with reference to the matters inquired about. In his third cross-point, appellee complains that the trial court erroneously refused to instruct the jury not to consider Doctor Coffey’s answers to the hypothetical questions because the questions did not fairly include all the evidence in the record pertinent to the matters inquired about. We have carefully examined the area of examination complained of, pertaining, among other matters, to the moisture conditions, or stress on the plants during the pollination period, and although there appeared to be some inconsistency in the testimony previously given regarding these matters, from our review of the record and consideration of all the testimony submitted, we do not perceive that any prejudicial harm resulted from the testimony or from the failure of the court to give the requested instruction to disregard the testimony. See Wheatheart Feeders, Inc. v. Pletcher, 453 S.W.2d 902 (Tex.Civ.App.—Amarillo 1970, writ dism’d). Also, in the light of other testimony in the record, the weight and strength of which the court is entitled to ■ appraise and consider, we believe that no reversible error was committed in admitting the expert’s testimony and in refusing the requested instruction. See Hundere v. Tracy & Cook, 494 S.W.2d 257 (Tex.Civ.App.—San Antonio 1973, writ ref’d n. r. e.). Further, it is our opinion that the ap-pellee did not sufficiently establish that the admission of such evidence, even if erroneous, was reasonably calculated to cause and probably did cause an incorrect answer to any particular issue. Mueller v. Central Power & Light Company, 403 S.W.2d 901 (Tex.Civ.App.—Corpus Christi 1966, no writ). We overrule appellee’s second and third cross-points. There is no contention that the evidence was not fully developed in this case. Further, we have found no merit in appellee’s cross-points concerning the admissibility of evidence or the court’s failure to give the requested instruction, and thus a remand is not warranted. For all of the reasons above stated we find no legal basis to support the judgment awarding damages to Pool for lost profits. Accordingly, the judgment of the trial court is reversed and judgment is herein rendered that plaintiff-appellee take nothing by his suit.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Michael P. GRACE, Appellant, v. John W. RAHLFS, d/b/a John W. Rahlfs Co., Appellee. No. 6335. Court of Civil Appeals of Texas, El Paso. March 27, 1974. Rehearing Denied April 24, 1974. Turpin, Smith, Dyer, Harman & Dawson, Joseph Connally, Odessa, Graves, Dougherty, Hearon, Moody & Garwood, R. James George, Jr., Austin, for appellant. Lynch, Chappell, Allday & Aldridge, Randall Lundy, D. Bruce Pope, Midland, for appellee. OPINION WARD, Justice. This is a suit on a sworn account to recover the balance due to an independent insurance agent for various insurance premiums. The plaintiff, though preserving an objection to the sufficiency of the defendant’s counter-affidavit, proceeded with the proof of his case by evidence independent of the aid of Rule 185, Texas Rules of Civil Procedure. Trial was to a jury and based on the 18 special issues submitted, which were all answered favorably to the plaintiff, judgment was rendered that the plaintiff recover on the account in the amount of $41,137.28 and reasonable attorneys’ fees in the sum of $14,500.00. The defendant now complains that the plaintiff did not own and could not assert the cause of action, that the improper defendant was sued, that an excessive recovery was permitted on the account, and that attorneys’ fees cannot be recovered in this case under the sworn account provisions of Article 2226, Vernon’s Tex.Rev.Civ.Stat.Ann. We affirm except for the recovery of attorneys’ fees. The plaintiff, John W. Rahlfs, is an independent insurance agent and broker. For several years, he had procured various types of bonds, and insurance policies covering fire insurance, liability and workmen’s compensation for the defendant, Michael P. Grace, and his wife, Corinne Grace. An open account was carried by Rahlfs on his records in the name of Mr. and Mrs. Grace for the costs of the various items as purchased and periodically statements were rendered on the account to them. In December, 1970, Michael Grace approached Rahlfs and asked him to obtain a policy of well control insurance on certain oil wells which Mr. and Mrs. Grace were going to drill in Eddy County, New Mexico, and which would protect them from liability should any well “blow out.” While Rahlfs had the authority to issue homeowner’s and automobile insurance as an agent of various insurance companies, he did not represent any insurers on the type of policy which was requested. After inquiries and quotations from various underwriters, this insurance was finally written by J. H. Blades & Co. as the general agent for the various insurers listed in the policy, Lloyds of London being obligated for the majority of the liability. At the request of Mr. Grace, the policy was issued to “Michael P. and/or Corrine Grace,” and had a policy limit of One Million Dollars. The policy called for a minimum premium deposit of $17,900.00 before it was effective. This amount was entered by Rahlfs on the Grace open account and the invoice for the amount, together with the policy was then mailed to Mr. Grace. Grace in turn sent Rahlfs a check, payable to John W. Rahlfs Co., in the amount of $18,042.00 which covered the minimum premium deposit and certain other business. The policy covered the period from March 30, 1971, until March 30, 1972, and during this period five oil wells were drilled by the Graces. Under the terms of the policy, periodic drilling reports were to be made by the insured on the wells drilled in order that the premiums could be calculated from the total depths drilled per well. These reports were never furnished nor were any additional premiums ever paid as the drilling continued. No further payments being made, J. H. Blades & Co. demanded that Rahlfs pay for the balance of the policy premiums in accord with the agreement made that Blades would look only to Rahlfs for the payments. In repose to this demand, Rahlfs gave to J. H. Baldes & Co. a cash payment, a written note for $22,500.00 and his oral promise to pay any balance which remained owing. Suit was thereupon filed by Rahlfs on these unpaid premiums against Mr. Grace. At the trial neither Mr. nor Mrs. Grace appeared for the hearing and very little testimony was offered in their behalf. Appellant, Grace, first complains that the plaintiff has shown no standing to bring the present action and was not entitled to recover for any of the unpaid insurance premiums as he was neither the insurer nor the assignee of the insurer, nor shown himself to be subrogated to any cause of action which might belong to any of the insurers. The policy of insurance contains a specific disclaimer in favor of J. H. Blades & Co. to the effect that J. H. Blades & Co. is not an assurer and shall not in any way be liable for any loss or claim under the policy. Appellant relies primarily on J. E. Earnest & Co. v. Word, 137 Tex. 16, 152 S.W.2d 325 (Tex.Com.App.1941, opinion adopted), which holds that when an insurance company looks to its agent for the premiums on insurance written by him, the agent may bring the suit, but on the other hand if the agent is not subrogated to the rights of the insurance company, he is not entitled to bring an action in his own name to recover the premium on the policy issued by him. On this interpretation, it is the appellant’s position that the appellee must show that he is subrogated to the insurers and not merely to their agent, J. H. Blades & Co. In the case before us, the testimony established without contradiction that the policy in question was a Lloyd’s Plan policy; that the plaintiff, Rahlfs, was acting as the agent for the defendant, Michael Grace, when he obtained the policy through J. H. Blades & Co.; and Blades, as the attorney in fact, wrote and issued the “Lloyd’s Plan Policy” under its own signature on behalf of and as agent for three named insurers, an unnamed group of American insurers whose names were on file, and an unnamed group of British insurers known collectively as “Lloyds of London”; that Blades could only deal with an agent such as Rahlfs and not with the insured; and that Blades could only look to Rahlfs for the payment of all premiums. Under a Lloyd’s Plan, the attorney in fact determines what risks the underwriter shall assume, together with the premium to he paid therefor, and is in effect the chief executive and managing agent of the enterprise, and has almost unlimited power in that regard. He executes the policies, collects the premiums, keeps the accounts of the business and expenses, adjusts losses, and prosecutes and defends suits growing out of the business. 46 C.J.S. Insurance § 1415. Lloyd’s Plan insurance is governed by Chapter 18 of the Texas Insurance Code, V.A.T.S. The attorney in fact is recognized by Art. 18.02 of the Code, and in Art. 18.17, Tex.Ins.Code Ann., it is provided that any action on the policy may be brought against the attorney in fact alone, and any judgment on the insurance contract against the attorney in fact is a judgment against each and all of the underwriters as their several liability may appear in the contract of liability. Regardless of certain language used in the Word case, supra, Blades for all practical purposes took the place of the insurers and had the cause of action on the premiums against the appellant to which the appellee could become subrogated. It is our opinion that the appellee had both pled and proven sufficient facts to be entitled to the right of subrogation. However, aside from the question of subrogation, when Rahlfs as the agent for the appellant undertook to secure the desired insurance and paid or personally contracted to pay for all unpaid premiums, he then had the necessary standing not only to bring the present suit but to recover in full from the appellant, at least on the basis of indemnification. Rozen v. Cohen, 350 Mass. 231, 214 N.E.2d 451 (1966); Aurora Moving and Storage Co. v. King, 159 Colo. 585, 413 P.2d 461 (1966); 20 Appleman, Insurance Law and Practice, § 11271 (1974 Pocket Parts); 44 Am.Jur. 2d, Insurance, Sec. 1932. Appellant’s points in these matters are overruled. It is next contended that Corinne Grace is the proper defendant on the cause of action as she was the operator who drilled the five wells. While the New Mexico Oil Conservation Commission records show Corinne Grace as the operator who drilled the well, there is ample testimony in the record that Mr. and Mrs. Grace operated their business as a team. Mr. Grace appeared to be the person in charge at the various well sites. It was he who originally ordered the insurance and who stated that he would be drilling the wells, and it was he who made the initial premium deposit. In early March, 1972, a meeting was held between Mr. Grace and his attorneys, the appellee and employees of J. H. Blades & Co., after Grace had questioned whether any policy had ever been in effect. When he was assured that coverage had been furnished to him, he ordered that the coverage be continued during the drilling of the last well and refused to permit any cancellation of the policy at that time. All of the testimony indicates that the undertaking was at least a community property interest, with all premiums being paid by Mr. Grace. The jury finding was to the effect that Mr. Grace agreed to pay for all of the premiums on the five wells and no attack is made on that issue. The complaint is overruled. The next series of points are to the effect that the trial Court should have limited recovery on the account in the amount of $25,437.28 rather than entering judgment for $41,137.28, it being contended that the wording of the contract as to the rates is clear and unambiguous and that for each well over 10,000 feet the premium is computed at the rate of $0.7875 per foot for the first 10,000 feet and that between 10,000 feet and 17,500 feet the premium is computed at the rate of $1.18 per foot for the depth over 10,000 feet. The premium provision of the insurance policy states the following: “4. SCHEDULE OF DRILLING RATES Rates hereon are payable on each foot drilled, each well. AREA II up to 10,000 feet $0.7875 10,000 feet to 17,500 $1.1800” The appellee contends that the clear meaning of the above is that the various footage ranges, coming after “each well,” indicate how the rate premium for “each well” shall be computed, and that the only fair, reasonable, and common sense construction which can be given is that “each well up to 10,000 feet will be rated at $0.-7875 on each foot drilled,” and that “each well between 10,000 feet and 17,500 feet will be rated at $1.18 on each foot drilled.” However, on the alternative basis that there was an ambiguity, the appellee offered and the trial Court permitted the introduction of evidence by the Blades’ underwriter that the rate quotation which he gave to Mr. Rahlfs was at $1.18 a foot times the total depth of any well over 10,000 feet. In turn Mr. Rahlfs testified that he explained this to the appellant who agreed to the rate and asked for the policy. This evidence was undisputed and the jury agreed with Mr. Rahlfs. We agree with the action taken by the trial Court that a legal ambiguity exists. The policy contains language susceptible of more than one meaning, considered in the light of all the provisions of the document. It is well settled that where language of a written contract is ambiguous in the sense that it is reasonably susceptible of more than one meaning, the intention of the parties may be determined from extrinsic evidence. A question of interpretation has arisen which allows the admission of extrinsic evidence and gives rise to a question of fact as to its meaning. Don Drum Real Estate Company v. Hudson, 465 S.W.2d 409 (Tex.Civ.App., Dallas 1971, no writ). Even though this be a contract of insurance, the same rule is applicable particularly since this involves only the question of the applicable rates. 44 Am.Jur.2d, Insurance, Secs. 2029, 2031. The points on the amount of recovery on the account are overruled. We sustain the appellant’s final points that the trial Court was in error in permitting the recovery of attorneys’ fees. If the recovery by the plaintiff is permitted it must be on one of the classes of claims set out in Article 2226. If the theory of recovery is for reimbursement or indemnity, he is clearly without the statute. Trinity Universal Insurance Company v. Ponsford Brothers, 423 S.W.2d 571 (Tex.Sup.1968). If the basis of recovery be subrogation where the plaintiff stands in the place of J. H. Blades & Co., it is not a suit on a sworn account within the meaning of Article 2226, even though it be such an action that could be brought as a sworn account under Rule 185. This restrictive interpretation of the attorney’s fee statute was made by the Supreme Court in Meaders v. Biskamp, 159 Tex. 79, 316 S.W.2d 75 (1958). There it was held that in order for a claim to be founded “upon a sworn account or accounts” within the meaning of the statute the account must be one “in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other.” Van Zandt v. Fort Worth Press, 359 S.W.2d 893 (Tex.Sup.1962). The statute authorizing the recovery of attorney’s fees is penal in character and is strictly construed. In the popular sense, J. H. Blades & Co. sold an item of personal property, a contract of insurance. In the strict sense, however, it entered into a contract of indemnity with the insured protecting him against costs that the insured might incur in getting any of the five oil wells under control should a “blow out” occur. We hold that the action is founded upon a special contract and attorneys’ fees are not recoverable. Dolenz v. Employers Casualty Company, 504 S.W.2d 625 (Tex.Civ.App., Fort Worth 1974, no writ); French v. Joseph E. Seagram & Sons, Inc., 439 S.W.2d 448 (Tex.Civ.App., El Paso 1969, writ ref’d n. r. e.). In view of our disposition of the case, the cross-points of the appellee are not reached. The appellant’s counter-affidavit was defective being in the form provided before the rule was last amended on January 1, 1971. After the announcement of ready, the trial Court permitted this affidavit to be amended to comply with the new requirements. Authority exists for the trial Court’s use of such discretion under similar circumstances. Parham v. Grace, 341 S.W.2d 503 (Tex.Civ.App., Fort Worth 1960, no writ); Moore v. McKinney, 151 S.W.2d 255 (Tex.Civ.App., Dallas 1941, no writ). We affirm that part of the judgment which granted recovery to the appellee in the sum of $41,137.28. We reverse that part of the judgment below which awarded attorneys’ fees to appellee and here render judgment denying all attorneys’ fees. Three-fourths of the cost of appeal are adjudged against the appellant, and one-fourth of the cost of the appeal is adjudged against the appellee. OSBORN, J., not sitting.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

WAGGONER & ZELLER OIL COMPANY et al., Appellants, v. Truman DEIKE, Individually and as Independent Executrix of the Estate of Fritz F. Deike, Deceased, Appellee. No. 12120. Court of Civil Appeals of Texas, Austin. April 3, 1974. Rehearing Denied April 24, 1974. Everett J. Grindstaff, Grindstaff & Grindstaff, Ballinger, for appellants. Greg V. Gossett, Logan, Lear, Massey, Gossett & Harrison, San Angelo, for ap-pellee. SHANNON, Justice. This appeal concerns a suit filed in the district court of Runnels County by Fritz F. Deike and wife, Truman Deike, for a declaratory judgment that an oil and gas lease had terminated because of the cessation, after expiration of the primary term, of production of oil and gas. Appellants are members of a partnership, Waggoner & Zeller Oil Company, and are W. M. Waggoner, A. E. Zeller, Anthony M. Ciof-fi, L. B. Howerton, Samuel Weill, Jr., John P. Strutzel, Richard G. Rawlins, and Maryann Rawlins. Upon trial to a jury, judgment was entered for appellee. Truman Deike, canceling the lease, awarding appellants $2,560.00 in damages for the recoverable casing in the well, and requiring appellants to remove the equipment and personal property within ninety days. We will affirm that judgment. The lease canceled by the judgment was comprised of sixty acres of land in Runnels County and was executed by the Deikes, as lessors, in January of 1966, to Dorman N. Farmer, lessee, whose interest, by subsequent conveyances, became vested in appellants. The lease was “ . for a term of three (3) years from this date (called ‘primary term’) and as long thereafter as oil, gas or other mineral is produced from said land hereunder.” Paragraph five of the lease provided in part that “ . . .if after discovery and production of oil, gas or other mineral the production thereof should cease from any cause, this lease shall not terminate if Lessee commences operations for drilling or reworking within sixty (60) days thereafter . . . ” Paragraph eight is concerned with notice to the -lessee of breaches of the lease and provides in part that, “The breach by Lessee of any obligation arising hereunder shall not work a forfeiture or termination of this lease nor cause a termination or reversion of the estate created hereby nor be grounds for cancellation hereof in whole or in part. In the event Lessor considers that operations are not at any time being conducted in compliance with this lease, Lessor shall notify Lessee in writing of the facts relied upon as constituting a breach hereof, and Lessee, if in default, shall have sixty (60) days after receipt of such notice in which to commence the compliance with the obligations imposed by virtue of this instrument.” A well was completed in March of 1967 and commercial production was obtained through the end of the primary term. However, during the years after the well was drilled production decreased. From July through November of 1970 there was no production, but there was production in December of 1970, which continued through February of 1971. The amount of production from March of 1971 through September 14, 1971, was disputed. The ap-pellee contended that there was no production in paying quantities and the appellants claimed otherwise. On July 3, 1971, Fritz F. Deike advised an agent for appellants that he considered the lease to have terminated and that he did not want any of appellants’ agents “to set foot” on the lease. On two different occasions Deike attempted to notify appellants in writing that he considered the lease terminated. On July 8, 1971, appellants received a letter from Deike’s attorney to that effect. In her trial pleading appellee took the position that production had ceased under the lease as of March, 1971, and that because no drilling or reworking operations had been commenced within sixty days thereafter, the lease had, by its terms, terminated. In response to appellee’s suit, appellants pleaded that since the end of the primary term of the lease and until about July 1, 1971, they had continuously produced oil and gas in paying quantities from the Deike well or else had in good faith conducted reworking operations on the well. Appellants averred also that on or about July 1, 1971, Fritz Deike instructed appellants’ agent “to not set foot” on the lease. Appellants pleaded further that by the terms of paragraph eight of the lease they had sixty days after receipt of written notice from the Deikes of the breach by them of any obligation in the lease to commence compliance with those obligations. In this regard appellants pleaded that they received written notice on July 8, 1971, and that on or about September 1, 1971, Fritz Deike refused their agents entry upon the lease. The case was submitted to the jury upon six special issues. In answer to those issues the jury found that between March 1, 1971, and September 14, 1971, there was no oil production from the well, and that during the same period of time there had been no reworking operations conducted by appellants. The jury answered further that there was a period of at least sixty consecutive days after March 1, 1971, that the oil was not produced in paying quantities. The jury also responded that Fritz Deike, on July 3, 1971, told appellants’ agent that he considered the oil and gas lease terminated. Appellants maintain in their first point of error that, because paragraph eight of the lease required written notice from the lessor of any breach of the lease agreement by the lessee, it was necessary for the lessor to give the lessee written notice of cessation of production and from that time the lessee would have sixty days to begin production, drilling or reworking operations. Appellants say that they were not accorded that time after notice was received. The same basic contention was made by the operators and rejected by the courts in Lynch v. Southern Coast Drilling Company, 442 S.W.2d 804 (Tex.Civ.App.1969, no writ) and Preston v. Lambert, 489 S.W.2d 955 (Tex.Civ.App.1973, writ ref’d n. r. e). We are of the opinion that those cases control the disposition of this point of error. In Lynch, which involved the same kind of lease provision, the court stated, “By its very language, the lease provision relating to notice is applicable only where lessor is claiming that ‘lessee has not complied with all its obligations’ under the lease. It is now well settled in Texas that an oil and gas lease, such as the one before us, creates a determinable fee in the lessee, and that the provision to the effect that, after the expiration of the primary term of five years, the lease shall continue in force as long as oil or gas is produced constitutes a special limitation upon the estate transferred ... “When the condition constituting the special limitation occurred, the lease terminated by force of such limitation, and not as the result of any default in their obligations by lessees or of any breach by lessees of any contractual duties imposed upon them by the terms of the lease. The existence of the condition terminating the lease was not a breach of duty by lessees and created no cause of action in lessor. Walker, The Nature of the Property Interests Created by an Oil and Gas Lease in Texas, 7 Tex.L.Rev. 1, 18 (1928); 2 Summers, Oil and Gas § 337, p. 394 (1959). “Since the special limitation imposes no obligation on lessees to perform any duty, the clause providing for notice has no application here. Cf. Stephenson v. Calliham, 289 S.W. 158 (Tex.Civ.App.—San Antonio 1926, no writ). After the production of oil or gas had ceased, the lease could be continued in effect by the commencement, within ninety days, and continuous prosecution of drilling operations. If such drilling operations were not commenced within the specified time, the lease automatically terminated, and there was nothing lessees could do ‘to correct, or begin to correct, the asserted default.’ ” Appellants complain by two points of error that the trial court erred in not holding, as a matter of law, that the well was producing oil and gas in paying quantities and that there had been only a temporary cessation of production. These points will be overruled inasmuch as we are of the opinion that the jury’s answer of no production from the well from March 1 to September 14, 1971 was supported by credible evidence. When the well was first drilled, it was free-flowing. By August of 1968, however, an electric pump was necessary to gain production, and appellant Zeller testified that the electric pump motor was stolen sometime after the middle of March, 1971. Thereafter, the well operator “shut-in” the well. Moreover, the evidence was that the motor used to pump the well was electric and that the records showed that no electricity was used at the well site from March, 1971, through September, 1971. Further, it was shown that the purchaser of the oil runs from the well in issue purchased no oil or gas during the months of March, April, May, June, July, or August of 1971. Finally, the records of the Railroad Commission showed that there had been no production from the Deike well from May through August of 1971. Appellants’ point of error five claims error by the court in not submitting certain special issues and a definition requested by appellants. Point six complains of error in the court’s submission of the issues and definitions concerning reworking operations. With respect to point of error number six, an examination of the record reveals that there were no objections to the court’s charge, and by not objecting appellants waived any error in the submission. An instrument embodying appellants’ requested special issues and definition appears in the supplemental transcript. That instrument is not signed by the judge, nor is there any showing that the request was presented to the judge or that a ruling thereon was made. Under these circumstances, we cannot consider the point. Texas Rules of Civil Procedure, rule 276; American Pozzolan Corporation v. Desert Trucking Co., 450 S.W.2d 433 (Tex.Civ.App.1970, writ ref’d n. r. e.). Neuhoff Brothers Packers, Inc. v. McCauley, 399 S.W.2d 929 (Tex.Civ.App.1966, writ ref'd n. r. e.). Appellants contend finally that the court erred in requiring that appellants remove all equipment and personal property within ninety days after the date of entry of the judgment. Appellants also contend that the court erred in not requiring that appellee execute an indemnity bond to insure that the well was properly plugged. As neither contention is supported by argument or authority, those contentions will be considered waived. State Bar of Texas, Appellate Procedure in Texas, § 12.4[6] (1964) ; Patino v. Texas Employers Insurance Association, 491 S.W.2d 754 (Tex.Civ.App.1973, writ ref’d n. r. e.). The judgment is affirmed. . Fritz F. Deike died after the lawsuit was filed and before trial.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Isaiah HUGHES, Appellant, v. STATE of Texas, Appellee. No. 836. Court of Civil Appeals of Texas, Corpus Christi. March 21, 1974. Rehearing Denied April 18, 1974. M. S. Munson, Jr., Wharton, Kenneth J. Douglas, James & Price, Houston, for appellant. Jack Salyer, Bay City, for appellee. OPINION BISSETT, Justice. This is a juvenile proceeding instituted by the State of Texas against Isaiah Hughes under the provisions of Article 2338-1, Vernon’s Ann.Civ.St. Following a hearing in the Juvenile Court of Wharton County, Texas, judgment was rendered granting the State’s motion to waive jurisdiction and to transfer the case to the District Court of Wharton County for criminal proceedings. Hughes has appealed. We affirm. The State filed a complaint against Hughes on May 30, 1973, wherein it was alleged that he was a delinquent child under the law in that he committed murder on or about the 24th day of May, 1973, and that he was 16 years of age at the time of the alleged commission of the crime. The Juvenile Court, on May 30, 1973, ordered James H. Cody, the Juvenile Officer of Wharton County, to make a complete diagnostic study, social evaluation and full investigation of Hughes, his circumstances and the circumstances of the alleged offense. The order required that the report be filed “ . . . in the papers of this case.” This report, which was duly and timely filed by Mr. Cody, consisted of the following: (a)a psychiatric certificate prepared and signed by Dr. Raleigh P. Gleason, Jr., a neuropsychiatrist; (b) a psychological evaluation, prepared and signed by Carroll Camden, a psychologist; (c) a social evaluation and investigation of the juvenile and his circumstances, prepared and signed by Jo Ann Williams, a Public Welfare Worker; and (d) a report on the child, his background and the circumstances of the alleged offense prepared and signed by James H. Cody himself. The State filed a motion in the Juvenile Court on July 16, 1973, requesting that the Court, after hearing, “ . . . waive jurisdiction and transfer the child to an appropriate Court of Wharton County, Texas, for criminal proceedings.” Counsel for the juvenile did not except to the motion nor did he file any pleadings in behalf of appellant. A hearing on the motion was held on July 31, 1973. At the conclusion of this hearing, appellant’s attorneys filed a motion for a directed verdict based on the alleged failure of the State to prove by competent evidence the jurisdictional element of appellant’s age. The motion was overruled. Judgment was rendered on August 1, 1973, in which the jurisdiction of the Juvenile Court was waived and jurisdiction over Hughes was ‘‘transferred to the District Court of Wharton County, Texas, for criminal proceedings in accordance with the Code of Criminal Procedure”. The Juvenile Court, in its judgment, among other findings, found that Hughes was “16 years of age at the time of the commission of the offense, having been born on the 10th day of August, 1956”. This appeal is predicated on a single point of error, which reads as follows: “The Trial Court erred in overruling Respondent’s Motion for directed verdict as the State failed to prove the requisite jurisdictional fact of the Respondent’s age by competent evidence.” Appellant’s sole contention is that the finding by the court that appellant was 16 years of age at the time the alleged offense was committed was based upon hearsay, which amciunts to no evidence; consequently, there is no legal basis for the judgment that was rendered. The State offered the four reports listed above (which, collectively, constitute the report of Cody) at the outset of the hearing. Each of the reports recites that Hughes was 16 years of age. In addition, the psychological evaluation report, the social evaluation report, and Mr. Cody’s background report each state Hughes’ date of birth to be August 10, 1956. All four reports were admitted into evidence without objection. Dr. Gleason, the neuropsychiatrist, testified, in effect, that he knew appellant’s age and that he was 16. This positive statement concerning appellant’s age went unchallenged. Later, appellant’s attorney, during cross-examination, allowed Dr. Gleason to qualify his answer to a question, when the doctor said: “He is now almost 17 years old, and has had probably 11 years of schooling, This, too, went unchallenged! In the further questioning of Dr. Gleason by counsel for appellant, there appears in the record the following questions and answers: “Q Did you feel from your evaluation that he (appellant) was any different from any other 16 year old boy ? A Yes. Q Just a totally normal 16 year old boy? A I felt he was advanced in his maturity for his age, . . . ” We agree with appellant that hearsay, whether admitted over or without objection, is incompetent, without probative value, and may not be used for any purpose. Aetna Insurance Company v. Klein, 160 Tex. 61, 325 S.W.2d 376 (1959); Knapik v. Edison Bros., Inc., 313 S.W.2d 335 (Tex.Civ.App.—Waco 1958, writ ref’d). It is appellant’s position that as the record affirmatively reflects that no one ever stated that he (she) of their own personal knowledge, knew the birth date of appellant, that all of the evidence relating to the age of appellant was hearsay as a matter of law. We do not agree. Generally speaking, the requirement of personal knowledge of the facts to be proved is a necessary qualification of the witness, and it would seem that the party offering the witness should have the burden of proof of the qualification before the substantive testimony may be elicited from the witness, and the opposing party should be accorded the right to cross-examine at that time as to such qualification. But, on occasion the party offering the witness omits this preliminary proof of personal knowledge, and no objection is made by the opposite party. In such event, by failing to object, the opponent waives the requirement that the party prove that his witness have personal knowledge of the facts before offering the substantive evidence, and if the witness’ subsequent testimony is such as, so far as appears from the record, might have been within his personal knowledge, the opposing party cannot complain. Strickland Transportation Co. v. Ingram, 403 S.W.2d 192 (Tex.Civ.App., Texarkana 1966, writ dism’d); Texas & P. Ry. Co. v. Daugherty & Voliva, 33 Tex.Civ.App. 267, 76 S.W. 605 (1903, writ ref’d); Eastern Texas R. Co. v. Daniel & Burton, 133 S.W. 506 (Tex.Civ.App.1911, n. w. h.) ; Missouri, K. & T. Ry. Co. of Texas v. Kyser & Sutherland, 43 Tex.Civ.App. 322, 95 S.W. 747 (1906, n. w. h.); Heintz v. O’Donnell, 17 Tex.Civ.App. 21, 42 S.W. 797 (1897, n. w. h.) ; McCormick and Ray, Evidence, Vol. 1 793, pp. 578-582. The recitations of age in the reports and in the answer of Dr. Gleason to the question propounded by counsel for the State, standing alone in the record, are not hearsay. They are positive statements of a fact. The statements were not challenged by appellant. Such statements may have been based on information derived from a source which would bind appellant. The clear implication from the questions asked Dr. Gleason by counsel for appellant, coupled with his answers, tends to prove that the appellant was 16 years of age. It is possible that the authors of the reports consulted various public records in order to determine appellant’s age and date of birth, or they could have gained this information from appellant himself. It is also possible that Dr. Gleason and the others who made the reports may have had personal knowledge of appellant’s age. There is nothing in the record that refutes any of these possibilities. The evils inherent in hearsay evidence are 1) its unreliability, and 2) the fact that the party against whom it is offered is placed at an unfair disadvantage since the source of a hearsay statement is not present to be cross-examined. In this case, however, two of the authors of the four reports, Dr. Gleason and Mr. Cody, also testified as witnesses for the State. Both were cross-examined, but neither was asked by counsel for appellant if the statements relating to appellant’s age or to his date of birth were based on personal knowledge. If either was testifying on the basis of information given by third parties, this could have been shown upon cross-examination. We cannot agree with appellant that the evidence complained about in this appeal was hearsay as a matter of law. There is no evidence in the record that discloses that any part of the State’s evidence was based on sources other than personal knowledge. Hearsay does not affirmatively appear in the record. Counsel for appellant, the cross-examiner, did not probe the source of any witness’ knowledge to the extent that this Court is justified in holding that the evidence concerning appellant’s age was founded entirely on hearsay. Missouri Pac. Ry. Co. v. Sherwood, 84 Tex. 125, 19 S.W. 455 (1892). Moreover, the questions asked Dr. Gleason on cross-examination are virtual admissions by appellant’s counsel that appellant was 16 at the time of the psychiatric examination and at the time of the hearing on the matter of waiver of jurisdiction. Furthermore, the record on its face, supports a conclusion that Dr. Gleason did have personal knowledge that appellant was 16 years of age at the time in question. In the absence of any evidence to the contrary, the inference will be indulged that the doctor testified from personal knowledge. Missouri, K. & T. Ry. Co. of Texas v. Kyser & Sutherland, supra. The force of Dr. Gleason’s testimony and the statements contained in his report relating to appellant’s age is increased by the failure of counsel for appellant to cross-examine him on it. Braswell v. State, 170 Tex.Cr.R. 243, 340 S.W.2d 302 (Tex.Cr.App.1960). The reports ordered by the court were mandatory under the express provisions of Sec. 6(d), Article 2338-1, which provides: “Prior to the hearing, the juvenile court shall order and obtain a complete diagnostic study, social evaluation, and full investigation of the child, his circumstances, and the circumstances of the alleged offense.” Apparently, the above provision of the statute has not been construed by an appellate court. However, Article 46a, Sec. 2, V.A.C.S. (as that statute existed prior to the enactment of Title 2 of the present Family Code), contained a similar provision, which was construed in Hickman v. Smith, 238 S.W.2d 838 (Tex.Civ.App.—Austin 1951, writ ref’d). There, the district court, in an adoption proceeding, admitted into evidence the written report of a representative of the State Department of Public Welfare. The appellants contended that the court erred in admitting the report into evidence because it was hearsay. The Court of Civil Appeals rejected that contention, affirmed the judgment of the trial court, and in doing so, held: “ . . . This report dealt with the matters mentioned in Sec. 2, Art. 46a, V.A.C.S. The fact that much of the report may be technically hearsay evidence is unimportant. Section 2, supra, requires an investigation be made and that the results be submitted to the court in a written report, and authorized the Department of Public Welfare to make such investigation. The court was duty bound to read and consider the report and give it such weight as it deserved.” The Hickman case is analogous to the case at bar. We apply the same reasoning, logic and rule to this case. The same ruling is made and the same result is reached here precisely because the investigation and reports were required by Article 2338-1, Sec. 6(d). The juvenile court was duty bound to read and consider the reports which were made and to give such weight to the statements of fact therein contained that were not shown to be based on incompetent evidence. The legislative mandate required the Juvenile Court of Wharton County to order investigative fact findings. The reports were made by qualified persons, and as made and filed, comply with the statute and with the order of the juvenile court. It would seem strange indeed if the legislature imposed a mandatory duty on the court to collect this information only to find that it could not be used by the court simply because the party offering it did not first show that the statements of facts contained therein were based on personal knowledge. We hold that the testimony of Dr. ‘Gleason and the statements in the investigative reports relating to appellant’s age are not shown to be based on hearsay; they constitute competent evidence of the requisite jurisdictional fact of appellant’s age; and they support and authorize the finding by the Court that the appellant was 16 years of age at the times pertinent to this appeal. Appellant’s point of error is overruled. The judgment of the juvenile court is affirmed. . The statute was replaced by § 54.02 of Title 3, Family Code, V.T.C.A., effective September 1, 1973. . Question by the District Attorney and the answer by Dr. Gleason: “Q In that regard I am sure you already know that this man will be seventeen (17) on August 11, 1973, at which time the law considers him an adult? A Yes.”

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

ASTRONAUTS WAREHOUSES, INC., Appellant, v. ADAMS SALES COMPANY, INC., Appellee. No. 15279. Court of Civil Appeals of Texas, San Antonio. April 3, 1974. Maebius & Duncan, Inc., San Antonio, for appellant. John N. McCamish, Jr., Matthews, Now-lin, Macfarlane & Barrett, San Antonio, for appellee. KLINGEMAN, Justice. This is an appeal by Astronauts Warehouses, Inc., from a judgment granted to Adams Sales Company for money damages for cartons of towels alleged to have sustained water damage while stored by appellant in its warehouse. Trial was by the court without a jury, and judgment was rendered for appellee against appellant in the sum of $6,840.44. Both parties agree that the relationship of the parties is that of bailor and bailee, and that the bailment is one of mutual benefit. Appellant, by two points of error, asserts: (1) the district court erred in rendering judgment for appellee because no negligence on the part of appellant was proved; (2) the district court erred in awarding damages for more than 21 cartons of towels because there was no evidence of more wet cartons at the time of delivery to appellee. By counterpoints, ap-pellee asserts that (a) the trial court correctly entered judgment on behalf of ap-pellee because appellant failed to produce any evidence to rebut the presumption of its negligence which is created by proof that the items had been damaged while in possession of the bailors; and also that appellant admitted responsibility for the damage to appellee’s property; (b) the trial court’s award of $6,840.44 in damages for 43 cartons of towels which were damaged while in appellant’s exclusive control is supported by the evidence. No findings of fact or conclusions of law were requested of or filed by the trial judge. The trial court’s judgment therefore implies all necessary fact findings in support of the judgment. In seeking to determine whether there is any evidence to support the judgment and its implied findings of fact incident thereto, it is proper to consider only the evidence most favorable to the issue. Renfro Drug Company v. Lewis, 149 Tex. 507, 235 S.W.2d 609 (1950); North East Motor Lines v. Dickson, 148 Tex. 35, 219 S.W.2d 795 (1949); Kimbell Milling Company v. Marcet, 449 S.W.2d 100 (Tex.Civ.App.—San Antonio 1969, no writ); U. S. Truck Lines v. Texaco, Inc., 337 S.W.2d 497 (Tex.Civ.App.—Eastland 1960, writ ref’d). Both parties agree that the rule of law applicable to a bailment of mutual benefit as herein involved is set forth in Trammell v. Whitlock, 150 Tex. 500, 242 S.W.2d 157 (1951), wherein the court said: “The defendant-petitioner is correct in his contention that the burden of proof on the whole case, including the issue of negligence, is on the respondent bailor, but as stated in Wigmore on Evidence, 3rd Ed., § 2508, ‘Where goods have been committed to a bailee, and have either been lost or been returned in a damaged condition, and the bailee’s liability depends upon this negligence, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury.’ Without prejudice to the burden of proof being at all times on the bailor, the bailor under this latter rule makes a prima facie or presumptive case of negligence by proving the bailment and either the return of the goods by the bailee in a damaged condition, not existing at the time of their delivery to him, or a failure by him to return them at all. The rule is said to be based on the just and common sense view that the party in possession of control of an article is more likely to know and more properly charged with explaining the damage to it or disappearance of it than the bailor who entrusted it to his care. It is evidently supported by the weight of authority in the United States, including our own state.” Appellant operates a bonded warehouse located on Bowie Street in San Antonio, Texas. Appellee operates a business dealing solely with military exchanges. Appellant was authorized by appellee to pick up approximately 100 cartons of towels from another warehouse for storage in appellant’s warehouse on Bowie Street. In the latter part of October or the first part of November, 1971, appellant picked up such cartons of towels, which included the towels here involved, and delivered them to its warehouse. Appellant’s general manager, Mr. James C. Morris, testified that he inspected the cartons as they came in; and as far as he knew, the towels were in good order when they came in; and that he made no notation to the effect that the towels were not in good order. In December, 1971, appellant took an inventory of its warehouse and, at such time, found no evidence of any water damage to appellee’s towels. On February 11, 1972, 100 cartons of such towels were picked up at appellant’s warehouse by East Texas Motor Freight Lines for delivery to the Marine Corps Exchange, Parris Island, South Carolina. This was on a Friday. The only persons present at the time of such pick-up and loading were an employee of appellee named Raul Reyna; an employee of appellant’s named Fred Luna, who is now dead; and a truck driver for East Texas Motor Freight Lines. Of such witnesses, only Mr. Reyna testified. Mr. Reyna testified that he was present and helped with the loading of the towels; that although the cartons of towels on the top of the stack of cartons were not wet, those at the bottom were wet, and some were so wet that they were pulling apart; that all were loaded on the truck; that the driver of the East Texas Motor Freight Lines truck made a notation on the freight bill that 21 cartons of wet towels were loaded on the truck; that the truck driver gave him a copy of such bill of lading; and that he later delivered this back to the warehouse of appellee’s and gave it to another employee. The copy of the bill of lading was introduced into evidence. It is dated February 11, 1972, shows the carrier to be East Texas Motor Freight Lines, with the consignee shown to be the Marine Corps Exchange, Parris Island, South Carolina. The number of items listed thereon is 100 cartons white towels. There is a handwritten notation thereon "21 ctn wet (damp).” Mr. Reyna further testified that there were other cartons that were damp; and that the 21 cartons listed on such bill of lading as wet were those that were more than damp and were wet. The record discloses that another truck line, Thurston Motor Lines, Inc., was an intermediate carrier, but that there was no physical transfer of the towels from one truck to the other and that the same trailer was used throughout the entire movement with only a change in the tractor which pulled such trailer. Freight bills of Thur-ston Motor Lines were introduced into evidence which show that of the 100 cartons of towels consigned, 57 were delivered to the consignee, and 43 were rejected. There is a notation on one of such bills, “43 cases damaged and refused.” There is a notation on the back of one of such freight bills “This shows that 43 wet on arrival-at Parris Island.” Mrs. Adrian A. Taylor testified that she is the office manager of appellee’s; that on Monday morning, February 14, 1972, Mr. Rudy Sanchez, appellee’s warehouse manager, delivered to her the copy of the bill of lading of East Texas Motor Freight Lines that stated that there were 21 cartons of towels shipped wet; that immediately thereafter she notified appellant’s office of such fact; that appellant’s general manager, Mr. Morris, later called; that in this telephone conversation he admitted liability for these cartons; that after she found out that 43 cartons had been refused by the consignee, she again discussed this matter with Mr. Morris and told him that they were going to claim damages for the 43 cartons; that Mr. Morris, on more than one occasion, admitted that they were responsible for loss and stated that they would pay for them. She further testified that on March 15, 1972, after the rejected towels had been brought back from South Carolina to ap-pellee’s warehouse that she and Mr. Morris inspected such towels together; that they were so wet that they were strung out and not stacked up; that Mr. Morris inspected several cartons, looking at the extremely wet ones, and stated that he had had enough, and that obviously he was liable for them. Mr. Morris also testified. He denied that he ever admitted any liability for the loss. He did not believe the cartons were wet when they were picked up, but stated that if the cartons were wet, he did not know what caused it. He testified that he had made regular visual inspections of the warehouse; that he never noticed any water in the warehouse; that he never noticed any wet items; and that he never received notices from any other customers about wet merchandise. Several witnesses testified that they stored merchandise at such warehouse and that they never had any water damages to their merchandise. They acknowledged that they did not know anything about the merchandise here involved. Under the record, it is undisputed that when the 100 cartons of towels here involved were delivered to appellant’s warehouse around November 1, 1971, that they were inspected by appellant and found to be in good order; that they remained in such warehouse under appellant’s possession and control until February 11, 1972, when they were picked up by East Texas Motor Freight Lines to be delivered to Parris' Island, South Carolina; that at such time the truck driver of East Texas Motor Freight Lines noted on the bill of lading that 21 cartons were wet. This is corroborated by testimony of an eyewitness, Mr. Reyna. It is also uncontroverted that upon arrival of such towels at the point of destination, 43 cartons were rejected because they were damaged and wet. With regard to the 21 cartons, we have concluded that they come within the holding of Trammell v. Whitlock, supra, that where goods have been committed to a bailee and have either been lost or returned in a damaged condition, the fact of negligence may be presumed, placing on the bailee at least the duty of producing evidence of some other cause of loss or injury. Appellant produced no evidence to rebut this presumption. Appellant relies on such cases as Exporters’ & Traders’ Compress & Warehouse Co. v. Schulze, 265 S.W. 133 (Tex.Comm.App.1924) and Mustang Aviation v. Ridgway, 231 S.W.2d 677 (Tex.Civ.App.—Dallas 1950, writ ref’d), to the effect that where property is lost or damaged by fire, theft, flood or storm, no presumption of negligence is imputed to the bailee. There is no evidence in this case of fire, theft, flood or storm, and these cases do not help appellant. The trial court was clearly correct in awarding damages to appellee as to the 21 cartons. A closer question is presented by appellant’s alternative point of error that even if the judgment is correct as to the 21 cartons, such liability should be limited to the 21 cartons which were receipted as being wet at the time that they were picked up from appellant’s warehouse; and that they should not be liable for more than 21/43rds of $6,840.44. In support of such contention they assert it is well settled that the bailee is liable only for the goods returned by him to the bailor in a damaged condition, and that the only evidence in the record in this respect is the notation appearing on the bill of lading “21 ctn wet (damp).” However, there is evidence in the record that other cartons were damp and damaged. Mr. Reyna, the only eye-witness who was present at the time of the loading to testify, stated that some of the cartons were so wet that they were tearing apart; that he saw the truck driver make the notation on the bill of lading that there were 21 wet cases of towels, but that in actuality there were others that were damp; that the 21 cartons that were listed on such bill of lading were more than damp, and were wet; that there were others that were damp. It is undisputed that when the towels arrived at the point of destination, 43 cartons were rejected because they were wet and damaged. It is to be remembered that no findings of fact or conclusions of law were requested or filed. The trial court’s judgment implies all necessary fact findings in support of the judgment, and it must be affirmed if it can be upheld on any legal theory that finds support in the evidence. Seaman v. Seaman, 425 S.W.2d 339 (Tex.1968); Bishop v. Bishop, 359 S.W.2d 869, 871 (Tex.1962); Renfro Drug Company v. Lewis, supra; North East Motor Lines v. Dickson, supra. The trial court impliedly found that 43 cartons of towels were damaged while in possession of appellant. There is some evidence in the record to support such implied findings. The judgment of the trial court is affirmed.

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N. J. RIEBE, d/b/a RKR Ranch and United Farm Agency, Inc., Appellant, v. Ed FOALE, Appellee. No. 850. Court of Civil Appeals of Texas, Corpus Christi. March 29, 1974. Glen A. Barnard, Chavez & Barnard, Harlingen, for appellant. Nile E. Ball, Bonner, Ball & Bonner, Harlingen, for appellee. OPINION YOUNG, Justice. This is a summary judgment case. N. J. Riehe, doing business as RKR Ranch, sued Ed Foale'for liquidated damages for breach of a contract to sell realty. In the same suit, United Farm Agency, Inc. sued Foale for commission for breach of a real estate listing contract. The defendant Foale filed his motion for summary judgment in which he alleged that the property descriptions in the contract of sale and listing contract were each insufficient as a matter of law; and that the plaintiffs are estopped to assert that the defendant breached the contract of sale for the reason that Riebe never tendered performance of such contract. The trial court sustained defendant’s motion for summary judgment. In its judgment the trial court recited that the court considered the pleadings and deposition on file, and they show an absence of genuine issue of any material fact. The plaintiffs appeal. The general rules relative to resolving summary judgment disputes are set out in Farley v. Prudential Insurance Company, 480 S.W.2d 176, 178 (Tex.Sup.1972) as follows: “It is settled that the question on appeal and in the trial court is not whether the summary judgment proof raises fact issues with reference to essential elements of a cause of action, but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827 (Tex.1970). The burden of proof is on the movant, and all doubts as to the existence of a genuine issue of material fact are resolved against him. All conflicts in the evidence are disregarded, and the evidence which tends to support the position of the party opposing the motion is accepted as true.” (Cites omitted). The defendant (together with a representative of United) signed a real estate listing contract which contained these elements of description: (1) It stated the owner as “Ed Foale”. (2) It stated the address of the property as “2.1 m. so. old 83 on Baker Rd. Potts Rd. County Cameron”. (3) It set out the legal description as “Blks. 8, 9, 10, 11 Arroyo Vista Survey Blk 18 Stuart Place Survey-Survey”. (4) It described the type of property as “Citrus Grove”. (5) Further, it recited the total deeded acreage as “50-55 To be Surveyed”. The defendant as seller (together with Riebe as agent of RKR Ranch as Buyer) signed a contract to sell which provided: “Seller agrees ... to sell to the buyer the following described property located in the County of Cameron, State of Texas: “LEGAL DESCRIPTION: Blks 8, 9, 10, 11, Arroyo Vista Subdivision Cameron County, Texas, and Blk 18 Stuart Place Subdivision, Cameron County, Texas. Being not less than 50 acs. and not more than 55 acs. further described by metes and bounds taken from certified survey and plat supplied by seller.” The appellants in their first point complain primarily that the trial court erred in sustaining the appellee’s motion for summary judgment in that the description of land used in the listing agreement and sales contract was sufficient to satisfy the rules of law interpreting the Statute of Frauds. The basic rule by which to test the sufficiency of land description in written land contracts to meet the requirements of V.T.C.A., Bus. & C. § 26.01 (Statute of Frauds) is: the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.Sup.1972). Further, a recital of ownership in a contract, with some other element of identification, may single out the land with reasonable certainty. Walker Barnebey Company v. Schmidt, 374 S.W.2d 277, 279 (Tex.Civ.App.-San Antonio, 1963, n.w.h.). Another refinement of the basic rule is: if the address of the land together with the lot and block number in a subdivision are set out in the contract, this can be sufficient to satisfy the necessary reasonable certainty. Loring v. Peacock, 236 S.W.2d 876, 877 (Tex.Civ.App.—Fort Worth, 1951, n.w.h.). The listing contract certainly satisfies the above rules regarding the statute of frauds in that the owner is stated to be Ed Foale; the address is set out; and the lots and blocks in specific surveys are included. The appellee counters that the mentioning in the listing agreement of “total deeded acreage 50-55. To be surveyed.” and, mentioning in the sales contract of “being not less than 50 acs. and not more than 55 acs. further described by metes and bounds taken from certified survey and plat supplied by seller” make the descriptions in the contracts uncertain and insufficient. The appellant is entitled to the inference, according to Farley v. Prudential Insurance Company, supra, that the number of acres recited is only an estimate by the seller or real estate agent of the size of the subject tract and, therefore, such estimate does not detract from the descriptions. As for the matter of metes and bounds and survey, these are alternatives to a lot and block description and do not make the descriptions relied on insufficient. Finally, under the facts of this case, it has been demonstrated that a party familiar with the locality could identify and locate the land with reasonable certainty from the descriptions found in the subject contracts, which is enough to make the descriptions sufficient. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248 (1955). In that regard, we look to the deposition of Frank Chadick, who was the representative of United, who signed the listing agreement, and who secured the buyer in the sales contract. In this deposition, offered by the appellee in the summary judgment hearing, we find: “Q Mr. Chadick, . . could you take those legal descriptions (listing contract and sales contract) and in looking at the maps of Cameron County, Texas, legal maps setting out blocks and lots, would you be able to locate this property yourself, had you not ever been out to the location ? A Yes, I could.” Therefore, we hold that the description in each of the contracts satisfies the Statute of Frauds sufficiently enough to preclude the granting of a summary judgment. The first point of the appellants is sustained. In appellants’ second point they complain of the trial court’s action in allowing the admission of parol evidence for the purpose of taking the land descriptions out of the Statute of Frauds. As has been mentioned, the deposition of the real estate agent, Chadick, was offered by the appellee and considered by the trial court in the summary judgment hearing made the basis of this appeal. There Chadick said that he was aware that Foale did not want to sell all of Block 18 (Stuart Place Survey or Subdivision). In that respect, Chadick said “He (Foale) wanted to sell the citrus grove south of the existing meandering farm road, . . .” According to Chad-ick, he showed this citrus grove to Riebe as the property that was for sale. Chadick concluded, in answer to a question of whether he knew, at the time he prepared the contracts, all of Block 18 was not being offered for sale, with “yes sir, I was aware of it and the buyer was aware of it and the seller was aware of it. . . .” All this testimony does is raise questions of fact whether the parties were mutually mistaken in believing that the descriptions of land in the contracts they signed were sufficient. Under mutual mistake, raised by the deposition of Chadick, the appellants would be entitled to seek reformation of the contracts even though not originally pled, and the motion for summary judgment should not have been granted. Morrow v. Shotwell, supra; Foster v. Bullard, 496 S.W.2d 724, 734, (Tex.Civ.App.—Austin, 1973, n.r.e.). Appellants’ second point is sustained. In view of the disposition of appellants’ first two points, it is not necessary for the Court to address itself to appellants’ third and last point. Appellee, in his motion for summary judgment, raised the issue of no tender of performance of the sales contract by the buyer (RKR Ranch) and the appellants have argued the issue in their brief. We have searched the record and find no evidence, documentary or otherwise, on which the trial court could have relied regarding this contention by appellee. The judgment of the trial court is reversed and the cause remanded for trial. Reversed and remanded.

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Gary HOLLIS, Appellant, v. Phoebe Proctor HOLLIS, Appellee. No. 8433. Court of Civil Appeals of Texas, Amarillo. March 25, 1974. Rehearing Denied April 22, 1974. Garner, Boulter, Jesko & Purdom (Thomas J. Purdom), Lubbock, for appellant. Dudley K. Brummett, Robert F. Proctor, Lubbock, for appellee. REYNOLDS, Justice. Modifying the visitation provisions of a foreign decree of divorce, custody and support, the trial court held that it did not have jurisdiction over the subject matter of child support. The appellant-father challenges the modification order as a change of custody unsupported by the factual findings; the appellee-mother claims that the court fundamentally erred in its determination of lack of jurisdiction of the child support issue. We conclude that the modification of visitation privileges was within the court’s authority, and that the court erred in denying its jurisdiction of the subject matter of child support. Affirmed in part; reversed and remanded in part. The marriage between appellant Gary Hollis and appellee Phoebe Proctor Hollis was terminated by a decree of divorce entered in November, 1972, by the Circuit Court of Santa Rosa County, Florida. Custody of the two minor children of the marriage was vested in appellee; appellant was adjudged to have visitation privileges at reasonable times and places after reasonable notice. Contained in the decree is the visitation provision conditioned that if the children permanently reside over 300 miles from Pensacola, Florida, visitation of the children with appellant shall be increased to six weeks during the summer and one week during Christmas vacation with transportation costs to be borne by appellant. The appellant-father was ordered to make periodic financial contributions to the support of the children. In February, 1973, appellee and the minor children moved to, and established permanent residence in, Lubbock, Texas. On allegations of validity of the Florida decree and refusal by appellee to honor the visitation provisions thereof, appellant instituted this suit in May, 1973, in the 140th Judicial District Court of Lubbock County, seeking to enforce, under the full faith and credit principle, the decree for increased visitation with appellant, beginning June 1, 1973. Additional to her answer, appellee filed cross-action allegations. Pleading that appellant was delinquent in making the child support payments ordered by the Florida decree, appellee alleged her entitlement to, and prayed for, complete custody of the minor children uninterrupted by any visitation privilege in appellant and for an increase in the amount of child support to be paid by appellant. Following a hearing, the trial court entered judgment on July 3, 1973. Recording in its judgment that the parties appeared in person and by counsel and announced ready, the court found it had venue and jurisdiction of the parties and the children and the subject matter of custody and visitation, but the court found that it “does not have jurisdiction to hear and determine the matter of child support payments and any change or modification thereof.” Reciting that the entered judgment was for the best interest and welfare of the children, the court modified the Florida decree to provide that the children shall not be removed from appellee’s custody except for a period of visitation by the children with appellant in Florida from June 1 to June IS, 1974, subject to certain conditions concerning the visitation to be met by appellant. All other relief sought by the parties was denied. Responsive to requests by appellant, the court filed findings of fact and conclusions of law. Among the facts found and filed were those listed by the court to be: the pendency in the Florida court of a petition filed by appellant for complete custody of the children; an absence of good faith on the part of appellant in presently seeking removal of the children to Florida to visit him; appellant’s present suit is in reality a subterfuge with the true intent and purpose being the removal of the children for the purpose of litigation in Florida; and, since the children had been removed to Lubbock away from the influence of the father’s constant appearance and talking with the children with the urging upon them of not having to obey their mother, the children have become more quiet, not so nervous, are easier to discipline, and their general condition of health, well being and education have greatly improved, and the new environment has been to the best interest and welfare of each of the children. Based upon the facts found, the court reached the conclusion, among the others filed, that there had been a substantial and material change in conditions impelling the court to modify the Florida decree. The appeal was perfected without a statement of facts. Sans the statement, appellant does not question the validity of the findings of fact made by the trial court. Challenged, however, is the sufficiency of the found facts to support the legal conclusion that they in themselves show the substantial and material change of conditions required to authorize the change of custody ordered by the court. While appellant speaks of a change of custody, it is clear that the court, by not disturbing the permanent custody status awarded by the Florida court, has done no more than modify the existing visitation privileges of appellant. This modification, if supported by the unquestioned facts found by the court, is within the jurisdictional exercise of the court’s equitable powers invoked by the pleadings joining the issues of custody of and visitation with the minor children. Leithold v. Plass, 413 S.W.2d 698 (Tex.1967). Implicit in, and the efficacy of, the factual findings is the determination that the Florida order for increased visitation is unworkable and inappropriate for the best interest and welfare of each of the children under the circumstances the court found existing. In this situation, it is not necessary to show the change of circumstances required for a change of custody, Rodgers v. Williamson, 489 S.W.2d 558 (Tex.1973), for not only must the trial court be permitted greater latitude than for a change in permanent custody, but the prerequisite proof to justify a modification of visitation privileges need go no further than to show the prior order is unworkable and inappropriate. Boney v. Boney, 458 S.W.2d 907 (Tex.1970). Having effectually found that the foreign order of visitation was unworkable and inappropriate, the trial court was authorized to exercise its equitable powers to modify the order. Appellant’s single point of error is overruled. Appellee claims that the trial court’s decision that it had no jurisdiction to hear and determine the child support issue was fundamental error. The inferential basis for the court’s decision that it was without jurisdiction was that, and the parties have joined the issue whether, the matter of child support would have to be determined by the Florida court which issued the original decree. There was no proof of the law of Florida and there was no request that the trial court take judicial notice thereof as permitted by Rule 184a, Texas Rules of Civil Procedure. Therefore, Florida law is presumed to be the same as that of Texas, Ogletree v. Crates, 363 S.W.2d 431 (Tex.1963), which, of course, permits the change of child support orders as the facts and circumstances and justice may require. Appellant contends that the trial court’s decision was dictated by the ex cathedra decisions declaring the rule that the court granting the divorce has continuing and exclusive jurisdiction of the support issue. This rule evolved from the construction given the last sentence of Vernon’s Ann. Civ.St. art. 4639a, § l, in effect at the time of the hearing, reading, “Said court shall have power and authority to alter or change such judgments, or suspend the same, as the facts and circumstances and justice may require, upon notice to such parent as above provided for, or with his or her consent.” McAfee v. McAfee, 152 Tex. 156, 255 S.W.2d 185 (1953) However, the rule was derived from the statutory enactment making specific provisions for minor children affected by divorces granted by Texas courts. Thus, the rule is directed to, and all the cases announcing the application of the rule speak of, the child support jurisdiction of the Texas court which granted the divorce as being exclusive only of all other Texas courts to make orders concerning child support. We have not been directed to any Texas authority, and our independent research has revealed none, that has considered the jurisdictional question presented here for resolution. By ruling that the exclusive child support jurisdiction is in the Florida court, the trial court relegated appellee, for a readjudication of the matter, to activating that jurisdiction either by entering her personal appearance before the Florida court or by initiating proceedings under the provisions of the Uniform Reciprocal Enforcement of Support Act. Either course of action would naturally be, in the words of our Uniform Support Act, “in addition to and not in substitution of any other remedies” available to appellee. We do not believe appellee’s remedy is, or should be, restricted to either course where the forum’s jurisdiction of both the subject matter and the parties is invoked by the pleadings and personal appearance of the parties for adjudication. Certainly the activation of the child support jurisdiction of the foreign court is not required by the full faith and credit clause of the United States Constitution. So far as the full faith and credit clause is concerned, any modification that the foreign court could make in its original decree may be made by the forum. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947). Texas, like any other state, has a peculiar interest and concern for the maintenance and support of minor children domiciled within her borders. Thus, unless the converse is clearly evident, Texas should not foreclose the general jurisdiction of her courts to inquire into the duty of support as it may be interrelated to the jurisdiction of custody and visitation, particularly where the forum has the contacts to make an intelligent decision as to what modification, if any, should be made in the foreign decree. A Texas court will not hesitate to assume, as between local residents invoking the jurisdiction of the court, jurisdiction of the subject matter of, and to apply Texas law to enforce and modify the provision for, child support adjudicated in a foreign decree. Clapp v. Clapp, 393 S.W.2d 412 (Tex.Civ.App.—Amarillo 1965, no writ). Moreover, Texas courts will entertain jurisdiction of a suit for a change of visitation different from and for increased child support beyond that ordered in a foreign decree when the non-resident father appears ’ and answers the suit brought therefor by the resident mother. Bergerac v. Maloney, 478 S.W.2d 111 (Tex.Civ.App.—Beaumont 1972, no writ). We.think there should be no difference in, nor any limitation placed on, the courts’ jurisdiction merely because a non-resident, voluntarily entering this State and invoking the jurisdiction of a court to establish a foreign decree, seeks to enforce a specific provision thereof against a resident. When appellant voluntarily entered this State and invoked the jurisdiction of the 140th Judicial District Court to establish the Florida decree and to enforce the visitation provisions thereof, he invoked the general jurisdiction of the court over the minor children. Appellant, having brought the children before the court, could not by the nature of his pleadings limit the constitutional jurisdiction of the court to deal in the fullest measure with the persons or status of the children. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79 (1953). Therefore, appellee was not only entitled to present any defenses existing to appellant’s cause of action, but she was privileged to invoke the coordinate jurisdiction of the court over the interrelated matters of custody and child support. At the time of the hearing, there was before the court for adjudication the joined issues of custody, visitation and child support, matters over which the 140th Judicial District Court had general constitutional jurisdiction. By voluntarily appearing and unqualifiedly submitting themselves to the jurisdiction of the court and seeking an adjudication of the joined issues, the parties became bound by the court’s jurisdiction. York v. The State of Texas, 73 Tex. 651, 11 S.W. 869 (1889), aff’d 137 U.S. 15, 11 S.Ct. 9, 34 L.Ed. 604 (1890). It then devolved upon the court to exercise its equitable powers to make the proper disposition of all matters involved in a manner supported by the evidence. Leithold v. Plass, supra. Consequently, the trial court fundamentally erred in denying its jurisdiction over the subject matter of child support. Ap-pellee’s cross-point claim is sustained. That portion of the trial court’s judgment modifying appellant’s visitation privileges is affirmed; that portion of the judgment denying jurisdiction of the subject matter of child support is severed and reversed and remanded. . If, in fact, the trial court did have jurisdiction of the subject matter of child support, its determination to the contrary is error that is truly “fundamental.” This is evident because the error would go to the very foundation and merits of the action pleaded by ap-pellee, Rankert v. Clow, 16 Tex. 9, 13 (1856), and it would be a matter directly and adversely affecting the interest of the public generally, as that interest is declared in the law of this State, Ramsey v. Dunlop, 146 Tex. 196, 202, 205 S.W.2d 979, 983 (1947), particularly as that interest is involved in the welfare and relationships of minor children. Wicks v. Cox, 146 Tex. 489, 493, 208 S.W.2d 876 (1948). . Ex Parte Mullins, 414 S.W.2d 455 (Tex.1967) ; Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954) ; Ex parte Roberts, 139 Tex. 644, 165 S.W.2d 83 (1942) ; Ex parte Taylor, 137 Tex. 505, 155 S.W.2d 358 (1941). . Ex parte Mullins, 414 S.W.2d 455 (Tex.1967), teaches that this rule is not altered even though the original divorce decree did not adjudicate child support. . This statute specifies that in the event a divorce is granted, the court shall make such orders regarding the custody and support of any minor children as is for their best interest. . Art. 4639a, V.A.C.S., was repealed and its subject matter was embraced in V.T.O.A., Family Code, effective January 1, 1974. . Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954), makes it clear that the quoted sentence refers only to support and not to custody. There, it was reiterated that the judgment of divorce and custody is final and any reopening of custody is a new and independent suit controlled by the general rules of venue, while the court granting the divorce has continuing jurisdiction of the support issue. Further, as stated in Ex parte Mullins, 414 S.W.2d 455 (Tex.1967), subsequent motions to change or modify child support orders must be filed in the original divorce suit. Ex parte Webb, supra, recognizes that the construction given to the statutory language results in some cases in a need to resort to two Texas courts where subsequent custody and support actions are instituted. . Y.T.C.A., Family Code § 11.05, prescribes continuing jurisdiction in the court of original jurisdiction, but the code provides for a change of venue under the conditions stated in § 11.06 thereof. .The question presented here is distinguished from the situation where a court, having jurisdiction, refuses to assume that jurisdiction, and from the situation where a court, having assumed jurisdiction, refuses to exercise it. Parenthetically, it should be noted that the question here is not whether appellee is entitled to judgment for the child support payments she alleged to be delinquent under the Florida decree, for she did not seek judgment therefor. Neither is the question whether the Florida child support order is subject to modification, because the Texas law of permissible modification is applicable. Nevertheless, it is generally conceded that a foreign decree for future installments of child support not yet due does not, as to such installments, bind the forum by the full faith and credit clause where such future installments are subject to change by the court rendering the decree. People of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ot. 903, 91 L.Ed. 1133 (1947). . At the time of the hearing, the Texas Uniform Reciprocal Enforcement of Support Act was art. 2328b — 4, Vernon’s Ann.Civ.St. This article was repealed and replaced by V.T.C.A., Family Code § 21, effective January 1, 1974. . Vernon’s Ann.Civ.St. art. 2328b — 4, § 3; V.T.C.A., Family Code § 21.04. . U.S.Const. art. IV, § 1. Interestingly, the Florida Supreme Court held in Sackler v. Sackler, 47 So.2d 292 (1950), that a foreign decree for support for the non-resident wife and children may be established and enforced, subject to any equitable defenses of the resident husband, as a Florida decree and, since Florida equity courts are authorized to modify decrees of any court of competent jurisdiction, the local court is then authorized to modify the decree as to future installments.

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Carmen AREVALO, Appellant, v. VELVET DOOR, INC., Appellee. No. 6376. Court of Civil Appeals of Texas, El Paso. April 3, 1974. Rehearing Denied April 24, 1974. Peticolas, Luscombe, Stephens & Windle, Wayne E. Windle, Jr., El Paso, for appellant. Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Sam Sparks, Malcolm Harris, El Paso, for appellee. OPINION PRESLAR, Chief Justice. This appeal is from an order of the trial Court granting Appellee, Velvet Door, a temporary injunction enjoining its former employee, Appellant, from violating her covenant not to compete with Appellee’s beauty shop within a radius of five miles for a period of three years following the termination of her employment. We are of the opinion that the order should be affirmed. The pertinent facts are that Appellant was employed by Appellee as a beauty operator and had been for a number of years prior to her signing the contract in question in May of 1971, and she continued to be so employed for some two and a half years after the signing of the contract. Appellant left the employment of Appellee and almost immediately went to work for another shop within a five mile radius, and solicited her former patrons to join her at her new place of employment. There is no contention that the time or space limitation is unreasonable. Questions are presented as to the adequacy of the proof to show a probable right of recovery and probable injury, and Appellant urges that the agreement was without consideration and that the Appellee came to Court with unclean hands. In our determination of this matter, we will he governed by the rules laid down by the Supreme Court of Texas in Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953), wherein the Court held in part as follows: “In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, Tex.Sup., 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.” In the case before us, the petition alleges a cause of action so the question presented is whether the evidence tends to sustain that cause of action. As to that, there is no question as to probable injury for the Appellant testified as to soliciting her former customers to come to her new place of employment, and the proof is that many of the customers left the Velvet Door and transferred their business to her place of new , employment. The question then narrows as to whether the evidence tends to support the allegations of probable right, and we are of the opinion that it does. Appellant strongly urges the contrary, because of recitations in the agreement that there was no consideration. Irrespective of what the agreement recites, there is proof in the record of consideration in the form of continued employment of the Appellant for some two and one-half years following the execution of the agreement. Under Texas law, continuation of employment with payment of salary is consideration for a restrictive covenant not to compete. Krueger, Hutchinson & Overton Clinic v. Lewis, 266 S.W.2d 885 (Tex.Civ.App., Amarillo 1954), affirmed 153 Tex. 363, 269 S.W.2d 798 (1954); John L. Bramlet & Company v. Hunt, 371 S.W.2d 787 (Tex.Civ.App., Dallas 1963, writ ref’d n. r. e.); Carl Coiffure, Inc. v. Mourlot, 410 S.W.2d 209 (Tex.Civ.App., Houston 1966, writ ref’d n. r. e.). Appellant also urges no probable right on the basis that the evidence is conclusive that the Velvet Door was guilty of such wrongful conduct as to render it without clean hands and precluded from obtaining injunctive relief. In view of the trial Court’s judgment, it is obvious that the trial Court found against Appellant on this allegation and the record shows that such finding was made on the basis of conflicting evidence. Under such circumstances, this Court cannot say that the trial Court abused its discretion, and as this Court noted in Professional Beauty Products, Inc. v. Schmid, 497 S.W.2d 597 (Tex.Civ.App., El Paso 1973, no writ), the clean hands doctrine is not absolute in that the party relying on it must show that he himself has been injured by the conduct complained of. Here, as in that case, there is no showing of a breach of contract in the other party’s conduct. As we review the matter, we are unable to conclude that it clearly appears from this record that there has been an abuse of discretion by the trial Court. Accordingly, the judgment of the trial Court is in all things affirmed.

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MERCANTILE BANK OF HOUSTON, Appellant, v. Theodore C. ROZEMA, Appellee. No. 16273. Court of Civil Appeals of Texas, Houston (1st Dist.). March 14, 1974. Charles N. Goldberg, Houston, for appellant. Firmin A. Hickey, Jr., Houston, for ap-pellee. PEDEN, Justice. Plaintiff bank appeals from an order setting aside a summary judgment. The bank had sued defendant Chemcorps for the unpaid balance on a promissory note and had joined as defendants J. P. Harris, G. W. Disston, and Dr. Theodore C. Rozema, who had executed a guaranty agreement. Defendants Chemcorps and Dr. Rozema were served with citation, but only Dr. Rozema filed an answer. Neither Harris nor Disston was served with citation. On January 24, 1972 appellant took a purported summary judgment against both Dr. Rozema and Chemcorps. A default judgment also taken against Chemcorps recites that it was also taken on January 24 but was entered on January 28, 1972. On June 28, 1973 Dr. Rozema filed a motion to set aside the judgment against him, alleging by affidavit that he did not execute the guaranty agreement dated April 20, 1970 and that his signature on the instrument was a forgery. An order setting aside the judgment was entered by the trial court on August 17, 1973. It is from this order that the appellant appeals. The sole issue for this court to determine is whether the trial court had jurisdiction to overturn the judgment of January 24, 1972. Appellant contends that the judgment is final and therefore cannot be set aside by the trial court one and one-half years later except by Bill of Review. Appellee contends that the judgment was not final, so the jurisdiction of the trial court continued; this made the order setting aside the judgment interlocutory and not subject to review by the Court of Civil Appeals. Appellee argues that the judgment of January 24, 1972 was interlocutory since 1) it did not dispose of all of the parties and 2) there were two separate judgments (the summary judgment and default judgment) both purporting to be final. The summary judgment entered by the trial court purported to dispose of Dr. Rozema and Chemcorps, but not of Harris or Dis-ston. However, since neither Harris nor Disston was served with citation, and neither has answered or made an appearance, the case stands as if there had been a discontinuance as to these two defendants and the judgment is regarded as final for the purposes of appeal. Youngstown Sheet and Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.Sup.1963). The same ruling of implied dismissal was applied to a guaranty agreement situation similar to the present case when one of the guarantors was not cited, did not answer nor make an appearance. American Trendex Corp. v. Ultradyne Corp., 490 S.W.2d 205 (Tex.Civ.App.1973, writ ref. n. r. e.). As to the irregularities of the summary judgment rendered against Chem-corps and Rozema, we first determine whether a summary judgment taken against one who has been served but has not answered or appeared is void or voidable. Rule 166-A (a), Texas Rules of Civil Procedure, provides: “(a) For claimant. A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof.” (emphasis added) The Supreme Court, in Freeman v. Freeman, 160 Tex. 148, 327 S.W.2d 428 (1959), stated: “Judgments are void for lack of power in courts to render them when they are rendered contrary to constitutional or valid statutory prohibition or outside limiting constitutional or statutory authority.” Rule 166-A grants to the trial court the power to enter a judgment without a trial on the merits. A summary judgment is unknown at common law and is possible only by virtue of the provisions of Rule 166-A. To entitle a party to a summary judgment, the provisions of this rule must be strictly complied with. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276 (1961). In order to comply with Rule 166-A, the defendant must appear or answer before the motion for summary judgment is granted. Chemcorps had done neither, so the summary judgment is void as to it. Being void as to Chemcorps, the judgment did not purport to dispose of all of the parties to the suit and was interlocutory. The summary judgment purported to dispose of Dr. Rozema and the default judgment signed four days later disposed of Chemcorps, but neither judgment made any reference to the other. Rule 301, T.R.C.P., requires that there be only one final judgment. Sisttie v. Holland, 374 S.W.2d 803 (Tex.Civ.App.1964, no writ), and Thomas v. Shult, 436 S.W.2d 194 (Tex.Civ.App.1968, no writ), hold that even though two judgments dispose of all parties and issues the two judgments may not be taken together to form one final judgment. As in those cases, our record shows that the last judgment does not refer to or incorporate the first. Neither judgment was final, so the trial court maintained jurisdiction to set them aside and its order was not appealable. Appeal dismissed.

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L. D. BAYLESS et al., Appellants, v. RICHARDSON HOSPITAL AUTHORITY, dba Richardson General Hospital, Appellee. No. 4681. Court of Civil Appeals of Texas, Eastland. March 22, 1974. Rehearing Denied April 12, 1974. Thomas H. Hight, Hight & Hight, Dallas, for appellants. Richard E. Gray, Thompson, Knight, Simmons & Bullion, Bryan J. Maedgen, Strasburger, Price, Kelton, Martin & Unis, Dallas, for appellee. RALEIGH BROWN, Justice. Hildreth Bayless and husband, L. D. Bayless, seek damages for injuries she sustained as a result of an intermuscular injection in her left hip. The plaintiffs contend that the injection was so negligently and carelessly administered that the sciatic nerve was affected and Hildreth Bayless’ left leg became permanently paralyzed. The original defendants in the cause were Richardson Hospital Authority, doing business as Richardson General Hospital, where Hildreth Bayless was a patient, Doctor D. L. McKellar, the treating physician and Doctors M. G. Glidewell and B. Kendrick West, consulting physicians. The cause against Doctors Glidewell and West was dismissed for want of prosecution and a plea of privilege was sustained as to Doctor McKellar. A summary judgment decreed that the plaintiff take nothing against Richardson Hospital Authority. From that order, Hildreth and L. D. Bay-less appeal. The hospital was created pursuant to the Hospital Authority Act, Article 4437e, Vernon’s Ann.Tex.Civ.St. The thrust of appellants’ position is that the defendant hospital is not entitled to governmental immunity because such a holding would be against the great weight of precedent in other jurisdictions; that Article 4437e, V.A.T.S., does not grant such immunity; and that the City of Richardson was acting in a proprietary capacity rather than performing a governmental function. These contentions have been rejected in Texas with approval by our Supreme Court. In a like case, Childs v. Greenville Hospital Authority, 479 S.W.2d 399 (Tex.Civ.App. Texarkana 1972, writ ref. n. r. e.), the Texarkana court stated: “ . . . this court holds that the Greenville Hospital Authority performs a governmental function and is immune from tort liability.” This opinion of the Texarkana court relied strongly on two opinions by Judge Smedley. City of Dallas v. Smith, 130 Tex. 225, 107 S.W.2d 872 (Tex.Comm.App.1937); and Gartman v. City of McAllen, 130 Tex. 237, 107 S.W.2d 879 (Tex.Comm.App.1937). In City of Dallas v. Smith, supra, after reviewing other types of activities that had been held to be governmental rather than proprietary, the court concluded: “If cities are exercising governmental powers when engaged in' sanitation, the prevention of crime, the enforcement of traffic laws and ordinances, the prevention of fires, and the enforcement of quarantine regulations, as the foregoing authorities hold, then certainly they are exercising governmental functions when they maintain and operate hospitals.” We also overrule appellants’ point of error to the effect that the hospital’s conduct constituted a nuisance. Appellants’ cause of action is one of negligence and cannot be converted into a nuisance case merely by pleadings. In Gonzalez v. City of El Paso, 316 S. W.2d 176 (Tex.Civ.App. El Paso 1958, no writ hist.) the Court said: “It has often been held that a negligence case cannot be converted into a nuisance merely by so pleading.” See also Sears v. Colorado River Municipal Water District, 487 S.W.2d 810 (Tex.Civ.App. Eastland 1972, writ ref. n. r. e.). Having considered all points of error, we overrule each. The judgment is affirmed.

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Carl McGEE et al., Appellants, v. Robert W. THOMAS, Appellee. No. 8447. Court of Civil Appeals of Texas, Amarillo. March 25, 1974. Rehearing Denied April 22, 1974. Edwards & Associates, James R. Edwards, Lubbock, for appellants. Blanchard, Clifford, Sims & Kidd, W. A. Clifford, Lubbock, for appellee. REYNOLDS, Justice. Questioned in this appeal is the adequacy of certain damages awarded for personal injuries sustained in, and future medical expenses resulting from, an automobile collision, and the denial of recovery for loss of earnings. Reversed and remanded. Accompanied by the minor appellants Steven McGee and Deborah McGee as passengers, appellant Virgie McGee was driving an automobile owned by appellant Carl McGee when the automobile was struck from behind by a vehicle driven by appel-lee Robert W. Thomas. In the ensuing lawsuit, judgment was entered for appellants in conformity with a jury verdict finding liability on the part of Thomas and establishing various dollar amounts for certain damages and future medical expenses to be recovered by appellants. By a sole point of error, appellants challenge the evidentiary support for the jury’s awards of (1) $100 as compensatory damages and $225 for future medical expenses for Steven McGee; (2) $740 as compensatory damages and $440 for future medical expenses for Virgie McGee; and (3) nothing for loss of earnings suffered by Carl McGee as a result of the injuries to his family. The recovery allowed for Deborah McGee and the recovery for property damage are not challenged. The jury’s answers of $225 and $440 for future medical expenses for Steven McGee and for Virgie McGee, respectively, are against the great weight and preponderance of the evidence. The sole and uncon-tradicted testimony concerning future medical expenses for Steven and Virgie McGee was given by Dr. Eugene Brown, the treating physician. His testimony was that Steven would incur between $1,500 and $3,000, and that Virgie McGee would incur between $2,000 and $3,000, for future medical expenses. Both estimates were stated by the doctor to be reasonable and necessary expenses. The jury was free to, and apparently did, disbelieve the testimony of Dr. Brown; however, the jury did not have the authority to completely ignore the undisputed facts and arbitrarily fix an amount neither authorized nor supported by the evidence. Bolen v. Timmons, 407 S.W.2d 947 (Tex.Civ.App.—Amarillo 1966, no writ). The jury was unwarranted in finding amounts below the sums testified to and so disproportionate with the uncon-troverted evidence, Shropshire v. Doxey, 25 Tex. 128 (1860), and such findings are so clearly against the great weight and preponderance of the evidence as to be manifestly wrong. Even though no complaint is made to a portion of the judgment, all of the issues in this case, including the issues of damages assigned as inadequate, are so closely related as to be indivisible. Accordingly, as was held in Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522 (1950), the entire case is remanded for a new trial to prevent piecemeal adjudication. This determination pretermits consideration of appellants’ remaining complaints to the judgment. The judgment of the trial court is reversed and remanded.

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Wilbur A. DAVIS et al., Respondents, v. Robert H. SCHOTT, Appellant. No. KCD 26116. Missouri Court of Appeals, Kansas City District. April 1, 1974. Lehman D. Krause, Richmond Heights, for appellant. Thomas A. Vetter, Jefferson City, for respondents. PRITCHARD, Presiding Judge. This is a suit upon an open account wherein respondents recovered judgment for $576.23 and for costs. Respondents have filed a motion to dismiss this appeal by reason of appellant’s failure to comply with Rule 84.04, V.A.M. R., in the preparation of his brief. One part of the motion attacks the sufficiency of the points relied upon by appellant, which are these: “I. The trial court erroneously permitted the respondents to introduce into evidence a self-serving letter. II. The trial court erroneously based its judgment on issues not made by the pleadings. III. There is no substantial evidence to support the judgment for the respondents. IV. There is no substantial evidence to support respondents’ attachment.” Point I is the only contention which even reasonably points to error committed by the trial court. It, however, does not set forth any fact about what the letter was, by reference to an exhibit or otherwise. The argument portion of the brief and the transcript develops the fact that the letter was a copy of one sent by respondents to appellant. The letter copy was probably admissible as evidence of a demand for payment, as the court entered judgment for interest starting as of its date, November 20, 1970. But even if the copy of the letter was inadmissible as self-serving evidence of the existence of the open account, as appellant contends, its inadmissibility was rendered harmless by the fact that appellant himself entered into evidence the original of the letter, so identified, on cross-examination of respondent Hackman. Furthermore, appellant testified on direct examination that he received the original of the letter and later talked with Mr. Hackman about the account. For authority that evidence improperly admitted is rendered harmless by the reception of other evidence on the same subject, see Porterfield v. American Surety Co. of New York, 201 Mo.App. 8, 210 S.W. 119, 124 [12, 13] (1919) ; International Indemnity Co. v. Crandall, 235 S.W. 460 (Mo.App.1921); Krummenacher Drug Co. v. Chouteau, 296 S.W. 255, 256 (Mo.App.1927); Housden v. Berns, 241 Mo.App. 1163, 273 S.W.2d 794, 799 [7] (1954); and Murphy v. Buschman-Jennings, Incorporated, 382 S.W.2d 29, 33 [7, 8] (Mo.App.1964). Point I is overruled. The remaining points do not comply with Rule 84.04 in that they do not “state briefly and concisely what actions or rulings of the court are sought to be reviewed and wherein and why they are claimed to be erroneous.” Certainly these points do not set forth wherein the evidence is insufficient to support the judgment. The motion to dismiss the appeal will be overruled, but the latter points will be disregarded. The judgment is affirmed. All concur.

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Archie HESTER, Plaintiff-Respondent, v. James R. SPRADLING, Director of Revenue, State of Missouri, Defendant-Appellant. No. 9601. Missouri Court of Appeals, Springfield District. March 22, 1974. Briney, Welborn & Spain, James E. Spain, Bloomfield, for plaintiff-respondent. John C. Danforth, Atty. Gen., Richard L. Wieler, Asst. Atty. Gen., Jefferson City, for defendant-appellant. BILLINGS, Judge. Review by the Circuit Court of Stoddard County of appellant’s revocation of respondent’s operator license for one year for respondent’s alleged refusal to submit to a chemical test [§ 564.441, RSMo 1969, V.A.M.S.]. A hearing on respondent’s petition, as provided for by § 564.444, RSMo 1969, V.A.M.S., was conducted and the trial court found that respondent did not refuse to submit to the test and ordered appellant to reinstate respondent’s license. We affirm. Following respondent’s nighttime arrest in Sikeston for driving while intoxicated he was given Miranda warnings, admonished not to smoke, chew gum, drink water, or put anything in his mouth, and asked by the arresting officer if he would like to submit to a breathalyzer test. Respondent said he would like to talk to his attorney first. At the police station respondent was permitted to call his attorney at Bloomfield. The attorney advised the officer that respondent was not refusing the test and was specifically consenting to take it. The attorney told the officer he would appreciate delaying the test until he could get to the station whereupon the officer stated there was no reason for the attorney to hurry because the respondent had smoked a cigarette and that he (the officer) would not give respondent the breathalyzer test. Immediately after the telephone call the officer again asked respondent if he would like to submit to the test and respondent said he would like to wait until his lawyer got there. Respondent’s attorney arrived at the station in 20 to 25 minutes after the telephone conversation and asked the officer if respondent could take the test. The officer replied: “He’s already refused by smoking.” The officer did not offer to administer the test and made no further request of respondent to take such test. According to the officer, the total time lapse from stopping and arresting respondent until the lawyer arrived at the station ranged from a low estimate of 38½ minutes to a higher estimate of 53½ minutes. Appellant contends respondent refused to submit to the breathalyzer test because “Anything short of an unqualified, unequivocal assent constitutes refusal.” Respondent relies on Thomas v. Schaffner, 448 S.W.2d 319 (Mo.App.1969), that there was no express or unequivocal refusal to take the test. We have carefully read the transcript of the hearing conducted by the trial court and the briefs of the parties, together with the authorities cited therein. We conclude that the judgment of the trial court is based on findings of fact which are not clearly erroneous and that no error of law appears. An opinion would have no prece-dential value. Judgment affirmed. Rule 84.16, V.A.M. R. HOGAN, C. J., and STONE and TITUS, JJ., concur. . An earlier hearing in the Magistrate Court resulted in the same determination and appellant appealed to the Circuit Court. . The officer opined that smoking, chewing gum, drinking water, or putting anything in the mouth constituted an “automatic refusal” to take the breathalyzer test. Further, that there was a 15 minute time limit after a person arrived at the station for administering the test.

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STATE of Missouri ex rel. Alphonsine McCARTY, Relator, v. William H. KIMBERLIN, Judge of the Buchanan County Circuit Court; and Lawrence A. Kelly, Circuit Clerk of Buchanan County, Missouri, Respondents. No. KCD 26937. Missouri Court of Appeals, Kansas City District. April 1, 1974. Dale R. Copeland, Raytown, for relator. Don Pierce, St. Joseph, for respondents; Downs & Pierce, St. Joseph, of counsel. Before DIXON, C. J., and SHAN-GLER, PRITCHARD, SWOFFORD, WASSERSTROM and SOMERVILLE, JJ- PRITCHARD, Judge. The issue is whether respondent judge had jurisdiction to proceed and adjudicate the matter of custody of a minor child in habeas corpus proceedings whose status of neglect and an award of custody had been previously adjudicated and made in the juvenile division of the same court under § 211.031, RSMo 1969, V.A.M.S. The records which have been lodged in this court pursuant to the writ of certiorari show these facts: On February 26, 1973, a petition was filed in the juvenile court by the juvenile officer In The Interest Of Bobby Lee McMackin, alleging that he was a child born on July 19, 1968, and was in the custody of his mother, Sharon K. Ta-tro. As to jurisdiction of the court, it was alleged “[T]he natural mother is unable to provide the necessary care, maintenance, and support for this child, he is in need of the care and protection of the Court.” Reports of investigation of the child, his family, and of his living conditions and care were filed by the Division of Welfare and a deputy juvenile officer. On April 11, 1973, the finding and order of the court recites: “Comes now Bobby Lee Mc-Mackin in person; his natural mother, Sharon K. Tatro and the grandmother, Al-phonsine McCarty, with their attorney, Garth Landis. Ronnie Lee McMackin, who claims to be the father of Bobby Lee McMackin; LeRoy H. Maxwell, Jr., Chief Juvenile Officer within and for Buchanan County, Missouri.” The cause was submitted to the court which found that the child was a boy 4 years of age and that his natural mother was not able to care for him; that he was in need of the care and protection of the court; and that the maternal grandmother has had his care and custody since he was a few months old. It was ordered, adjudged and decreed that Bobby Lee McMackin was a child within the provisions of § 211.031, and that he be placed in the care and custody of the maternal grandmother, Mrs. Alphonsine McCarty (relator here), until further order of the court. Then on May 1, 1973, Ronnie Lee McMackin, filed in the circuit court of Buchanan County a petition for habeas corpus of Bobby Lee McMackin, alleging that the child was illegally restrained of his liberty by Alphonsine Mae McCarty; that he was “not restrained for any criminal or supposed criminal matter, but is restrained by Alphonsine Mae McCarty, the grandmother of said child, from his natural father, the petitioner herein, that the petitioner has lawful custody of said child as his natural parent, and is entitled to the custody of said child at this time.” The writ of habeas corpus was issued the same day, commanding that the child be brought before the court on May 18, 1973. Relator’s answer to the writ set forth, among other things, that she had lawful custody “due to a recent hearing and order of the Honorable Frank Connett, Judge of the Juvenile Court.” Petitioner’s answer to the return to the writ of habeas corpus admitted “that Bobby Lee McMackin is in the custody of respondent by order of Judge Frank D. Connett, Jr.,” but denied that said judgment precluded him from maintaining this Writ or precluded this Court from granting him custody of said minor child. On May 18, 1973, the cause was, with all interested parties present, taken up and heard, and the court found that petitioner, Ronnie Lee McMackin, is the natural father of the child, whose interest would be best served if he were placed in the custody of petitioner, and it was so ordered. Thereafter, this present proceeding . in certiorari was instituted. That is the proper remedy, but the review is not upon the merits of the habeas corpus proceeding. Hutchinson v. Wesley, 455 S.W.2d 21, 24[6-8] (Mo.App.1970); Jones v. State,-471 S.W.2d 166, 168[2, 3] (Mo.1971), and State ex rel. Coffield v. Buckner, 198 Mo.App. 230, 200 S.W. 94, 96[6] (1918). In pertinent parts § 211.031 provides: “Except as otherwise provided herein, the juvenile court shall have exclusive original jurisdiction in proceedings: (1) Involving any child who may be within the county who is alleged to be in need of care and treatment because: (a) The parents or other persons legally responsible for the care and support of the child neglect or refuse to provide proper support, education which is required by law, medical, surgical or other care necessary for his well-being; * * * or (b) The child is otherwise without proper care, custody or support; Respondents’ first claim is that the order of the juvenile court was invalid and a nullity in the first instance in that it did not find any specific condition to exist which would bring the child within the purview of § 211.031 as a neglected child. It is said that no mention was made in the order that the child was neglected, nor did the juvenile court make any finding, specifically or generally, that the child was neglected. Reliance is placed solely on State ex rel. Dew v. Trimble, 306 Mo. 657, 269 S.W. 617 (Mo. banc 1925). That part of the Court of Appeals opinion which was there quashed in certiorari proceedings did deal with the sufficiency of a juvenile court’s finding that a child was a “neglected child” within the meaning of that term as defined by the 1919 statute: “‘For the purpose of this article, the words “neglected child” shall mean any child under the age of seventeen (17) years, who is destitute or homeless, or abandoned, or dependent upon the public for support, * * *.’ ” The juvenile court found only “ ‘that said Margaret Marty is neglected, it is ordered by the court that Margaret Marty be made a ward of the court and committed to her father, L. A. Marty.’ ” At page 622 the court said [2], “In its definition of the words, ‘neglected child’ the Legislature has carefully, expressly, and explicitly defined and limited the jurisdiction which it has conferred upon the juvenile court with respect to neglected children. Whenever that court undertakes, on the score of neglect, to supervise the care and custody of a child who is not ‘destitute or homeless, or abandoned,’ etc., it is merely an inter-meddler, and its order is a nullity. But it is competent for the juvenile court to determine in a given case whether a child is a ‘neglected child’ ‘within the definition thereof’ contained in the statute; * * *. [4] According to the record under review, the juvenile court of Jackson county did not find the existence of any specific condition which would have placed the child, Margaret Marty, within the statutory classification of a ‘neglected child,’ nor did it find generally that she was a ‘neglected child’ within the statutory definition thereof. It merely found that ‘Margaret Marty is neglected.’ * * * [I]ts finding of mere neglect, to which nothing can be added by intendment, falls far short of ‘destitute or homeless, or abandoned, or dependent upon the public for support,’ etc., the conditions specified in the statute.” The net effect of the Dew case was to allow the circuit court habeas corpus proceedings to stand because the juvenile court had not made such a finding as to give it prior jurisdiction over the child. And in the lack of a statutorily sufficient finding the Dew case may be distinguished, and therefore is no help to respondent. Here the juvenile court expressly found that the child’s natural mother was unable to care for him and he. was in need of the care and protection of the court; that he was a child within the provisions of § 211.031; and he be placed in the care of his maternal grandmother, until the further order of the court. These findings are sufficient to give the court jurisdiction because he was a child otherwise without proper care, custody and support within the purview of § 211.031. Since the basic facts were found it was unnecessary for the court to have specifically found that the child was a "neglected child.” Respondents’ claim to the contrary is overruled. Citing § 211.051, respondents claim that the juvenile court’s jurisdiction as it relates to custody of minor children is not exclusive but is qualified by statute. It is true that § 211.031 provides for exclusive original jurisdiction “Except as otherwise provided herein,” and that § 211.051 provides further, “Nothing contained in sections 211.011 to 211.431 deprives other courts of the right to determine the legal custody of children upon writs of habeas corpus or to determine the legal custody or guardianship of children when the legal custody or guardianship is incidental to the determination of causes pending in other courts. * * What this statute and the exception in § 211.031 mean is that the institution of suits may be had initially in any court having at that time concurrent jurisdiction. Thus custody of children may be adjudicated in suits for divorce and by writ of habeas corpus. The argument, however, ignores the proposition noted in the Dew case, supra, page 621, of priority of jurisdiction, in ruling that the Court of Appeals opinion on that subject was not in conflict with In re Gladys Morgan, 117 Mo. 249, 21 S.W. 1122, 22 S.W. 913 (1893): “The Morgan Case applies to actions between husband and wife involving the custody and control of their minor children the familiar principle that, when a court of competent jurisdiction acquires jurisdiction over the subject-matter of a case, its authority continues, subject only to appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate jurisdiction is at liberty to interfere with its action. * * * [A]nd that, when the juvenile court has in a given case assumed jurisdiction with respect to any such child, its jurisdiction supersedes that of any and all courts touching the same subject-matter.” Note that this statement accords with the rule in other courts in the Court of Appeals opinion quoted in Dew, 269 S.W. at pages 620 and 621. See also and generally, 20 Am.Jur.2d Courts, § 128, p. 481, and 21 C.J.S. Courts § 492, p. 745. But note the case of State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178, 182 [8] (Mo. banc 1967), holding that even though there had been a prior adjudication of custody in a divorce suit, a juvenile court could assume jurisdiction over a child by a petition of a juvenile officer invoking § 211.031, because “the proceeding is predominently an inquiry by the State rather than a contest between vindictive parents seeking a divorce decree granting custody or a modification thereof.” Under this principle the juvenile court having first validly assumed and found its jurisdiction, as here above held, may proceed to a completion of the matter, with continuing jurisdiction (§ 211.041), to the exclusion of any other court of concurrent jurisdiction. Respondents’ contention to the contrary is without merit. Respondents lastly seek justification of the adjudication of custody in the habeas corpus proceedings by the contention that the juvenile court can only enter permanent orders as they relate to a minor’s status in (1) terminating parental rights and (2) entering decrees of adoption. The contention is fallacious because clearly the juvenile court may make orders of custody under § 211.181, and may retain jurisdiction of the child for custody purposes (as was here done, i. e. “until further order of the court”) under § 211.041. The orders of the court may be modified at any time on the court’s own motion or on the petition of any interested party under the plain provisions of § 211.251. The controlling law of this case is set forth in the decision of State ex rel. Coffield v. Buckner, 198 Mo.App. 230, 200 S. W. 94 (1918), cited by appellant, and which has never been modified. There were in that case rather unusual facts leading to the contest of jurisdiction as between a juvenile court and a later instituted proceeding in habeas corpus, which contest is precisely the situation here. In October, 1914, with the mother and father present, the juvenile court found the child to be neglected and ordered its conditional custody to the mother. Thereafter, the father prosecuted a divorce suit in Kansas, “whereby, in entire disregard of the jurisdiction orders and judgments of the juvenile court in Missouri, he sought to obtain, and did obtain, an order of the district court in Kansas awarding the custody of the child to himself, the child all the while residing in Missouri and a ward of, and in the custody of, the juvenile court.” Interim Kansas proceedings were had which ultimately divided the custody of the child between the parents and the mother brought it to Missouri and entered it in a Kansas City academy as a pupil. The father then applied for and obtained from the circuit court a writ of habeas corpus, and the mother then filed a proceeding by certiorari, challenging the validity of the judgment in habeas corpus in the Court of Appeals, which quashed the judgment. The court said, loe. cit. 200 S.W. 96 [6]: “To allow success to the effort of Lewis E. Coffield (the father) would cause unseemly clashes of authority between courts of equal dignity and jurisdiction, and would permit one, in the midst of a lawful exercise of jurisdiction first obtained by the other, to step in and overthrow the proceedings thus rightfully instituted and lawfully carried out by the other. It seems clear that this should not be allowed, and may be prevented by certiorari when the power usurped appears in the record (citing cases).” The Coffield case accords with the general rule. Annotations, 11 A. L.R. 147; 78 A.L.R. 317 (distinction between questions concerning merely the custody and control of a child and those pertaining to its neglect or delinquency) ; and 146 A.L.R. 1153, 1157, 1171. The judgment in the matter of habeas corpus is quashed. All concur.

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STATE of Missouri, Respondent, v. Frank L. HALL, Appellant. No. 26767. Missouri Court of Appeals, Kansas City District. April 1, 1974. Robert G. Duncan, William E. Shull, Duncan & Russell, Kansas City, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SWOFFORD, Judge. Defendant was convicted of first degree robbery. The jury was unable to agree upon the sentence and the trial court sentenced him to thirty-five years in the care of the Department of Corrections. From this conviction and sentence he appeals and urges five points upon which he seeks our mandate of reversal. Two of these require that this case be reversed and remanded for another trial and both involve defendant’s constitutional rights. First, he asserts that the court erred in denying his pre-trial motion to suppress certain evidence obtained in a warrantless search and seizure conducted in violation of the Fourth and Fourteenth Amendments of the United States Constitution and Article I, Section 15, of the Missouri Constitution V.A.M.S. Second, he asserts that the court improperly admitted the testimony of an arresting officer concerning hearsay statements alleged to have been made by one Redcloud, who was arrested with the defendant and who was not proffered by the state as a witness, and this denied the defendant his constitutional rights of confrontation and cross-examination under the Sixth and Fourteenth Amendments of the United States Constitution. In ruling upon the Fourth Amendment considerations with reference to search and seizure, we must view the “totality of the circumstances”, State v. McGee, 473 S.W. 2d 686 (Mo.1971), and the “concrete factual context”, Sibron v. State of New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L. Ed.2d 917 (1968); Kansas City v. Butters, 507 S.W.2d 49 (Mo.App.1974), as disclosed from the record before us. In so doing, this court must carefully balance the basic constitutional rights of the defendant against the necessary functions of law enforcement officers in pursuit of their obligation to protect the public and to enforce the law. This is a balance not easy of attainment. This becomes obvious from a review of the myriad decisions dealing with the subject. However, running as a golden thread throughout the dominant and better reasoned of these decisions is the fundamental premise that when the admissibility of evidence is questioned because of the facts and circumstances surrounding its procurement by search and seizure, any court is firmly committed to meticulously examine the constitutional implications incident thereto. This court has recently exhaustively reviewed the constitutional limitations on searches and seizures in the cases of State v. Funk, 490 S.W.2d 354 (Mo.App.1973) and City of Kansas City v. Butters, 507 S.W.2d 49 (decided March 4, 1974). We adopt as applicable here the guidelines contained in our Butters decision: “A properly issued search warrant does not stand alone as the only means by which the Fourth Amendment requirement of reasonableness can be met. The Fourth Amendment’s absolute admonition against unreasonable searches is not violated, (1) by a search incident to a lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed. 2d 427 (1973), (2) by protective searches by officers for weapons upon less than probable cause to arrest, Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), (3) by seizure of items falling within the ‘plain view’ doctrine, Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), nor (4) by the search of a motor vehicle where ‘probable cause’ exists to believe that it contains a substance which offends against the law, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925) and Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970)”. The “totality of the circumstances” and the “concrete factual context” of the matter before us may be thus summarized: On January 6, 1972 at 4:00 a. m., a lone man robbed Denny’s Restaurant in North Kansas City, Missouri at gunpoint. He was described as wearing a gray parka with the hood over his head, a knit cap and wrap-around sunglasses. He used a pistol or revolver to threaten the employees and customers and, after looting the cash register, he fled the restaurant on foot. At about 10:00 a. m. on January 6, 1972, two plain clothes detectives, Pasley and Thomas, of the St. Joseph, Missouri police department, were dispatched to the Howard Johnson Restaurant in that city to “check out two hippie characters” who were attempting to exchange a number of $1.00 bills for currency of larger denominations. They were given a description of a 1960 Chevrolet automobile bearing a Wyandotte County, Kansas license as the car being used by the “hippies”. The officers arrived at the Howard Johnson restaurant at about 10:10 a. m. and saw defendant Hall and Redcloud coming out of the door into the parking lot. While the officers testified that the men did not look like “hippies”, they stopped the defendant and Redcloud and asked them about the Chevrolet which was parked in the lot. Hall stated it was his car and the officers identified themselves and requested Hall and Redcloud to get into the rear seat of the patrol car for questioning. In the car Hall showed Officer Pasley his driver’s license and his registration for the Chevrolet. Hall stated that he had over $300.00 in cash, and showed Pasley several payroll stubs from his job. Actually, the defendant had $313.00 in cash on his person, of which $71.00 was in $1.00 bills. He told Pasley he saved $1.00 bills. There is conflict here as to the display of a parole card in Hall’s wallet. Hall states that Pasley grabbed his wallet out of his hand and over defendant’s protest began going through it, while Pasley testified that Hall voluntarily showed him the card. In either event, Hall was carrying a card showing that he was on parole from the Nevada Penitentiary, Carson City, Nevada, where he had served seven years for second degree murder. He told Pasley that he had written permission from his parole officer in Kansas, McElroy, to visit an aunt and uncle in St. Joseph, Missouri and showed Pasley this permission. Redcloud was unable to exhibit any identification to the officers. Via the police radio the officers requested a computer check on Hall and Redcloud, with negative results. There was no pickup order, warrant, hold order, or any other police request for either of them. At this time, neither Pasley nor Thomas, nor the St. Joseph police department, had any report on the robbery at Denny’s Restaurant which had occurred about six hours earlier. While still in the police car, apparently the officers requested, again via radio that a check be made with Hall’s parole officer in Kansas. Pasley, who was sitting on the passenger side of the front seat, noticed a “bulge” in Redcloud’s jacket pocket. He “patted” down the pocket, felt a weapon, reached in and pulled out an unloaded .22 caliber Smith and Wesson pistol. The questioning in the car up to this point had taken about 15 minutes. Hall and Redcloud were then directed to get out of the car and both were then searched. No weapon of any kind was found on Hall, but the money was found and retained by the officers. He was “clean”. No other weapon was found on Redcloud. Pasley testified at the hearing on the motion to suppress that, “At this point they were placed under arrest for investigation of carrying a concealed weapon." Pasley testified that Redcloud was then handcuffed and placed back in .the police car. Hall testified both he and Redcloud were handcuffed and placed back in the police car. However, a discussion then occurred with reference to transportation to the police station and the officers decided to take Redcloud there in the police car with Thomas driving, and that Hall would drive his car with Pasley as a passenger. Pasley testified they made this decision “rather than leave that car (the Chevrolet) sitting there unprotected, it was better for Hall to drive his car to the station while I accompanied him.” He admitted that it was daylight and the car could have been locked, but that was not done. Since Hall could not drive in handcuffs, they were removed and Hall got behind the wheel of the Chevrolet. Pasley got in the front passenger seat. Pasley stated — “He (Hall) got in the car and sat down, and since I couldn’t handcuff him and he had to drive the automobile I ‘hit’ the glove box * * * ” and “I ‘hit’ the glove box for my own safety.” The glove box was closed but not locked and Pasley opened or “hit” it and found a .38 caliber revolver, a stocking cap and a pair of sunglasses. All of the foregoing events occurred without any warrant, with no information about the commission of any robbery, without the receipt of any pick-up or hold request, no look out descriptions, and Hall was never asked nor did he give any consent that either he or his automobile could be searched. En route to the police station, Pasley read the “Miranda” warning to Hall. At the station both Hall and Redcloud were booked for “investigation of carrying a concealed weapon and also for investigation of armed robbery.” There was still no specific basis for such charges as to defendant except the fruits of the searches and seizures above-described, which Pasley said “are things normally used in an armed robbery.” Upon arrival at the police station, Pasley noticed a gray parka jacket on the back seat of the Chevrolet. Hall was placed in a cell and Redcloud was taken to another place for interrogation, during the course of which he gave an implicating statement or confession, in which he stated that the .38 caliber pistol was his (acquired by theft) and that Hall had used the weapon to rob Denny’s while he, Redcloud, acted as look out. Hall was then interrogated but refused to make any statement, requested counsel and asked and was granted permission to call his aunt and uncle in St. Joseph. As a result of the statement of Redcloud, the St. Joseph police contacted the North Kansas City police and at about 4:45 p. m. two members of the latter department, armed with warrants, picked up Hall and Redcloud and the fruits of the search and seizure. The prosecution of Hall followed in Clay County, Missouri. He was the sole defendant and was not jointly charged nor tried with Redcloud. Due to the trial court’s ruling on defendant’s motion to suppress such evidence, the state, over defendant’s objections, was permitted to introduce in evidence the .38 caliber pistol, stocking cap and sunglasses (found in the glove box of the Chevrolet by Pasley) ; the parka (found on the back seat); and some $313.00 in cash (taken from defendant during the “frisk” outside the police car). Since Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and Adams v. Williams, Footnote 1, supra, certain definite standards have been defined governing the so-called protective “stop and frisk” situations. These standards may be summarized to be that where a police officer “observes unusual conduct which leads him reasonably to conclude, in the light of his experience, that criminal activity may be afoot and that the persons with whom he is dealing may be armed”, he may conduct a “strictly circumscribed” and “carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him” before or even in the absence of probable cause to arrest. The search of the glove compartment of defendant’s automobile does not fall within this exception to the proscription of the Fourth Amendment. Neither does the search of the glove compartment of defendant’s car fall within the so-called “plain view” rule, as declared in Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). The glove compartment was closed and Detective Pasley could not “view” its contents until he opened it. Pasley testified that he made this search for his own safety. However, no “stop and frisk” situation then confronted the officers. The defendant had been stopped, interrogated and patted down some minutes before, outside of the automobile, after the unloaded .22 pistol had been found on Red-cloud, and it had been determined that defendant was unarmed. Pasley knew Hall was unarmed and that he, Pasley, was in no danger of an assault by a weapon concealed upon the defendant’s person. To have justified a search of defendant’s car or any part thereof so as to avoid the constitutional prohibition of the Fourth Amendment, such search must have been incident to, following and not preceding a lawful arrest, Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), or it must be shown that there was probable cause to believe that the car contained a substance which offended against the law. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Harris v. United States, supra; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); State v. Edmonds, 462 S.W.2d 782 (Mo.1971). Many Missouri authorities have approved such searches of automobiles after and incident to a lawful arrest, even though such search disclosed evidence of the commission of an act or crime of far greater seriousness than that impelling the original arrest. State v. Eaton, 504 S.W.2d 12 (Mo.1974); State v. Camper, 353 S.W. 2d 676 (Mo.1962); State v. McCarty, 460 S.W.2d 630 (Mo.1970); State v. McCarthy, 452 S.W.2d 211 (Mo.1970); State v. Edmonds, supra. But a violative search cannot become a lawful one predicated upon the fact that the search proved successful. State v. Wing, 455 S.W.2d 457 (Mo.1970); State v. Young, 425 S.W.2d 177 (Mo.1968). “Resolution of [the] controlling applicability of the Fourth Amendment is apart from resolution of the accused’s innocence or guilt.” City of Kansas City v. Butters, supra. Detective Pasley’s declared purpose in his search of the glove compartment in defendant’s car was for his “own safety” is not convincing. If he really feared bodily harm from the unarmed defendant by reason of the contents of his car, the defendant, handcuffed, could have been taken with Redcloud to the police station in the police car or the defendant’s car locked, and a warrant obtained for its search where it was. Or, it could have been locked, towed to the police station, a warrant obtained, and there searched. State v. McCarty, supra. Be that as it may, the defendant was never lawfully placed under arrest prior to the search. After discovering the firearm on Redcloud, Pasley stated to both the defendant and Redcloud that they both were under arrest “for investigation of carrying a concealed weapon.” This was not a valid or legal arrest, a condition precedent to the type of warrantless search here involved. Am.Jur., Searches and Seizures (1st Ed. Sec. 19) ; Harris v. United States, supra; United States v. Robinson, supra; Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); State v. Johnson, 447 S.W.2d 285 (Mo.1969) ; State v. Hamblin, 448 S.W.2d 603 (Mo.1970). The statute covering this offense is Section 564.610 RSMo 1969, V.A.M.S., which reads in part: “If any person shall carry concealed upon or about his person a dangerous or deadly weapon of any kind or description, * * * he shall, upon conviction, be punished * * * ” The necessary elements of this offense are; 1. Intention to carry a weapon concealed; 2. Concealment on the person or in such close proximity to the accused so as to be under his easy and convenient control. State v. Jordan, 495 S.W.2d 717 (Mo.App.1973) ; State v. Tate, 416 S.W.2d 103 (Mo.1967) ; State v. Haynes, 489 S.W.2d 233 (Mo.App.1972). There is no dispute that at the time of the initial arrest an unloaded .22 pistol was found concealed in Redcloud’s jacket. Even though unloaded, such fact placed Redcloud in violation of Section 564.610, supra. State v. Dorsey, 491 S.W.2d 301 (Mo.1973). Likewise, there is no dispute that the defendant was not carrying any concealed weapon of any kind within the contemplation of the statute and the above decisions. He could only be arrested for this offense vicariously because his companion was found with such a weapon. This statute does not contemplate such a charge. In State v. Simon, 57 S.W.2d 1062 (Mo.1933), the court said (a declaration which we adopt as applicable here), at 1. c. 1063-1064: “But mere knowledge on the part of appellant that Bettros (his companion) was committing the crime of carrying concealed a deadly weapon (a question of fact which we are not deciding) and even appellant’s presence at the time, without any evidence of any act of participation by appellant in the wrongdoing of Bettros, does not tend to establish in any degree appellant’s guilt of the charge against him.” We hold that there was no lawful arrest of defendant preceding the search of his automobile and that such search was, therefore, within the proscription of the Fourth Amendment of the United States Constitution and Article I, Section 15, of the Missouri Constitution. Two other matters must be considered on this phase of the case. The parka discovered on the back seat of the car was within the “plain view” doctrine. Harris v. United States, supra. The currency taken from defendant’s person during the “frisk” that followed the discovery of the gun in the possession of Redcloud in the amount of $313.00 could not reasonably then be characterized as the “fruits” of a crime and was unlawfully seized. As has been heretofore mentioned, the only information then in the possession of the officers was that two “hippie types” were trying to exchange some $1.00 bills for larger denominations (to our knowledge not an offense against the law), they were using a 1960 Chevrolet with a Kansas license plate and they had discovered a gun on Redcloud. There is no evidence that the defendant acted in any belligerent, furtive or unusual manner during the interrogation or search. The officers had evidence that the defendant was licensed to drive, was the registered owner of the automobile, could account for the money by payroll stubs, was on parole from Nevada, had written permission from his parole officer to be in St. Joseph, and that there was no police information that he was wanted for anything. We conclude that the currency was unlawfully seized. Therefore, the trial court erred in overruling defendant’s motion to suppress the revolver, knit cap and sunglasses found in the glove compartment and the currency found on the person of the defendant, and such were improperly admitted in evidence. While presenting a much closer question, we hold that the motion as to the parka was properly overruled and that it is not constitutionally inadmissible in evidence, if shown to be relevant and otherwise admissible. The second point raised by the appellant which requires the reversal and remand of this case involves a trial incident. The defendant was charged and tried alone. The record does not disclose what charges were lodged against Redcloud or what disposition was made of them and Redcloud was not called as a witness. The point made by defendant stems from the following: Officer Pasley on cross-examination by defendant’s counsel was questioned about the .38 caliber gun found in the glove compartment (and previously received in evidence as an exhibit): “Q Do you remember talking to Billy Redcloud about this .38 caliber pistol which is Exhibit No. 2? A I do. Q Do you remember what he told you about the pistol? Did he tell you that it was his, that he had stole (sic) it? A He did. Q That was Redcloud told you that? A That is correct.” After a recess, counsel for the state on redirect examination of Pasley read the foregoing part of the cross-examination to the witness and he reaffirmed his answers. Then the following appears: “Q Did Redcloud make any other statement to you in regard to that .38 caliber pistol ? A He did.” Thereupon, counsel for defendant made objection out of the hearing of the jury to any question regarding the gun other than on the matter of ownership on the grounds of hearsay and prejudice. The objection was overruled and the following occurred: “Q (By Mr. DeCuyper) What other statement did he make to you about the gun, or particularly Plaintiff’s Exhibit No. 2? A He stated that Franklin Hall used a .38 special to hold up the restaurant.” Defense moved for a mistrial, which motion was denied. It should be noted that the statement made by Redcloud and quoted by Pasley did not, in fact, identify the .38 caliber gun found in the glove compartment, Exhibit No. 2, as the alleged robbery weapon. Redcloud is quoted as saying: “A. He stated that Franklin Hall used a .38 special to hold up the restaurant.” (Emphasis supplied) On the other hand, on cross-examination above set forth, Redcloud, as quoted by Pasley, referred to the gun, Exhibit No. 2, and the scope of his statement covered only the fact of his “ownership” of it and that he stole it. Defendant here asserts that this testimony was hearsay, highly prejudicial and inflammatory, and denied him his constitutional right under the Sixth Amendment to confront the witnesses against him. The state counters this by the fact that since the defense opened up the subject of Red-cloud’s statements to Pasley about the gun that the doctrine of “curative admissibility” applies as an exception to the hearsay rule. As is readily apparent, this trial “incident” in fact involves not only hearsay but also deeply-rooted constitutional principles involving the Sixth Amendment of the Constitution of the United States, which provides, in part: “In all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * *” This constitutional provision is applicable to this proceeding by reason of the Fourteenth Amendment of the Constitution of the United States prohibiting the deprivation of life or liberty without “due process of law.” Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965); Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965); State v. Brookins, 478 S.W.2d 372 (Mo.1972); State v. Rowlett, 504 S.W.2d 48 (Mo.1974); State v. Jackson, 495 S.W.2d 80 (Mo.App.1973). This right of confrontation is inseparable from the right to cross-examination and has been held to be among the fundamental guarantees of life and liberty and an essential and indisposable safeguard to a fair trial. Pointer v. Texas, supra; Douglas v. Alabama, supra; Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574, 43 L.Ed. 890 (1899). Even where a witness is dead or his presence by good faith efforts, cannot be secured, the admission of his testimony from a deposition or a transcript of a previous hearing is closely scrutinized and is only admissible if the accused’s constitutional rights of confrontation and cross-examination have been adequately and carefully protected at the prior hearing or proceeding. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L. Ed.2d 255 (1968) ; State v. Brookins, supra; State v. Jackson, supra. Even under such rare circumstances it seems elemental that those portions of the prior testimony which are inadmissible under established rules of evidence (such as hearsay) would be excluded upon proper objection and motion at the trial. Here, the testimony of Pasley as to what Redcloud had told him during interrogation at the police station at St. Joseph was the rankest kind of hearsay. No attempt was made by the state to explain the absence of Redcloud. The record shows that at the time of the interrogation, neither the defendant nor Redcloud was represented by counsel. The defendant was not present during the interrogation of Red-cloud. None of the safeguards of the Sixth Amendment were afforded the defendant, and it was error for the court to admit the hearsay statements of witness Pasley. While admitting the hearsay character of this evidence, the state asserts that it was properly admitted under the doctrine of “curative admissibility” and relies principally upon the case of State v. Odom, 353 S.W.2d 708 (Mo.1962) to support its position. The doctrine of “curative admissibility” is a rule of evidence which we would be extremely reluctant to apply so as to deprive a defendant of his fundamental constitutional rights, such as, the right of confrontation as vouchsafed by the Sixth Amendment. But a close reading of Odom shows that it has no precedential value in the matter before us. It did not involve the constitutional right of confrontation, the testimony there under consideration was scientific in nature and was not hearsay, and Odom was decided three years prior to Pointer v. Texas, supra, and Douglas v. Alabama, supra, and prior to the Missouri appellate decisions following Pointer and Douglas. Also, the line of inquiry was clearly opened up by the defendant’s own testimony in direct examination. We hold that it was error for the trial court to admit this hearsay testimony and by so doing defendant was deprived of his Sixth Amendment right to confront Red-cloud and to submit him to the searchlight of cross-examination. We need not reach the other points raised by defendant since they are unnecessary to our decision. For the reasons herein stated, the conviction and sentence of the defendant are reversed and this cause is remanded for proceedings consistent with this decision. All concur. . See also: Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) wherein the Supreme Court again approved the principles of Terry v. Ohio, by a 6 to 3 decision. This footnote does not appear in the quote.

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Mable Arlene OLIVER, Appellant, v. Raymond Edward OLIVER, Respondent. No. KCD 26735. Missouri Court of Appeals, Kansas City District. April 1, 1974. Alex Peebles and James Patrick Quinn, Kansas City (Quinn & Peebles, Kansas City, of counsel), for appellant. Michael J. Albano, Independence (Graham, Paden, Welch, Martin & Tittle, Independence, of counsel), for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. PRITCHARD, Presiding Judge. Appellant has perfected her appeal from the portion of a judgment in partition after a divorce decree, which awarded to respondent the value of certain joint personal property which appellant removed from the joint residence of the parties when they separated some four years prior to divorce. Since that portion of the decree was adverse to appellant, and final as to her, this appeal is not premature. Hahn v. Hahn, 297 S.W.2d 559, 563, et seq. (Mo.1957). Appellant claims that the trial court erred in “estimating” value of the personal property and “awarding damages in a partition suit” because § 528.620 RSMo 1969, V.A.M.S., requires either partition (in kind), or sale and partition of the proceeds of joint property; and that evidence of exclusive possession and use of joint property by one co-tenant will not authorize an award of damages for conversion to a co-tenant. Respondent in his Count III pleaded the joint ownership of the personal property, and that certain described items thereof were by appellant “taken and converted to her own separate use.” Amendment was made by interlineation to the prayer of Count III asking that “plaintiff be awarded judgment for the money difference of the personalty now held by the parties,” and there was a deletion of the prayer for sale of the property and division of the proceeds between the parties. The request for the amendment was made in view of appellant’s answers to interrogatories and in her deposition “that certain items of the property which she has taken she has given to the Salvation Army, discarded and et cetera.” Appellant’s answer to Count II (evidently meaning Count III) is: “That such an accounting of personal property is in order and states that it is proper for the Court to proceed.” As it relates to the issues presented, respondent’s testimony was this: At the time appellant left him they had a household of furniture and personal items in the family home. [It was stipulated that a list comprised the items of personal property.] A few days after appellant moved away, she and her boyfriend moved the biggest part of the furniture out. The furniture at that time was practically new. “Q. And would you tell the Court, please, what, in your opinion, was the value of the items that she took? A. You mean to replace them? Q. Yes. A. Oh, it cost me right close to six thousand dollars to replace them. Q. Now, do you have an opinion as to the value of the items that she left? A. I have the list here. Q. Do you have an opinion as to the value of the ones that she left? A. The value. Well, it wasn’t very much. Q. Do you have an opinion as to how much it was? A. Oh, maybe a thousand dollars.” What appellant misconceives is that this is not strictly an action for the partition, either in kind or by sale, under the statute. Note that the amendment made by respondent to Count III of his petition asks for a money judgment for the difference (in value) of the personalty held by the parties. By her answer appellant quite evidently agreed that the accounting of personal property is proper, and then authorized the court to proceed. She must be held to that announced position and in the posture of the case presented to the trial court (in which the only evidence offered bore upon the value of the property held by the parties, and on which the evidence conflicted), and she will not be heard to say that the only way the court could have proceeded was by sale and division of the proceeds thereof in partition. This is especially true when, as the record shows, appellant still possessed some of the property removed by her, and neither party had placed any property before the court for sale. Undoubtedly, and according to the pleadings, from the time of separation to the time of divorce, the parties held their personal property as tenants by the entirety; and appellant had ousted respondent from his right to join possession and use of the same. Coffey v. Coffey, 485 S.W. 2d 167, 170[5] (Mo.App.1972), held “Personal estates held by the entirety can be changed to other types of estates by consent, agreement or acquiescence, Cooper v. Freer, Mo.App., 385 S.W.2d 340, 345, but neither the husband nor the wife owning personalty by the entirety can dispose of the whole or any part thereof without the consent, agreement or acquiescence of the other.” There was, of course, no evidence of any consent, agreement or acquiescence on respondent’s part that appellant dispose of all or any part of the personal property taken by respondent. The Coffey case held further that an accounting may be joined with a suit for divorce, loe. cit. 485 S.W.2d 172, and that is obviously the way the trial court treated this case and correctly so. See also the case of Ray v. Ray, 336 S.W.2d 731, 734[1, 2] (Mo.App.1960). Respondent’s testimony as to what it cost him to replace the property taken by appellant is not a proper measure of its value under the facts of this case, and absent a showing that any specific item or items of property were replaced with identical property of the same value. “According to the great weight of authority the measure of damages for the conversion of household goods, furniture, books, manuscripts, or wearing apparel, kept and adapted for personal use, is not the second hand market value of the property, but the actual and fair value to the owner, excluding any fanciful or sentimental value he may place on it.” 89 C.J.S. Trover & Conversion § 196, p. 658. See also State v. Ace Storage & Moving Co., 135 S.W.2d 363, 368 [7, 8] (Mo.App.1940). Thus the trial court erred in using that testimony as a basis for the accounting of and a division of the property. The motion to dismiss the appeal is overruled. The judgment is reversed and the case remanded for further proceedings. All concur.

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Ronnell B. WILLIAMS, Movant-Appellant, v. STATE of Missouri, Respondent. No. KCD 26694. Missouri Court of Appeals, Kansas City District. April 1, 1974. James M. Reed II, Kansas City, for movant-appellant. John C. Danforth, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SOMERVILLE, Judge. This is an appeal from an order of the Circuit Court, entered after an evidentiary hearing, overruling movant-appellant’s Rule 27.26, V.A.M.R., motion to vacate judgments and sentences imposed upon contemporaneous pleas of guilty to the offenses of raping a nun and robbery in the first degree, with a dangerous and deadly weapon, of a priest. The contemporaneous pleas of guilty were entered on March 17, 1970. The trial court fixed sentence on the rape charge at ninety-nine years and sentence on the robbery charge at forty-five years, both sentences to run concurrently. Points asserted by movant in his Rule 27.26 motion were an amalgam — alleged procedural and constitutional infirmities antedating the pleas of guilty and alleged ineffective assistance of counsel prior to and at the time the guilty pleas were entered. If the guilty pleas were knowingly and voluntarily made, any and all alleged procedural and constitutional infirmities antedating them were waived by entering the pleas of guilty. Geren v. State, 473 S.W.2d 704, 707 (Mo.1971); Simpson v. State, 487 S.W.2d 512, 513 (Mo.1972) and Pauley v. State, 487 S.W.2d 565, 566 (Mo.1972). Therefore, movant’s charge of ineffective assistance of counsel impels initial consideration since it may well be dis-positive of movant’s appeal. The myriad peculiarities inherent in sundry adversary proceedings between the state and accuseds in criminal cases, especially when viewed with an awareness that the desires and capacities of various accuseds are different and that all are distinct and different personalities in their own right, preclude laying down an absolute objective rule for determining the effectiveness of counsel in a given case. The net result is that the determination must be made in the concrete factual context of each individual case. Such determination is considerably narrowed where the accused has entered a guilty plea, because the issue of ineffective assistance of counsel then becomes concomitant with the issue of whether the guilty plea was knowingly and voluntarily entered. Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir. 1971) ; and Hulett v. State, 473 S.W.2d 410, 411 (Mo.1971). Once a guilty plea has been entered, the concrete factual context of the particular case must be viewed from the standpoint of determining whether the plea was knowingly and voluntarily made, and all other aspects of the adequacy of counsel’s representation become immaterial. Barylski v. State, 473 S.W.2d 399, 402 (Mo.1971); Hulett v. State, supra, 473 S. W.2d at 411; and Lee v. State, 460 S.W.2d 564, 567 (Mo.1970). If a guilty plea has been knowingly and voluntarily made, counsel can not be charged with affording ineffective assistance and the guilty plea must stand. The burden rested upon mov-ant throughout to establish by a preponderance of the evidence that his guilty pleas were not knowingly and voluntarily made because of ineffective assistance of counsel. Rule 27.26(f); Babcock v. State, 485 S.W.2d 85, 89 (Mo.1972); Johnson v. State, 479 S.W.2d 416, 418, 419 (Mo.1972); and State v. Brown, 449 S.W.2d 664, 666 (Mo.1970). Appellate review of the trial court’s judgment is limited to determining whether the findings, conclusions and judgment of the trial court were clearly erroneous. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968); Walster v. State, 438 S.W.2d 1, 2 (Mo.1969); Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971); and Richardson v. State, 470 S.W.2d 479, 481 (Mo.1971). Attention must now focus on the predicates alleged by movant as constituting ineffective assistance of counsel, viewed in the concrete factual context of this particular case and ;measured by the above principles. Movant would have this court believe that the efforts of his court appointed counsel constituted nothing more than a facade because counsel (a) failed to investigate the facts to determine if movant had a legitimate justiciable defense to either or both of the charges, (b) failed to request an examination to determine movant’s mental fitness to proceed as provided in Section 552.020, RSMo 1969, as amended Laws 1971, V.A.M.S., and (c) “hinted at the possibility” of reduced sentences in exchange for pleas of guilty. When movant was originally arraigned on the dual charges, he was represented by a different court appointed counsel. At arraignment, movant pleaded not guilty to both charges. Movant’s original court appointed counsel was then permitted to withdraw. During the interim between withdrawal of movant’s first court appointed counsel and the appointment of counsel who represented movant at the time he withdrew his pleas of not guilty and entered pleas of guilty to both charges, mov-ant “wrote letters” to the prosecuting attorney confessing the crimes with which he stood charged and advising the prosecuting attorney that he wanted to change his pleas from not guilty to guilty. It is crystal clear that movant himself conceived and initiated the notion of withdrawing his original pleas of not guilty and entering pleas of guilty. The maximum punishment for both offenses with which movant stood charged was death, and, timewise, Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (June 29, 1972), outlawing the death penalty, was several years away. The transcript of the proceedings concerning movant’s contemporaneous withdrawal of his earlier pleas of not guilty and entry of pleas of guilty to both charged offenses discloses the following according to movant’s own sworn testimony. Movant was twenty years of age and had “completed the 10th grade and started the 11th”; he acknowledged that prior to the proceeding in question he had been given tests which disclosed he had a “pretty fair I.Q.”; he desired to withdraw his earlier pleas of not guilty and enter pleas of guilty; he was entering pleas of guilty because he was, in fact, guilty of both offenses; he was entering pleas of guilty of his own free will; no “force, threats, or coercion” induced him to withdraw his plea of not guilty and enter pleas of guilty; no “promises of favors, or rewards, or immunity of any kind” had been made by anyone; he understood that the range of punishment on the rape charge was a minimum of two years imprisonment “to death”, and on the robbery charge a minimum of five years imprisonment “to death”; he understood that the court was not bound by any recommendations which his counsel or anyone else might make in connection with the fixing of his sentence in each case, but that the matter rested solely in the discretion of the court; he understood that he was entitled to a jury trial, to confront the state’s witnesses, to call witnesses on his own behalf, to testify on his own behalf or to remain silent, and that at the hands of a jury he might be acquitted or receive less or more severe punishments than those fixed by the court; no threats, coercion, or force of any kind prompted the voluntary letters of confession he mailed to the prosecuting attorney; he lucidly detailed to the court facts disclosing his unmitigated guilt of each charged offense; he had adequate opportunity to consult with counsel prior to pleading guilty, as well as adequate opportunity to consult with his mother, mother-in-law and wife; he was not suffering from any mental disease or defect at the time that he was aware of and he had never been treated for any mental condition or hospitalized for any mental or physical condition; he was fully aware of the nature of the proceeding and his rights; he understood that his court appointed counsel was perfectly willing to go to trial in either case if that was his desire; he was not under the influence of or using drugs or medications of any kind at the time; he was satisfied with the services rendered by counsel; and his pleas of guilty were not being entered on the basis of any promises as to the punishment that might be fixed by the court, but rather on the basis of throwing himself on the mercy of the court. At the evidentiary hearing on his Rule 27.26 motion, movant testified that prior to pleading guilty he consulted with counsel for forty-five minutes to an hour at the 'most; the referred to consultations occurred on three separate occasions; on the first occasion, he detailed to counsel his participation in the charged offenses; in addition, counsel had copies of the “letters” of confession movant had taken upon himself to mail to the prosecuting attorney. The entire record before this court is void of any evidence, direct or circumstantial, that so much as even suggests that additional investigation by counsel would have uncovered facts upon which to support a defense to either offense, or which would support vindication of movant as to either offense if tried before a jury. Perforce, movant was charged with the burden of so doing in the particulars just mentioned. Jackson v. State, 465 S.W.2d 642, 646 (Mo.1971); and Babcock v. State, supra, 485 S.W.2d at 89. The amount of time that counsel spent in consulting with mov-ant prior to entry of the guilty pleas, standing alone, affords no basis to substantiate movant’s charge that counsel was derelict absent a showing that more time would have inured to movant’s benefit. Babcock v. State, supra, at 89; State v. Bobbitt, 465 S.W.2d 579, 581 (Mo. banc 1971); and Fry v. State, 504 S.W.2d 250, 251 (Mo.App.1973). Movant’s contention that counsel incompetently represented him by failing to request an examination to determine mov-ant’s mental fitness to proceed is unsupported by movant’s sworn testimony attending entry of his pleas of guilty, heretofore set forth, and, as well, unsupported by his sworn testimony at the evidentiary hearing in connection with his Rule 27.26 motion. With respect to the latter, movant testified: that he understood the charges against him and the nature of the proceedings; the day he pleaded guilty to both charges he knew what he was doing; he did not feel that he was suffering from any mental disease or defect at the time; in his own mind he thought he was mentally alright; he had never been in a mental hospital or examined by a psychiatrist; he was not suffering from drugs or alcohol at the time; and the answers he gave to the questions propounded to him when he pleaded guilty were fully and voluntarily given and he knew and understood what he was doing at the time. Not only does movant’s positive sworn testimony fail to raise any suspicion that should have alerted counsel to question movant’s mental fitness to proceed, but, additionally, movant failed to adduce even the slightest scintilla of evidence that would have caused counsel to harbor an honest belief that movant lacked mental capacity to proceed. Again, at the risk of being repetitious, this burden fell on movant and he failed to carry it. Rule 27.26(f) ; Brown v. State, 485 S.W.2d 424, 428 (Mo.1972) ; and Franklin v. State, 455 S.W.2d 479, 485 (Mo.1970). Lastly, movant charges that counsel “hinted at the possibility” of reduced sentences in exchange for pleas of guilty. This charge is vitiated by both movant’s sworn testimony at the plea proceedings and the evidentiary hearing on his Rule 27.26 motion. Regarding the former, pertinent evidence has heretofore been delineated. Regarding the latter, movant testified that counsel at no time “definitely” advised him as to what punishment the court might assess with regard to the respective offenses if he pleaded guilty, and, although he was “hopeful” of getting less severe sentences than those actually imposed, he realized that the matter rested strictly with the trial court and could run the gamut within the prescribed ranges. All of the aforementioned falls far short of sustaining the burden or proof impressed on movant. Rule 27.26(f). It is patently obvious in this case that neither movant’s counsel or the state induced him to plead guilty to the heinous crimes for which he stood charged. The pleas were initiated by movant before counsel in question entered the case and obviously sprang from movant’s desire to avoid the death penalty. Movant’s self motivation, in the total context of the record before this court, falls far short of legal coercion that would condemn the pleas of guilty as not being freely and. voluntarily made. Fleck v. State, 443 S.W.2d 100, 103 (Mo.1969); Bradley v. State, 476 S.W.2d 499, 501 (Mo.1972); and North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Movant was aware of his aberrant behavior and the entire record implicitly discloses a desire on his part to legally atone for it so long as the death penalty could be avoided, while at the same time possessing self conceived hope for the imposition of light sentences. His charges of ineffective assistance of counsel in reality amount to nothing more than disappointment that his self conceived hope for the imposition of light sentences did not mature. Movant’s assertion of the ineffective assistance of counsel to the extent of completely debilitating his pleas of guilty from possessing the necessary attributes of being freely and voluntarily made, is, in plain and simple terms, contradicted by the un-controverted record bespeaking- the exact opposite as the truth. The findings, conclusions and judgment of the trial court denying movant relief were not clearly erroneous and the judgment is affirmed. All concur.

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Caselaw Access Project

2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE of Missouri, Plaintiff-Respondent, v. Leroy BYNUM, Defendant-Appellant. No. KCD 26545. Missouri Court of Appeals, Kansas City District. April 1, 1974. Willard B. Bunch, Public Defender, Sixteenth Judicial Circuit, William A. Mayer, Asst. Public Defender, Kansas City, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. Before PRITCHARD, P. J., and SWOFFORD and SOMERVILLE, JJ. SOMERVILLE, Judge. Defendant was charged by information with driving a motor vehicle “without the consent of the owner” in violation of paragraph 1 of Section 560.175, RSMo 1969, V.A.M.S. A jury found defendant guilty as charged and fixed his punishment at three (3) years and one (1) day in prison. Section 560.180, RSMo 1969, V.A.M.S. Allocution was granted, sentence was pronounced, and judgment was rendered accordingly. Defendant charges on appeal that the verdict and judgment below should be reversed and he should be accorded a new trial because: (1) the trial court erred in permitting one of the state’s witnesses, over objection, to testify on rebuttal after it was brought to the trial court’s attention that the witness was in the courtroom during defendant's opening statement, since the rule excluding witnesses had earlier been invoked; (2) the trial court erred in giving Instruction No. 6 because it was vague, ambiguous, and did not correctly state the presumption of innocence attending defendant in that it incorrectly placed the burden of proof on defendant; and (3) the trial court erred in refusing Instructions Nos. B and C, requested by defendant, thereby failing to instruct the jury on the lesser included offense of riding in a stolen vehicle without consent of the owner when there was substantial evidence of such purported lesser included offense. Defendant does not question the sufficiency of the evidence to support the jury’s verdict of guilty as to the charged offense. Accordingly, a copious statement of facts is unnecessary, and those facts relevant to a proper disposal of the points on appeal will be appropriately adduced hereafter in conjunction with respective charges of error leveled by defendant. Rumination of defendant’s first charge of error calls for certain facts to put the charge in proper dispositional perspective. Prior to commencement of the trial defendant requested that the rule excluding witnesses be invoked. The trial court thereupon invoked the rule. Patrolman Michael J. Hand, the last witness called by the state during its case in chief, inadvertently remained in the courtroom after leaving the witness stand. Defendant had reserved his opening statement until the state rested its case. Patrolman Hand was present in the courtroom when defendant’s opening statement was delivered. At the conclusion of defendant’s opening statement, counsel for defendant approached the bench and advised the court as follows: “As I just observed and I think Mr. Glynn [counsel for the state] did also, that the patrolman [Michael J. Hand] was sitting here during my opening statement and I would object to that witness reappearing either in rebuttal or whatever due to the fact that he has heard the opening statement.” Patrolman Hand, prior to the introduction of any evidence on behalf of the defendant, departed the courtroom at the request of counsel for the state and did not return until called as a rebuttal witness by the state. Patrolman Hand’s presence in the courtroom during defendant’s opening statement was not the result of any collusion or connivance on the part of the state and defendant makes no charge that it was. In view of certain evidence adduced by defendant — that he had been drinking at a bar the evening in question prior to his arrest for the charged offense and that Patrolman Hand struck him with a “billy club” during the course of his arrest — the state recalled Patrolman Hand as a rebuttal witness. Prior to putting Patrolman Hand on the stand in rebuttal the state, by way of an offer of proof, informed the court that rebuttal would be confined to two limited areas, (1) that Patrolman Hand did not strike defendant with a “billy club” and (2) that defendant did not appear to Patrolman Hand to be intoxicated. Although defendant’s opening statement was not included in the transcript on appeal, the trial court, prior to permitting Patrolman Hand to take the stand in rebuttal and in overruling defendant’s objection, stated of record that neither of the two limited areas related to “anything mentioned by the defendant’s attorney in his opening statement.” The trial court then permitted the state to call Patrolman Hand as a rebuttal witness for the limited purposes heretofore mentioned, and the patrolman’s testimony on rebuttal was, in fact, confined solely to the two limited areas mentioned. At the outset, it is to be noted that to invoke or not invoke the rule excluding witnesses during the course of a criminal trial, even though requested by an accused, rests squarely within the discretion of the trial court, and does not constitute a matter of right on the part of an accused. State v. Foster, 349 S.W.2d 922, 923 (Mo.1961); and State v. Lord, 286 S.W.2d 737, 741 (Mo.1956). When the rule has been invoked, the state is not automatically deprived of a disobeying witness’ testimony. Whether a disobeying witness shall be permitted to testify for the state on rebuttal again rests squarely within the discretion of the trial court. State v. King, 342 Mo. 975, 990, 119 S.W.2d 277, 285 (1938). Two basic considerations are involved in determining whether a trial court has abused its discretion in this latter regard. Did the state have knowledge of and court the rebuttal witness’ disobedience? State v. Welch, 191 Mo. 179, 190, 89 S.W. 945, 948 (1905) and State v. Sloan, 186 S.W. 1002, 1003 (Mo.1916). Did the disobeying rebuttal witness hear, either by way of an opening statement or the testimony of witnesses, the matter he was called to rebut, thereby influencing the truth of his rebuttal testimony? State v. Sloan, supra, and State v. Rinck, 467 S.W.2d 897, 899 (Mo.1971). In the particular context of this case, the answer to both of the questions heretofore posed is resoundingly no. Accordingly, there was no abuse of discretion on the part of the trial court in permitting the state to recall Patrolman Hand in rebuttal, on the restricted and limited basis disclosed by the record. The trial court obviously exercised great caution in the matter, exemplifying the exercise of judicial discretion at its best. Defendant’s argument, the relevant facts and the applicable law, singularly or collectively, fail to impute any abuse of discretion on the part of the trial court and defendant’s contention otherwise is hyperbolical. More to the point, defendant’s first charge is a caviling attack as clearly demonstrated by the following statement contained in defendant’s brief: “Patrolman Hand later testified on rebuttal in only two areas — one; whether or not the defendant was intoxicated, and two; whether or not he had struck defendant. It is not clear yet as to whether or not these points were brought out in defendant’s opening statement as the opening statement was not made a part of the trial transcript. But from the fact that both points were brought out in the direct examination of both the defendant and his witness and occupy several pages of transcript, it is reasonable to conclude that both or at least the area of voluntary intoxication were mentioned in the opening statement.” Defendant’s second charge of error is leveled at the burden of proof instruction given by the trial court which reads as follows : “The Court instructs the jury that the law presumes the innocence and not the guilt of the defendant, and this presumption of innocence attends the defendant throughout the trial, and at the end entitles the defendant to an acquittal, unless the evidence in the case, when taken as a whole, satisfies you of defendant’s guilt beyond a reasonable doubt, as defined in these instructions. The Court instructs the jury that if they have a reasonable doubt of defendant’s guilt, they should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching defendant’s guilt and not a mere possibility of defendant’s innocence.” The second point in defendant’s brief, directed toward the above instruction, read in conjunction with the relevant argument portion of the brief, is hazy at best. Assimilation of the argument and the point supports the conclusion that defendant’s attack is threefold, (1) that the instruction as a whole incorrectly placed the burden of proof on defendant by omission of an affirmative statement that the burden of proof was on the state, (2) that the first paragraph of the instruction did not clearly state the hypothesis of presumption of innocence, and (3) that the second paragraph in the instruction did not clearly state the hypothesis of reasonable doubt. A verbatim burden of proof instruction was recently approved by this court in State v. Tindall, 496 S.W.2d 267 (Mo.App.1973). In Tindall, pp. 270, 271, this court, regarding, as noted, a burden of proof instruction identical to the one herein involved, held: “The law in this state as it existed at the time this cause was tried, and as it exists now, continues to be that a burden of proof instruction in a criminal case is not made erroneous by the omission therefrom of a specific statement that the burden of proof is on the state, provided the hypotheses of ‘presumption of innocence’ and ‘reasonable doubt’ are clearly stated. State v. Barton, 361 Mo. 780, 236 S.W.2d 596 (banc 1931); State v. Washington, 364 S.W.2d 572, 576 (Mo.1963); State v. Wilfong, 438 S.W.2d 265, 266 (Mo.1969), cert. den., 396 U. S. 995, 90 S.Ct. 496, 24 L.Ed.2d 460.” It is unassailably explicit in Tindall that omission of an affirmative statement that the burden of proof was on the state did not render Instruction No. 6 erroneous. It is implicit in Tindall that Instruction No. 6 clearly stated the hypotheses of both presumption of innocence and reasonable doubt. Any doubt about the first paragraph correctly stating the hypothesis of presumption of innocence is dissolved by State v. Hudspeth, 159 Mo. 178, 60 S.W. 136 (1900), where an instruction consisting of one paragraph identical to the one in question was approved. Likewise, any doubt about the second paragraph correctly stating the hypothesis of reasonable doubt is dissolved by State v. Brown, 360 S.W.2d 618 (Mo.1962), where an instruction consisting of one paragraph identical to the one in question was approved. The conclusion herein reached, that the giving of Instruction No. 6 did not constitute error, is buttressed by the fact that in Tindall an exculpatory matter was also instructed upon, which is not the case here. Further, Instructions Nos. 3 (state’s verdict directing instruction) and 5 (conversing the state’s verdict directing instruction) given, which are to be considered in conjunction with Instruction No. 6 [State v. Vainikos, 366 S.W.2d 423 (Mo. banc 1963) and State v. Prigett, 470 S.W.2d 459 (Mo.1971)] militate against defendant’s attack on Instruction No. 6, since they required the jury to find the defendant guilty of the charged offense beyond a reasonable doubt. State v. Washington, 364 S.W.2d 572 (Mo.1963). This court is not unmindful that in Tindall it recognized that MAI — CR 2.20, effective January 1, 1974, affirmatively stating that the burden of proof is on the state, is much more preferable than the burden óf proof instruction given in this case. However, as in Tindall, in light of the prevailing case authority existing at the time this case was tried, no precedential justification exists to fatally condemn Instruction No. 6. To properly come to grips with defendant’s third charge of error, it is necessary to relate certain evidentiary facts. As heretofore noted, defendant does not question the sufficiency of the evidence to support the jury’s verdict of guilty of the charged offense of driving a motor vehicle without the permission of the owner. The gravamen of defendant’s third charge of error is that by virtue of his own testimony, pertinent parts of which are hereinafter set forth, the jury should have been instructed on his knowingly riding in a motor vehicle which was stolen, since it was a lesser included offense and there was sub-tantial evidence to support the giving of such an instruction. Instructions B and C requested by defendant, and refused by the trial court, tendered the alleged lesser included offense. Defendant testified on his own behalf and, among other things, stated that on the night in question he had been drinking at a bar located at 59th and Prospect in Kansas City, Missouri, and upon leaving was given a ride by a couple occupying a car parked in front of the bar. Defendant was let out of the referred to car at 27th and Paseo, at which point defendant obtained a ride from a passing male motorist in a motor vehicle which turned out to have been stolen. Defendant further testified that with the passing male motorist driving, and himself riding as a passenger, the motor vehicle travelled north on Paseo and upon reaching the vicinity of 19th and Paseo, defendant heard a siren. Defendant’s testimony then continued as follows: “And when — I asked him to slow down — rather I asked him why didn’t he slow down and he told me that the car was stolen and before I could say too much more about it being stolen he had slowed down to a point where he just jumped out, you know, and then I got behind the wheel to keep from running into a tree and when I stopped the car the police officer was just pulling up behind the car and I got out and tried to explain.” The sole and decisive question posed by defendant is whether “knowingly” riding “in a motor vehicle which has been stolen or is being operated without the consent of the owner thereof”, a misdemeanor under paragraph 4 of Section 560.175, supra, and paragraph 2 of Section 560.180, supra, is a lesser included offense of the greater offense of driving a motor vehicle without permission of the owner, the charge leveled by the state against defendant, a felony under paragraph 1 of Section 560.175, supra, and paragraph 1 of Section 560.180, supra. This is a frontier question in this state and neither party on appeal has cited any cases from other jurisdictions in support or aid of their respective positions, nor has this court’s own independent research disclosed any cases in other jurisdictions aiding resolution of the question. If the answer to the posed question is no, the trial court was not guilty of error in refusing Instructions B and C requested by the defendant. The Supreme Court of this state, in State v. Amsden, 299 S.W.2d 498, 504 (Mo.1957), quoted with approval the following test laid down in 27 Am.Jur., Indictments and Information, Sec. 194, p. 739, for determining what constitutes a lesser included offense, and the same test was likewise quoted with approval and followed in State v. Friedman, 398 S.W.2d 37, 39 (Mo.App.1965): “ . . . (T)he lesser crime must be included in the higher crime with which the accused is specifically charged, and that the averment of the indictment describing the manner in which the greater offense was committed must contain allegations essential to constitute a charge of the lesser, to sustain a conviction of the latter offense. If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater." (Emphasis added.) A test of the facts of this case by the principles enunciated above must be prefaced by a brief analysis of Section 560.175, supra. It appears that to “drive” a motor vehicle without permission of the owner, in the context employed in paragraph 1 of Section 560.175, supra, connotes physical operation and control of a motor vehicle as opposed to mere presence in a motor vehicle, and, conversely, to “knowingly ride in a motor vehicle” that has been stolen or is being operated absent the consent of the owner, in the context employed in paragraph 4 of Section 560.175, supra, connotes nothing more than mere presence in a motor vehicle with knowledge that it was stolen or being operated without the consent of the owner. Perforce, an information charging an accused of the felony of driving a motor vehicle without permission of the owner is not required to contain an averment that the accused “knowingly” rode in “a motor vehicle” that had “been stolen” or was “being operated without the consent of the owner”, although such is an essential averment of an information charging an accused of the misdemeanor of “knowingly” riding “in a motor vehicle” that was stolen or being operated absent the consent of the owner. Conversely, an information charging an accused of the misdemeanor of “knowingly” riding “in a motor vehicle” that was stolen or being operated absent the consent of the owner requires an averment setting such forth since it is a necessary element of the misdemean- or, but no such averment is required in an information charging an accused of the felony of driving a motor vehicle without permission of the owner, since it is not a necessary element of the felony. Having tested the felony of driving a motor vehicle without the permission of the owner and the misdemeanor of “knowingly” riding in “a motor vehicle” that was stolen or being operated absent the consent of the owner, by the principles quoted with approval in State v. Amsden, supra, this court holds that “knowingly” riding in “a motor vehicle” that was stolen or being operated absent the consent of the owner (paragraph 4 of Section 560.175, supra) is not a lesser included offense of the felony of driving a motor vehicle without the consent of the owner (paragraph 1, Section 560.175, supra). Since defendant herein was charged solely with the commission of a felony under paragraph 1, of Section 560.175, supra, the trial court did not err in refusing Instructions Nos. B and C requested by defendant. Judgment affirmed. All concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Joseph W. WALSH and Dolores Walsh, Respondents-Plaintiffs, v. Rudolph OEHLERT et al., Appellants-Defendants. No. 35278. Missouri Court of Appeals, St. Louis District, Division 2. March 26, 1974. Jack Koehr, City Counselor, James J. Gallagher, Associate City Counselor, St. Louis, for defendants-appellants. Charles R. Oldham, St. Louis, for plaintiffs-respondents. McMILLIAN, Judge. This is an appeal by defendant Rudolph Oehlert, a St. Louis Police Officer, from a judgment of the Circuit Court of the City of St. Louis, in the amount of $1000.00 awarded by a jury to plaintiffs, in an action for the wrongful death (shooting) of their son, Timothy Walsh, a sixteen year old juvenile. Originally, plaintiffs sued eight Metropolitan Police Officers; but the cause was submitted to the jury only against defendant and Officer Phillip Gaffney. Plaintiffs submitted their case against Officer Gaffney on the theory that he used unreasonable force against their son, but the jury found against plaintiffs on this issue and in favor of defendant Gaffney. After the court overruled defendant Oehlert’s motion for a directed verdict at the close of all the evidence, plaintiffs submitted their case against him on the theory that he failed to inform defendant Gaffney that Timothy Walsh was a juvenile and that he was only a suspect for an alleged shooting, or to exercise reasonable care to prevent Officer Gaffney from shooting at Timothy Walsh. Inasmuch as the facts are not in dispute, we give only a brief resume as to the occurrence. Timothy Walsh, on the morning of October 13, 1966, was arrested at his place of work by three officers, one of whom was Officer Oehlert. Oehlert brought Walsh to the ninth district station booking desk where Oehlert decided to search Walsh’s shoes. While Walsh was tying on his second shoe, he bolted across the lobby and dove through the window. Unable to restrain Walsh as he dangled from the window, Oehlert called for help. Officer Gaffney heard the call and responded. Officers Oehlert and Gaffney pursued Walsh across the street, repeatedly admonishing him to halt. Walsh took no heed, and ran into the gangway between a church and residence, vaulted a fence, and continued running in a westerly direction. When Officers Oehlert and Gaffney reached the fence Officer Gaffney, fired his pistol, aiming at Walsh’s legs. However, at the moment the shot was fired, Walsh had reached the fence at the other side of the yard, 45-50 feet away from the pursuing officers, and was jumping down to the adjoining yard. The top of this far fence was approximately 6-10 inches above the level of the ground upon which Officers Oehlert and Gaffney were standing. The bottom of this far fence was the ground of an adjoining lot, approximately 3½ to 4 feet below the level of the ground upon which Officers Oehlert and Gaffney were standing. As Walsh was jumping down, or, evidently immediately after he had made contact with this lower level, the bullet fired by Gaffney struck Walsh in the back, which wound resulted in Walsh’s death. Plaintiffs predicated their theory of liability against defendant Oehlert upon his negligence and wrongful acts which they alleged caused or contributed to cause the death of Timothy Walsh. For support they cite, 47 Am.Jur. 851, Sheriff, Police and Constables, § 42, and cases cited therein, for the general proposition that peace officers are generally held personally liable for negligence or wrongful acts that cause personal injury or death. Moreover, a police officer has no right to negligently injure a person whom he has arrested or detained, and if the arrestee is injured he is liable to the injured party in the same manner as a private individual. See also 60 A.L.R.2d 873, 879, wherein, apparently, this rule is followed in Missouri. Although the cases cited therein do not affirmatively espouse the above proposition, some hold an officer’s surety liable when that officer exceeds his authority and one case does, indeed hold law officers liable for their negligent acts, Lemonds v. Holmes, 236 S.W.2d 56 (Mo.App.1951). Nevertheless, at page 888 of 60 A.L.R.2d, the Missouri case of McKeon v. National Casualty Co., 216 Mo.App. 507, 270 S.W. 707, 712 (1925), is cited, which case affirmatively states that, “ . . . officers may only arrest felons and those probably suspected of felonies, and kill felons or those justly suspected thereof who flee or resist . . . ” Under the common law and the laws of Missouri, a police officer may use deadly force to apprehend, as a last resort, an accused fleeing felon. 4 Black.Comm. 170; 1 Hale P.C. 494; § 544.190, RSMo 1969; V.A.M.S.; and State v. Nolan, 354 Mo. 980, 192 S.W.2d 1016 (1946). Section 544.190 RSMo 1969, V.A.M.S., provides as follows: “If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest." (Emphasis added.) In the Nolan case, our Supreme Court held that a police officer was justified in using deadly force to apprehend a felony suspect based on probable cause, if a felony had actually been committed. A presumption was also upheld that police officers are in the lawful discharge of their duties when making arrests. In State v. Ford, 344 Mo. 1219, 130 S. W.2d 635 (1939), the court, interpreting what is now § 559.040, RSMo 1969, V.A. M.S. stated that a homicide is justified if “ . . . [RJesulting from force (shooting, a blow or the like) necessarily exerted in effecting the arrest of an accused felon in flight.” This case involved the use of force by an officer who was attempting to arrest an individual on a misdemeanor charge. Even at that time, in 1939, there was no doubt that an officer could use fatal force in attempting to arrest a fleeing felon, although the court indicated that it would be unlawful to shoot an escaping misdemeanant whom the officer was attempting to arrest. From these earlier interpretations the statutes of the State of Missouri in criminal cases and law has evolved the rule in civil cases that an officer may use only such force as is reasonably necessary to apprehend an individual in the commission of a crime. In City of Gallatin ex rel. Dixon v. Murphy, 217 S.W.2d 400 (Mo.App.1949), the court indicated: “ . . . An officer may use such force as is necessary to effect his purpose, and if the offender resists him he may use such force as is necessary to effectively arrest, even to injuring or killing the offender. However, there is a limitation on the officer’s right to kill in making an arrest or in repelling an assault during an arrest. The line of de-markation is that he may not use more force than is reasonably necessary to accomplish the arrest. The officer is not arbitrarily the judge that it was necessary for him to kill in order to secure his prisoner. The exigencies of the situation must have been such that there was a necessity for the killing, and whether such necessity existed, as a matter of fact, is a question for the jury. State v. Havens, Mo., . . . 177 S.W.2d 625, loc.cit. 628.” This rule has consistently been followed up to the present time and is generally followed throughout the United States. See also Manson v. Wabash Railroad Company, 338 S.W.2d 54 (Mo.banc 1960), where the court, in discussing whether there was an actual assault by a watchman, stated: “ . . .A police officer, in this case a watchman, may use such means or force as is reasonably necessary in the circumstance to accomplish an arrest. Unless a plaintiff can show that unnecessary force was used, courts will protect the officer. 6 C.J.S. Assault and Battery § 23(1), pp. 825, 826; Hutchinson v. Lott, Fla.App., 110 So.2d 442, loc.cit. 444(1, 2) . . From these authorities, we hold that an officer, where he has probable cause to make an arrest for felony may use a reasonable amount of force in the discharge of his duties to prevent the arrestee from escaping. It is not contended that Officer Oehlert did not have probable cause to arrest Timothy Walsh as a suspect for the alleged shooting of a person at a used car lot at Spring and Chouteau Avenues. Thus the question becomes, first, whether a juvenile can be arrested. In the case of Bond v. Wabash RR Co., 363 S.W.2d 1 (Mo.1962), the court, in discussing the arrest of a twelve year old for a misdemean- or under a City Ordinance indicated that officers (in the Bond case, a private watchman) had the authority to arrest a twelve year old boy for a violation of a City Ordinance. Citing 4 Am.Jur., Arrest, § 93, p. 64, the court said that “ . Infancy provides no immunity from arrest. . ” While in a technical sense, a juvenile is not arrested, but taken into custody, pursuant to § 211.061 RSMo 1969, V. A.M.S., the physical action of detention is the same. Neither plaintiffs’ brief nor our research has discovered any authority for the proposition that a fleeing felon may not be apprehended by deadly force simply because he is a juvenile. Section 211.031(1) (d), RSMo 1969, V.A.M.S., grants to the Juvenile Division of the Circuit Court exclusive original jurisdiction over persons under seventeen years of age. But, by the terms of § 211.071, RSMo 1969, V.A.M.S., a child of 14 years or older may, within the discretion of the juvenile court, be prosecuted under the general law. Therefore, since under certain circumstances the general law may be applied to juveniles, and because there is no special exception granted to juveniles in § 544.190, RSMo 1969, V. A.M.S., we hold § 544.190, supra, applicable to both infants and adults. The facts of the Nolan case are similar to those of the principal case. Three officers on patrol, having been advised by police radio of the burglary of a tavern, were informed by the “night man” in a nearby restaurant that a “dirty little boy” came in at 2:00 A.M., to exchange the same amount of change reported stolen in the burglary, for a ten dollar bill. The officers located the boy a short distance away, got out of their squad car, and began questioning him. The boy bolted away and the officers gave chase, one on foot, the other in the squad car. The officer in the squad car drove a short distance after the boy, alighted from the car, demanded that the boy halt, and then fired. He hit the boy in the legs but the boy fired back, killing the officer. The boy was convicted of manslaughter and appealed. The boy first contended that he had a right to resist because the arrest had been unlawful. In denying this claim the court cited State v. Whitley, 183 S.W. 317 (Mo.1916), where a defendant in a similar situation had killed an arresting officer in a struggle. Defendant there contended that his arrest was unlawful because the arresting officer had no knowledge of the felony defendant supposedly had committed. The court in Whitley rejected this defense and stated that a police officer without a warrant may arrest any person “who is in fact guilty of a recent felony, whether the officer be advised of such felony or not . . . ” Applying this reasoning to the principal case it would not matter whether Oehlert had informed Gaffney that Walsh was under arrest for a shooting (though he in fact did) as long as Gaffney had a reasonable ground to suspect that the person arrested had committed a felony; and because the Nolan court cited a case using the term “any person,” in its case which involved the shooting of an infant fleeing arresting officers, the rule above would apply to infants as well as adults. The Nolan court then cites the 1939 Revisions of § 544.190 and § 559.040, RSMo 1969, V.A.M.S. and holds that while a suspected felon has no right to resist, officers have the duty to arrest “in all lawful instances . . . ” and “ . . . are entitled to overcome flight or resistance with superior force, to the extent of killing the felon if necessary.” Nolan, 192 S.W.2d at 1020. There is no exception made for infancy, though the very case concerns an infant. Secondly, the question as to the use of unreasonable force is closed by the jury verdict in favor of Officer Gaffney. On the other hand, the jury found against defendant Oehlert, who did not use any force on the novel theory that he did not inform the other officers that: (1) the decedent was wanted for a shooting and that he was a juvenile, or (2) that defendant Oehlert failed to take steps to prevent Officer Gaffney from firing the fatal shot. The claim that defendant Oeh-lert failed to inform others that the decedent was wanted for a shooting is refuted by the evidence. The evidence in this respect, that he did inform Gaffney that Walsh was wanted for a shooting, was clear and undenied; thus, we rule this point against plaintiffs. The second claim of plaintiffs’ alternative theory that defendant Oehlert failed to inform Officer Gaffney that young Walsh was a juvenile is without merit. Plaintiffs have not referred us to any case where a plaintiff has been permitted to recover damages simply upon the grounds that a police officer failed to inform another officer as to the age of a fleeing felon. Timothy Walsh’s minority did not alter the duty of both defendants Oehlert and Gaffney to use such force as reasonably necessary to prevent his escape. Inasmuch as minority does not grant immunity from arrest (custody) and does not alter the duty imposed upon both Oehlert and Gaffney under § S44.190, RSMo 1969, V.A.M.S., we hold that defendant Oehlert did not have a duty to inform Officer Gaffney as to the minority of the decedent. Because even if Oehlert had informed Gaffney that young Walsh was a juvenile, Officer Gaffney would have still been charged with the duty to prevent his escape by the use of a reasonable amount of force so as not to become frustrated in the discharge of his lawful duty. Consequently, failure to inform another officer that the escapee is a juvenile was not and could not be the proximate cause of the unfortunate mortal wounding of the decedent. Finally, we consider plaintiffs’ second alternative theory that defendant Oehlert should have taken steps to prevent Officer Gaffney from shooting Timothy Walsh. Defendant Oehlert and Officer Gaffney were independently appointed and acting officers. Both had the same duty, and once Officer Gaffney had been informed by defendant Oehlert that the decedent was wanted for a shooting either or both to prevent his escape could use reasonable force to apprehend him. Under the circumstances of this case, we find no duty imposed upon defendant Oehlert to prevent Officer Gaffney from shooting the decedent. Therefore, we find this point against the plaintiffs. Judgment reversed with directions to the trial court to enter its judgment in favor of defendant Oehlert and against plaintiffs because plaintiffs have failed to plead and prove a cause of action upon any theory. Judgment reversed. SMITH, P. J., and CLEMENS, JJ., concur.

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Johnny NELSON, Movant-Appellant, v. STATE of Missouri, Respondent. No. 9621. Missouri Court of Appeals, Springfield District. Feb. 26, 1974. Charles L. Spitler, New Madrid, for movant appellant. John C. Danforth, Atty. Gen., William F. Arnet, Asst. Atty. Gen., Jefferson City, for respondent. BILLINGS, Judge. Appeal by Johnny Nelson from the denial by the Circuit Court of New Madrid County of his Rule 27.26, V.A.M.R., motion to vacate judgment and sentence. Appellant, presently serving a ten-year sentence in the custody of the Department of Corrections on his plea of guilty to murder in the second degree [§ 559.020, RSMo 1969, V.A.M.S.], sought post-conviction relief on the grounds his plea was unconstitutionally tainted and he had ineffective assistance of counsel at his plea and subsequent parole revocation hearing. Following an evidentiary hearing the trial court entered findings of fact and conclusions of law overruling appellant’s motion. We affirm. Appellant was originally charged with the crime of first degree murder following his fatal shooting of a fellow-participant in a game of dice. As a result of plea bargaining efforts of his employed attorney appellant entered a plea of guilty to the lesser charge of murder and he was granted a judicial parole on his ten-year sentence. Thereafter, following a parole violation report, a hearing was conducted which resulted in appellant’s parole being revoked and sentence ordered executed. § 549.101(1), RSMo 1969, V.A.M.S. The motion herein alleged as grounds that his plea of guilty was a product of fear and duress that deprived him of due process because it was entered to escape a possible death penalty — that has since been held unconstitutional; that his attorney failed to inform him that he could have been charged with the crime of manslaughter and that he was forced into pleading guihy to second degree murder; further, that his counsel was ineffective for failing to appeal “the probation violation after a hearing wherein the court abused its des-cretion [sic], and could have been found clearly erroneous by an appellate court, and that is to say: 1. The Court did not have probable cause to revoke the probation; and 2. Appellate review may have order the probation reinstated for all purposes.” As a result of the evidentiary hearing, at which the transcripts of appellant’s guilty plea and the revocation hearing were made a part of the record, the trial judge made the following findings of fact and conclusions of law: “Although vaguely supported by his own testimony Mov-ant’s grounds for relief are his failure to understand the proceedings and a threat of the death penalty to secure a plea of guilty. Movant also claims ineffective counsel. The Court finds against Movant on all these points. His attorney, Mr. Harold Jones is one of the leading members of the bar. -The results of this case clearly show that most effective counsel was provided Movant. To have a first degree murder charge result in 10 years and a parole speaks for itself. Mr. Jones testified that Movant did understand the proceedings and that no death penalty was ever threatened. The court fully believes this testimony and finds against Movant. “Movant also complains that his parole should not have been revoked. At the hearing on this revocation, six witnesses were heard and Movant had the benefit of the service of Mr. Harry Bock, an experienced and able attorney. After such hearing it was obvious that Movant had committed a brutal and unprovoked assault upon his girlfriend sending her to the hospital with serious and permanent injuries. The court finds that there was ample evidence to support the revocation of Mov-ant’s parole.” In this appeal the appellant seeks to attack the revocation of his parole and as an alternative to vacating and setting aside his sentence urges us to “reinstate his prior probation on the same terms and conditions as originally issued . . .” Aside from § 549.141, RSMo 1969, V.A. M.S., which is a positive declaration by the Legislature that the revocation of judicial probation or parole is not subject to appellate review, we are admonished by Green v. State, 494 S.W.2d 356 (Mo.banc 1973), that the legality of the revocation of the appellant’s parole by the sentencing court is not a matter within the scope of a Rule 27.26 proceeding. In Green the movant alleged he was not afforded a hearing either before the revocation of his parole or on his motion for reconsideration. The Supreme Court ruled (l.c. 357): “As indicated, the only matters now before us relate to the legality of the revocation of defendant’s parole. Those are not matters which come within the scope of a proceeding under Rule 27.26. That rule provides a remedy for a prisoner who desires to attack the sentence. Here, defendant does not attack the sentence but desires to have his parole or probation under that sentence reinstated. The relief sought cannot be granted in a 27.26 proceeding. Habeas corpus would appear to be the proper remedy. Jones v. State, 471 S.W.2d 166 (Mo.1971).” (Our emphasis) Although the trial court received evidence in the hearing below pertaining to the revocation of appellant’s parole and ruled the question adversely to him we need not consider this matter further in view of the decision in Green v. State, supra, and the point is denied. As to appellant’s remaining allegations that his plea of guilty was constitutionally infirm by reason of fear of the death penalty, lack of understanding of the proceedings against him, and ineffectiveness of his counsel, our review of the judgment of the trial court is “limited to a determination of whether its findings, conclusions and judgment are clearly erroneous”. Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo. 1968). Appellant was cast with the burden of establishing his grounds for relief by a preponderance of the evidence [Beach v. State, 488 S.W.2d 652, 656 (Mo. 1972)] and the trial court determined that appellant did not meet this burden. The findings and conclusions of the hearing court are presumed correct and are to be affirmed unless clearly erroneous. State v. Lang, 491 S.W.2d 12 (Mo.App.1973). Applying the foregoing principles to the instant case, and after examining the complete transcript of the record (including the transcript of the appellant’s plea of guilty), we are convinced that the trial court did not err in overruling appellant’s postconviction motion. The record of appellant’s guilty plea demonstrates a substantial compliance by the sentencing court of Rule 25.04, V.A.M.R. before acceptance of the plea [McKnight v. State, 497 S.W.2d 201 (Mo.App.1973)] and leads to the conclusion that the plea was voluntarily and understanding^ entered in the constitutional sense. The testimony of Mr. Jones, appellant’s attorney, at the evidentiary hearing fully supports the trial court’s determination that appellant understood the proceedings and that there was no threat of the death penalty. On the latter issue we would also call attention to the fact that a plea of guilty is not invalid merely because it is entered to avoid the possibilities of a death penalty. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); Skaggs v. State, 476 S.W.2d 524 (Mo.1972). The trial court had the right to reject appellant’s testimony in arriving at its judgment and did so. On the record before us we cannot say its judgment was clearly erroneous. The judgment is affirmed. HOGAN, C. J., and STONE and TITUS, JJ., concur.

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STATE of Missouri, Respondent, v. Delbert Neal WINTERS, Appellant. No. 35191. Missouri Court of Appeals, St. Louis District, Division One. March 26, 1974. Madigan, Hadican & Maloney, St. Louis, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Jefferson City, Darryl L. Hicks, Pros. Atty., Warrenton, for respondent. KELLY, Judge. Appellant was charged in an information with the offenses of burglary in the second degree and burglariously stealing. Sections 560.045 and 560.110 RSMo 1969, V. A.M.S. After a jury trial he was convicted of the offenses charged and sentenced to five (5) years on the burglary charge and to three (3) years on the burglariously stealing charge, said sentences to run consecutively for a total term of eight (8) years, in the custody of the Missouri Department of Corrections. We affirm. Appellant does not question the sufficiency of the evidence to sustain the conviction and therefore a brief statement of the facts will suffice. Appellant met Mc-Callister and Curtis in Collinsville, Illinois, on the evening of February 20, 1972, between 6:30 and 7:00 p. m. and after a conversation concerning easy money the three men rode to Wright City, Missouri, in Mc-Callister’s automobile where they burglarized a home identified as the Snyder farm. McCallister and Curtis went to the farm home while appellant remained in Mc-Callister’s car. Curtis pried open the back door with a screwdriver and then he and McCallister entered the home and removed a camera, some silverware and a television set. When McCallister and Curtis returned to the car they put the silverware and camera in the car and, with the aid of appellant, attempted to put the television in the trunk of the car. When they were unable to fit the television into the trunk of the car they left it on the side of the road and drove to Illinois where they borrowed a pick-up truck and returned to pick up the television set from the side of the road where they had left it. Emmons Jaspering reported the presence of the television set alongside the road and he and the sheriff went to where the television had been left and waited until about 11:30 p. m. when the pick-up truck with appellant, Mc-Callister and Curtis entered the private road leading to the Jaspering residence, stopped momentarily and then backed out. The sheriff followed the pick-up truck for about one and one-half miles when he stopped it, arrested its occupants, and recovered the camera and silverware from the McCallister automobile. On appeal two points are presented for review. First, error in overruling appellant’s motion for change of venue and Second, error in the State’s verdict director instructions because they did not contain an aiding and abetting clause. Appellant filed a timely motion for change of venue pursuant to Rule 30.04, V.A.M.R. supported by the affidavits of five persons: Dennis D. DeRoy, Joyce Johnson, John H. Johnson, William L. Johnson and Lee Young. At the hearing on the motion the testimony established that William L. Johnson, Joyce Johnson and Dennis D. DeRoy all resided in a house trailer at Indian Head Lodge, which is situated about one mile north of Wright City, Missouri. William and Joyce Johnson are husband and wife. John H. Johnson, the father of William L. Johnson, lived on an adjoining lot to where the William Johnsons and Dennis DeRoy lived and approximately three hundred (300) feet from the Johnsons’ trailer. Lee Young, the fifth affiant, lived approximately one mile from where the other four affiants resided. On the date the affidavits were signed the five affiants were in a tavern at Indian Head Lodge when an investigator asked them if they would be willing to sign an affidavit. Mr. Young testified that he had not heard the case discussed on radio and television; this was contrary to what he said in his affidavit. He further testified that he did not believe that the inhabitants of the county were prejudiced against the appellant. Dennis DeRoy testified that he did not believe the inhabitants of the county were so prejudiced that the appellant could not receive a fair trial. John H. Johnson also testified that he did not think that the inhabitants of the county were so prejudiced that appellant could not have a fair trial; he testifed that the only person he heard discuss the case was a man from St. Louis who got him to sign the affidavit for the change of venue. At the conclusion of the evidence on the motion the trial court overruled the motion for change of venue. His order reads: “The Court finds that said motion is not supported by affidavits of five or more credible, disinterested witnesses residing in different neighborhoods of Warren County and further finds that defendant has failed to prove to the satisfaction of the Court by legal and competent evidence the grounds stated in said motion seeking a change of venue, and defendant’s said motion is, therefore, denied.” Supreme Court Rule 30.04 and Section 545.490 require the affidavits of five (5) or more credible, disinterested citizens residing in different neighborhoods of the county where the case is pending in support of the application for a change of venue under the Rule. These requirements are not met unless the place of residence of each of the affiants is stated in the affidavits so that it may be determined that they reside in different neighborhoods as required. This is especially necessary in those counties with a population of less than 75,000 inhabitants, for the reason that a timely application for change of venue from the county, such as Warren county, with a population of less than 75,000 inhabitants, if supported by the affidavits of at least five “credible, disinterested citizens residing in different neighborhoods” of that county must be granted “as of course” without additional proof. Rule 30.04; Sec. 545.490; State ex rel. Johnson v. Green, 452 S.W.2d 814, 816 [2] (Mo. banc 1970). Here the evidence was uncontradicted that the affiants did not reside in different neighborhoods in the county. We, therefore, rule his first point against appellant. Appellant’s second point has been ruled against him in State v. Price, 362 S.W.2d 608, 611 [4] (Mo.1962), and in State v. McCollum, 377 S.W.2d 379, 387 [15] (Mo.1964). The thrust of appellant’s contention here is the same as it was in those two cases, viz., that the verdict directors hypothesize a specific finding that the appellant acted with others jointly and with common intent. Instruction No. Three submitted that proposition of law and sufficiently submitted that issue to the jury when read together with the other instructions in the case. The court in McCollum said, 377 S.W.2d l.c. 387: “While it would have been preferable for instructions 2, 3, and 4 to have referred to joint action by some expression such as defendant acting jointly with others with a common intent, etc., nevertheless, instructions 2, 3, and 4, read with instruction 6, sufficiently covered the matter of the joint commission of the crimes charged, and thus it was not essential, upon this record, that instructions 2, 3, or 4 hypothesize a specific finding that defendant acted with others jointly with a common intent.” We also rule this point against appellant. Judgment affirmed. DOWD, C. J., and SIMEONE and WEIER, JJ., concur. . AU references to Statutes herein are to RSMo 1969 and to Rules are to Vernon’s Annotated Missouri Rules.

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In re R. L. K., a minor. F. G. C., a/k/a G. C., Petitioner, v. H. K., a/k/a E. H. K., Respondent. No. 35443. Missouri Court of Appeals, St. Louis District, Division 2. March 22, 1974. Marvin Q. Silver, Nelson B. Rich, St. Louis, for petitioner. W. H. S. O’Brien, Festus, for respondent. GUNN, Judge. We are asked by R. L. K.’s mother to issue a writ of habeas corpus directing the father to return his 13 year old son to the custody of the mother. R. L. K.’s parents were divorced in St. Louis on February 7, 1962 and the St. Louis Circuit Court awarded custody of R. L. K. to his mother. The mother and father subsequently married again with the mother’s subsequent marriage ending in divorce. On September 7, 1972, R. L. K. was found by the St. Louis Juvenile Court to be a chronic truant and placed under the supervision of the court for six months. On September 8, 1972, the mother signed an informal statement purporting to relinquish custody of R. L. K. to his father in De-Soto, Missouri. There was no court order, action or sanction on the custody release. While living with his mother, R. L. K.’s behavior was opprobrious and uncontrollable both at school and at home. He cursed frequently, had temper tantrums, and his school attendance record was dismal. His change of character while with his father was remarkable. He became virtually a straight A student with a perfect attendance record. He regularly attends church and church school and has become a model of decorum. The mother now seeks his return. The petition for writ of habeas corpus alleged that the mother’s custody of R. L. K. was not modified by court order, and indeed it was not. But upon the assertion of the mother’s unfitness by the father, we improperly certified the matter to the Jefferson County Juvenile Court for hearing and recommendation, and that court recommended that it would be in the best interest of R. L. K. if custody were transferred to the father. We can find no court order which has modified the custody award of the St. Louis Circuit Court which granted the parents’ divorce and granted custody of R. L. K. to the mother. The mother asserts that when there is another adjudicatory forum available we should not determine fitness or custody in a habeas corpus proceeding. Her position is legally correct. According to In re Wakefield, 365 Mo. 415, 283 S.W.2d 467 (banc 1955): "An order awarding the custody of a minor child, and contained in an unap-pealed decree of divorce, is a final order entitled to the force and effect of a final judgment, unless and until modified by the court making the decree.” 1. c. 471. Recently, in In re L. G., 502 S.W.2d 33 (Mo.App.1973), this court found as unwarranted the referral of the question of fitness to the St. Francois County Juvenile Court for the reason that: “The writ of habeas corpus may be employed to exercise the right of lawful custody, but it may not be employed to interfere with the inherent right and jurisdiction of the circuit courts to determine and award custody of the minor child in cases where they have proper jurisdiction, and in which they have exercised that jurisdiction by making a custody award.” l.c. 35. The St. Louis Circuit Court has exercised jurisdiction by awarding custody of R. L. K. to his mother. We are unable to find a modification of that custody award by any court having jurisdiction. Nor are we able to find facts which would bring this case under the exceptions to Wake- field as found in In re Duncan, 365 S.W.2d 567, (Mo. banc, 1963), In re Shepler, 372 S.W.2d 87 (Mo. banc, 1963), State v. Weinstein, 413 S.W.2d 178 (Mo. banc, 1967), and W. v. M., W. & W., 490 S.W.2d 64 (Mo. banc, 1973). We are therefore constrained to hold that the St. Louis Circuit Court, which granted the mother custody of R. L. K. in divorce proceedings, is the proper forum to determine the mother’s fitness and whether there should be a modification of the custody award. The position in which we find ourselves and conclusion we reach is well expressed in In re Wakefield, supra, 283 S.W.2d at 473: “We do not in any sense disregard the principle, so ardently advanced by respondents, that the welfare of the child is the paramount consideration in adjudications of the right to custody. We recognize that principle and endorse it fully. We do say, however, that this question, as all others, must be considered in the orderly process of judicial procedure; when the right to custody has once been finally determined and the award thereof becomes a final judgment, no other court may interfere, at least under the circumstances present here.” We cannot end this matter with a cold recitation of the law. We are much distressed that the routine to which R. L. K. has so well adjusted should be disrupted by the return of R. L. K. to his mother while a custody modification hearing takes place in St. Louis. Many of the circumstances which apparently led to R. L. K.’s difficulties continue to exist at his mother’s home. The mother works from 5 to 11 p. m., his old neighborhood and school where he had problems are the same, and his unwed mother lives with a married man under the aegis of propriety that she will marry him as soon as he gets divorced from his wife. We therefore urge in the best interest of R. L. K. that he be permitted to remain with his father — at least during the school year- — while the contest for his custody rages in the St. Louis Circuit Court. The petition for habeas corpus is granted but without prejudice to the right of any proper party to proceed in the St. Louis Circuit Court in the custody matter of R. L. K. SMITH, P. and CLEMENS, J., concur.

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Marcus SHEPHARD, d/b/a Shephard Agency, Plaintiff-Respondent, v. Paul E. HUNTER and Dorothy L. Hunter, his wife, Defendants-Appellants. No. 9426. Missouri Court of Appeals, Springfield District. April 3, 1974. No appearance for plaintiff-respondent. Harold L. Henry, West Plains, for defendants-appellants. BILLINGS, Judge. Plaintiff sued defendants to collect a real estate commission. At the conclusion of all of the evidence the trial court sustained plaintiffs motion for a directed verdict and entered judgment against defendants for the sum of $690.00. We affirm. Defendants, husband and wife, were the owners of residential property near Willow Springs, Missouri, and in August of 1970, after they had discussed the matter, the wife signed a one-year listing agreement with plaintiff. The agreement authorized plaintiff “ . . . [T]o procure a purchaser, ready, willing and able to buy . ” the property for a commission of 6% of the purchase price. Thereafter, the defendants rented the property to people by the name of Woodruff and considered withdrawing the listing but decided to continue it. Within the time period of the listing agreement plaintiffs employee located prospective buyers by the name of Anderson. The Andersons executed an “Offer to Purchase with Acceptance” which the defendants signed on August 5, 1971. The purchase price was fixed at $11,500.00 and the contract provided: “The undersigned Seller, hereby accepts the above offer and agrees to sell and convey the above described property on the terms and conditions set forth.” This contract also provided “For and in consideration of the services furnished, the undersigned [defendants] agrees to pay The Real Estate Agency named above [plaintiff] a commission as set forth in the Listing Agreement.” Possession of the property was to be delivered to the Andersons “on or before September 15, 1971,” but by mutual consent this was extended to September 30. Defendants executed their warranty deed to the property to the Andersons under date of August 30, 1971, but since they were unable to remove the Woodruffs from the premises by September 30 the transaction was never consummated. Defendants contend the court erred in taking the case from the jury at the close of the evidence and entering judgment for the plaintiff pursuant to his motion for directed verdict. The various reasons advanced by the defendants in support of their contention will be considered in the order set forth in their brief. We have not been favored with a brief on behalf of the plaintiff and while it is true that under present Supreme Court Rules there is no penalty for such failure, we again condemn such practice. McCutchen V. Moore, 494 S.W.2d 684 (Mo.App.1973). Plaintiff’s dereliction leaves us dependent upon defendant’s presentation and our own research. With the caseload confronting us we would remind successful litigants and their counsel that briefs in their behalf are part of the proper and orderly appellate process. Defendants argue that in this jury-tried case they denied certain allegations pleaded by the plaintiff and since it was necessary for plaintiff to prove these allegations and plaintiff offered oral testimony in support thereof, and defendants in turn countered with oral testimony, the jury should have been permitted to pass upon the credibility of the witnesses and the weight to be accorded their testimony. We recognize the power and authority of a trial court to direct a verdict for the plaintiff either at the close of the evidence or in response to after-trial motion in the situation where there is no real factual dispute and when the facts establish as a matter of law a right to that verdict in the plaintiff. Such a result occurs very seldom, as the cases indicate, and then only in what have been referred to as unusual or exceptional cases. This because our appellate courts have not been prone to; thus limit the basic function of the jury as the fact-finding unit in litigation. Alaska Federal Savings & Loan Ass’n v. Hoffman, 485 S.W.2d 118, 120 (Mo.App.1972). As defendants suggest, the reluctance to direct verdicts for plaintiffs rests upon the jury’s preeminent role in judging the credibility of witnesses. Thus, “where plaintiff has the burden of proof on an issue . . . and proof of such issue depends upon oral evidence . . ., plaintiff is not entitled to a directed verdict regardless of whether or not such oral evidence is controverted, because the credibility of witnesses and the weight to be accorded their testimony are for the jury and plaintiff must shoulder the risk of nonper-suasion.” M. F. A. Cooperative Ass’n of Mansfield v. Murray, 365 S.W.2d 279, 287 (Mo.App.1963). Likewise, a jury may return a verdict in favor of the defendant upon plaintiff’s uncontradicted and unim-peached oral testimony. Williams v. Ford Motor Co., 494 S.W.2d 678, 682 (Mo.App.1973). Defendants assert they were entitled to a jury determination of the following issues raised by plaintiff’s petition: (1) whether plaintiff was a licensed real estate broker; (2) whether the plaintiff and the defendants entered into a listing agreement; (3) whether plaintiff produced purchasers ready, willing and able to purchase defendant’s property, and whether such purchasers entered into a contract with defendants; (4) whether defendants and the prospective purchasers agreed to extend the closing date of the contract; and (5) whether defendants have paid plaintiff a commission. Plaintiff’s status as a licensed real estate broker was judicially admitted in the separate answers, filed by defendants. Thus no jury question was presented and consequently this issue constitutes no impediment to the court’s properly granting plaintiff’s motion for a directed verdict. The listing agreement was admittedly signed by Mrs. Hunter (wife) but not by Mr. Hunter (husband). The document was received into evidence. At least three grounds are apparent upon which the court could have held Mr. Hunter liable, as a matter of law, on the agreement. The agency of one spouse to act for the other “may be shown by direct evidence or by facts and circumstances which would justify a reasonable and logical inference that [the one] was empowered to act for [the other] or that [the other] ratified [the one’s] unauthorized acts.” Rimer v. Hubbert, 439 S.W.2d 5, 7 (Mo.App.1969); Wenneker v. Frager, 448 S.W.2d 932, 937 (Mo.App.1969). Mr. Hunter testified he had discussed the listing of the property with his wife before she signed the agreement with plaintiff and thereafter concurred in the decision to continue the listing. The trial court could well conclude that Mrs. Hunter acted for both defendants in signing the agreement or that Mr. Hunter subsequently ratified the decision to list the property with the plaintiff. Lastly, the trial court could have found Mr. Hunter liable on the agreement by way of estoppel. By signing the contract with the purchasers [Andersons] procured by plaintiff, Mr. Hunter accepted the benefit of the listing agreement. We would also observe that the contract with the purchasers recognized the listing agreement with plaintiff and expressly provided for a commission to the plaintiff. “ ‘. . . In short, he is estopped to grasp the benefits of that contract with one eager hand, while thrusting aside its burdens with the other.’ ” Magenheim v. Board of Education, 347 S.W.2d 409, 420 (Mo.App.1961), quoting City of St. Louis v. Davidson, 102 Mo. 149, 14 S.W. 825, 826 (1890). The contract between the defendants and the prospective purchaser was in evidence and defendants admitted their signatures thereon in their respective answers. The contract was proved by documentary evidence and it is generally recognized that “in the event the seller accepts the purchaser and contracts with him as such, the issue of the purchaser’s being ready, willing and able to perform is eliminated from the broker’s claim for his commission.” Kelly v. Craigmiles, 460 S.W.2d 577, 581 (Mo.1970). The fact that the price called for in the contract with the Andersons differed from that stated in the listing agreement would not exonerate defendants of their obligation to pay plaintiff’s commission. E. A. Strout Realty Agency, Inc. v. McKelvey, 424 S.W.2d 98, 103 (Mo.App.1968). Here again, the court could properly direct a verdict for plaintiff on this issue. Defendants’ purported fourth issue for jury consideration deals with the extension of the closing date between the defendants and the Andersons and such an agreement between these parties does not bear on plaintiff’s cause of action. Plaintiff’s right to recover the agreed commission matured upon the showing that he had produced parties ready, willing and able to purchase defendants’ property on terms acceptable to them. Hulse v. Criger, 363 Mo. 26, 247 S.W.2d 855, 860 (banc 1952); Alcorn v. Moore, 386 S.W.2d 907, 910 (Mo.App.1965). On the final issue advanced by defendants as requiring jury consideration, that of payment of the commission, both plaintiff and his employee were unequivocal in their testimony that no commission had been paid and such was the clear import of Mrs. Hunter’s testimony that she “didn’t feel that we should [pay the commission] because [the property] wasn’t sold.” She further agreed to the following question, propounded on direct examination : “And if it had been closed, then you would have been willing to have paid the commission, is that correct?” Under such circumstances the trial court properly could have ruled that non-payment of the commission was not in issue in the case. Cf. John Deere Co. of St. Louis v. Davis, 335 S.W.2d 686, 689 (Mo.App.1960). “All of the basic facts upon which plaintiff’s cause of action rested having been established either by documents, the authenticity and accuracy of which were unquestioned, or by [defendant’s testimony] the trial court did not err in directing a verdict for plaintiff.” Commercial Credit Corp. v. Joplin Auto. Auction Co., 430 S.W.2d 440, 444 (Mo.App.1968). Assuming that the jury below would have been totally incredulous with respect to plaintiff’s oral evidence, the contracts were nonetheless established by defendants’ pleadings and evidence. Thus, “It is not necessary to submit for finding by the jury questions of fact established by testimony of both proponent and his adversary.” Gottlieb v. Hyken, 448 S.W.2d 617, 620 (Mo.1970). As was said in Prevost v. Wilkin, 358 S.W.2d 417 (Mo.App.1962) at 419: “If the opponent, that is the party not having the burden of proof, admits either in his pleadings ... or in his individual testimony on the trial the truth of the basic facts upon which the claim of the proponent rests, a verdict may be directed against him . . . . ” Defendants’ point is denied. In their brief the defendants belatedly seek to raise the issue that plaintiff was acting in a dual capacity for the defendants and the prospective purchasers and argue this issue should have been submitted to the jury therefore barring the sustention of plaintiff’s motion for directed verdict. “The defense of dual agency — to defeat a broker’s compensation — is based on misconduct, fraud, or bad faith that results in prejudice to his principal.” Smith v. Piper, 423 S.W.2d 22, 26 (Mo.App.1967). “And, since fraud is never presumed, it has been held that the defense of dual employment must be specifically pleaded.” Shepley v. Green, 243 S.W.2d 772, 777 (Mo.App.1951). Neither of the defendants’ answers pleaded this defense and they therefore would not have been entitled to submit such an issue to the jury by way of an instruction thereon. Hartford Accident and Indemnity Co. v. List, 424 S.W.2d 761, 768 (Mo.App.1968). Defendants further contend that the ground stated in plaintiff’s motion for a directed verdict was insufficient. The ground advanced by plaintiff and acted upon by the trial court was that “the uncontradicted evidence when viewed in the light most favorable to defendants would entitle plaintiff to a verdict.” It is true that in considering the propriety of a motion for directed verdict by a plaintiff the evidence is to be viewed in the light most favorable to the defendants, disregarding any unfavorable evidence or inferences. Alaska Federal Savings & Loan Ass’n. v. Hoffman, supra. We find no fault with plaintiff’s stated ground or the court’s ruling thereon and the contention is denied. Defendant’s final attack on the action of the trial court is that the judgment of the court below is invalid because it is not based upon a verdict, directed or otherwise. Defendant argues that the court treated the case like a court-tried case in entering a judgment for the plaintiff because the jury was not directed by the court to return a verdict for plaintiff. We are admonished by Rule 84.13(b), V.A.M.R., “that no judgment be reversed except for error ‘materially affecting the merits of the action’.” Bohning v. Hegerfeld, 488 S.W.2d 297, 300 (Mo.App.1972). The de facto rendition of a verdict by a jury under a peremptory instruction is at most a purely ministerial act. State ex rel. Witte Hardware Co. v. McElhinney, 231 Mo.App. 860, 100 S.W.2d 36, 38 (1937). “In legal contemplation there is no difference between the action of the court in peremptorily instructing a verdict and the rendering judgment on such verdict and the action of the court in dismissing the jury and rendering judgment.” 88 C.J.S. Trial § 249, p. 591. Thus it has been held that the trial court was justified in entering a judgment without a formal verdict where the jury failed or refused to comply with a peremptory instruction. Kahn v. Prahl, 414 S.W.2d 269 (Mo.1967). We believe defendant’s contention to be without merit. What was held in Insurance, Inc. v. Sanders, 378 S. W.2d 249, 254 (Mo.App.1964) is equally applicable to the instant case: “It follows that while the court in the instant case should have formally directed the jury to return a verdict in favor of [plaintiff] its failure to do so did not materially affect the merits of the action and is not prejudicial or reversible error.” Accordingly, the judgment is affirmed. STONE and TITUS, JJ., concur. HOGAN, C. J., not participating.

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STATE of Missouri, Plaintiff-Respondent, v. Margaret PHILLIPS and Gena Scott, Defendants-Appellants. Nos. 34874, 34875. Missouri Court of Appeals, St. Louis District, Division 1. April 2, 1974. Louis Gilden, St. Louis, for defendants-appellants. Gene McNary, Pros. Atty., Karl J. Kef-fler, Asst. Pros. Atty., Noel L. Robyn, John A. Newton, Clayton, for plaintiff-respondent. WEIER, Judge. Defendants Gena Scott and Margaret Phillips were found guilty by a jury of vi-dating § 560.445, RSMo. 1969 V.A.M.S. in that they trespassed on posted property, and each was sentenced to seven months imprisonment and fined $500.00. They were separately charged for trespassing on property of McDonnell-Douglas Corporation in St. Louis County, Missouri, but at their request the charges were tried-at the same time in the circuit court on appeal. It was also at their request that they represented themselves at the trial. A review of the facts will illuminate defendants’ contentions. The entire perimeter of the McDonnell property where the trespass occurred is enclosed by a fence. At each entrance to the property there is a sign stating: “Private Property, No Trespassing” and a security guard is stationed there. Visitors to the McDonnell plant drive through one of the perimeter gates, park their cars on a parking lot, and then must be identified before they can enter the buildings. On admission, they are given an identification badge which they must wear in the plant. All McDonnell employees must likewise wear identification badges while on the property. All of these requirements are in conformity with regulations issued by the company. On May 24, 1971, security officials at McDonnell were notified of the presence of two unauthorized persons in one of McDonnell’s buildings. The two defendants were found in a structure called “Building No. 2”, passing out leaflets to McDonnell employees. Building No. 2 contains classified material and is regulated by the United States Defense Department. Both women were approached by security personnel and asked for identification, but they produced none. They were then asked to accompany the officials to the security office and they refused. Going limp, they were then carried to the office. A subsequent search of their persons revealed no identification or authorization to be present in the McDonnell compound. When questioned, defendants revealed that they were associated with a political action group, and that they had been let into the security area by “friends”. At the trial, they contended that they came to McDonnell to protest certain alleged civil rights violations by that employer, and that certain guards who were members of the political action organization had allowed them to come onto McDonnell property. Defendants’ first contention on appeal is that the statute involved here has two separate and essential elements, both of which are prerequisites for conviction, and that the state only proved one of them. § 560.445 provides: “Any person or persons who shall willfully enter, or go upon the inclosed premises of another, whereon the owner, or other person in charge of said premises shall have previously posted plainly written signs or warnings thereon, where they may be readily seen, using the words ‘no trespassing,’ ‘keep out’ or words of similar meaning, and any person or persons who shall molest, injure, remove or destroy any such sign or warning so posted by the owner or person in charge of said premises shall be deemed guilty of trespass to real estate and upon conviction shall be deemed guilty of a misdemeanor.” The defendants acknowledge that the state has proven that they entered the premises of McDonnell, and that they passed a “No Trespassing” sign in so doing. But they contend that under the statute, before they can be convicted of trespass, they must also be found to have molested, injured, removed or destroyed one of the written signs posted by the owner or person in charge of the premises. The conjunction “and” used here, however, joins what could be two complete sentences independent of each other. Each portion of the statute has a complete subject, verb and predicate. It actually describes two acts which the statute declares to be unlawful. One proscribes the willful entry upon the enclosed land of another, and the other, portion proscribes certain action with respect to the signs used in posting the land. As in Hurley v. Eidson, 258 S.W.2d 607, 610[3] (Mo. banc 1953), we read the word “and” to mean “or”, with the result that the statute defines two separate prohibited acts, the commission of either one being a misdemeanor. Defendants do not entirely rely, however, upon a literal reading of the statute, but also refer us to the common law of trespass which not only requires a malicious entry, but also a resulting damage or injury to the property. We do not dispute this to be the common law, but merely reply that this is not a case wherein the defendants are accused of a violation of the common law crime of “trespass”. In one of the cases cited by defendants in support of this theory, City of Cape Girardeau v. Pankey, 224 S.W.2d 588, l.c. 589 (Mo.App.1949), some language is used in the opinion of the court which would support defendants’ contention. There the court stated: “Every section of the statutes of our State dealing with the punishment of acts which constitute trespass requires that the act be willfully or maliciously done, and that it result in injury to the person or property of another.” But the court was dealing there with the validity of a city ordinance, and the case itself contained no reference to the statute with which we are now concerned. This conclusionary statement was not necessary to the ruling of the court, and being dicta and inaccurate, we do not consider it binding on us at this time. Defendants next contend that there is not sufficient evidence that their entry was unauthorized and thus in violation of the statute. Specifically, they contend that they were let in by some guards employed by McDonnell. There is no direct evidence going to the question of how the defendants got into the McDonnell compound. The state did show, however, that defendants were found, without authorization, on the McDonnell property which was surrounded by a fence with “No Trespassing” signs posted conspicuously at each entrance. The state also proved that the guards were authorized to let only persons with McDonnell-Douglas identification into the area where defendants were found. From this evidence, both direct and circumstantial, the jury was justified in its conclusion that defendants entered in violation of the statute. Defendants have attempted to rationalize their entry upon the premises by at least implying that there was some arrangement between them and the guards whereby they were admitted to the premises. Even if it be true that the guards let them in, any conspiracy with the guards would not excuse the defendants from a violation of the trespass statute. Defendants also contend that a certain conversation between the judge and a juror was reversible error. This episode occurred on June 14, 1972, when the judge called both parties to his chambers. Mrs. Catanzaro, a member of the jury, was present. Both sides had rested their case by this time. The judge stated that he had informed Mrs. Catanzaro of the passing of an immediate member of the family and that he had permitted her to make a telephone call. She confirmed these facts. The court asked her at that time if she desired to remain on the jury, and she answered in the affirmative. The court asked her if she made this decision of her own free will. She stated that she had and that it was her decision alone to stay on the jury. In State v. Jones, 363 Mo. 998, 255 S.W.2d 801, 806 [9] (1953), the court stated that private communications with a juror are forbidden and invalidate the verdict unless their harmlessness is made to appear. Certainly the facts indicate that the communication here was not the type that could be prejudicial in any way. This difficult situation seems to have been fairly handled without prejudice to the defendants. Contentions that the arrest of defendants chilled their exercise of the right to free speech under the First Amendment and was a violation of their civil rights had no merit. Defendants were not employees at the McDonnell plant. They were advised by the signs at the entrance gate not to trespass upon the property. They entered buildings that were restricted because of defense projects. This is not a proper forum for the expression of their opinion concerning alleged discriminatory practices. Trespassing in restricted areas of a defense plant is not a constitutionally protected activity just because the trespasser is handing out protest leaflets. Constitutional rights may not be given as an excuse for illegal activity. Adderley v. Florida, 385 U.S. 39, 87 S.Ct. 242, 17 L. Ed.2d 149 (1966). The judgments are affirmed. DOWD, C. J., and SIMEONE, J., concur. . This section was repealed and § 560, 447 enacted. Laws 1973, H.B. No. 128.

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Hubert SAALE, Employee, Plaintiff-Respondent, v. ALTON BRICK COMPANY et al., Employers, Defendants-Appellants. No. 35297. Missouri Court of Appeals, St. Louis District, Division One. April 2, 1974. Louis W. Riethmann, Jr., Jack H. Erps, St. Louis, for defendants-appellants. Walsh, Howe & Ebert, Clayton, for plaintiff-respondent. WEIER, Judge. Proceeding under the Workmen’s Compensation Act, Hubert Saale filed a claim for benefits against the Alton Brick Company and the Mueller Cartage Company, asserting that he was an employee of both companies at the time of his injury. A hearing was held before a referee of the Division of Workmen’s Compensation, who found that Saale was a statutory employee of the Alton Brick Company and the Mueller Cartage Company. Upon application for review and appeal, the Industrial Commission reversed the referee’s finding and issued a final award determining claimant was not a statutory employee and denying compensation. On appeal to the circuit court, the court ordered the determination of the Industrial Commission reversed for the reason that it was unsupported by competent and substantial evidence, and remanded the case to the Commission with directions to enter an award in accordance and consistent with the referee’s award. Alton Brick Company and the Mueller Cartage Company have appealed from the adverse judgment. Hubert Saale and his son were engaged in general carpentry contracting under the name of Saale Construction Company. In April or May of 1969, Mr. Thomas J. Goodnick, corporate manager for the Alton Brick Company, discussed with plaintiff the feasibility of altering and repairing a building owned by Alton Brick situated on that company’s premises in St. Louis County. Mr. Goodnick wanted to determine whether the building could be reconstructed to make it suitable as a maintenance garage for trucks. Goodnick testified that the building was to be remodeled for the purpose of leasing it to the Mueller Cartage Company so they could repair their trucks on the premises. Alton Brick Company was engaged in the manufacture and sale of building face brick. Mueller Cartage Company, on the other hand, was a contract carrier, licensed by the I.C.C. Under the provisions of their I.C.C. permit, Mueller Cartage was restricted to the hauling of brick for the Alton Brick Company. When their trucks were not being used for shipment, Mueller Cartage was permitted to park them on the premises of Alton Brick. In addition to occupying a dispatcher’s desk in Alton Brick’s office, Mueller Cartage leased a maintenance garage on Warson Road. At the time of claimant’s accident, Mueller Cartage Company was about to be evicted from the Warson Road premises and was conducting lease negotiations with Alton Brick Company. According to the testimony of Goodnick, he was authorized to sign checks on behalf of the Mueller Cartage Company and to contract for anything necessary to the progress of their business. Goodnick also testified that a Mrs. Charles J. Schott was the acting president of both Alton Brick and Mueller Cartage, and served on the board of directors of each company. Upon Saale’s advising Goodnick that the building could be remodeled to accommodate the trucks, an oral contract was made on a time and material basis with no exact set contract price. Statements for labor and materials were billed to the Alton Brick Company, but payments were made to plaintiff by both defendant companies. Claimant Saale, working with his son, began the job, and on October 28, 1969, while attempting to install an overhead garage door, fell off a ladder and sustained a fracture of his right leg. Saale did not complete the job after his accident. Saale testified that Mr. Goodnick frequently visited the building site and told him what changes to make as to the building itself. He also testified that Goodnick, in his opinion, had the right to discharge him. On cross examination, however, claimant admitted that Goodnick had told him to raise the walls, replace the roof and install an overhead door, and that he had proceeded with this reconstruction work using his own expert knowledge as a carpenter. Mr. Goodnick, for the defendants, testified that he did not tell claimant how to reconstruct the building, but rather relied on claimant’s skill and judgment as a carpenter to do the work right. Goodnick further testified that Alton Brick Company did not regularly employ carpenters, and that all construction or repair work on the premises was contracted out, and was not performed by the employees of Alton Brick. In examining the record further, the Commission could have found and inferred that claimant and his son set their own hours, working when they wanted; that except for one occasion when the trusses were being installed, claimant provided the labor, materials, tools and equipment; that claimant worked on other carpentry jobs at the same time which were in no way connected with either defendant company; and that due to a work stoppage ordered by the planning and zoning commission, Goodnick temporarily took claimant off the job to build an office in another building on Alton Brick’s property. The Commission’s determination that claimant was not a statutory employee was, under the facts of the case, the equivalent of finding that he also was not an employee of the Alton Brick Company or the Mueller Cartage Company. Consequently, the issue before us is whether there was competent and substantial evidence upon the record as a whole to support the finding of the Commission. The standards governing the extent and scope of judicial review in workmen’s compensation cases are set forth in Mo. Const, Art. V, § 22, V.A.M.S., and § 287.-490(1), RSMo.1969, V.A.M.S. The reviewing court has the duty to determine whether the decision of the Industrial Commission is “supported by competent and substantial evidence upon the whole record.” This does not mean that the court may substitute its own judgment on the evidence for that of the Commission. Rather, it authorizes a reviewing court to set aside the findings and award of the Commission only if they are clearly contrary to the overwhelming weight of the evidence. Wood v. Wagner Electric Corporation, 355 Mo. 670, 197 S.W.2d 647, 649 [3] (banc 1946). In examining the record, the evidence in its entirety, including all reasonable inferences to be drawn therefrom, must be viewed in the light most favorable to the findings of the Industrial Commission. Thacker v. Massman Const. Co., 247 S.W.2d 623, 627 [2] (Mo.1952). If from the evidence two opposed conclusions may be drawn as to the fact at issue, it is for the Commission to draw the ultimate conclusion, and the reviewing court is bound by that finding. Cotton v. Voss Truck Lines, Inc., 392 S.W.2d 428, 434 [6, 7] (Mo.App.1965). The determination of the credibility of witnesses and of the weight to be given to their testimony is a function of the Commission. Robertson v. United States Fidelity & Guaranty Co., 416 S.W.2d 192, 194 [2] (Mo.App.1967). We first address ourselves to the issue as to whether claimant was an employee. In determining whether an individual is an employee within the meaning of the Workmen’s Compensation Act (§ 287.020, RSMo.1969, V.A.M.S.) or is an independent contractor and therefore outside the scope of the Act, numerous evi-dentiary circumstances are to be considered : the extent of control which is exercised over the details of the work; the independent nature of the person’s business; whether the workman or the alleged employer furnishes the necessary tools, supplies and materials; the length of time for which the person is employed; the method of payment, whether by time or by the job; and the right to fire the person. Maltz v. Jackoway-Katz Cap Co., 336 Mo. 1000, 82 S.W.2d 909, 916 [14] (1934); Lawrence v. William Gebhardt, Jr., & Son, 311 S.W.2d 97, 102 [1] (Mo.App.1958). The decisive test, however, is whether the alleged employer had the right to control the detailed activities of the alleged employee. Fisher v. Hennessey, 329 S.W.2d 225, 227 [2] (Mo.App.1959); Shireman v. Rainen Home Furnishers, Inc., 402 S.W.2d 64, 67 [4] (Mo.App.1966). In the case before us, the record did tend to show some indicia of the relationship of employer and employee. There was evidence that claimant was employed on an hourly rate plus material basis and not on the basis of a lump sum payment; that he was temporarily taken off the remodeling job to build an office; and that he was not responsible for the completion of the job after his accident. Nevertheless, there was evidence from which the Industrial Commission could have found that neither defendant company had the right to control nor made any attempt to exercise control over the detailed activities of the claimant. The testimony of both claimant and Mr. Goodnick appears to agree that Goodnick merely designated the alterations desired, and that claimant was to use his skills and knowledge as a carpenter to do that work right. Further, there was evidence that claimant was not required to work specific hours; that he was free to accept other carpentry work and in fact did so; and that, except for one occasion, claimant supplied all necessary tools, supplies and materials. The only evidence that claimant could be fired was based upon his own conclusion. Such testimony alone does not bring this case within the facts presented in Fisher v. Hennessey, supra, and Pratt v. Reed & Brown Hauling Company, 361 S.W.2d 57 (Mo.App.1962), where the employers specifically testified that they had an unrestricted right to fire the employee. See Shireman v. Rainen Home Furnishers, Inc., supra, 402 S.W.2d 1. c. 66-68. Thus, the Commission’s implied determination that claimant was not an employee was supported by competent and substantial evidence and was not against the overwhelming weight of the evidence. We turn now to the issue of whether the claimant was a statutory employee of either defendant company. The status of a statutory employee is created by § 287.040(1), RSMo.1969, V.A. M.S., which provides: “Any person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business.” The purpose of the statute is to prevent an employer from evading the liability placed upon him by the Workmen’s Compensation Act by hiring independent contractors to perform the usual work which would otherwise be performed by his own employees. Nagle v. Drew, 409 S.W.2d 264, 267 [3] (Mo.App.1966); Ferguson v. Air-Hydraulics Company, 492 S.W.2d 130, 136 [6] (Mo.App.1973). Before one is held to be a statutory employee the evidence must show that: (1) the work was being performed under contract; (2) the injury occurred on or about the premises of the employer; and (3) the injury occurred while the employee was doing work in the usual course of the employer’s business. Shireman v. Rainen Home Furnishers, Inc., supra, 402 S.W.2d 1. c. 68 [6]; Wallace v. Porter DeWitt Construction Company, 476 S.W.2d 129, 131 [2] (Mo.App.1971). No dispute was raised concerning the satisfaction of the first two elements. Thus we are left with the question of whether or not claimant’s injury was incurred while doing work in the usual course of business of the Alton Brick Company or Mueller Cartage Company. No infallible test can be formulated for determining. whether a particular type of work is within the usual course of an employer’s business. Each case must be decided upon its own facts. Ferguson v. Air-Hydraulics Company, supra, 492 S.W.2d 1. c. 135-136. Nevertheless, our courts have adopted general guidelines to assist them in making such a determination: whether the work is only incidental, ancillary or auxiliary to the usual and customary course of the employer’s business, Perrin v. American Theatrical Co., 352 Mo. 484, 178 S.W.2d 332, 334 [1] (1944); whether the work contracted for involves “isolated occasional specialty work,” Bailey v. Morrison-Knudsen Company, 411 S.W. 2d 178, 180 [1] (Mo.1967); and whether the work is that which the employer or his direct and immediate employees do in the usual course of the employer’s business which he customarily carries on upon his premises. § 287.040(1), RSMo.1969, V.A. M.S.; State ex rel. Long-Hall Laundry & Dry Cleaning Co. v. Bland, 354 Mo. 97, 188 S.W.2d 838, 842 [2] (banc 1945). Defendant Alton Brick Company was engaged in the manufacture and sale of brick. The evidence was that Alton Brick did not regularly employ carpenters, and that all construction work on their premises was contracted out, and was not performed by the employees of Alton Brick. Claimant’s alteration and rebuilding work afforded Alton Brick facilities for the operation of their business; it did not enter directly into the operation of that company’s usual business. It is interesting to note that Paragraph 3 of § 287.040, RSMo.1969, V.A.M.S., specifically states that the provisions of this section shall not apply to the owner of premises upon which improvements are being erected, demolished, or repaired by an independent contractor. From the evidence in the case at bar, it would also appear that claimant’s carpentry work did not enter directly into the operation of defendant Mueller’s usual business. Even though the product of claimant’s labor would facilitate the operations of Mueller Cartage Company by affording it a maintenance garage for its trucks, claimant did not work or participate in the actual operation of Mueller’s usual business which was the transportation of bricks. We are of the opinion that, when the record as a whole is considered, there was competent and substantial evidence to support the finding of the Commission that claimant, Hubert Saale, was not a statutory employee as defined in § 287.040, RS Mo. 1969, V.A.M.S. The judgment of the circuit court is reversed and the case is remanded with instructions to reinstate the findings and determination of the Industrial Commission. DOWD, C. J., and STMEONE, JJ., concur.

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2024-08-24T03:29:51.129683

Robert D. MURPHY and Norma Sue Murphy, Plaintiffs-Respondents, v. Bill E. OLDS, and Myrna J. Olds, Defendants-Appellants, Safety Federal Savings and Loan Association, Defendant. No. KCD 26454. Missouri Court of Appeals, Kansas City District. April 1, 1974. Donald L. Mason, Kansas City, for defendants-appellants; Sheridan, Sanders, Carr, White & Mason, Kansas City, of counsel. Thomas M. Sullivan, Downey, Sullivan & FitzGerald, Kansas City, for plaintiffs-respondents. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. SHANGLER, Judge. The plaintiffs husband and wife brought their petition against defendants husband and wife for partition of real estate alleged to have been owned in partnership as tenants in common but titled in the defendants. The trial court decreed partition, designated the judgment final for purposes of appeal, and reserved the remaining counts of the petition for future determination. The judgment of the trial court was predicated upon these findings of fact: An agreement was struck between plaintiff Robert D. Murphy and defendant Bill E. Olds whereby they would acquire a house recently damaged by fire, reconstruct it, and divide the profit from its sale. Specifically, it was agreed that plaintiff Robert D. Murphy and defendant Bill E. Olds would obtain a construction loan of $25,000 from which the real estate would be purchased [with title taken initially in the names of plaintiffs Murphy] and the cost of construction and remodeling paid. It was agreed that plaintiff Robert D. Murphy would supervise the construction and remodeling of the house, that defendant Bill E. Olds would attend to its sale, that Murphy would join in the conveyance, and that from the purchase price, the construction loan was to be repaid and any profit or loss equally shared between them. In pursuance of this agreement, the real property was acquired from a Mr. Bell and the purchase price paid out of the proceeds of the construction loan to Robert D. Murphy. The remaining funds from the construction loan, $12,500, were spent on remodeling the premises. The residence was substantially complete by September 10, 1968, but there were no immediate buyers. Defendant Bill E. Olds and plaintiff Robert D. Murphy agreed to delay the sale of the house for at least six months so that the sale would qualify as a capital gain under the Internal Revenue Law. Accordingly, defendant Bill E. Olds and plaintiff Robert D. Murphy agreed that the title to the tract be placed in the names of defendants Olds, husband and wife, who were to obtain a permanent loan from the Safety Federal Savings and Loan Association [joined in this litigation as a nominal defendant] in the amount of $26,000 from which the balance due on the construction loan would be repaid, and that defendants Olds were to live in the residence for six months and maintain the payments on the permanent loan, took title in their names and entered occupancy of the premises in September of 1968. The defendants Olds, however, have remained in possession ever since and have enjoyed the occupancy and use of the premises, including the rentals and have refused to accord plaintiff Murphy the benefit of his interest in the profit which could be realized from the sale of the house [found as of the' date of trial to have the fair market value of $45,000]. The court found that the agreement between plaintiff Robert D. Murphy and defendant Bill E. Olds was one of trust and confidence and gave rise to a fiduciary relationship between them. Plaintiff Robert D. Murphy was declared to be the owner of an undivided one-half interest in the tract and improvements and that plaintiff was entitled to partition of the property. The conduct of defendant Bill E. Olds was found to be imputable to his wife, defendant Myrna J. Olds for whom he acted as agent, and judgment for partition was rendered against her as well. On this appeal, although defendants tacitly concede that there was disputed evidence to support the finding of the trial court that a partnership venture subsisted between plaintiff Robert D. Murphy and defendant Bill E. Olds for the sharing of profits from the purchase, reconstruction and resale of real estate, they contend the evidence was not sufficient to support the pleaded theory for partition — that defendants fiduciaries verbally agreed to hold title to the real estate for the use and benefit of plaintiff — since the warranty deed by which plaintiffs conveyed the property to defendants was absolute in terms and a trust by parol may be engrafted on a legal title to real estate only by proof so clear, cogent and convincing as to exclude every reasonable doubt from the mind of the Chancellor. The findings and decree of the trial court must be understood as a determination of a constructive trust in land in favor of plaintiff arising from the breach of an oral agreement between persons in a fiduciary relationship to share the increment in the value of the land brought about by their joint efforts. And, it is the established principle, as contended by defendants, that “[t]he insecurity of titles and the temptation to perjury imperatively require that trusts arising by operation of law should not be declared upon any doubtful evidence.” Long v. Conrad, 42 S.W.2d 357, 362[6] (Mo.1931). While express trusts of land must be manifested and proven by some writing [Statute of Uses and Trusts, § 456.010, RSMo 1969, V.A.M.S.], trusts which arise by implication of law are not affected by the statute and may be established by parol evidence. Parker v. Blakely, 338 Mo. 1189, 93 S.W.2d 981, 987[2-8] (1936). To establish a constructive trust in land, an extraordinary degree of proof is required : proof so clear, cogent and convincing as to exclude all reasonable doubt from the mind of the court. Purvis v. Hardin, 343 Mo. 652, 122 S.W.2d 936, 938[1, 2] (Banc 1938); Swon v. Huddleston, 282 S.W.2d 18, 25[7, 8] (Mo.1955). It is sufficient to say that the evidence supports the findings of the trial court as to the agreement of partnership, its terms, the conduct of the parties in pursuance of the agreement, and other proofs belie the contention of defendants that the relationship between them was only that of grantors-grantees of an unconditional conveyance of plaintiffs’ entire interest in the property. There was evidence, for instance, that the defendant Bill E. Olds came to the work site virtually every day for six months during the construction of the building and also secured workmen for the job, and when the construction was finished, displayed the residence to prospective buyers. Although Olds, regularly a building supply salesman, attempted to explain his frequent presence at the site was for the purpose of selling plaintiff building materials, Olds could neither tell what he had sold nor the cost of it, and the court obviously concluded that his expression of interest was more consistent with proprietorship than salesmanship. Perhaps most telling of the parol agreement contended for by plaintiffs, that defendants would take title in their names, obtain permanent financing to discharge the construction loan, and hold the land and improvements for the benefit of the partnership, are the circumstances surrounding the conveyance. In order to facilitate the permanent financing, the parties entered into a real estate contract which recited a purchase price of $35,000, $10,000 of which was to be paid in cash by the purchasers, defendants Olds, and the balance to be paid through financing. It was acknowledged by all the parties that defendants never paid plaintiffs the $10,000, and was conceded by defendant Bill E. Olds that the recital for such payment in the real estate contract was a device to facilitate financing. The trial chancellor appears to have concluded that defendant Bill E. Olds, shown to have been convicted of mail fraud, was not worthy of belief and that the testimony of plaintiffs— that the property was to be sold after six months and the profits divided was to be preferred. There is sufficient basis for concluding that this determination was on evidence clear, cogent and convincing which excluded very reasonable doubt from the mind of the Chancellor. The defendants contend, nonetheless, that even if the evidence supports an oral agreement to establish a trust in land, such an agreement is made unenforceable in equity by the statute of frauds. While equity will not enforce verbal agreements in the face of the statute of frauds, a constructive trust is within the provisions of § 456.030 which expressly exempts trusts which arise by implication of law from the effect of the statute of frauds. Swon v. Huddleston, supra, l. c. 282 S.W.2d at 26[10]; Thierry v. Thierry, 298 Mo. 25, 249 S.W. 946, 954[9] (1923). The defendants contend further, however, that absent proof of fraud there is no constructive trust and that all that the evidence shows is a breach of a mutual agreement to sell the property after six months and divide the profits, and in support cite the rule from Parker v. Blakeley, supra, l. c. 93 S. W.2d at 988 : Courts have been disposed to recognize two classes of implied trusts designating i:hem as “resulting trusts” and “constructive trusts.” A resulting trust is based upon the presumed intention of the parties and “arises where, and only where, such may be reasonably presumed to be the intention of the parties . . . ” The other class of implied trusts, “constructive trusts,” are said “to rest upon the sound public policy” which requires that the law should not become the instrument of designing persons to be used for the purpose of fraud. “Dishonesty and deceit are not necessary ingredients” of a resulting trust, but fraud is an essential element of constructive trust. A constructive trust, however, is not a technical trust but a device used by a court of equity to provide a remedy in cases of actual or constructive fraud to prevent unjust enrichment. March v. Gerstenschlager, 436 S.W.2d 6, 8[2] (Mo.1969); Service Life Insurance Co. of Fort Worth v. Davis, 466 S.W.2d 190, 196[4] (Mo.App., 1971). And since a breach of a fiduciary or confidential relationship is itself a constructive fraud, if such a relationship is shown between the putative trustee and beneficiary, no proof of actual fraud is necessary in order to establish a constructive trust. Swon v. Huddleston, supra, l. c. 282 S.W.2d at 25[9, 10]; Trieseler v. Helmbacher, 350 Mo. 807, 168 S.W.2d 1030, 1036[5-7] (1943). Thus, the availability to plaintiffs of the constructive trust remedy does not derive from an imputation of actual fraud, but from the breach of the fiduciary relationship which subsisted because [consistently with the principle of Parker v. Blakeley, stipra, cited by defendants] “to permit [defendants] to retain the property thus procured would tend to induce fraud and would be against public policy upon the true owner doing equity.” Decker v. Fittge, 365 Mo. 139, 276 S.W.2d 144, 150 (1955). The defendants next contend that there was no evidence to support the finding that defendant Bill E. Olds was authorized to act as his wife’s agent in the agreement with plaintiff Robert Murphy and therefore the judgment against defendant Myrna J. Olds may not stand. While neither husband nor wife is empowered to act as the agent for the other merely by virtue of the marital relation, [Vaughn v. Great American Insurance Company, 390 S.W.2d 622, 627 [10] (Mo.App.1965)], “[t]he agency of a husband for his wife may be shown by direct evidence or by facts and circumstances which will authorize a reasonable and logical inference that he was empowered to act for her or that she ratified his unauthorized acts”. Ethridge v. Perryman, 363 S.W.2d 696, 701 [6] (Mo.1963). While there is no direct evidence that Myrna Olds was aware of the specific partnership agreement between her husband and Robert Murphy to reconstruct the house and divide the profits from its sale, there was abundant circumstantial proof that she knew her husband had an interest in its reconstruction and that the conveyance of the home to them thereafter was not an ordinary sale of real estate. She admitted to having visited the site during reconstruction, “just to see what was going on” long before conveyance of the residence to defendants Olds was suggested. She was a signatory to the real estate contract which recited a purchase price of $35,000 with a cash down payment to plaintiff of $10,000 and to the loan documents which recited that $10,000 had been deposited with plaintiffs, when it is fairly inferable that she knew that no such payment had in fact been made. She nonetheless executed the documents, took title to the premises by the entireties, occupied them and then received rentals and thus reaped the benefit of whatever arrangement preceded between her husband and Murphy. All of the evidence gives rise to a fair inference that she was apprised by her husband of the significance and purpose of the recitals of the cash payment in the real estate contract and loan documents, so that her signatures were ratification and approval of the transaction her husband had arranged. “In these circumstances she is estopped to deny his authority to act as her agent in her behalf, and is chargeable with her husband’s knowledge and understanding of the true contract; her husband’s [breach of confidence and constructive fraud] is her [breach of confidence and constructive fraud] and she is bound thereby and must assume full responsibility therefor”. Ethridge v. Perryman, supra, 363 S.W.2d l.c. 702[8]. The last point of error asserted — that parol evidence of the agreement between Robert Murphy and Bill E. Olds was not admissible to vary the terms of the real estate contract and warranty deed, writings complete on their face which contained no mention of an agreement to sell the property and divide the profits — has been already answered and needs no elaboration. The judgment is affirmed.

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Clifford David Crockett CAVINESS, Appellant, v. ANDES & ROBERTS BROTHERS CONSTRUCTION COMPANY, Respondent. No. 26329. Missouri Court of Appeals, Kansas City District. April 1, 1974. William C. Paxton, Independence, for appellant. Alan B. Slayton, Independence, for respondent. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. WASSERSTROM, Judge. The parties submitted this case for determination by the trial court on an agreed statement of facts. The situation so depicted is uncomplicated, though unusual. Plaintiff, appellant here, was an employee of defendant and participated in a payroll saving fund operated by the company, which was available on a voluntary basis to the employees generally. Employees at their discretion could deposit money in this fund, on which defendant would pay 7 per cent or such interest as it ordinarily incurred on loans from other sources. Plaintiff signed an authorization under which $20 per week was deducted from his pay and invested in the payroll saving fund. From the amounts so deposited, he made withdrawals from time to time. On August 31, 1971, defendant discharged plaintiff. By that date plaintiff had become separated from his wife, who was the daughter of defendant’s president. It is rather apparent that the marital discord serves at least in substantial part to explain the discharge. Promptly after discharge, defendant paid to plaintiff all of his regular salary due. However, on the date of discharge he had a balance of ’ $460 in the payroll saving fund, and this latter sum was not delivered to him. By letter dated September 29, 1971, plaintiff demanded payment of this amount. On October 4, 1971, defendant’s president responded by letter, as follows: “In answer to your letter dated September 27, 1971 I wish to state that I have given this check to your wife, Kathy Caviness. If there are any further questions regarding this matter, it would be best to contact her attorney, Mr. Graham of Independence, Missouri.” The wife, Kathy, filed a divorce suit on September 23, 1971. Plaintiff, on October 8, 1971, filed his petition in this suit, in two counts. Count I prayed damages for the $460 mentioned and for the further sum of $2,090.20 as continuing wages due and owing by reason of § 290.110, RSMo 1969, V.A.M.S. Count II of the petition claimed alternatively the same sum of $460 and in addition punitive damages in the sum of $100,000, plus attorneys’ fees. The whereabouts of the $460 check referred to in defendant’s letter dated October 4, 1971, remains undisclosed so far as the record in this case shows, until June 5, 1972. On the latter date, that check was finally delivered to plaintiff. Judgment was entered by the trial court on July 13, 1972, in which there was set forth the court’s findings and grounds of decision. With respect to Count I, the court found that the deductions for the company payroll saving fund did not constitute “wages” within the contemplation of § 290.110 of the statute. With respect to the alternative Count II, the court found that the relationship between the parties was that of debtor and creditor and that “under these circumstances an action will not lie for the conversion of a mere debt- or’s chose in action.” Plaintiff appealed, claiming that both of those rulings by the trial court are erroneous. I. Statutory § 290.110, upon which Count I is based, requires every employer to pay the “unpaid wages” of a discharged employee and further provides that if the employer fails to do so within 7 days after written demand, then as a penalty the wages shall continue until paid for a period not to exceed 60 days. The validity of plaintiff’s claim under this statute depends upon whether the balance due him in the employer’s payroll saving fund constituted “wages”. That deposit cannot qualify under that concept. Plaintiff by his voluntary choice elected to have $20.00 of his wages deducted each week for deposit into the payroll saving fund. When that money was deducted weekly and invested, it was separated and changed in character from wages just as effectively as if the deduction were for the purchase of United States Government Savings Bonds. After the payroll deduction, the sum held by the employer in the payroll saving fund was held in a debtor-creditor relationship, not an employer-employee relationship. If there could be any doubt concerning this analysis, that doubt would have to be resolved in favor of considering the saving balance due to the plaintiff as not being “wages”, for the reason that Section 290.110 is a penal statute and must be strictly construed. Monterosso v. St. Louis Globe-Democrat Publishing Co., 368 S.W.2d 481, l c. 488 (Mo.1963); Lotz v. Missouri Distributing Co., 387 S.W.2d 179 (Mo.App.1965). Accordingly, the trial court correctly ruled that plaintiff was not entitled to recover under Count I. II. The trial court also properly ruled that plaintiff could not recover under Count II. He was, of course, entitled to recover the sum of $460 at the time his petition was originally filed. However, on the following June 5, 1972, that sum was paid to him and the claim to that extent was then satisfied. What is at issue now is plaintiff’s claim that he is entitled to something more, namely the right to a submission of his demand for punitive damages based on the argument that the defendant’s sending of the $460 check to plaintiff’s wife constituted a conversion of plaintiff’s property. Plaintiff’s argument on this branch of the case fails unless a “conversion” occurred. Plaintiff admits, as he must, that there can be no conversion of a mere indebtedness, stating in his brief that “[i]t is certainly conceded that an action will not lie for the conversion of a mere debt or chose in action.” However, he seeks to escape this rule by contending that the issuance of defendant’s check on September 2, 1971, created a special new property right and that the check is properly a subject of conversion. The defect in this argument is that defendant’s check never became a valid instrument and never became “property” until the check was delivered to plaintiff on June 5, 1972, many months after the alleged conversion. The law has long and uniformly held that delivery is essential to the validity of a bill or note, and the instrument does not come into existence until delivery and acceptance. Bakelite Co. v. Miller, 372 S.W.2d 867 (Mo.1963); Hackett v. Dennison, 223 Mo.App. 1213, 19 S.W.2d 541 (1929); Gordon v. Raymond, 239 Mo.App. 321, 186 S.W.2d 849, 1 c. 852 (1945). This rule still holds true under the Uniform Commercial Code, 11 Am. Jur.2d, Bills and Notes, § 270, p. 298; Billingsley v. Kelly, 261 Md. 116, 274 A.2d 113 (1971); Snyder v. Town Hill Motors, Inc., 193 Pa.Super. 578, 165 A.2d 293 (1960). The delivery of the check by defendant to plaintiff’s wife did not satisfy the requirement that the delivery be made to him. A delivery may, of course, be made to a payee’s agent, but under the facts of this case, Kathy Caviness can by no stretch of the imagination be considered as an agent for the plaintiff. Indeed, it was their adversary position due to their separation and marital discord which would soon lead to divorce, which no doubt accounted for plaintiff’s discharge. The fact that plaintiff and his wife were in this adversary position is the very reason that plaintiff complains with some justification that defendant’s purpose in delivering the check to the wife was to hinder and embarrass him. These facts negate any conclusion that delivery of the check to Kathy Caviness could have the effect of placing that check “under the power and control” of plaintiff as was true in School District of Kansas City v. Sheidley, 138 Mo. 672, 40 S.W. 656, 1 c. 660 (banc 1897). Looked at another way, if Kathy Caviness were in truth plaintiff’s agent, then delivery of the check to her could hardly be an act of conversion. It can more properly be said under the facts of the present case that Kathy Caviness was defendant’s agent, rather than plaintiff’s agent, which is also consistent with the fact that Kathy Caviness apparently redelivered the check to defendant in June, 1972, when it finally decided to turn that check over to the plaintiff. Certainly the delivery by a maker to his own agent has never been considered a delivery to the payee. 11 Am.Jur.2d, Bills and Notes, § 278, p. 304; 10 C.J.S. Bills and Notes § 78, p. 514. There being no error, the judgment is affirmed. All concur.

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Thomas R. GILMORE and Juanita W. Gilmore, Appellants, v. Clara B. LETCHER et al., Respondents. No. KCD 26309. Missouri Court of Appeals, Kansas City District. April 1, 1974. Claude M. McFarland, Kansas City, for appellants. James Borthwick, and John R. Phillips, Kansas City, Jack A. Cochran, and David L. Busch, Blue Springs, for respondents. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. WASSERSTROM, Judge. Plaintiffs sued for specific enforcement of a pre-emptive right to buy lots owned by the defendant Letcher at Lake Tapa-wingo which is a residential and recreational subdivision located in eastern Jackson County. The essential facts are undisputed, the disagreement between the parties being confined to questions of law. Defendant Letcher owns Lots 62, 42, 43 and the East half of Lot 44, Block E, of Lake Tapawingo. Each of those lots is subject to the following restrictive covenant of record: “No sale of said lot shall be consummated without giving at least IS days’ written notice to Grantor, and the owners of the two lots adjoining said lot on the sides, of the terms thereof; and any of them shall have the right to buy said lot on such terms. Such notice shall be personally served if service can be made on the subdivision; if any person entitled to service cannot be found on the subdivision notice shall be mailed such person at his address last known to the Grantor. Affidavit of the person making service shall be sufficient evidence thereof to protect a purchaser.” Lots 41 through 45 are contiguous in order from east to west. The most easterly of those lots is Lot 41, owned by Lake Ta-pawingo Development Company, Inc. (hereinafter referred to as Development Company), and it is immediately adjacent' on the East to Lot 42 owned by defendant Letcher. Defendants Mossman own the West half of Lot 44 and all of Lot 45, which are adjacent on the West to the Letcher property. Letcher’s Lot 62 lies immediately to the North of Lots 41 through 44. Plaintiffs’ Lot 61 is adjacent on the West to Letch-er’s Lot 62, but plaintiff’s Lot 61 is not adjacent to any of Letcher’s other Lots, 42, 43 and 44. On May 29, 1970, Letcher entered into a contract for the sale of all of her lots above mentioned to defendants Spalding for the sum of $13,000, with a down deposit of $300 and the balance to be paid on delivery of deed. On July 10, 1970, Letch-er mailed notice of the proposed sale to plaintiffs, enclosing therewith a form of waiver for signature by plaintiffs. Instead of waiving their pre-emptive rights, however, plaintiffs responded by letter dated July 14, 1970, stating that they wished to exercise their pre-emptive right to the 3½ lots and they enclosed their $300 check as a down deposit. No similar notice or request for waiver was sent by Letcher to either the Mossmans or Development Company. On July 20, 1970, Letcher returned plaintiffs’ $300 check, together with a covering letter in which she stated in part: “The sale transaction has been been abandoned. I have not given the required IS days’ notice to the other owners of adjoining lots, and no longer intend to do so. This letter is a cancellation of the previous notice of sale and waiver sent to you and is a rejection of your offer to purchase said property.” The next day, on July 21, 1970, Letcher entered into a new contract with the Spaldings on exactly the same terms, except that Lot 62 was deleted from the property being sold. Inasmuch as plaintiffs owned no property adjacent to the 2½ lots specified in the July 21 contract, no notice of this second sale was sent to them. A waiver was procured, however, from the Mossmans respecting this new contract. Notwithstanding the purported cancellation of the original contract and the execution of the new contract dated July 21, plaintiffs continued to insist on a pre-emp-tive right to purchase all 3½ lots and failing in their efforts to obtain a recognition of those rights, they filed the present lawsuit on September 28, 1970. Named as defendants were Letcher, the Spaldings, the Mossmans and Development Company. The defendant last named stipulated that it makes no claim to any of these 3¡i/2 lots and has no desire to purchase or participate in the purchase of them. The Moss-mans acknowledged in deposition that if they ever had any desire to purchase those lots, they no longer so desired at the time of deposition, and stipulated to their waiver of any pre-emptive rights. However, Letcher and the Spaldings did vigorously deny that plaintiffs have any right of purchase. Their grounds of resistance and plaintiffs’ rejoinders as to each ground may be summarized as follows: (1) Defendants claim that the restrictive covenant is so ambiguous that it cannot be enforced; plaintiffs rejoin that any ambiguities are irrelevant under the present facts. (2) Defendants claim that the restrictive covenant is an unreasonable restriction on alienation; plaintiffs respond that there is no unreasonableness. (3) Defendants claim that the notice sent by Letcher to the plaintiffs on July 10, 1970, was not in compliance with the covenant and therefore void; plaintiffs respond that Letcher cannot take advantage of her own default and in any event they are willing to accept a quit claim deed from Letcher for such interest as she has. (4) Defendants contend that Letcher is no longer willing to sell Lot 62, that plaintiffs have no right to force her to sell, and that so long as she continues to own Lot 62, plaintiffs are not owners of any property adjacent to property which Letcher is willing to sell and therefore have no pre-emp-tive right relating to the presently pending sale. Plaintiffs’ respond that Letcher had no right to withdraw her willingness to sell Lot 62 after plaintiffs’ letter of July 14, 1970; and in addition, they contend that the purported abandonment of the original sale and substitution of a new sale to the Spaldings was a conspiracy to defraud plaintiffs of their rights. The trial court entered judgment denying relief to the plaintiffs, basing that ruling on the grounds that Letcher had abandoned the original sale; that plaintiffs had no right to require a sale of all 3½ lots and that Letcher had the right to withdraw from the original sale with Spaldings; that the new sale dated July 21, 1970, was for substantially less real estate than the May 29 sale, and that the change was not the result of a conspiracy between the defendants to defraud plaintiffs of any pre-emp-. tive rights of purchase. Plaintiffs appeal from those rulings. I. Preliminary to consideration of the merits, disposition must be made of certain pending motions. The Spaldings and Development Company have moved to dismiss this appeal on the ground that plaintiffs’ jurisdictional statement is insufficient. Plaintiffs, as appellants in this court, state at the very outset of their brief the nature of the case. They then state: “Under Article V, Sec. 3 [V.A.M.S.] of the Constitution in effect on January 1, 1972, the appellate jurisdiction is vested in the Missouri Court of Appeals, since the nature of the case does not fall within any of the categories of cases wherein the Supreme Court has retained exclusive jurisdiction.” This statement is adequate to meet the requirements of Rule 84.04(b), V.A.M.R. The motions to dismiss the appeal are therefore denied. The remaining pending motion is that of plaintiffs to strike the brief of Development Company. The reason asserted is that Development Company has waived its preemptive right of purchase and “is therefore no longer a party in interest.” Development Company has, in fact, filed an able brief in support of the validity of the restrictive covenant, which obviously represents a matter of considerable concern to the Development Company and which is a very pertinent issue argued extensively on this appeal. The motion to strike Development Company’s brief is denied. II. Plaintiffs’ entire position in this case necessarily rests upon the restrictive covenant under which they claim a preemptive right of purchase. Defendants Letcher and Spaldings strongly attack the validity of that covenant on the grounds of ambiguity. Their heaviest attack is leveled at the fact that the covenant grants preemptive rights only to the owners of the “two” lots adjoining and makes no provision for a situation such as here where there are more than two owners of adjoining lots. These defendants also attack the lack of specificity as to the method of service upon adjoining owners, the method of exercising preemptive rights, and the matter of priority of rights if more than one adjoining owner elects to exercise a right of preemption. These objections will not be considered for the same reason that similar objections were passed in Beets v. Tyler, 365 Mo. 895, 290 S.W.2d 76 (1956). Here, as in the Beets case, the objections are not being pressed by adjoining owners who are the only ones who might be prejudiced by lack of specificity in the regards mentioned. Both Development Company and the Mossmans have disclaimed any right to pre-emptive purchase in any of the Letcher lots. Accordingly, the following ruling in the Beets case is applicable: “Next, defendant contends that the provision for purchase is invalid and unenforceable because its terms are so indefinite and uncertain as to be ambiguous and meaningless. An examination of the provision discloses no uncertainty when applied to the facts in the instant case. But defendant hypothesizes several situations of fact that might possibly occur in another case and which perhaps might present difficult problems for solution. For example, she suggests that all three of the possible purchasers might avail themselves of the right to purchase at the same time, and inquires further as to the effect of the provision on judicial sales and other related problems. It would seem sufficient to observe that none of these questions are presented by the facts of this case and they may never arise. We limit our decision in this case to the facts now presented and pre-termit hypothetical situations until such questions actually arise.” III. Defendants Letcher and Spaldings contend that the restrictive covenant here, if given effect, would constitute an unreasonable restriction on alienation. Substan- ' tially the same argument was made concerning the virtually identical restrictive covenant in Beets, supra, and was there rejected by the Missouri Supreme Court. IV. Defendants Letcher and Spaldings object that the provisions of the restrictive covenant with respect to service of notice have not been met for two reasons. First, they say the covenant requires personal service of the IS days’ notice of sale upon the adjoining lot owners, whereas the notice here was sent to plaintiffs by mail in- • stead of being personally served. This objection is without merit. The provision for personal service is for the benefit of the adjoining lot owners entitled to notice, and the only one who could be prejudiced in this case by the form of notice mentioned would be the plaintiffs. Since they make no complaint as to the form of notice and have waived personal service upon them, that waiver ends the matter. Second, these defendants object that no written notice of the May 29th sale was ever delivered to the Mossmans. The proper party to make that objection would have to be Mossmans. They having formally stipulated before trial to their waiver of any pre-emptive rights, any problem in this respect has been eliminated. In any event, Letcher and Spaldings have no standing to urge this point. V. The underbrush having been cleared away, tne principal question in this case can now be approached. This main issue is the contention by defendants Letcher and Spaldings that the restrictive covenant gives plaintiffs a right to purchase only if Letcher is willing to sell, and that since Letcher is no longer willing to sell Lot 62, plaintiffs cannot force her to do so. This argument rests upon the assumption that Letcher had a right to and did change her mind about selling Lot 62 on July 20, 1970. Grave doubt must be expressed as to whether the purported change of mind on July 20, 1970, was in fact a good faith abandonment of the original sale or whether on the other hand it was only a subterfuge by which to try to avoid plaintiffs’ pre-emptive right to purchase. This doubt is engendered by the facts that a portion of the house being sold was located on Lot 62, purportedly deleted from the second sale; the fact that Letcher and the Spald-ings informally agreed between themselves that the Spaldings would have “the use” of Lot 62, despite the purported deletion of that lot from the sale; the fact that the purchase price remained exactly the same depite the fact that the second contract purportedly covered only 2½ lots instead of the original 3½ lots; and the fact that the same $300 check originally deposited by the Spaldings under the first contract remained in the hands of Letcher without change or return at all times after the original contract of May 29, 1970. However, this question need not be pursued for the reason that whether or not Letcher wanted in good faith to abandon the May 29 contract, it was beyond her power to do so, even with the consent of the Spaldings, after the exercise by the plaintiffs of their pre-emptive right by their letter of July 14, 1970. Defendants’ contention that Letcher, with the concurrence of the Spaldings, had a right to abandon the original sale, is based upon certain language in the Beets case, 290 S.W.2d at 81, which states that “[a] pre-emption does not give to the pre-emptioner the power to compel an unwilling owner to sell * * The attempt to find support for defendants’ argument in that partial quotation represents a misconstruction of the Beets opinion and is inconsistent with the nature and purpose of a pre-emptive right such as held by plaintiffs here. The authorities describe the right of pre-emption as a conditional option under which the pre-emptioner has the right to purchase subject to some condition, the condition being generally (despite variation in phraseology) that the owner must first arrive at a decision to sell. This character of pre-emptive rights is set forth in Restatement, Property § 413(1), under which Comment b states that the rights of the pre-emptioner “are contingent upon the desire of the owner to sell” and are therefore “analogous to options upon a condition precedent.” When the owner does arrive at a decision to sell the property, then the condition precedent becomes fulfilled and the pre-emptive right, which theretofore was merely contingent, at that point ripens into a full option. As stated in Kershner v. Hurlburt, 277 S.W.2d 619, l. c. 623 (Mo.1955), when the owner arrives at the decision to sell, then the offeree “had a short-lived option to purchase in accordance with the terms of his agreement.” Once the pre-emptioner-offeree accepts the offer by exercising his option, the contract of sale becomes complete and enforceable. Barling v. Horn, 296 S.W.2d 94, l. c. 98 (Mo.1956); Price v. Town of Ruston, 19 La.App. 356, 139 So. 55, l. c. 58 (1932). A case involving a situation very closely akin to the one here is New Haven Trap Rock Co. v. Tata, 149 Conn. 181, 177 A.2d 798, l. c. 800 (1962). In that case the plaintiff, grantor of certain land, had a pre-emptive right to purchase. On May 2, 1960, the defendant, grantee, gave 60 days’ written notice of intention to sell. On June 23, I960, the plaintiff elected by letter to repurchase. Then on June 29, 1960, defendant wrote saying that he was not going to sell at that time. Instead he executed a 50 year lease to the third party who had initially proposed to purchase the land in question. The court held that the plaintiff was entitled to specific performance of his pre-emptive option: “The right of the plaintiff to exercise its privilege of repurchasing arose when it received notice from Tata, on May 2, 1960, that he was considering the sale of the property. * * * A contract, binding on both parties, resulted when the plaintiff by its letter of June 23, 1960, elected to exercise its right to repurchase under the terms of the deed, [citing cases]” Applying the principles enunciated by the foregoing authorities, the following conclusions are compelled. The restrictive covenant here was intended to and had the effect of granting plaintiffs an option to purchase, subject only to the condition that Letcher first arrive at a decision to sell the property. Letcher did decide to sell and in fact executed a binding contract of sale on May 29, 1970, thereby satisfying the condition which theretofore had bound down the pre-emptive right. Upon the condition being so satisfied, plaintiffs’ right matured into a full option, which Letcher recognized by her notice dated July 10, 1970. This notice had the effect, as stated in the Beets opinion, 290 S.W.2d at page 83, of initiating the 15 day period for pre-emption. When plaintiffs exercised their option within that 15 day period, their acceptance completed a contract of sale between plaintiffs and Letcher. From that point forward, it was too late for Letcher to withdraw without plaintiffs’ consent. Plaintiffs have a right to specific performance. The judgment is reversed and the cause remanded with instructions to enter a decree requiring defendant Letcher to convey to plaintiffs the property described in the real estate contract of May 29, 1970, for the purchase price of $13,000. Costs on this appeal are assessed against defendants Letcher and Spaldings. All concur.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Edward W. WIRTH and Charlotte Wirth, Respondents, v. Gloria E. HEAVEY, Appellant. No. KCD 26259. Missouri Court of Appeals, Kansas City District. April 1, 1974. William C. Paxton, Independence, for appellant. August V. Spallo, Kansas City, for respondents. Before DIXON, C. J., and SHANGLER and WASSERSTROM, JJ. SHANGLER, Judge. The plaintiffs Edward Wirth and Charlotte Wirth brought an action in the magistrate court on a promissory note against defendants James D. Heavey and his wife Gloria E. Heavey. The plaintiffs had judgment and defendants took an appeal to the circuit court. Before trial, plaintiffs entered into a joint stipulation dismissing with prejudice the claim against James D. Heavey after he received a discharge in bankruptcy of the debt underlying the note given by him and his wife to plaintiffs Wirth. After hearing evidence, the circuit court entered judgment for respondents against defendant Gloria E. Heavey for $3,083.77 and she appeals. The plaintiffs Wirth were formerly partners with appellant and her husband in the operation of a Mugs-Up Root Beer Drive-In. The Wirths sold their interest in the business to the Heaveys and took as payment a promissory note for $4,000 payable in monthly installments of $77.33 beginning July 15, 1968 and on the 15th day of each succeeding month with interest at the rate of 6% per annum. Contemporaneously the Heaveys executed a security agreement covering the business equipment. In addition, the Heaveys entered into a five-year lease of the drive-in premises with the Wirths who were the owners of the building which housed the business. A monthly rent of $125.00 was payable on the 15th of each month beginning June 15, 1968. The payments on the note were made regularly through September 15, 1969, but the October 15 payment was not made on time, and on October 24, 1969, plaintiffs made demand for the total balance remaining [$3,109.31]. At the same time they gave notice that the collateral described in the security agreement would be sold by private sale on or after November 3, 1969. The defendants remitted a check for the October payment accompanied by a letter dated October 27, 1969, but plaintiffs refused payment and returned the tender to the Heaveys on October 29th. Plaintiffs advertised the collateral for sale in the Kansas City Star and in response received several bids: (1) $310 for two refrigerated root beer barrels, (2) $350 for the same barrels, and (3) bids of $500, $450, $400 and $150 for all of the equipment. Most of these bids were obtained from other Mugs-Up operators although two came from restaurant equipment suppliers. Edward Wirth gained access to this equipment by breaking the lock on a door of the drive-in premises. After the equipment was exhibited to the prospective bidders, plaintiffs themselves purchased all the secured items for $650. Plaintiffs, in turn, resold to a Mugs-Up operator for $350 the two refrigerated root beer barrels which had been bid at that amount. The plaintiffs notified the Heav-eys of the proceeds of the sale and made demand for the deficiency balance; the same letter notified them that plaintiffs were holding certain supplies [such as cups, cartons, concentrates] not subject to the security agreement but belonging to defendants, which would be sold if not promptly claimed. In absence of response, plaintiffs sold the non-secured inventory for $134 but allowed defendants no credit. It was the evidence of defendants that the value of the collateral covered by the secuirty agreement was $3,500 and that this equipment was functioning well when the drive-in was closed at the end of September of 1969. They had purchased part of this equipment in used condition for $1,000 in 1966. The plaintiff Edward Wirth testified that there was not much market for used restaurant equipment and hence it was difficult to obtain bids for such merchandise. He knew of no standard price quotation for such used equipment. The defendant James D. Heavey confirmed that some of the equipment was designed and labeled specifically for Mugs-Up franchise operations and thus was of little interest to other drive-in en-terprisers. The answer of defendant Gloria E. Heavey, the only appellant here, alleged certain irregularities in the disposition of the collateral at private sale by plaintiffs and asserted also a claim for affirmative relief, actual and punitive damages for the conversion of the non-secured inventory. The plaintiffs replied alleging that the personal property was not converted but sold only after it had been abandoned by failure of defendant to remove it after notice to do so was given her. The court determined that the private sale of the collateral by plaintiffs was conducted in a manner conformable to § 400.-9-504(3), RSMo 1969, V.A.M.S. The court determined also that after crediting the note with $650 the remaining deficiency, including interest and attorney fee, amounted to $3,317.79 but that defendant was entitled to a further credit for the $134 derived from the sale of the non-secured inventory and, accordingly, entered judgment for plaintiffs for $3,083.77 on their petition. The court treated the claim for conversion asserted by defendant in her answer as a setoff, found that defendant had abandoned the property, that the sale by plaintiffs was lawful, and denied punitive damages. The defendant-appellant asserts as her first point of error that by virtue of § 400.3-606 the dismissal with prejudice against the co-defendant husband without a reservation of rights by plaintiffs or her consent operated as a complete discharge of her liability on the note; she claims therefore that the trial court erred in denying her earlier motion for summary judgment. In fact, the stipulation of dismissal filed by plaintiffs and appellant’s husband contained no reservation of right to proceed against the appellant as comaker of the note; nor was there any evidence that appellant consented to the dismissal. We conclude, however, that in the circumstances of this case the dismissal with prejudice was without legal effect to discharge the obligation of appellant as comaker of the note and did not amount to a release within the meaning of § 3-606. The record clearly shows that while this action was pending in the magistrate court James Heavey filed his debtor’s petition in bankruptcy and scheduled the plaintiffs as creditors on the note which is the subject of this litigation. Final discharge in bankruptcy was given James Heavey on November 9, 1971. Prior to the amendment of 11 U.S.C. § 32 of the Bankruptcy Act in 1970 by Public Law 91-467, the effect to be given a discharge in bankruptcy could be litigated in any forum. Robertson v. Interstate Securities Company, 435 F.2d 784, 786[1,2] (8th Cir. 1971). It was the purpose of the 1970 amendment to relieve bankrupts from the harassment of such multiplicity of actions by reposing the question of dischargeability exclusively in the bankruptcy court. In re Burns, 357 F. Supp. 176[1] (D.C. Kansas 1972). [For a resume of the legislative history, see U.S. Code Cong, and Admin.News 1970, Vol. 1, page 1156 et seq.] Conformably to the provisions and intendment of 11 U.S.C. § 32 the order of discharge entered on James Heavey’s petition in bankruptcy declared: 2. any judgment heretofore or hereafter obtained in any court other than this court is null and void as a determination of the personal liability of the bankrupt . 3. all creditors whose debts are discharged by this order are enjoined from instituting or continuing any action ... to collect such debts as personal liabilities of the bankrupt Thus, the dismissal by plaintiffs of their action against the co-maker James Heavey was an act without legal effect because any judgment taken against him on the indebtedness already discharged in bankruptcy would have been rendered null and void by 11 U.S.C. § 32. We conclude, then, that the discharges provided by § 3-606, even if the appellant wife as a co-maker was otherwise entitled to them, are of no avail to her in these circumstances. § 400.1-103 RSMo 1969, V.A.M.S. Appellant next contends that she was entitled to actual and punitive damages against plaintiffs for the forcible entry into the leased premises for the repossession of the collateral and for the conversion of the non-secured inventory. The right of a secured party to repossess the collateral after default, provided it can be accomplished without a breach of the peace, is established by § 400.9-503. Appellant contends that the rupture of the lock on the door of the drive-in by plaintiffs was not a peaceful self-help repossession. The Code does not define “breach of the peace”, nor are we called upon to do so. The collateral was kept in premises leased from plaintiffs. Appellant and her husband had been in default in the payment of rent under the lease since September 1969. Demand for payment of the rent had been made to the Heaveys in that month. On October 6, 1969, they were given notice by plaintiffs that the lease was terminated according to its terms. The lease provided that upon breach the lessors would have the right to re-enter and take possession of the premises without judicial proceeding. The trial court found that the lease had been breached. It is a finding amply supported by the evidence and not contested by appellant here. Nor has appellant raised any question about the validity and enforceability of the lease agreement. There can be no breach of the peace by a party forcibly entering premises to which he is entitled to possession. As for the claim of conversion, the trial court determined that there was personal property at the drive-in not covered by the security agreement. This property was sold by plaintiffs for $134 for which the trial court allowed an additional credit against the note balance. Appellant claims error in failing to award punitive damages, but her.argument ignores the determinative finding: that the non-collateral inventory had been abandoned. In their reply plaintiffs pleaded the affirmative defense, and the court found as a fact, that appellant and her husband had abandoned the property. Conversion is an unauthorized assumption and exercise of the right of ownership over the personal property of another to the exclusion of the owner’s right. Kegan v. Park Bank, 320 Mo. 623, 8 S.W.2d 858, 871 [16,17] (1928); 89 C.J. S. Trover & Conversion § 1. “[T]he characteristic element of abandonment is the voluntary relinquishment of ownership whereby the thing so dealt with ceases to be the property of any person and becomes the subject of appropriation by the first taker . . . [Abandonment divests the former owner of title to the property so that it becomes as to him as if he had never had any right or interest therein.” Rodgers v. Crum, 168 Kan. 668, 215 P.2d 190, 193 [3-5] (1950); 1 Am.Jur.2d, Abandoned Property, § 24. If shown, abandonment of personalty is a complete defense to an action for conversion and precludes recovery. Jones v. Jacobson, 45 Wash.2d 265, 273 P.2d 979, 980 [1] (banc 1954); Rodgers v. Crum, supra, l.c. 215 P.2d at 193[3-5]; 18 Am.Jur.2d, Conversion, § 71. Abandonment of property requires intent plus an act. A sufficient act is one that manifests a conscious purpose and intention of the owner of personal property neither to use nor to retake the property into his possession. Linscomb v. Goodyear Tire & Rubber Co., Inc., 199 F.2d 431, 436[8] (8th Cir. 1952). The intention to abandon may be inferred from strong and convincing evidence. Gibson v. Sharp, 277 S.W.2d 672, 679 [10] (Mo.App.19S5). Appellant does not dispute the findings of the trial court that she abandoned the non-secured personal property to plaintiffs, and we have no reason to disturb that finding. Notice was sent to appellant and her husband that the property was available and could be claimed yet they neither claimed nor made other response. Whether on principles of abandonment or implied assent [Kegan v. Park Bank, supra, l.c. 8 S.W.2d at 871], the conduct of appellant constitutes a complete defense to her claim of conversion and she could suffer no damage from the subsequent sale of the property. Appellant’s final point is that plaintiffs were not entitled to a deficiency judgment because of their failure to follow the default procedures of § 400.9-501 et seq. When the debtor is in default, the secured party has the rights and remedies provided in Part 5 of the chapter and those in the security agreement. § 400.9-501(1). The secured party has available three basic remedies: (1) dispose of the collateral by public or private sale or any other commercially reasonable manner [§ 400.9-504(3)]; (2) propose a retention of the collateral in satisfaction of the debt [§ 400.9-505 (2) ]; or (3) reduce the claim to judgment or otherwise enforce the security interest by any available judicial procedure [§ 400.9-501(1)]. The secured party is also afforded the right to take possession of the collateral on default if it can be accomplished without a breach of the peace. § 400.9-503. Appellant contends that plaintiffs failed to comply with Article 9, Part 5 in that the collateral was not of a type customarily sold in a recognized market or the subject of a widely distributed standard price quotation so that plaintiffs [as the secured party] were prohibited by § 400.9-504(3) from purchasing the collateral at private sale. Appellant contends that as a result of this alleged breach, plaintiffs should not only have been denied a deficiency judgment, but that she was also entitled to the statutory penalties provided for § 9-507(1). Section 400.9-504(3) provides that the secured party may dispose of the collateral by public or private proceedings. But “. . . every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable”. Although the Code does not define “commercially reasonable”, § 9-507(2) offers some guides: The fact that a better price could have been obtained by a sale at a different time or in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner. If the secured party either sells the collateral in the usual manner in any recognized market therefor or if he sells at the price current in such market at the time of his sale or if he has otherwise sold in conformity with reasonable commercial practices among dealers in the type of property sold he has sold in a commercially reasonable manner. The trial court found that at all times plaintiffs had acted reasonably in disposing of the collateral. There would be no basis for cavil at this finding except that the secured parties themselves purchased the collateral at a private sale. § 9-504(3) provides: The secured party may buy at public sale and if the collateral is of a type customarily sold in a recognized market, or is of a type which is the subject of widely distributed price quotations; he may buy at private sale. Although the parties disagree on the definitions of “recognized market” and “price quotations”, their testimony is in substantial agreement that there was not a widespread market for used restaurant equipment and particularly for the kind specially designed for the use of a particular franchise. All the parties testified they knew of no standard price quotations. We do not agree with the contention of plaintiffs that the type of collateral involved here falls within either of the qualifying tests for purchase at a private sale by the secured party. The few cases dealing with the question indicate that a “recognized market” is one where “sales involve items so similar that individual differences are non-existent or immaterial, where haggling and competitive bidding are not primary factors in each sale, and where the prices paid in actual sales of comparable property are currently available by quotation.” Nelson v. Monarch Investment Plan of Henderson, Inc., 452 S.W.2d 375, 377 [2] (Ky.App.1970). We do not agree with the contention of plaintiffs that the collateral was of a type that could be purchased validly by the secured party at private sale. It is apparent that if the private sale of collateral by plaintiffs was improper, it violated §§ 400.9-501 and 400.9-507 and the debtor is entitled to a remedy. Appellant claims that she is entitled to a statutory penalty under § 9-507(1). That minimum recovery, however, applies only to cases involving consumer goods. See § 9-109. The collateral in question here does not fall within that definition. Appellant claims, also, that plaintiffs should be denied a deficiency judgment. The Code itself does not mention the denial of a deficiency as a remedy, nor has any Missouri case so held. § 9-507 provides that “if the disposition has occurred, the debtor . has a right to recover from the secured party any loss caused by a failure to comply with the provisions of this part.” Some states, following the lead of the Georgia Court of Appeals, have denied creditors deficiency judgments for their violation of Article 9. Such a sanction, however, does not suit the circumstances of this case. What appears to be a more just remedy for creditor misbehavior under Article 9 was expressed by the Arkansas Supreme Court in Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W.2d 538 (1966) l.c. 542: We think the just solution is to indulge the presumption in the first instance that the collateral was worth at least the amount of the debt, thereby shifting to the creditor the burden of proving the amount that should reasonably have been obtained through a sale conducted according to law. Taken in that light, the evidence supports the determination of the trial court that plaintiffs were entitled to a deficiency judgment in the amount of $3,083.77. Appellant and her husband valued the collateral at $3500. Plaintiffs valued it at approximately $650, the price obtained. We may properly consider that much of this equipment had been purchased used for $1000 in 1966 and, also, that the note for $4000 in 1968 was given, also, in part for the sale of an ongoing business. The trial court could have determined properly that the price obtained upon sale of the collateral was reasonable and that appellant suffered no compensable damage. Accordingly, the judgment of the trial court is affirmed. All concur. . In relevant part, § 3-606(1) provides: The holder discharges any part to the instrument to the extent that without such party’s consent the holder (a) without express reservation of rights releases or agrees not to sue any person against 508 S.W.2d — 17V2 whom the party has to the knowledge of the holder a right of recourse or agrees to suspend the right to enforce against such person the instrument or collateral or otherwise discharges such person . . Moody v. Nides Finance Co., 115 Ga.App. 859, 156 S.E.2d 310 (1967) ; Johnson v. Commercial Credit Corp., 117 Ga.App. 131, 159 S.E.2d 290 (1968) ; see, also, 64 Northwestern University L.Rev., 808, 828 (1970).

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

STATE of Missouri, Plaintiff-Respondent, v. Raymond Lewis MURPHY, Defendant-Appellant. No. 9476. Missouri Court of Appeals, Springfield District. March 25, 1974. Max W. Foust and Russell D. Jacobson, Morris, Foust, Moudy & Beckett, Kansas City, for defendant-appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent. PAUL E. CARVER, Special Judge. Raymond Lewis Murphy was found guilty by a jury in the Circuit Court of Greene County of burglary in the first degree under the provisions of § 560.040, RSMo 1969, V.A.M.S., and was by their verdict sentenced to imprisonment for a term of 10 years under the supervision and custody of the State Department of Corrections of the State of Missouri. From the judgment and sentencing resulting therefrom he has appealed to this court. Defendant, prior to trial on the merits of his case, filed his “Motion to Suppress Identification Testimony”, which is as follows: “Comes now the above named defendant and respectfully moves the Court to suppress both the pre-trial and the trial identification of the defendant as the perpetrator of the crime charged in the Information in this cause and his grounds therefor are as follows: “1. Defendant was first identified by witness by means of suggestive photographs which were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. “2. The defendant was identified by the witness on the 10th day of February, 1972, at a pre-trial confrontation which was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. “3. That defendant was further identified by the witness in the company of law officers at a hospital in Cedar County, Missouri, which confrontation was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution. “4. The in-court trial identification of the witness does not have a source independent of the unconstitutional pretrial identification as set forth above, and therefore is not admissible at trial.” On October 5, 1972, the trial judge held a hearing on defendant’s motion and heard evidence thereon. The following evidence was presented in support of defendant’s motion. Mrs. Anna Mitchell was called as a witness and testified that on October 7, 1971, she resided at Willard in Greene County, Missouri. That on that date she was not feeling well and had remained in bed. At about 8:45 a. m. the door bell rang several times, but being ill, she did not answer the door. After the door bell had stopped ringing, she went downstairs and discovered two men in her home, one of whom was kneeling to unplug a TV set and the other holding the set in his hands. She yelled at them and they ran from the house and down the driveway and escaped. This occurred during the daytime, and she stated that she saw one of the men face to face from about eight feet away and “practically in the same room”; and that the room had “plenty of illumination” and that her eyesight was good. Mrs. Mitchell identified this man as the defendant. She gave the sheriff’s deputies descriptions of both men and said she saw the face of the other man as well as that of defendant. She viewed photographs of various persons contained in “mug books” and also a number of loose photos which were brought out to her by the Greene County Sheriff’s deputies to view. She said that she identified the other man from the “mug book” photos and a “couple of weeks” later she picked out defendant’s photo from a group of 30 or 40 pictures; and she testified that none of the deputies did anything to suggest that the photo that she picked was the defendant. Mrs. Mitchell testified that she was thereafter contacted by one of the Greene County Sheriff’s deputies, and asked to accompany him on a trip, and she replied that she would do anything she could to help. The next day she and two deputy sheriffs (Detectives Jesse Craig and Ivan Johnson) drove to El Dorado Springs in Cedar County, but she stated that they didn’t tell her where they were going. She testified that during this trip she did not ask any questions of the deputies about the purpose of the trip or talk about the criminal case, and was not asked any questions by them except for her identification to the officers of the defendant, Mr. Murphy, in the Cedar County Hospital. After arriving at the hospital parking lot, she and the officers sat in the car until about noon, on what Mrs. Mitchell described as a “stake-out”, and the officers asked her to keep her “eyes open”. They then entered the hospital waiting room where she observed a number of people such as nurses, nurses’ aides, doctors, and others. She walked out into a hospital hallway where she saw a man walk past her whom she identified to the deputies as one of the men she saw in her home on October 7th, and whom she further identified as the defendant here. She stated that although no one told her the purpose of the trip to El Dorado Springs, that she knew that she was there to “look for somebody”. Mrs. Mitchell stated that she had thereafter seen Mr. Murphy at the preliminary hearing and at this motion hearing, and that she had no question about her identification of the defendant. The next witness was a former Cedar County deputy sheriff, Don F. Martin, who testified that he was with Mrs. Mitchell and the other deputies on the day they went to 'the Cedar County Hospital. He said that before she went to the hospital, she told him “about what happened at her home.” He denied telling her why she was there and what she was to do. Mr. Martin also stated that he could “possibly” have told Mrs. Mitchell that he knew someone who more or less answered the description she had given and they wanted her to take a look at him to see if he was the man, and may have told her that there was someone at the hospital “that might be who she was looking for.” He stated that he usually didn’t prod witnesses. He denied pointing defendant out to Mrs. Mitchell. He further stated that when she picked him out, that there were several other people around (a doctor, the hospital administrator, a custodian, and perhaps another visitor). Jesse Craig, a Greene County deputy, testified that he had received a description of the men she found in her home, and at a later date he came out on at least two occasions with a number of individual photos for her to view. He showed her six or eight photos on his second visit, including oné that he said was of Mr. Murphy. He stated that he and Deputy Ivan Johnson took Mrs. Mitchell to the hospital on January 14, 1972, and while he didn’t tell her that the trip was for the purpose of identifying someone who burglarized her home, that he assumed she knew this because it was the only business that they had with her. On arrival at El Dorado Springs, Mr. Craig told her that wherever they “went during the entire trip to keep her eyes open, observe everyone she seen, for the purpose of seeing, if she could see anyone whom she recognized.” He testified that she did identify Mr. Murphy while they were in the hospital. He told her to stand in the corridor of the hospital near the main desk and observe while he and the other deputy stayed in the waiting room, and that she then saw and identified Raymond Lewis Murphy, the defendant. He said that there were other people around there during this time. In his further testimony as to the identification, Craig said that when he had shown her the photos, which he said included Mr. Murphy’s picture, she stated that she “would like to see this man in person”, which Craig indicated was not a sufficient identification for his purposes. Craig testified that after this occurred, he began working on arrangements for the trip to El Dorado Springs to allow her to see Mr. Murphy in person. He stated that he didn’t try to suggest to pick out anyone when she looked at the photos, and didn’t help her or try to point anyone out to her at the hospital. The last witness on the motion was Deputy Ivan Johnson, who had gone out to Mrs. Mitchell’s home on October 7th to investigate the occurrence, and took the description of the men from her. He stated that she described one man as tall and the other as looking like a Mexican. He testified that she made the statement about desiring to see the person in one of the photos brought by Mr. Craig for her to view, and that she would not identify him from the photo alone. This matter was taken under advisement and on October 18, 1972, was denied by the trial judge. At the trial Mrs. Mitchell testified that on October 7, 1971, about 8:45 in the morning, that she was awakened in the bedroom of her home by the door bell ringing; that she heard conversational tone voices in the family room of her home and went into the room, where she found two men at her color TV set; one man was holding the set and the other unplugging it. She identified the defendant, Mr. Murphy, as the man holding the TV; she saw him first from about 10 feet away, for a few seconds, face to face. She demanded to know what they .were doing there, and both ran from the house. She unsuccessfully chased them, then called the sheriff’s office to report the incident, and then found that the patio door screen had been cut and door jimmied. She gave the sheriff’s deputies descriptions of the two men. She said that the men “appeared to be speaking some other language, maybe Mexican.” Thereafter, the sheriff’s deputies brought by “mug books” containing a number of photos of individuals, for her to view in order to try and identify the men, and she found a photograph which she identified as depicting one of them, but not this defendant. Later (she estimated about October 10th or 14th of 1971) the deputies brought out some more photos, one of which she said was defendant’s picture. Following this, on January 14, 1972, she and two deputies journeyed to El Dorado Springs, where she identified the defendant at the hospital. She stated that she recognized him when she was 100 or 150 feet away and that defendant walked by her; and then when she first saw him there, that there were several other people around him, including several men. Her testimony was that no one told where she was going or why she was going and that she and the deputies didn’t talk about the case during the trip. She was told to keep her “eyes open”, and that she understood (from her common sense) that she was to look and see anyone that she had seen before, and that the man they wanted her to look at was at the hospital. She said that she didn’t wear glasses. Deputy Craig then testified that Mrs. Mitchell had picked out a photo of the defendant and made the statement that she would like to see the man in person, and that this was the reason that the deputies took her to El Dorado Springs. He stated that he didn’t tell Mrs. Mitchell anything other than he didn’t know what would transpire that day and for her to “keep her eyes open and observe every person she saw.” The defendant, Mr. Murphy, testified on his own behalf, stating that he had never seen Mrs. Mitchell before his arrest; had been in Springfield on the night before the burglary. From the verdict of the jury, which was accepted by the court, the defendant filed a motion for a new trial. The motion for a new trial was denied by the trial court. Allocution was granted the defendant, and no reason being shown or given, the court denied defendant’s “Motion to Reduce Sentence”, by assessing a sentence of 10 years under the custody of the Department of Corrections. Thereafter, notice of appeal was filed by the defendant, and said cause was duly transferred to this court. Upon appeal no complaint was made of the sufficiency of the evidence or of any other error except the following: “I. The trial court erred in overruling defendant’s Motion to Suppress the identification testimony because under the totality of the surrounding circumstances the identification was improperly suggestive in that the alleged photographic identification was inconclusive, and, thereafter, that a confrontation was arranged by the Sheriff’s deputies that improperly suggested that defendant was the guilty party.” “II. The trial court erred in refusing to give defendant’s Instruction ‘B’ because such action had the effect of depriving defendant of his defense of improper identification in that without said instruction the jury was not given the necessary criteria or guidelines by which to judge the circumstances surrounding the identification.” We shall determine defendant’s assignment of error. On assignment of error I, the defendant complains: “The trial court erred in overruling defendant’s Motion to Suppress the identification testimony because under the totality of the surrounding circumstances the identification was improperly suggestive in that the alleged photographic identification was inconclusive, and, thereafter, that a confrontation was arranged by the Sheriff’s deputies that improperly suggested that defendant was the guilty party.” Defendant insists that his Motion to Suppress should have been sustained because under the “totality of the surrounding circumstances” the identification was improperly suggestive and tainted. Defendant further contends that this violated the due process test laid down in Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); and State v. Parker, 458 S.W.2d 241 (Mo.1970). The rule in Missouri as to the determination whether an identification of a person in a lineup situation is “impermissi-bly suggestive” is declared to be as follows. Each case must be considered on its own facts but consideration should be given to “(1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others, and (3) positive courtroom identification.” State v. Parker, supra, 458 S.W.2d at 244. See State v. Boothe, 485 S.W.2d 11, 13 [1,2] (Mo. banc 1972) ; State v. Tidwell, 500 S.W.2d329, 331 [3-5] (Mo.App.1973). As has been said in many cases, and which courts recognize as the primary requirement in the trial of a person charged with a crime, the person accused must be shown to be the person who committed the offense. The identification of the accused should not be done in such a way in that so doing it is “ ‘so impermissi-bly suggestive as to give rise to a very substantial likelihood of irreparable misi-dentification.’ ” State v. Parker, supra, 458 S.W.2d at 243 [1-2]. Our search of the record does not disclose evidence that makes the identification of the defendant “so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidenti-fication.” In fact the record is clear of any evidence that Mrs. Mitchell’s identification was influenced by any person. She identified the defendant without any help from the sheriff’s deputies, and her in-court identification of the defendant was positive. The facts of this case show without doubt that the criteria of Stovall, Simmons, Boothe and Parker were not violated and that the defendant was the person who burglarized Mrs. Mitchell’s home. Defendant’s first assignment of error is denied. We have on our own volition examined the sufficiency of the evidence to support defendant’s conviction, and determine that there was sufficient evidence to support his conviction. Where there is positive identification by a single eyewitness, with explanation as to discrepancies, this constitutes substantial evidence of the guilt of the defendant, and the weight of the evidence is for the jury. This is especially so where the lighting is good and the witness was close to and personally saw the face of the burglar, and in a face to face burglary, even though the time of confrontation was short. State v. Cline, 452 S.W.2d 190, 193 [4] (Mo.1970); State v. Young, 345 Mo. 407, 411, 133 S.W.2d 404, 407 [7, 8, 9] (1939); State v. Carson, 501 S.W.2d 503, 506 [1] (Mo.App.1973). Robbery convictions have been upheld where the evidence was identical on the matter of identification and where the proof was no more positive than here. State v. Ross, 502 S.W.2d 241, 245-246 [1, 2] (Mo.1973); State v. Cannon, 486 S.W. 2d 212, 214 [3] (Mo.1972) ; State v. Bibee, 496 S.W.2d 305, 316 [23] (Mo.App.l973). In addition to the above identification the evidence discloses that there was a forcible breaking of the outer screen door and the inner door to the dwelling house and that at the time of the breaking and entering there was a human being present in the dwelling house. A positive identification of the defendant was made by Mrs. Mitchell in the trial court. Such evidence is sufficient to support a verdict of guilty of burglary in the first degree. § 560.040, RSMol969, V.A.M.S.; State v. Edwards, 353 S.W.2d 725, 727 [4] (Mo.1962). The evidence presented by the State was substantial and sufficient to support the verdict of guilty found by the jury. By assignment of error II, the defendant complains in his brief that: “The trial court erred in refusing to give defendant’s Instruction ‘B’ because such action had the effect of depriving defendant of his defense of improper identification in that without said instruction the jury was not given the necessary criteria or guidelines by which to judge the circumstances surrounding the identification.” The trial court gave Instruction No. 5 requested by the defendant on the issue of identification, which is as follows: “The Court instructs the jury that where the prosecution has offered identification testimony, that is, the testimony of an eyewitness that she saw the defendant commit the act charged, such testimony should be received with caution. An identification by a stranger is not as trustworthy as an identification by an acquaintance. Mistaken identification is not uncommon. The witness’ opportunity to observe the perpetrator during the commission of the act charged is of great importance in determining the credibility of his identification. The testimony of the witness that she is positive of her identification may be considered by you, but does not relieve you of the duty to carefully consider her identification testimony and to reject it if you find that it is not reliable. Careful scrutiny of such testimony is especially important, when, as in this case, it is the only testimony offered by the prosecution to connect the defendant with the act charged.” The defendant offered Instruction B on the issue of identification also, which is as follows: “The court instructs the jury that an identification procedure is any confrontation between the defendant and a witness, arranged by the authorities before trial, for the purpose of obtaining an identification. Where evidence has been introduced that a witness, who has identified the defendant at trial, identified him on some occasion before trial, the circumstances of that identification procedure may be considered by you in determining the reliability of the witness’ identification. “Dangers of suggestion, i. e., circumstances which draw attention to a particular person, exist in any identification procedure. The suggestion may be so great that the witness identified someone, before trial, who is not in fact the person who committed the act charged. It is a matter of common knowledge, however, that once a witness has identified someone prior to trial, he is not likely to change his testimony at the trial. In determining the credibility of the witness’ identification, therefore, you may consider whether the identification procedure contained any elements of suggestion which would have a tendency in reason to affect the reliability of the identification, including but not limited to the following: (1) whether the witness saw the defendant in a group or alone; (2) whether the other members of the group were grossly dissimilar in appearance from the defendant; (3) whether the witness, prior to the confrontation, was told that the person, or one of the persons, the witness was about to see was the guilty party; (4) and whether the defendant was pointed out before or during the confrontation.” The trial judge refused to give Instructions A and B. The defendant made no objection in the trial court to the refusal of the giving of these instructions. In his motion for a new trial he did object to Instructions A and B as follows. “The Court erred in refusing defendant’s offered instructions A & B for the reason that same properly stated the law under the evidence in this cause and refusal to give same deprived defendant of his defense.” This assignment is too general to present anything for appellate court review. Rule 27.20(a), V.A.M.R.; State v. Jordan, 235 S.W.2d 379, 383 [8] (Mo.1951). Defendant’s complaint of the trial judge’s failure to give Instruction A is not preserved in his brief. We will not consider it. Rule 28.02, V.A.M.R. Defendant complains in the argument of his brief that the trial judge erred in giving Instruction No. 5 in that “it does not, by itself, advise the jury of the specific criteria for a proper evaluation of such evidence, for example, the issue of suggestion (and criteria for considering such an issue) are set forth in ‘B’, but not mentioned in No. 5. Under the authorities cited in Point I, State v. Parker and Simmons v. United States, supra, such criteria are vital to the accused’s defense, and the court’s refusal to so instruct, under the 'totality of circumstances’, prevents the jury from considering this defense.” Defendant’s abstract statement of law, without showing how it is related to the ruling of the trial court, is not sufficient to preserve for review this assignment of error. Rule 84.04(d), V.A.M.R. The points relied on by the defendant on his appeal should defi-nately isolate and formulate the precise issue to be reviewed and not be relegated to the argument portion of the brief. State v. Freeman, 489 S.W.2d 749, 752 [1, 2] (Mo.App.1973). Instruction B, which was offered, is a cautionary instruction. Cautionary instructions with regard to identification, however, are within the discretion of the trial court. State v. Taylor, 472 S.W.2d 395, 402 [3-4] (Mo.1971); State v. Bibbs, 461 S.W.2d 755, 760 [7] (Mo.1970). There is nothing in the present case to indicate the refusal to give the requested instruction was an abuse of discretion. The court did give a cautionary instruction on the issue of identification in defendant’s Instruction No. 5, which was given by the trial judge at the request of the defendant. Defendant does not claim that this instruction was erroneous. Defendant’s assignment of error II is denied. A careful consideration of the entire record convinces us that the defendant’s assertions of error lack merit. Defendant in all respects had a fair trial, and the evidence supports his conviction, and the trial judge was correct in denying the motion for new trial. The matters for which no assignment of error is required have been examined, as required by Rules 28.02 and 28.08. The information is sufficient and in proper form. The defendant stood trial upon his plea of not guilty. The jury’s verdict is in proper form and responsive to the issues. The punishment assessed was within the range provided by statute. Defendant’s motion for a new trial was considered by the trial judge and denied. Allocution was granted. Defendant had the benefit of competent counsel throughout his trial and upon his appeal. No error appearing from the record, the judgment is affirmed. All concur except HOGAN, C. J., not sitting.

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2024-08-24T03:29:51.129235

2024-08-24T03:29:51.129683

Dorothy C. McKEEHAN, Plaintiff-Respondent, v. Jacob M. WITTELS et al., Defendants-Appellants. No. 35059. Missouri Court of Appeals, St. Louis District, Division Two. March 26, 1974. Susman, Wilier & Rimmel, Leonard Ko-men, St. Louis, for defendants-appellants. Thomas M. Carney, Robert H. Garfield, St. Louis, for plaintiff-respondent. McMILLIAN, Judge. This is an appeal by defendants, Jacob M. Wittels, Malcolm Wittels, llene Wittels, and Wittels Investment Co., Inc. from a joint judgment entered by the Circuit Court of St. Louis County, Missouri, in favor of plaintiff, Dorothy M. McKeehan, in the amount of $29,942.65 actual damages and $25,000 punitive damages. The case was tried before the court without a jury. Appellants challenge the sufficiency of the evidence to support a finding of breach of fiduciary duty. Specifically, appellants claim: 1. The judgment was against the weight of the evidence because the material elements of an action for breach of fiduciary duty had not been proven. 2. There was insufficient evidence to support the trial court’s finding of individual liability of appellants Jacob M. Wittels, Malcolm Wittels and llene Wit-tels. 3. There is insufficient evidence to support an award of punitive damages owing to a failure to prove appellants acted in a willful, wanton or malicious manner. Appellants also assert that the evidence did not support the amount of actual damages awarded to respondents. As a result of appellants’ failure to appear at trial, the case was tried without a jury. Plaintiff submitted the following evidence to the trial court to support her cause of action: Malcolm Wittel’s deposition, in-court testimony of three (3) witnesses, thirty-one (31) exhibits consisting of copies of the various deeds of trust sold by Wittels Investment Co. to plaintiff Dorothy McKeehan, recapitulations of transactions between plaintiff and defendant Wit-tels Investment Co. Inc., tax statements issued on the properties in question, etc. Plaintiff’s witnesses were Fred M. Reich-man, who was the initial attorney for Dorothy McKeehan in this matter, Lawrence Benard, Manager of the Missouri Property Insurance Placement Facility, and plaintiff Dorothy McKeehan. The scope of our review of this court-tried case is defined in § 510.310(4), RSMo, V.A.M.S. and Rule 73.01(d), Rules of Civil Procedure, V.A.M.R. We review both the law and the evidence as in suits of an equitable nature; the judgment is not to be set aside unless clearly erroneous and due regard is to be given to the opportunity of the trial court to judge the credibility of the witnesses. Atherton v. Ather-ton, 480 S.W.2d 513, 515 (Mo.App.1972); Upshaw v. Latham, 486 S.W.2d 656, 658 (Mo.App.1972). . Where the factual issue can only be determined from directly conflicting oral testimony, we defer strongly to the trial court’s finding on the matter of credibility. Upshaw v. Latham, supra, at 656. None of the parties below requested findings of fact or conclusions of law for final submission, nor did the trial court indicate grounds for its decision. Under such circumstances, we must assume that all fact issues were found in accordance with the result reached. Atherton v. Atherton, supra. As in Upshaw v. Latham, supra, the question for our determination is not whether plaintiff made a submissible case, but whether, on the evidence in the record, plaintiff is entitled to a judgment. We must determine whether the court below was clearly erroneous in rendering judgment for the plaintiff. These established principles form the basis for our affirmance of the judgment as to defendants Jacob Wittels, Malcolm Wittels and Wittels Investment Co., Inc., and our reversal of the judgment as to llene Wittels. Appellants challenge the sufficiency of the evidence to establish proof of the material elements of an action for Breach of Fiduciary Duty. We feel that the record amply supports the judgment with respect to Jacob and Malcolm Wittels and Wittels Investment Co., Inc. On the other hand, however, with respect to llene Wittels, we hold that there was insufficient evidence to support the finding and judgment of Breach of Fiduciary Duty. The judgment must be construed with reference to the records as a whole, including the pleadings. Chuning v. Calvert, 452 S.W.2d 580, 582 (Mo.App.1970). Consequently, we look to plaintiff’s complaint, defendants’ answer, and the evidence introduced at trial as well as case law to determine the validity of the trial court’s finding and judgment. As the first element of her cause of action, plaintiff Dorothy McKeehan pleads the creation and existence of a confidential relationship between herself and defendants, Malcolm, Jacob, and llene Wit-tels and Wittels Investment Co., Inc. The fiduciary duty or “fiduciary relationship” discussed in this case is usually referred to as applicable to suits in equity, but the principles underlying the doctrine in equity are also applicable to cases at law where the relation is sometimes referred to as a “confidential relation.” Klika v. Albert Wenzlick Real Estate Co., 150 S.W.2d 18, 24 (Mo.App.1941); Bacon v. Soule, 19 Cal.App. 428, 434; 126 P. 384, 386 (1912). It is established law that an agency relationship can arise impliedly from the behavior and conduct of the parties. Although “. . . [t]he parties may not have intended to create the legal relationship or to have subjected themselves to the liabilities which the law imposes as a result of it, nevertheless, the relationship exists ‘if there has been a manifestation by the principal to the agent that the agent may act on his account, and consent by the agent so to act.’ ” Groh v. Shelton, 428 S.W.2d 911, 916 (Mo.App.1968); Utlaut v. Glick Real Estate Company, 246 S.W.2d 760 (Mo.1952). A fiduciary relationship is created and established where there has been “a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regard to the interests of the one reposing the confidence . . .” Klika v. Albert Wenzlick Real Estate Co., supra, 150 S.W.2d at 24. A confidential relation exists when one relies upon and trusts another in regard to handling of property and business affairs, thus creating some fiduciary obligations. Davis v. Pitti, 472 S.W.2d 382 (Mo.1971). We believe that the record supports a finding that a fiduciary relationship existed between plaintiff Dorothy McKeehan and defendants Malcolm and Jacob Wittels and Wittels Investment Co., Inc. The transcript reflects that from the outset of the series of transactions in question, plaintiff dealt directly with Malcolm and Jacob Wittels who constantly assured her that they would take care of her investments. Plaintiff also testified that Malcolm Wit-tels urged her to entrust her funds with the Company and claimed that the Company had extensive experience and knowledge in handling such investments. Defendant Malcolm Wittels denies in his deposition that he or anyone made such promises to Dorothy McKeehan. However, this fact issue turns completely on the credibility of the witnesses. Consequently, we apply the principle enunciated in Upshaw v. Latham, supra, and defer to the trial court’s finding that Dorothy McKeehan’s testimony was the more credible. The testimony of Dorothy McKeehan, coupled with Mr. Reichman’s testimony at trial amply supports the trial court’s finding that a fiduciary or confidential relationship existed between plaintiff Dorothy McKeehan and defendants Malcolm Wit-tels, Jacob Wittels and Wittels Investment Co., Inc. But there is no evidence either direct or circumstantial, that llene Wittels participated in the active management of the business or individually contributed in any way to the creation of a fiduciary relationship with plaintiff. As the second element of her cause of action, plaintiff pleads that defendants breached their fiduciary duty by deliberately failing to follow her instructions, failing to disclose essential information affecting the security of her investments, and misrepresenting certain facts for the purpose of furthering their own financial position. It is established law in this state that “. . [w]hen a loss results to a principal from his agent’s failure to pursue the instructions given to him, a cause of action arises in favor of the former . . .” Marshall v. Ferguson, 94 Mo.App. 175, 67 S.W. 935, 936 (1902). “. . . [Sjometimes instructions are violated in such a way as to authorize a principal to proceed directly against the agent as a debtor or for conversion. Loyalty to their trust is firmly exacted of all agents by the law, and when one uses his position for his own ends, regardless of the welfare of his principal, he becomes responsible for a resultant loss, as if he unscrupulously handles money or property confided to him to benefit himself . . . [A]n agent cannot ignore the directions given him as to how the business put into his hands shall be transacted, and cannot use his agency for his own advantage, to the detriment of the principal.” Marshall v. Ferguson, supra, 67 S.W. at 936. Likewise, a fiduciary relationship between principal and agent obligates the agent to fully disclose all material facts to the principal, to strictly avoid misrepresentation and in all respects to act with utmost good faith. Groh v. Shelton, supra, 428 S.W.2d at 916; Klika v. Albert Wenzlick Real Estate Co., supra; Dittmeier v. Missouri Real Estate Commission, 237 S.W.2d 201 (Mo.App.1951). If plaintiff presented sufficient evidence to prove either that defendants deliberately ignored her instructions in order to further their own financial position, or failed to disclose material facts to plaintiff or actively misrepresented material facts to plaintiff, she will have produced sufficient evidence to support the trial court’s finding of proof of the second material element of her cause of action, breach of fiduciary duty arising out of a confidential or fiduciary relationship. Plaintiff has demonstrated with direct evidence in the form of exhibits and testimony that she entrusted to defendants Malcolm and Jacob Wittels and Wittels Investment Co., the sum of $28,813.00. Plaintiff testified that she repeatedly demanded of both Mai com and Jacob Wittels that her funds be returned to her after the various deeds of trust had matured. Plaintiff’s attorney, Fred Reichman, testified that he related to defendant Malcolm Wit-tels that plaintiff was interested in disposing of her investments. Reichman testified that he received personal assurances from Malcolm Wittels that Dorothy McKeehan’s investments would be returned to her. Consequently, the evidence indicates that both Malcolm and Jacob Wittels had personal knowledge of plaintiff’s instructions and knowingly disregarded them. Secondly, both plaintiff and her attorney testified that Malcolm and Jacob Wittels renewed the deeds of trust on several parcels of property without her consent and against her expressed wishes. Such evidence is sufficient to sustain a finding that defendants Malcolm and Jacob Wittels and Wittels Investment Co., knowingly failed to follow plaintiff’s explicit instructions regarding the handling of her investments. There is also a strong inference from other direct evidence that defendants deliberately ignored plaintiff’s instructions in order to further their own financial position. Malcolm Wittels admitted in the deposition that when several of the deeds of trust were first renewed, plaintiff could have recovered her investments by foreclosure. There is also direct evidence in the deposition and testimony at trial that Wit-tels Investment Co., held second deeds of trust on the same parcels of property as plaintiff’s first deeds of trust. Malcolm Wittels testified in his deposition that payments on the first deeds of trust would invariably be interest and no principal, while payments on the seconds would include both interest and principal. The second deeds of trust were therefore more valuable than the first deeds of trust held by plaintiff. It would naturally be to defendants’ financial disadvantage to have plaintiff foreclose at maturity instead of renew, since foreclosures would dissolve the profitable second deeds of trust. Such evidence is more than sufficient to sustain the finding that these defendants deliberately ignored plaintiff’s instructions so that their own financial positions would be enhanced. We also find ample evidence to sustain a finding that Malcolm and Jacob Wittels and Wittels Investment Co., breached their fiduciary duty to plaintiff by failing to disclose material facts regarding her investments. It is the established law in this jurisdiction that the existence of a confidential or fiduciary relationship between principal and agent obligates the agent to make a complete and full disclosure of all material facts concerning the transaction which might affect the principal’s decision regarding his or her investments. Groh v. Shelton, supra, 428 S.W.2d at 916; Dittmeier v. Missouri Real Estate Commission, supra,. 237 S.W.2d at 206; Bowers v. Boyd, 105 S.W.2d 59, 64 (Mo.App.1937). Similarly, it is a breach of fiduciary duty for an agent to occupy a position antagonistic to his principal. Van Raalte v. Epstein, 202 Mo. 173, 99 S.W. 1077, 1081 (1906). An agent will not be permitted to enter into any transaction with his principal on his own behalf respecting the subject matter of the agency, unless he acts with entire good faith and without any undue influence or imposition and makes a full disclosure of all the facts and circumstances attending the transaction. Rosenfeld v. Glick Real Estate Company, 291 S.W.2d 863, 872 (Mo.1956). Plaintiff’s evidence strongly supports the trial court’s finding that the defendants Malcolm and Jacob Wittels and Wittels Investment Company did occupy a position antagonistic to plaintiff and consequently failed to disclose all necessary facts to plaintiff regarding her investments. The record is clear that as to certain parcels of property, defendants sold the first deeds of trust to plaintiff and held on to the more profitable second deeds themselves. This arrangement is highly suspect since it is usually the first deeds of trust which pay interest and principal, not the second. Taking into consideration the evidence of plaintiff’s lack of sophistication in the area of real estate transactions, and of defendants’ knowledge of her dependence (both physical and intellectual) on their judgment, it is not unreasonable to conclude that she was totally unaware of the Wit-tels’ ownership of the second deeds of trust which operated to her disadvantage. Defendant Malcolm Wittels testified in his deposition that he would not and did not recommend to plaintiff that she foreclose. Plaintiff had no way of knowing that this advice was totally self-serving. Plaintiff also introduced exhibits and testimony that tax liens existed on all of the parcels of property held under the deeds of trust purchased from defendants. Malcolm Wittels testified that he knew that a tax lien was considered to be a first lien on the property. There is strong evidence that Malcolm and Jacob Wittels were aware of the exist-tence and accrual of tax liens on the properties at the time plaintiff purchased and held the deeds of trust. . . [A] mortgage or deed of trust in the nature of a mortgage, given on land to secure the payment of a debt, is now regarded in this State as being in its last analysis a lien and nothing more . . . ” Klika v. Albert Wenzlick Real Estate Co., supra, 150 S. W.2d at 24. When the deeds of trust were given to Dorothy McKeehan under the circumstances shown in the evidence, she was justified in believing she was purchasing a first deed of trust constituting a first lien on the property and not subject to any prior tax liens. The record clearly reflects the extreme unlikelihood that defendants Malcolm and Jacob Wittels were unaware of these tax liens. Their failure to disclose the tax liens to plaintiff at the time of sale and the failure to disclose the accrual of these tax liens was more than sufficient evidence to sustain the trial court’s finding and judgment with respect to these defendants. We have carefully read the record and have concluded that there is substantial evidence to support the trial court’s finding that defendants Malcolm and Jacob Wittels and Wittels Investment Company breached their fiduciary duty to plaintiff. However, we find no evidence in the record, either direct or circumstantial, of llene Wit-tels’ participation in either the creation of the fiduciary relationship or the subsequent breach of duty. An officer of a corporation is generally not liable unless he had actual or constructive knowledge of the wrong done by the corporation and participated therein. Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758, 764 (1931). Nor is one corporate officer’s knowledge of wrongdoing imputable to other officers. National Rejectors, Inc. v. Trieman, 409 S.W.2d 1, 44 (Mo.1966). There is authority for the principle that, “ . . . ‘corporate officers, charged in law with affirmative official responsibility in the management and control of the corporate business, cannot avoid personal liability for wrongs committed by claiming that they did not authorize and direct that which was done in the regular course of that business . . . ’ ” Curlee v. Donaldson, 233 S.W.2d 746, 754 (Mo.App.1950). However there is no evidence in the record either that llene Wit-tels participated in the active management of Wittels Investment Company, or that the wrongs perpetrated against plaintiff were committed in the regular course of the business of Wittels Investment Company. Appellants claim that the trial court erroneously based its finding of individual liability on § 351.525, which covers involuntary dissolution of corporations whose corporate charters have been forfeited. Plaintiff does plead that Wittels Investment Company, Inc., has had its corporate rights and privileges forfeited and that Malcolm, Jacob and llene Wittels succeed the corporation as statutory trustees and may be sued as such. However, plaintiff’s pleadings also alleged that Malcolm and Jacob Wittels should be held individually liable on the basis of their knowledge, participation in and consent of the wrongdoings. Plaintiff also states in her brief to the court that she does not base her claim of individual liability on the above-mentioned statute. Because the trial court did not indicate the grounds for its decision, we will assume, on appeal, that the fact issues were resolved in accordance with the result reached. Atherton v. Atherton, supra, 480 S.W.2d at 516. Consequently, we must affirm if the judgment was correct on any theory supported by the evidence. The evidence strongly supports a finding of individual liability predicated on Malcolm and Jacob Wittels’ knowledge, participation in and consent to those wrongdoings constituting breach of fiduciary duty. There is insufficient evidence to support the judgment of individual liability as to llene Wittels based on either theory of individual liability. Accordingly, we reverse the trial court’s finding and judgment of breach of fiduciary duty with respect to llene Wittels. The finding and judgment of breach of fiduciary duty with respect to Malcolm Wittels, Jacob Wittels and Wittels Investment Company is affirmed. Finally, appellants challenge the sufficiency of the evidence to support an award of punitive damages owing to a failure to prove that appellants acted in a willful, wanton or malicious manner. Appellants also claimed that the evidence did not support the amount of actual damages awarded to respondent. Respondent argues that these two issues were not preserved for review because they were not set forth in the motion for new trial. We will consider the sufficiency of the evidence to support the award of punitive damages. The question as to sufficiency of evidence to support a judgment in a court-tried case may be raised on an appeal, whether or not the question was raised in the trial court. Lawton-Byrne-Brunter Ins. A. Co. v. Air-Flight Cab Co., 479 S.W.2d 218, 221 (Mo.App.1972). Judgments for exemplary damages are, in general, governed by the same rules and subject to the same presumptions as control other judgments. 5 C.J.S. Appeal and Error § 1567. In Missouri, as well as in most jurisdictions, exemplary or punitive damages may be recovered against a wrongdoer where the wrongful acts were perpetrated in a willful wanton or malicious manner. State v. Hostetter, 344 Mo. 386, 126 S.W.2d 1173, 1175-1176 (1939). “ . . . ‘The test to be applied in determining whether malice existed as a basis for the award of punitive damages is whether the defendant did a wrongful act intentionally . . . without just cause or excuse . . . wantonly and with a bad motive . . . Mills v. Murray, 472 S.W.2d 6, 17 (Mo.App.1971). Our court holds that proof of legal malice alone will support a judgment for punitive damages. Davis v. Nash Central Motors, 332 S.W.2d 475, 481 (Mo.App.1960). We hold that the evidence in the record is sufficient to sustain the trial court’s finding of legal malice with respect to the wrongdoings committed by Malcolm and Jacob Wittels and Wittels Investment Company. Accordingly, we affirm the trial court’s judgment in awarding punitive damages for plaintiff against these defendants. Ordinarily, an objection to the amount of recovery is a matter that should first be presented to the trial court in a motion for new trial, even in jury-waived cases. Abco Assisting Building Construction Office v. Bagley & Co., 304 S.W.2d 43, 47 (Mo.App.1957). But where the issue is not preserved in a motion for a new trial and is raised for the first time on appeal, Rule 79.03 specifically exempts from this requirement “questions of the sufficiency of the evidence to support the judgment” in court-tried cases and that is the real issue in a court-tried case. This is true because a court-tried case is not determined on appeal or allegations of error as a jury-tried case is. Instead, it is determined de novo on the facts and applicable law, with the appellate court having full authority to make its own finding of fact on the evidence that was or should have been considered by the trial court. See Judge Lawrance M. Hyde, Appellate Review of Cases. Tried by the Court Without a Jury, Journal of The Missouri Bar, Vol. 26, No. 2, P. 71-73. Our review of the whole record and transcript convinces us that the trial court had sufficient evidence to sustain the amount of actual damages granted. And its award was not so inappropriate as to convince us that it was reversibly erroneous. Therefore we find this issue against defendants. Judgment affirmed as to Malcolm Wit-tels, Jacob Wittels and Wittels Investment Company. Judgment reversed as to llene Wittels. SMITH, P. J., and CLEMENS, J., concur. . The authorities cited above establish that in a confidential relationship, an agent’s failure to disclose material facts to the principal will support a cause of action for fraud. While we are not concerned with the issue of fraud on review here, it is reasonable to conclude that plaintiff’s evidence of fraud is sufficient to sustain a finding of deliberate breach of fiduciary duty. . Appellants claim that there is insufficient evidence to sustain a finding of active misrepresentations. It must be remembered that this judgment need not be based on active misrepresentation. The cause of action is for Breach of Fiduciary Duty based in part on evidence of the defendants’ failure to reveal facts which as agents it was their duty to reveal. We need not discuss here whether or not these failures to disclose would support a cause of action for Fraud. . We have highlighted the evidence in the record which most strongly supports the finding and judgment. We also acknowledge the existence in the record of other convincing evidence too extensive to outline here. . “If any corporation shall fail to comply with the provisions of this chapter with respect to registration . . . the corporate rights and privileges of such corporation shall be forfeited . . . and the directors and officers in office when any such forfeiture occurs shall be the trustees of the corporation .... and such trustees . . . may be sued as such . . . ” Section 351.525, Revised Statutes of Missouri.

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George FREESE, Plaintiff-Appellant, v. Charles Eugene KELLISON, Defendant-Respondent. No. 35377. Missouri Court of Appeals, St. Louis District, Division 2. April 2, 1974. Daniel T. Rabbitt, Jr., John L. Mc-Mullin, St. Louis, for plaintiff-appellant. Niedner, Moerschel, Nack & Ahlheim, Rollin J. Moerschel, St. Charles, for defendant-respondent. McMillian, judge. This is an appeal by plaintiff from a judgment entered on a jury verdict by the Circuit Court of St. Charles County, Missouri, in favor of defendant and against plaintiff who sought to recover damages for the wrongful death of his wife. This is the second trial and appeal. In the first trial, plaintiff submitted his case on defendant’s humanitarian negligence in failing to slacken his speed when he saw plaintiff in immediate and impending danger. The jury returned a verdict and the court entered judgment for plaintiff in the sum of $15,000.00. On appeal, we reversed and remanded, Freese v. Kellison, 482 S.W.2d 538 (Mo.App.1972), because plaintiff failed to make a submissible case since plaintiff was not in a position of danger at the time of impact. Davis v. Quality Oil Company, 353 S.W.2d 670 (Mo.1962). On the other hand, however, we rejected defendant’s claim that he was entitled to an outright discharge because plaintiff was guilty of contributory negligence as a matter of law because plaintiff made a left turn across defendant’s path at a time when defendant was approaching so closely as to constitute an immediate hazard. We held that under the circumstances of the case plaintiff’s contributory negligence was an issue for the jury. On the retrial, plaintiff submitted his case on primary negligence; namely, the defendant’s conduct in leaving the traveled portion of the highway. Skiles v. Schlake, 421 S.W.2d 244 (Mo.1967). Over plaintiff’s objection defendant submitted a contributory negligence instruction on plaintiff’s failure to yield the right of way. Taylor v. Schneider, 370 S.W.2d 725 (Mo.1963). On this appeal plaintiff raises two issues: (1) defendant was not entitled to give a contributory negligence instruction since our prior opinion held as a matter of law plaintiff was never in a position of immediate hazard, and (2) there was no evidence to support a contributory negligence submission. We disagree, and, accordingly affirm. Inasmuch as the case is a retrial and the evidence is identical, we shall only briefly delineate the facts. For a comprehensive narrative see Freese v. Kellison, supra. On April 12, 1969, plaintiff and decedent were traveling east on Highway 40-61 near Wentzville, Missouri. Intending to drive into Cindy’s Motel, plaintiff turned left, at a speed from 2-3 miles per hour to 6-10 miles per hour. Defendant’s evidence was that he was traveling east at a speed of 65 miles per hour when he saw plaintiff’s left turn blinker about 1000 feet away; that when the two cars were 150 feet apart, plaintiff turned across the westbound lane; defendant slammed on his brakes, veered slightly into the eastbound lane and then across the westbound lane onto the driveway of the Cindy Motel and into plaintiff’s car. At the time of impact defendant testified that plaintiff’s automobile was 3-4 feet off the traveled portion of the highway. We find no merit to plaintiff’s claim that the law of the case on this appeal is governed by the court’s opinion in the prior appeal of this cause. Freese v. Kellison, supra. In Swain v. Anders, 349 Mo. 963, 163 S.W.2d 1045 (1952) loc.cit. 1048, was a case of almost identical facts as far as the accident is concerned, and is also a case that was originally tried on the humanitarian doctrine, reversed, and re-tried on a theory of primary negligence with a contributory negligence submission, and an appeal complaining about the contributory negligence submission. The Swain court said: “Ordinarily, matters decided on one appeal, where the issues and evidence are the same, will be considered settled law on a second appeal in the same case, except where a mistake of fact has been made or where the decision did not do justice to the parties. . . However, it does not appear from the opinion of the Springfield Court of Appeals that the issue of the sufficiency of the evidence to make a case for the jury on the charges of primary negligence, upon which the cause was last submitted, was before that court on the prior record . We must, therefore, on his appeal determine the sufficiency of the evidence to make a submissible case upon the theory upon which the cause was last submitted to the jury.” Thus, in view of the two different theories of submission in the two appeals, the “hazard” section of the court’s prior opinion dealing with a humanitarian submission simply does not apply to either the primary negligence or the contributory negligence submission in the instant case. In our prior opinion, Judge Weier stated that contributory negligence of plaintiff did not exist as a matter of law. Nonetheless, he observed that reasonable minds could differ or draw different conclusions, where a motorist turns left into the path of an oncoming vehicle, as to whether or not this left turn was performed when the oncoming vehicle was so close as to constitute an immediate hazard; thus presenting a jury question. Plaintiff would have us say that because the court reversed the prior appeal since he never came into a position of immediate danger under a humanitarian submission, then as a matter of law there can be no submission on failure to yield the right of way. This for the reason that plaintiff would only have to yield the right of way if defendant was so close, at the time plaintiff turned to the left, as to constitute an immediate hazard, Taylor v. Schneider, 370 S.W.2d 725, 728-729 (Mo.1963). In the prior appeal the evidence was that at the moment of impact, plaintiff had left the traveled portion of the highway, and had reached a position of safety on the apron of the motel entrance driveway. This is in no way incongruous with defendant’s contributory negligence theory that at the time plaintiff turned his automobile into defendant’s path of travel, his automobile constituted an immediate hazard because of the proximity of the two automobiles and the rate of speed at which defendant’s automobile was approaching. Therefore, it is a misstatement of the holding on the first appeal to say that as a matter of law because plaintiff was not in a position of immediate danger under a humanitarian submission, it necessarily follows that plaintiff could not have failed to yield the right or could not have been con-tributorily negligent in some other way. The real issue was whether defendant’s automobile presented an immediate hazard with a danger of collision to the left turning vehicle operated by the plaintiff. And if reasonable minds could differ on the matter, then a jury question was made. Plaintiff’s confusion stems from his failure to distinguish between humanitarian negligence and antecedent negligence. Therefore, we rule against plaintiff’s first contention. Plaintiff’s second point urges that there was no evidence to support defendant’s contributory negligence submission, and he also argues that defendant’s testimony could not possibly be correct. Since the jury verdict found in favor of the defendant, on appeal we consider the evidence and the inferences to be drawn therefrom in its most favorable light to support the verdict. We note first that there was conflicting evidence on the speed at which plaintiff crossed the road, and the distance between plaintiff and defendant when plaintiff began his turn. Resolution of both these questions was properly left to the jury. Considering the evidence in the light most favorable to the defendant, a jury could have reasonably found that defendant was 150 feet away, driving at a speed of 65 miles per hour at the time plaintiff began to make his left turn; that plaintiff operated his car across the path of the defendant at a speed of two miles per hour; and that at the moment plaintiff began his turn defendant made an immediate emergency application of his brakes. At 65 miles per hour, defendant was traveling 97.5 feet per second, and in %ths second (reaction time to danger) the defendant’s automobile would have traveled 73 feet, leaving a distance of 77 feet between his automobile and that of the front of plaintiff’s automobile at the moment plaintiff just began his turn. So, defendant was less than a second away from a collision at the very moment plaintiff began to turn. Plaintiff’s car traveling at either 2 or 3 miles per hour was moving at a rate of either 3 or 4.5 feet per second. While we do not know the exact length of plaintiff’s automobile, we do know at the speed of either 2 or 3 miles per hour, it would take more than 2 or 3 seconds for plaintiff’s entire automobile to reach a point of safety out of the path of defendant’s oncoming car. In Lafferty v. Wattle, Mo. App., 349 S.W.2d 519, 526, where the court recognized that speeds and distance testified to by the parties were mere estimates, the court said: “ . . . [T]he jury is entitled to take the whole circumstances, correlate the facts and, if such reasonably can be done from the evidence, arrive at a conclusion which may not exactly fit any of the estimates. . .” Thus whatever the distances and whatever speed either car was traveling at the time plaintiff began his turn, the jury could find that defendant made an emergency application of his brakes and never released them from the time plaintiff set forces into motion, up to the time of the collision. Consequently, we hold that there was sufficient evidence from which a jury could find that at the time plaintiff made his left turn across the path of defendant’s approaching automobile from an opposite direction he was so close as to constitute an immediate hazard with a danger of collision. Judgment affirmed. CLEMENS, Acting P. J., and GUNN, J., concur.

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William J. HAMEL, Appellant, v. STATE of Missouri, Respondent. No. 35180. Missouri Court of Appeals, St. Louis District, Division One. April 2, 1974. Roland A. Wegmann, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for appellant. John C. Danforth, Atty. Gen., Charles B. Blackmar, Asst. Atty. Gen., Jefferson City, for respondent. KELLY, Judge. This is the second appeal afforded appellant in the courts of this state in his post-conviction effort to have his plea of guilty to a charge of robbery in the first degree, entered on the 13th day of May, 1931, and the life sentence imposed on said plea on the 22nd day of May, 1931, vacated and set aside. His prior unsuccessful effort is reported at 420 S.W.2d 264, Mo., and arose out of a motion pursuant to Rule 27.26 V.A.M.R., filed in the Circuit Court of Jefferson County on the 8th day of September, 1965. Thereafter, he filed a writ of habeas corpus in the United States District Court for the Western District of Missouri, Central Division, which was dismissed without prejudice by the chief judge of that court on the basis that the appellant had not exhausted available state post-conviction remedies with respect to his contentions that: “1) he was not informed of the nature of the charge against him at the time of his trial; 2) that his change of plea during the course of the trial was induced and involuntary” and whether he was entitled to counsel at the preliminary hearing. Thereafter, on the 15th day of April, 1968, appellant filed a second motion pursuant to Rule 27.26 V.A.M.R., identical to that filed herein, and after an evidentiary hearing on the motion, but prior to a ruling thereon, on the 20th day of September, 1968, he filed a motion requesting leave of court to withdraw his pending 27.26 V.A. M.R. motion. Appellant was thereafter on the 23rd day of September, 1968, permitted by the trial court to withdraw his motion by and with consent of his court-appointed counsel and said motion was dismissed. The reason why appellant withdrew the aforesaid motion was that, subsequent to the evidentiary hearing on the 9th and 16th days of September, 1968, he had been paroled. On February 8, 1972, appellant, again confined to the Missouri State Penitentiary, filed the current motion for post-conviction relief pursuant to Rule 27.26 V.A.M.R., asserting as grounds for said relief, as suggested by the judge of the United States District Court, three “substantial federal constitutional claims which have never been determined on the merits by the state courts.” An evidentiary hearing was held on the present motion on the 18th and 20th days of September, 1972. At the conclusion of the evidentiary hearing the cause was taken as submitted, briefs were filed with the court and thereafter on the 6th day of February, 1973, the court made its findings of fact and law in the case. The court found with reference to the defendant’s alleged denial of his right to be informed that the appellant was charged by a complaint in the Justice of the Peace Court with robbery in the second degree and that it was on this charge that he was afforded a preliminary examination; that thereafter, an information was filed in the Circuit Court including allegations of prior convictions of felonies under the Habitual Criminal Act and also charging him with robbery in the first degree. That without counsel, he appeared for arraignment on May 11, 1931. That prior to the arraignment, the prosecuting attorney read to the appellant the information under which he stood charged. Appellant then waived a formal arraignment and entered a plea of not guilty. The court appointed counsel for him and the cause was set for trial on May 13, 1931. That on the trial date appellant appeared with counsel, announced ready for trial and the jury was selected and sworn. That the trial proceeded with the calling of several witnesses, after which the appellant withdrew his former plea of not guilty and entered a plea of guilty to the crime charged in the information; that on May 23, 1931, allocution being granted, appellant was sentenced to imprisonment for life. The trial court further found that the movant, represented by able counsel at the trial, was not denied due process when considered in the light of his testimony at the evidentiary hearing. The court further found that the appellant’s contention that his plea was induced and therefore involuntary, was not supported by credible evidence. The trial court further found that although appellant did not have the assistance of counsel at the preliminary hearing, nevertheless, he found no evidence of prejudice which would entitle appellant to have his motion sustained. The court further found that after a consideration of all the grounds upon which appellant based his motion that appellant was not denied due process of law. On appeal it is contended that the findings of fact and of law made by the trial court are clearly erroneous because: 1. There were defects and inconsistencies in the complaint and the information which' were violative of the accused’s constitutional right to be informed which were not cured by the representation by counsel at the trial and the reading of the information to the accused at the pre-trial arraignment. 2. That the failure to provide counsel at the preliminary hearing, in the peculiar circumstances of this cause, were prejudicial to the federally protected constitutional rights to have aid and assistance of counsel at every stage of a criminal prosecution. 3. That appellant’s plea of guilty under the circumstances was not voluntarily entered. 4. That by reason of each of the aforementioned grounds for relief appellant was denied due process of law. After sentence the court may set aside the judgment and permit the movant to withdraw his plea of guilty only if necessary to correct manifest injustice. Rule 27.25 V.A.M.R. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was illegal or otherwise subject to collateral attack, or that there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate and set aside the judgment and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. Rule 27.26(i) V.A.M.R. Upon appeal our review is “limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j) V.A.M.R. Appellant’s first contention that he has been denied his right to be informed of the nature and the cause of the accusation guaranteed to him by Article II Section 22 of the Constitution of the State of Missouri, 1875, V.A.M.S., and the Sixth Amendment of the Constitution of the United States as made applicable to the several states by the Fourteenth Amendment to the United States Constitution is two-pronged. One is that there is a discrepancy between the complaint filed before the Justice of the Peace and on which the preliminary hearing was conducted and the information subsequently filed in the Circuit Court and to which he entered his guilty plea. The trial court after the evi-dentiary hearing found that the complaint filed in the Justice of the Peace Court pleaded the offense of robbery in the second degree and the information filed in the Circuit Court pleaded robbery in the first degree; that, nevertheless, by waiving formal arraignment after the prosecuting attorney had read the information to him and entering a plea of not guilty, and thereafter appearing with court-appointed counsel on the date set for trial, announcing ready for trial, proceeding with the trial through the selection and swearing of the jury to try the case, sitting through the testimony of several witnesses, and then withdrawing his former plea of not guilty and entering a plea of guilty to the crime charged in the information, “he was not denied due process of law.” While we would reach a different conclusion with respect to the crime alleged in the complaint filed in the Justice of the Peace Court than did the trial judge here, for reasons hereinafter stated, we agree with him in his conclusion with respect to this sub-point raised by appellant. We conclude, as did the Supreme Court of this State in the earlier post-conviction appeal reported in 420 S.W.2d 264, 266 (Mo.1967), where this same argument was made: “There is no merit to this point. By announcing ready and proceeding to trial on the charge of first degree robbery and, after hearing at least a part of the state’s evidence, by entering a plea of guilty to that charge, defendant waived any objection he might have had that he had not been afforded a preliminary examination on robbery in the first degree.” This is the law in this state and has been for many years. However, since the chief judge of the federal district court dismissed appellant’s habeas corpus proceeding in that court without prejudice so that appellant could exhaust his state remedies, we shall proceed to dispose of that point also — appellant’s contention that there existed a variance between the complaint in the preliminary hearing and the subsequent information which violated his constitutional right to be informed of the nature and cause of the accusation. In the prior appeal the Supreme Court did not, as we read the case, actually make a determination whether the complaint pleaded robbery in the second degree because it never reached that point. For a clearer understanding of this point it behooves us to set out the complaint filed before the Justice of the Peace and on which he proceeded to conduct the preliminary hearing. A complaint in the Justice of the Peace Court was not measured by the same strict standards applicable to an information filed by the prosecuting attorney following a preliminary hearing. State v. Flannery, 263 Mo. 579, 173 S.W. 1053, 1055 [1] (1915). A complaint has been defined in City of Richland v. Null, 194 Mo.App. 176, 185 S.W. 250, 251 [2] (1916), as “A form of legal process which consists of a formal allegation or charge against a party, made or presented to the appropriate court or officer, as for a wrong done or crime committed; in the latter case generally under oath ... In criminal practice, a charge, preferred before a magistrate having jurisdiction, that a person named (or an unknown person) has committed a specific offense, with an offer to prove the fact, to the end that a prosecution may be instituted.” The purpose of a complaint was to initiate a preliminary hearing required by Sec. 5056 RSMo 1929 and the purpose of the preliminary hearing was “to obviate the possibility of groundless or vindictive prosecutions which the Legislature evidently deemed might otherwise occur where informations were filed and the deliberations of a grand jury dispensed with . The examination, therefore, was in no sense intended as a trial, in which the guilt or innocence of the accused was finally determined, but simply that the possibility of an abuse of power by the prosecutor might be prevented; and if the facts adduced satisfied the justice that an offense had been committed, and there was probable cause to believe the accused was guilty, his detention was authorized until an information or indictment be found.” State v. Flannery, supra, 173 S.W. l.c. 1055. Robbery in the first degree was at the time of the filing of this complaint (and for that matter, still is) 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. Sec. 4058 RSMo 1929. Robbery in the second degree is the felonious taking the personal property of another, in his presence or from his person, which shall have been delivered or suffered to be taken through fear of some injury to his person or property threatened to be inflicted at some different time, which fear shall have been produced by the threats of the person so receiving or taking such property. Sec. 4059 RSMo 1929. An element which distinguishes robbery in the first degree from robbery in the second degree is whether the fear is of immediate injury or of threatened injury to be inflicted at some different time. State v. Whitley, 327 Mo. 226, 36 S.W.2d 937, 939 (1931). While the complaint in this case was not the epitome of artful draftsmanship, we conclude that viewed in the light of the office of a complaint it sufficiently informed the appellant as well as the Justice of the Peace that the crime inquired into was whether “Mutt” Phares was robbed and whether there was probable cause to conclude that appellant was the culprit. Whether, after hearing the evidence on the preliminary hearing, the Justice of the Peace determined that appellant should be bound over to face a charge of robbery in the first degree or robbery in the second degree would depend upon the evidence presented at the preliminary hearing. We hold that the appellant was not prejudiced by the alleged discrepancies in the complaint and the charge as ultimately pleaded in the information filed thereafter. Appellant’s second thrust under this point is that his constitutional right to be informed of the charge against him requires that the information specify the degree of the crime and the penalty provided upon conviction thereof. Both of these points have been ruled against him by the Courts of this state. An information in the statutory language has been held sufficient where it identifies the crime charged. If we excise some of the surplusage contained in the information we conclude that it charged that William Hamel, on the 30th day of March, 1931, in the County of Jefferson, State of Missouri, did unlawfully and feloniously make an assault upon one Walter Phares and did rob, steal and carry away with the intent to deprive Walter Phares of the use thereof the sum of $220.00 by force and violence to the said Walter Phares, by striking and beating him and by flourishing a revolver or pistol. The information does contain some allegations relative to appellant also threatening and intimidating three other persons with the revolver or pistol, but there is no allegation that they too were robbed. We further conclude that this information, absent any attack thereon prior to trial, sufficiently alleged robbery in the first degree under Sec. 4058 RSMo 1929, State v. Cantrell, 290 Mo. 232, 234 S.W. 800 (1921); State v. Vigus, 66 S.W.2d 854 (Mo.1933). It is not necessary that the information specify the penalty for the offense charged. State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279, 283 [9] (1940). We rule this first point against appellant. Appellant’s second point is that he was denied assistance of counsel at the preliminary hearing stage of the criminal process and he was, therefore, prejudiced and the trial court erred in denying him the relief sought. While the trial court found as a fact that defendant did not have counsel at the preliminary hearing it further found that he was not prejudiced by the failure of the Justice of the Peace to appoint counsel to assist him at that stage. Prior to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) counsel at the preliminary hearing was not required in the courts of this state. Coleman v. Alabama, supra, has been held to be prospective in application only and not controlling in those preliminary hearings conducted prior to June 22, 1970. Adams v. Illinois, 405 U.S. 278, 285, 92 S.Ct. 916, 31 L.Ed.2d 202 (1972); State v. Terry, 485 S.W.2d 3, 4 (Mo.1972) ; Hendrix v. State, 495 S.W.2d 457, 459 [3, 4] (Mo.App.1973). We find that the trial court was not clearly erroneous in its finding that the absence of counsel at the preliminary hearing did not prejudice appellant’s constitutional rights guaranteed under the Sixth Amendment to the United States Constitution. Appellant’s third point is that the trial court erred in finding that his plea of guilty was voluntarily entered with an understanding of the consequences. He argues that appellant was induced to enter his plea of guilty by offer of a sentence of twenty years in the penitentiary in return for his plea. Appellant was the only witness to testify concerning any offer of this nature. The trial court, as he had a right to do, did not believe this testimony. Shoemake v. State, 462 S.W.2d 772, 775 [4] (Mo. banc 1971); Skaggs v. State, 476 S.W.2d 524, 527 [3] (Mo.1972). A number of pages of appellant’s argument in his brief filed in this court is devoted to persuade this court that the appellant had nothing to gain by entering a plea of guilty to a charge of robbery in the first degree, and that the allegations relative to the prior convictions made life imprisonment the only punishment available under Sec. 4461 RSMo 1929; that, therefore, his testimony of the offer of a twenty year sentence had to be accepted by the trial court to account for his willingness to plead guilty. The trial court, in its findings, found that the appellant was charged in the information in this case with the crime of robbery in the first degree, and that is the crime to which he pleaded guilty. The range of punishment upon conviction of robbery in the first degree is a minimum of five years imprisonment to a maximum of life imprisonment whether the Habitual Criminal Act allegations are made and proven. We have no evidence before us that these allegations were even gone into at the trial of the cause prior to the entry of appellant’s plea. We have here another post-conviction proceeding wherein the only dramatis personae still alive and available to give testimony is the appellant; each of the others is dead. It is the appellant who had the burden of establishing the grounds for the relief sought by the preponderance of the evidence. Rule 27.26(f) V.A.M.R. The trial court could, and did, reject the evidence of the appellant in this respect even though there was no contrary evidence offered by the state at the evidentiary hearing. Shoemake v. State, supra; Skaggs v. State, supra. The trial court also had the right to consider the lapse of time in determining the good faith and credibility of the appellant who was seeking the post-conviction relief. State v. Hamel, 420 S.W.2d 264, 267 [5] (Mo.1967). We find that the findings of the trial court in this respect were not clearly erroneous and therefore rule this point against appellant. Appellant’s fourth and final point, a catch-all, incorporates each of the points already disposed of and contends that the collective effect thereof constituted a deprivation of liberty without due process of law under the Constitutions of the United States and the State of Missouri, 1875. Any vitality this point might have had has been emasculated by our rulings on the prior points incorporated herein. Having disposed of each of appellant’s contentions adversely, we affirm. DOWD, C. J., and SIMEONE, J., concur. . In Jaben v. United States, 381 U.S. 214, 217, 85 S.Ct. 1365, 1367, 14 L.Ed.2d 345 (1965) a complaint under Rule 3 of tlie Federal Rules of Criminal Procedure was defined as: “ . . .a written statement of the essential facts constituting tlie offense charged.” made on oath before a commission or other officer empowered to commit persons charged with offenses against the United States.

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Roger KIEFFER and Catherine Kieffer, his wife, Plaintiffs-Appellants, v. CITY OF BERKELEY, a municipal corporation, Defendant-Respondent. No. 35170. Missouri Court of Appeals, St Louis District, Division One. April 2, 1974. Shaw & Howlett, Keith W. Hazelwood, Clayton, for plaintiffs-appellants. Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown, Donald L. James, St. Louis, for defendant-respondent. WEIER, Judge. Plaintiffs appeal from an order sustaining the defendant’s motion to dismiss the petition. Plaintiffs’ petition alleged injury due to defendant’s negligent maintenance of one of its streets. The city’s motion to dismiss alleged an insufficiency in the notice given it. This notice stated that on June 27, 1972 Mr. Kieffer “was injured because of a defect in the thoroughfare known as Latty Road at or near the point where Latty Road intersects with Graham Road, within the city limits of the City of Berkeley.” The petition stated that the accident occurred “in front of the Midway Warehouse located at 8942 Latty Road within defendant’s City, * * Defendant’s contention in its motion was that the notice was “fatally defective in that the location of the alleged accident was indefinite and could not properly inform this defendant of the exact location of the alleged accident,” and that the only point at which defendant could have reasonably supposed the defect to exist was at the intersection of Latty Road and Graham Road which was located in the City of Hazel-wood and not in the City of Berkeley. To support this motion, defendant filed an affidavit of the city manager of Berkeley to the effect that the city was a constitutional charter city and that the intersection referred to in the notice was not in the corporate limits of the City of Berkeley. Without any evidentiary hearing, the court sustained the motion to dismiss for failure to provide proper notice pursuant to the statute. On appeal, all parties rely on the provisions of § 82.210, RSMo. 1969, V.A. M.S., as being applicable to the requirements of notice to the City of Berkeley. We are not that certain. Although this section appears in the chapter with regard to constitutional charter cities, by its terms it applies to cities containing a population of at least 100,000 inhabitants. The City of Berkeley, according to the 1970 census, of which we take judicial notice, [§ 490.-700, RSMo. 1969, V.A.M.S.; State ex rel. State Highway Commission v. Galeener, 402 S.W.2d 336, 338 [2] (Mo.1966)] lists a population of 19,743. This population requirement set forth in the statute was no doubt included because Article IX, Section 16, Constitution of 1875, which was in effect when § 82.210 was enacted in 1913, authorized adoption of a charter form of government in cities having population of more than 100,000 inhabitants. By Article VI, Section 19, Constitution of 1945, V.A. M.S., this requirement was reduced to 10,000; and later, by amendment adopted October 5, 1971, to 5,000, but the statute was never changed. This is Only of passing interest in the instant appeal, however, since the parties adopted the section as applicable to the City of Berkeley in the trial court, and have continued to acknowledge its applicability on this appeal. On appeal, we must review the case solely on the theory under which it was tried in the trial court. Nelle Plumbing Company v. Stefanic, 453 S.W.2d 636, 640 [5] (Mo.App.1970); Lee v. Smith, 484 S.W.2d 38, 41 [1] (Mo.App.1972). This is true even though the statute under which the case was submitted to the jury had been previously construed by an appellate court not to be applicable to the facts of the case tried [Oberdan v. Evens & Howard Fire Brick Co., 296 S.W. 161, 163 [4-6] (Mo.App.1927)]; or even though the parties tried their case on a theory that a statute should be construed as indicated in a prior case which had later been overruled. Simpson v. Wells, 292 Mo. 301, 237 S.W. 520, 528 [11] (1922). We are now confronted with the central question, that is, was the notice insufficient. This question is controlled by the principles enunciated in Travis v. Kansas City, 491 S.W.2d 521 (Mo. banc 1973) wherein the court at p. 524 stated: “If the municipality believes that the content of the notice as to time of injury (or other matters) was so misleading as to have affected its legitimate right to fully investí-gate the occurrence and that its ability to defend against the claim has thus been limited or prejudiced, such facts should be presented to the trial court. Thereafter, a ruling as to whether or not the notice met the intent and purpose of the statute could be made after a hearing, thereon.” Defendant points out that the intersection of Latty Road and Graham Road is not within the city limits of Berkeley and, therefore, the notice was ineffective. The notice must be read as a whole, however, and when so read it is apparent that the defect was alleged to be on Latty Road, within the city limits of Berkeley, in addition to being at or near Graham Road. Courts do not take judicial notice of whether streets are within the boundaries of cities. Bennett v. Kitchin, 400 S.W.2d 97, 106 [10] (Mo.1966). The effectiveness of the notice must therefore be measured by evidence as to the place where the injury occurred and the location as set forth in the wording of the notice. Following the principles in Travis, supra, the trial court should then sustain defendant’s motion on the basis of ineffective notice only if, after a hearing, it determines that the notice was so misleading as to have affected defendant’s right to fully investigate the occurrence and determines that its ability to defend against the claim has thus been limited or prejudiced. The supreme court in Travis overruled the strict application given the statute in Hackenyos v. City of St. Louis, 203 S.W. 986 (Mo. banc 1918) in favor of a liberal construction which was advocated by the dissenting opinion in Hackenyos. This dissenting opinion advocated a liberal construction because the notice statute did not create a cause of action but was merely enacted by the legislature to place a condition precedent upon plaintiffs’ right to recover in a common law action. A liberal construction should be considered when the question of the applicability of the notice section is posed by the evidence at a motion hearing required by Travis. The judgment is reversed and the cause is remanded for further proceedings consistent with this opinion. DOWD, C. J., and SIMEONE and KELLY, JJ., concur.

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STATE of Missouri, Respondent, v. Burton WOODS, Jr., Appellant. No. 35317. Missouri Court of Appeals, St. Louis District, Division One. April 2, 1974. John H. Marshall, Asst. Public Defender, St. Louis, for appellant. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Aired, St. Louis, for respondent. KELLY, Judge. Appellant was charged in an Amended Information filed in the Circuit Court of the City of St. Louis on January 29, 1973, with the following offenses: Count I, Attempted Robbery in the First Degree by Means of a Dangerous and Deadly Weapon; Count II, Assault with Intent to Kill with Malice Aforethought one Tommy Franklin; and Count III, Assault with Intent to Kill with Malice Aforethought one Thomas King. The Amended Information further contained an allegation pertinent to the Second Offender Act, Sec. 556.280, RSMo.1969, charging that the appellant had previously been convicted of the felonies of Burglary in the Second Degree and Stealing. After a jury trial the appellant was found guilty of the offenses charged in Counts I and II of the Amended Information and not guilty of that charged in Count III thereof. After overruling appellant’s motion for new trial with respect to Counts I and II, the trial court sentenced him to a term of fifteen (15) years in the custody of the Missouri Department of Corrections on the conviction for Attempted Robbery in the First Degree by Means of a Dangerous and Deadly Weapon and to a term of twenty five (25) years on the conviction of Assault with Intent to Kill with Malice Aforethought as charged in Count II of the Amended Information, each sentence to run concurrently. We are called upon to consider only one point on this appeal: whether the trial court erred and abused its discretion in sustaining the State’s objection to an inquiry directed to one Alfred Stewart, a witness offered by the defense, regarding a conversation with one Samuel Crump, a co-participant in the attempted robbery, wherein Crump proposed to the witness that the witness allow Crump to rob the store where the witness was employed. The appellant does not question the sufficiency of the evidence to support the convictions, and therefore it is necessary only to briefly state the facts which support the jury’s findings. On June 29, 1972, at about 10:30 P.M. the Three Pipers Lounge, at 5102 St. Louis Avenue in the City of St. Louis, Missouri, was open for business. Mildred Cody was tending the bar. There were a number of customers in the bar, among whom was Tommy Franklin, an off-duty member of the St. Louis Metropolitan Police Department. Two male Negroes entered the lounge, announced that there was a hold-up in progress, and shortly thereafter Officer Franklin shot and killed one of the hold-up men and the other then fled from the scene. In the exchange of gun-fire Thomas King was wounded by a discharge from the sawed-off shotgun in the hands of the holdup man who was killed on the scene, subsequently identified as Samuel Crump. Three or four days after the incident, Officer Franklin and Miss Cody viewed photographs of suspects and each selected a photograph of appellant as a picture of the robber who effected his escape. A line-up was conducted and there again both Miss Cody and Officer Franklin identified the appellant as the holdup man who ran from the scene. The defense called to the stand Mr. Alfred Stewart who testified that “a day or so” prior to the attempted robbery of the Lounge, Samuel Crump and another fellow came to the Velvet Freeze Store where Stewart was employed, and he had a conversation with Crump. When counsel for appellant attempted to develop the contents of the conversation between Crump and the witness the Assistant Circuit Attorney interposed an objection on the grounds that the testimony was hearsay and was “not relevant or material to these proceedings. It’s what occurred at the alleged time and place charged against this defendant, unless he first lays a foundation.” After a conference at the Bench the trial judge directed that the jury be removed from the courtroom and a record was made out of the hearing of the jury. The witness testified that the other man with Crump was a fellow by the name of “Tillman” and identified a photograph as a photo of the man he knew by the name of Tillman. He further testified that on the occasion Crump came to the store with Tillman, Crump said that “they were ill” and needed a fix and asked Stewart to allow him to rob the Velvet Freeze Store. Tillman just stood there; he took no part in the conversation. Stewart replied that he couldn’t allow it because he wouldn’t do a thing like that and furthermore the store belonged to his brother. Crump did not tell Stewart that he had “done it” any place nor that he was planning to rob any other place. Crump then bought an ice cream cone and he and Tillman left the store together. The trial court thereupon advised counsel that he was going to sustain the objection, and explained that he was sustaining the objection only to the contents of the conversation and that he did not intend thereby to prevent defense counsel from showing the fact that Tillman Morris was in the presence of Samuel Crump a few days before Crump was killed. The basis for sustaining the objection was that the evidence had no probative value to the issues in this case, was too remote to have any probative value and would require the jury to resort to surmise and guesswork. After the jury was returned to the courtroom and the trial resumed, appellant’s counsel was permitted to adduce from Mr. Stewart that when he saw Samuel Crump a few days prior to the attempted holdup of the Lounge, Crump came to the Velvet Freeze Store where Stewart worked accompanied by a man known to him as Tillman, and proceeded to identify a photograph as a picture of the man known as Tillman. He later identified the man as Tillman Morris. At trial appellant’s defense was alibi. The theory upon which he contends that the evidence of Mr. Stewart was admissible is that Samuel Crump was a friend of Miss Cody’s and with her cooperation had planned the robbery of the Three Pipers’ Lounge on June 29, 1972, which went awry. That Crump’s accomplice in the attempted robbery was Tillman Morris and not this appellant. That Miss Cody’s identification of appellant was in fact for the purpose of concealing her participation in the ill-fated robbery which was planned much the same way as Crump had attempted to get Stewart’s cooperation in the robbery of the Velvet Freeze Store proposed by Crump in the presence of Tillman Morris a couple of days prior to the unsuccessful attempt at the Lounge. The record is devoid of any attempt by defense counsel to adduce any evidence from Miss Cody in support of this theory, nor was there any evidence whatsoever that Miss Cody had been approached by Samuel Crump with any such proposal. Appellant would have the trial court admit this evidence on a contention, unsupported by any evidence, direct or circumstantial, that Miss Cody’s sister was romantically involved with Samuel Crump and because of this relationship Miss Cody agreed to a “friendly” robbery by Crump and Tillman Morris. Miss Cody testified that she was not acquainted with Tillman Morris and there was no evidence to impeach her on this point. While remoteness of evidence ordinarily affects the weight of the evidence rather than its admissibility, the question of materiality and relevancy will always affect its admissibility. Whether the evidence, even though relevant, is inadmissible because it is too remote to be material is a matter resting largely in the sound discretion of the trial court. State v. Feger, 340 S.W.2d 716, 725-726[20] (Mo.1960). Evidence that another person had an opportunity or motive for committing the crime for which the defendant is on trial is not admissible absent proof that the other person committed some act directly connecting him with the crime. State v. Umfrees, 433 S.W.2d 284, 287[4] (Mo.banc 1968). “The test generally for the admission of such evidence is stated in 22A C.J. S. Criminal Law § 622b, at page 451, as follows: ‘The evidence, to be admissible, must be such proof as directly connects the other person with the corpus delicti, and tends clearly to point out someone besides accused as the guilty person. Disconnected and remote acts, outside the crime itself cannot be separately proved for such purpose; and evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of the crime by another, is not admissible.’ ” We conclude that the proffered testimony did not directly connect Tillman Morris with the attempted robbery for which appellant was tried and convicted, and the trial court did not err in excluding evidence of the contents of the conversation at the Velvet Freeze Store as evidence that it was Morris, and not appellant, who participated in the attempted robbery of the Lounge. Appellant contends, however, that the testimony was admissible for the purpose of showing Miss Cody’s interest in shielding her alleged complicity in agreeing to the “friendly” robbery of the Lounge which led to her identification of the appellant as the robber who effected his escape, when, in fact, it was Tillman Morris, who was also in on the plan. It is clear that bias or prejudice in favor of or against any party may properly be shown to test the credibility of any witness and the defendant in a criminal case must be allowed much latitude in cross examination for that purpose. State v. Gordon, 499 S.W.2d 512, 514[3] (Mo.1973); State v. Nebbitts, 498 S.W.2d 762, 764[2] (Mo.1973); State v. Pigques, 310 S.W.2d 942, 947 [7] (Mo.1958). Motive for false accusation of one charged with crime by a witness for the State is a proper subject for inquiry in a criminal prosecution, and evidence to prove the motive may be developed either by cross-examination or by impeachment. Wharton’s Criminal Evidence, 13th Ed., Ch. 8, Examination of Witnesses, § 435, p. 356 and Ch. 9, Impeachment of Witnesses, § 460, p. 399; Anno. 62 A.L.R.2d 612, preventing or limiting cross-examination of prosecution’s witness as to his motive for testifying. The scope and extent of the cross-examination for this purpose rests, however, in the sound discretion of the trial court. State v. Pigques, supra, 310 S.W.2d l. c. 947 [8], However, as the dissenting opinion in State v. Holden, 88 Ariz. 43, 352 P. 2d 705, 717 (1960) ably stated: “Impeachment must be bottomed upon something more substantial than the insinuations of the cross-examiner; nor can it be used to throw suspicion upon someone not before the court.” State v. Smith, 377 S.W.2d 241 (Mo.1964) is of no assistance to appellant on this point, because there the defendant demonstrated the relevancy and materiality of his daughter’s testimony that the prosecuting witness had made untoward advances which were offensive to her and which could be considered by the jury in determining whether it was he or she who threw acid into the face of the prosecuting witness. See also State v. Umfrees, supra, 433 S.W.2d l. c. 286[3]. Here, admission into evidence of the conversation between Crump and Stewart would neither prove nor disprove any material issue, nor would it show motive on the part of Miss Cody to falsely identify appellant as one of the holdup men at the Lounge. We conclude therefore that the trial court did not err in refusing to permit into evidence the contents of the aforesaid conversation. We affirm. SIMEONE and WEIER, JJ., concur.

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Ida Mae McCLAIN, Relator-Appellant, v. BOARD OF ADJUSTMENT OF the CITY OF ST. LOUIS et al., Respondents. No. 34605. Missouri Court of Appeals, St. Louis District, Division 2. April 2, 1974. Ida Mae McClain, pro se. Jack L. Koehr, City Counselor, Robert C. McNicholas, Associate City Counselor, John J. Morton, Asst. City Counselor, St. Louis, for respondents. CLEMENS, Acting Presiding Judge. This appeal was taken pro se from an order of the Circuit Court. Plaintiff McClain represented herself and claimed to represent others owning property near a housing project on Forest Park Boulevard. The city’s building commissioner had granted a building permit to the developers of the housing project and plaintiff appealed to the Board of Adjustment. There plaintiff argued violations of two city ordinances in the building plans by failing to afford adequate parking facilities and a sufficient rear yard. The Board of Adjustment reviewed the record, conducted a hearing and affirmed the building commissioner’s issuance of the permit. Plaintiff then sought review by the Circuit Court, seeking a new hearing and a clarification of the Board’s decision. The Circuit Court reviewed the record and affirmed the action of the Board. Our examination of the record shows plaintiffs did not serve notice of their petition for review on the holders of the building permit, as required by § 536.110, RSMo.1969, V.A.M.S. Such failure to comply with the statutory procedure is a jurisdictional defect. State v. Stanton, 311 S.W.2d 137[2] (Mo.App.1958). The trial court thus had no jurisdiction to enter any order. State ex rel. Day v. County Court of Platte County, 442 S.W.2d 178 (Mo.App.1969). The decision of the Circuit Court affirming the order of the Board of Adjustment is reversed, with directions to dismiss plaintiff’s petition. McMILLIAN and GUNN, JJ„ concur.

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STATE of Missouri, Respondent, v. Jesse SCOTT, Appellant. No. 35122. Missouri Court of Appeals, St. Louis District, Division 2. April 2, 1974. John C. Danforth, Atty. Gen., G. Michael O’Neal, William F. Arnet, Asst. At-tys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent. Charles D. Kitchin, Public Defender, Terry B. Crouppen, James C. Jones, John H. Marshall, Asst. Public Defenders, St. Louis, for appellant. CLEMENS, Acting Presiding Judge. On the second trial for the same homicide, defendant was convicted in a jury trial of second-degree murder. Judgment was entered and punishment assessed at 42 years’ imprisonment. Defendant’s motion for new trial was overruled and he appeals. Sufficiency of the evidence is not in issue and a statement of the facts can be brief. On the evening of March 31, 1969 Mrs. Iris Evans, prompted by a persistent bumping sound, went downstairs to the apartment below and discovered a tenant lying in the hall. The police were summoned and found Charlie Thomas severely injured. The apartment was in disarray and it appeared a struggle had occurred. The victim was visited in City Hospital by his son, Darris Thomas. When Darris asked his father, “Who did this to you?” the victim replied, “Clydell’s brother, Jesse” — referring to the defendant, Jesse Scott. Charlie Thomas died the next day. Detective Herbert Riley of the St. Louis Police Department arrested the defendant on November 17, 1969 in Chicago and returned him to St. Louis. After being advised of his rights, defendant made an oral statement concerning his role in the crime. Riley took notes and later referred to them in preparing his police report. At both trials he testified as to the defendant’s oral statement. The main point of the statement is that the defendant was approached by another man and persuaded to take part in robbing Charlie Thomas, a relative of defendant; the other man entered the house after convincing Thomas he was Jesse Scott, a relative; the other man later contacted defendant and told him Thomas had struggled with him, he had stabbed Thomas and had probably killed him; defendant tried to call the police but could contact no one; finally, he went to a funeral in Chicago and decided to stay. Defendant was convicted of first-degree murder in the first trial in May of 1970, but the Supreme Court of Missouri reversed the conviction. The prosecution in the 1970 trial had refused to provide defendant’s counsel with copies of Detective Riley’s notes of the defendant’s oral statement or copies of the police report prepared from those notes. The Supreme Court held “. . . [the] trial was rendered ‘fundamentally unfair’ (State v. Aubuchon, Mo.Sup., 381 S.W.2d 807, 814) when appellant was refused inspection of the substance of oral statements made by appellant to Detective Riley. We find an abuse of discretion and prejudicial error.” State v. Scott, 479 S.W.2d 438 (Mo.Banc 1972). Upon retrial the prosecution gave defense counsel copies of the police report and the transcript from the first trial showing Detective Riley’s testimony concerning defendant’s oral statement but the original notes written by Detective Riley had been lost and a diligent search was fruitless. The issue now is whether the trial court erred at the second trial by permitting Detective Riley to testify when the notes written by him when taking defendant’s oral statement were not provided to the defense. Defendant argues that the “substance” of Detective Riley’s statement was the “notes” which, under the rule of Scott, must be provided to the defendant for his inspection and because they were lost and Detective Riley’s testimony was subsequently admitted at trial, the conviction should be reversed. We disagree. The “substance of oral statements” does not mean only the notes made by Detective Riley. We construe that statement in Scott to mean all available documents and supportive evidence for the statement made by defendant. The purpose of the material is to allow the defense to prepare properly for trial and especially for cross examination. The record here shows the prosecution provided the defense with every document it had; it denied the defense nothing and cooperated completely. Assuming that the prosecution was willing to and did provide all available materials, the remaining question is whether the trial court abused its discretion in allowing Detective Riley to testify. Under the rule established in Aubuchon such decisions rest in the discretion of the trial court. Defendant contends that discretion was abused. We cannot agree. The police report contained the substance of defendant’s oral statement to Detective Riley, as did Detective Riley’s examination and cross examination appearing in the transcript of the first trial. The court could find a thorough search had been made for the missing notes and no ulterior motives were ascribed to the prosecution. Only after these determinations did the trial court rule Detective Riley’s testimony was admissible. We find no abuse of discretion. Judgment affirmed. McMILLIAN and GUNN, JJ., concur.

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STATE of Missouri, Respondent, v. Wardell Hardin PATTERSON, Jr., as Principal and Midland Insurance Company, Appellants. No. 35582. Missouri Court of Appeals, St. Louis District, Division 2. April 2, 1974. See also, Mo., 484 S.W.2d 278. John C. Danforth, Atty. Gen., G. Michael O’Neal, Asst. Atty. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, Charles B. Blackmar, Special Asst. Atty. Gen., St. Louis, for defendant-respondent. Hill, McMullin & Wilson, James L. McMullin, Kansas City, for appellants. CLEMENS, Acting Presiding Judge. Appeal from a bond forfeiture. Defendant Patterson was convicted of second-degree murder on April 16, 1970. After successfully appealing his conviction he was released on $7,500 bond. Retrial was set for January 3, 1973 but defendant failed to appear because he was in custody in Colorado pending trial there. Defendant moved procedural!/ to avoid a bond forfeiture. On January 23, 1973 prior to trial in Colorado defendant filed with the trial court a notice of his “imprisonment” in Colorado pursuant to the Agreement on Detainers (§ 222.160 RSMo 1969, V.A.M. S., 1971 Supp.) and requested disposition of the charges against him in Missouri. On February 7, 1973 a hearing was had in Montgomery County on a motion for judgment on default on the bail bond and the motion was granted. The surety has appealed the forfeiture contending Missouri had failed to request Colorado to release Patterson for his trial here under the Agreement on Detainers Act, § 222.160, RSMo 1969, V.A.M.S., effective June 21, 1971. The issue is whether the trial court erred in ruling defendant had forfeited his bond. Earlier cases have held that incarceration in a sister state is simply “one circumstance” for the trial court to consider and that fact alone will not cause a release of the surety as a matter of law. State v. Daigle, 442 S.W.2d 503 (Mo.1969). Ordinarily, there are only three grounds for discharge of a surety as a matter of right: defendant must be prevented from appearing because of (1) an act of God, (2) an act of law or (3) an act of an obligee. State v. Jones, 491 S.W.2d 241 (Mo.1973). These rules have precluded a bond forfeiture when a defendant was held in another county in Missouri and could not appear for trial. State v. Savage, 461 S.W.2d 887 (Mo.1971). The question here is whether defendant Patterson complied with the Agreement on Detainers. The practice before the Agreement on Detainers was that when Missouri had an untried indictment on a defendant incarcerated in a sister state, a detainer would be placed on defendant there and he would not be tried in Missouri until he had served his sentence in the other state. The new practice allows such a defendant to petition to be brought into Missouri and be tried here on the pending Missouri charge. In this way defendant’s rights to speedy trial are upheld and the rehabilitation process is not unduly impeded. An examination of the facts here shows defendant Patterson did not comply with the Agreement. It applies to a person who has “entered upon a term of imprisonment” in another state and “a detain-er has been lodged against the prisoner.” When defendant Patterson sought relief in Missouri he had neither been “imprisoned” in Colorado nor had Missouri lodged a de-tainer against him. Missouri then had no power to return Patterson for trial here. The fact that defendant was later brought back to Missouri after being formally sentenced and imprisoned in Colorado bears this out. Defendant suffered no injustice, as he claims, for this state’s failure to bring him back to Missouri and avoid forfeiture of his bond because defendant was not yet in compliance with the Agreement on Detainers. Since defendant Patterson did not comply with the Agreement on Detainers we need not rule on the hypothetical question of what effect a defendant’s compliance would have on a motion of bond forfeiture. The judgment is affirmed. McMILLIAN and GUNN, JJ., concur.

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Jackie Ray SCILLION, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied May 10, 1974. Anthony M. Wilhoit, Public Defender, Frankfort, Joseph S. Freeland, McCracken County Public Defender, Paducah, for appellant. Ed W. Hancock, Atty. Gen., G. Edward James, Asst. Atty. Gen., Frankfort, for ap-pellee. JONES, Justice. On February 27, 1973, Appellant Jackie Ray Scillion was convicted in the Mc-Cracken Circuit Court of the burglary of a safe under KRS 433.130, the possession of burglarious tools under KRS 433.120 and breaking a storehouse under KRS 433.190 and was found to be an habitual criminal under KRS 431.190. Scillion was sentenced to life imprisonment and now appeals. On August 14, 1972, the manager of a restaurant in Paducah found that a door of his restaurant had been broken and that a safe had been removed from the premises. On September 10, 1972, Crestón Rudolph, a Kentucky State Police Trooper, observed appellant riding in an automobile registered to appellant’s wife, but operated by Mike Cornwell. Because Rudolph knew that neither appellant nor Cornwell had an operator’s license, he stopped their vehicle and informed Cornwell that he was under arrest for operating a motor vehicle without a license and informed appellant that he was under arrest for allowing a person without an operator’s license to operate a motor vehicle. When the two men had exited their vehicle the officer searched each of them. Then he noticed a leather work glove protruding from under the driver’s side of the front seat of the vehicle; and he conducted a warrantless search of appellant’s car and found that the glove was wrapped around a crowbar, which was subsequently determined to have been used in the breaking of the above-mentioned restaurant. Defense counsel moved the trial court to suppress the crowbar as having been obtained through an illegal search. At a hearing the court overruled the motion to suppress. Subsequently the crowbar was introduced as evidence at trial, and appellant contends on appeal that the introduction of the crowbar constituted reversible error. We believe, and we have stated before, that different rules apply to the search of an automobile than apply to the search of a home, and that the mere stopping of an automobile involves neither search nor arrest and hence requires no probable cause, so long as the vehicle is stopped for a reasonable purpose. Commonwealth v. Hagan, Ky., 464 S.W.2d 261 (1971). Nevertheless “[t]he word ‘automobile’ is not a talisman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire, 403 U.S. 443, 461, 472, 91 S.Ct. 2022, 2035, 29 L.Ed.2d 564 (1971). As we stated in Commonwealth v. Hagan, supra, 274: “Once the officer approaches the automobile all that he observes at that time without benefit of a search warrant is admissible in evidence and can be taken into consideration at that time by the officer in determining whether or not he has probable cause to make an arrest. If, at that time, the officer believes that a misdemeanor has been committed in his presence on the basis of what he sees and hears, or if he believes that a felony has been committed and the person or persons whom he has stopped have committed it, he may place him or them under arrest and may forthwith proceed to search the automobile incident to the arrest. Here we would except traffic violations. We have long adhered to the rule that an arrest for a minor traffic violation does not justify a complete search.” In the instant case the arrest was not for a “minor” traffic violation but for a serious violation of the motor vehicle code. Perhaps this alone would not authorize a search of the automobile, but, of course, the officer was entitled to take into account all that was open to be seen in determining whether probable cause to search the vehicle existed. He saw a leather glove protruding from under the front seat of the automobile; he knew that Scillion had dangerous propensities; and he knew that on a previous occasion Scillion had carried a weapon in his car. Under the totality of these circumstances we think the search may be considered reasonable. Scillion next complains that the trial court abused its discretion in denying a continuance. The record shows that, the court assigned an attorney from the Public Defender Office to represent him on January 30, 1973, and that he was adequately represented by counsel from that time until February 22, 1973, when Scillion’s friends saw fit to employ retained counsel. Scil-lion cannot now complain of his own inaction in waiting until near the trial date to retain counsel. There was no abuse of discretion in denying the motion and the trial court’s ruling will not be disturbed. Hicks v. Commonwealth, Ky., 488 S.W.2d 702 (1972). Finally, Scillion contends that a directed verdict should have been granted because the discovery of the crowbar was too remote from the date of the commission of the offense. There is no merit in this contention, because there was a continuity of events which sufficiently linked Scillion to the offense in question and the fact that the instrument of the crime was found in appellant’s possession some three weeks after the break-in is not so remote as to require reversal. The judgment is affirmed. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE, REED and STEIN-FELD, JJ., sitting. OSBORNE, C. J., and JONES, MILLI-KEN, PALMORE and STEINFELD, JJ., concurring. REED, J., not concurring.

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Fred J. MARTIN, Appellant, v. Ruby P. MARTIN, Appellee. Court of Appeals of Kentucky. Jan. 11, 1974. Rehearing Denied April 12, 1974. Rodney A. Miller, Fulton, for appellant. L. M. Tipton Reed, Mayfield, John C. Bondurant, Hickman, for appellee. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming.*

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Alvin HUBBARD, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Jan. 18, 1974. Rehearing Denied April 12, 1974. David E. Murrell, Deputy Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner GARDNER, Affirming.*

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Robert HELTZEL, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied April 12, 1974. Anthony M. Wilhoit, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., John M. Famularo, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner VANCE, Affirming.*

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Cletis D. STACY, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Paul Isaacs, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice PALMORE, Affirming. Opinion ordered not to be published.

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Earl KING, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 15, 1974. Anthony M. Wilhoit, Public Defender, J. Vincent Aprile, II, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Peter C. McDonald, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner CATINNA, Reversing.*

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CITY OF PIKEVILLE, Appellant, v. Richard D. PICKLESIMER, Appellee. Court of Appeals of Kentucky. March 22, 1974. Cline & Cline, Stephens, Combs & Page, Pikeville, for appellant. Burke & Justice, Pikeville for appellee. Memorandum Opinion of the Court by Commissioner CULLEN, Affirming.*

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WHITE & CONGLETON, INC., et al., Appellants, v. J. T. HUNDLEY et al., Appellees. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied April 19, 1974. W. R. Patterson, Jr., Lexington, for appellants. Charles Coy, Richmond, for appellees. Memorandum Opinion of the Court by Commissioner CULLEN, Affirming.*

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Alma Joan CLARK, Appellant, v. Robert Bluford CLARK, Appellee. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied April 26, 1974. J. Bruce Miller, Carroll & Miller, Louisville, for appellant. J. D. Buckman, Jr., Shepherdsville, for appellee. Memorandum Opinion of the Court by Justice STEINFELD, Affirming. Opinion ordered not to be published.

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Pamela Roberts HOLTZCLAW, Appellant, v. William Sanders HOLTZCLAW, Appellee. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied April 26, 1974. A. Jack May, Danville, for appellant. Cabell D. Francis, Stanford, for appel-lee. Memorandum Opinion of the Court by Justice STEINFELD, Affirming.*

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John A. CARDIN, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. Frank E. Haddad, Jr., Louisville, for appellant. Ed W. Hancock, Atty. Gen., Patrick B. Kinberlin III, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming.*

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Hubert Lee HARRISON v. COMMONWEALTH of Kentucky. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. Don H. Major, Mulhall, Major & Turner, Louisville, for appellant. Ed W. Hancock, Atty. Gen., Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice REED, Affirming.*

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Rosemary NOLAN, Appellant, v. John F. NOLAN, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. Larry C. West, Ware, Bryson, Nolan, West & Hiltz, Covington, for appellant. John R. S. Brooking, Adams, Brooking, Stepner & Mitchell, Covington, for appel-lee. Memorandum Opinion of the Court by Justice JONES, Affirming. Opinion ordered not to be published.

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FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellant, v. BOGARDUS & BARB, INC., Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. T. L. Wolford, Eugene B. Cochran, Middleton, Seelbach, Wolford, Willis & Cochran, Louisville, for appellant. William J. Baird, Baird & Hays, O. T. Hinton, Pikeville, for appellee. Memorandum Opinion of the Court by Commissioner CATINNA, Affirming.* STEPHENSON, J., not sitting.

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Norman Tommy LANDRUM, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. Anthony M. Wilhoit, Public Defender, J. Vincent Aprile II, Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., George Geoghegan III, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming.*

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James R. YOCOM, Commissioner of Labor, etc., Appellants, v. Alvin HAMILTON et al., Appellees. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied April 26, 1974. Thomas L. Ferreri, Department of Labor, Frankfort, Attorney for Special Fund, for appellants. Kelsey E. Friend and R. Roland Case, Pikeville, J. Keller Whitaker, Dir., Workmen’s Compensation Board, Frankfort, for appellees. Memorandum Opinion of the Court by Chief Justice OSBORNE, Reversing.*

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Ronald Wayne WILLIAMS, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied April 26, 1974. Anthony M. Wilhoit, Anna H. Isaacs, David E. Murrell, Public Defenders, Frankfort, for appellant. Ed Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Commissioner CATINNA, Affirming. Opinion ordered not to be published.

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James Hardin EVANS, Jr., Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 10, 1974. Joseph G. Glass, Louisville, for appellant. Ed W. Hancock, Atty. Gen., George Geoghegan, III, Asst. Atty. Gen., Frank- • fort, for appellee. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming.*

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YOCOM, Commissioner of Labor etc. et al., Appellants, v. HATFIELD and Workmen’s Compensation Board, Appellees. Court of Appeals of Kentucky. March 15, 1974. Rehearing Denied May 10, 1974. Gemma M. Harding, Supervisor Attorney for Special Fund, Department of Labor, Louisville, Robert D. Hawkins, Chief Counsel for Special Fund, Department of Labor, Frankfort, Robert G. Hunt, King, Deep, Branaman, Hunt & Sheffer, Henderson (Counsel for appellants Atlas Tack Corporation and Liberty Mutual Insurance Company), attorneys for appellants. Richard D. Gilliam, Jr., Owensboro (Counsel for appellee Hatfield), J. Keller Whitaker, Director, Department of Labor, Frankfort (Workmen’s Compensation Board), attorneys for appellees. Memorandum Opinion of the Court by Justice STEPHENSON, Affirming in Part, Reversing in Part.*

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AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Appellant, v. K-V ALUMINUM PRODUCTS, INC. and K-V Aluminum Products, Inc. d/b/a Home Arts, Appellees. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied May 10, 1974. William P. Swain, Andrew J. Russell, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellant. Robert L. Gwin, Gwin, Her & Waitman, Owensboro, for appellee. Memorandum Opinion of the Court by Special Commissioner BEN MANN, Reversing. Opinion ordered not to be published.

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Paul Lewis HAYES, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. March 1, 1974. Rehearing Denied May 10, 1974. Anthony M. Wilhoit, Paul F. Isaacs, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, for appellee. Memorandum Opinion of the Court by Justice JONES, Affirming.*

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Tommy Roy TRIPLETT, Appellant, v. COMMONWEALTH of Kentucky, Appellee. Court of Appeals of Kentucky. Feb. 15, 1974. Rehearing Denied May 10, 1974. Robert L. Fears, Hopkinsville, Anthony M. Wilhoit, Public Defender, William C. Ayer, Jr., Asst. Public Defender, Frankfort, for appellant. Ed W. Hancock, Atty. Gen., Mary Ann Delaney, Asst. Atty. Gen., Frankfort, for appellee; Memorandum Opinion of the Court by Commissioner CATINNA, Reversing.*

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Betty Adamson WAGONER and Cecil Leon Wagoner, Co-Administrators, etc., et al., Appellants, v. CHRYSLER MOTORS CORPORATION, et al., etc., et al., Appellees. Court of Appeals of Kentucky. Feb. 1, 1974. Rehearing Denied May 10, 1974. John W. Collis, Anggelis & Vimont, Harold G. Slone, Joseph L. Famularo, Lexington, for appellants. Andrew V. Fox & Woodson T. Wood, Fox, Wood & Wood, Maysville, William O. Guethlein, Boehl, Stopher, Graves & Deindoerfer, Louisville, for appellee. Memorandum Opinion of the Court by Commissioner VANCE, Affirming. Opinion ordered not to be published.

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Frank VARALLO and wife, Eva Reale Varallo, Plaintiffs-Appellees, v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Tennessee, Defendant-Appellant. Court of Appeals of Tennessee, Middle Section. July 27, 1973. Certiorari Denied by Supreme Court Dec. 3, 1973. Stephen North, Douglas M. Fisher, Howell & Fisher, Nashville, for plaintiffs-appellees. Peter H. Curry and Thos. S. Nelms, III, Dept, of Law, Metropolitan Government of Nashville and Davidson County, Nashville, for defendant-appellant. OPINION SHRIVER, Presiding Judge. This is an inverse condemnation case which was filed in the Circuit Court of Davidson County by the landowners, Frank and Eva Reale Varallo, against the Metropolitan Government of Nashville and Davidson County. The suit resulted from the improvement of Craighead Street, sometimes referred to as Craighead Avenue, an old two-lane street with drainage ditches on either side which was extended to a four-lane thoroughfare with storm sewers. Defendant-appellant claimed an existing dedicated sixty foot right-of-way and, in addition, condemned a narrow strip varying from two to three feet in width, across the front of the Varallo property, which strip of land and its value is not involved in the instant case. Plaintiffs-appellees (hereinafter referred to as plaintiffs) claimed that the right-of-way which existed prior to the widening was merely a prescriptive right-of-way consisting of that portion of the road which was covered with blacktop, and that the widening resulted in taking a strip of the Varallo property twenty-four feet in width in addition to the narrow strip above referred to which was condemned by Metro. The landowners, therefore, filed this inverse condemnation suit claiming that the additional taking rendered their food processing plant inoperable due to the fact that delivery trucks could no longer load and unload at the front door without obstructing traffic on Craighead Street. The case was heard before Judge Joe C. Loser, Jr., without the intervention of a jury, on oral and documentary evidence and resulted in a judgment in favor of the landowners in the amount of $21,000.00. From this judgment the defendant, Metro Government, appealed and has assigned error. THE PLEADINGS The original complaint, filed on July 28, 1971, asserts that plaintiffs are owners of certain real estate in Nashville, Davidson County, Tennessee fronting seventy-five feet on the southerly margin of Craighead Street and running back between parallel lines two hundred and sixty-five feet to a dead line; that they operated a food processing plant on this property and, in connection with said operation, they had paved the front portion of the property leading up to their food processing building and had continuously, openly and notoriously used the paved portion at the front of the property since on or about August 7, 1947, at which time they purchased it. It is averred that on or about November 4, 1970, the defendant, which has the power of eminent domain, appropriated to its use for the purpose of widening Craighead Street a part of the property of plaintiffs comprising a strip twenty-four feet wide across the front of their property and containing eighteen hundred square feet. This taking was subsequent to the condemnation by Metro of the small strip above mentioned across the front of said property. It is averred that the taking of the aforesaid eighteen hundred square feet has very nearly destroyed the usability of the improvements on same for which they were built, has rendered a restaurant building on the premises of little or no value, has substantially impaired their ingress and egress, and has destroyed nearly all of the off-street parking area; wherefore, plaintiffs demand judgment against the defendant for $50,000.00. On motion of the defendant for a more definite statement, an order was entered amending the original complaint by adding the following language: “The plaintiffs own the said land by virtue of their deed thereto and also by virtue of their open, notorious and adverse possession of the said land since its purchase on August 7, 1947. The northerly margin of said property is the edge of the pavement of Craighead Avenue as it existed prior to the beginning of the said road-widening project.” Defendant’s answer denies the material allegations of the complaint and for grounds of defense avers that plaintiffs’ deed specifically describes a rectangular tract of land seventy-five feet in width and two hundred and sixty-five feet in depth which encompasses the total amount described therein and now owned by plaintiffs, except for the narrow strip acquired by eminent domain proceedings herein-above mentioned. It is averred that plaintiffs are estopped to claim ownership of land not described in their deed and that the description and the recorded plats or maps referred to in said deed conclusively show that the property in question did not belong to them but is a part of the public way known as Craighead Street. It is further averred that the right-of-way of Craighead Street was dedicated to the public prior to the plaintiffs’ acquisition of their property in 1947. It is averred that plaintiffs have not acquired the subject property by adverse possession and that such use as they made of the land adjacent to the road and not included in their deed was permissive and not adverse. By motion, defendant’s answer was amended as follows: “Municipal property cannot be acquired by adverse possession.” Certain stipulations were entered into by the parties to the effect: 1. That Exhibit No. 1 to the complaint accurately reflects the distances therein. 2. That the drawing entitled “Plan showing Frank Varallo property” accurately reflects the distances and property lines contained therein. 3. The deeds and plats submitted are true copies of the originals filed in the Register’s Office of Davidson County. 4. That Davidson County has in. the past constructed the following improvements within the alleged sixty foot right-of-way of Craighead Street in the vicinity of the Varallo property: (a) A fifteen (IS") inch sanitary sewer passing in front of the Varallo property 10 feet south of the northern margin of said 60 foot right-of-way. The same was constructed in 1929. (b) A four (4") inch water main extending 1165 feet approaching the Varallo property from the west extending approximately 100 feet from the west line of Varallo. The same was constructed in 1938. (c) A ten (10") inch water main extending 1735 feet passing in front of the Varallo property 23 feet north of the south margin of the 60 foot right-of-way, and constructed in 1948. (d) A ten (10") inch water main extending 1691 feet approaching the Varallo property from the west, connecting with the main referred to in Paragraph (c), and constructed in 1966. (e) A fire hydrant placed inside the alleged 60 foot right-of-way across from the Varallo property, constructed in 1961. CONTENTIONS OF THE PARTIES Counsel for plaintiffs in their Brief and Argument make the following assertion: “Mr. and Mrs. Varallo recognize and concede that Craighead Avenue is a public way by virtue of long use by the public and that an easement by prescription or estoppel exists in favor of the Metropolitan Government as to the land actually used by the public: that is, the paved surface of Craighead Avenue, and that an easement by prescription exists for the 10-inch water main which runs under the Varallo property, and parallel to the road.” It is argued, however, that the evidence in the record shows that the land for which the Varallos claim compensation in this case has never been used as a public way. They argue that the proof is undisputed that this land has been exclusively used and maintained by the Varallos, with the exception of an easement for the 10-inch water main near the edge of the paved surface of Craighead Avenue. On the other hand, counsel for appellant in his Brief and Argument contends that the evidence, including the stipulations, conclusively establishes that there had been a prior dedication and acceptance of a sixty foot right-of-way; that said right-of-way had not been abandoned; that the landowners did not acquire adverse rights in the right-of-way and that the landowners’ rights to possession did not extend beyond the front property line as recited in the deed. Further, appellant contends that the damages awarded far exceed the damages which a preponderance of the evidence shows the landowners are entitled to, if any. ASSIGNMENT OF ERROR Appellant has a single assignment of error with four subdivisions. Said assignment is as follows: “The Trial Judge erred in finding that there was a taking of the land in question, in that the preponderance of the evidence clearly establishes that the appellant possessed a valid easement encompassing the land in question for road purposes, there being shown by a preponderance of the evidence to have been: (a) A dedication to the public of an easement in the land in question for road purposes. (b) An acceptance of such dedication. (c) No abandonment of the easement. (d) No rights vesting in the appellees by adverse possession.” Considering subhead (a) hereinabove, that is, the question of dedication of the land in question for road purposes, it is contended by appellant that there has been a common law dedication of the easement in question, both express and implied. It is not disputed that Craighead Street is an old thoroughfare which has existed since the turn of the century. In McCord v. Hays, 202 Tenn. 46, 302 S.W.2d 331, it was said that the dedication of a municipal street is a question of intention, and may be either express or implied, and may be shown by the conduct of the owner. It is said (p. 53, 302 S.W.2d p. 334): “It is settled law in this State that dedication of a street may be shown by the conduct of the owner, and it is not necessary to prove formal overt acts.” In Mayor, etc. v. Gill, 1 Tenn. Cases (Shannon), it was said that a survey of land by the owner into lots and a sale of lots with reference to such plot will amount to an irrevocable and immediate dedication binding on both vendor and vendee, without any act of acceptance on the part of the public. See also Payton v. Richardson, 49 Tenn.App. 514, 356 S.W.2d 289. In Long v. Garrison, 1 Tenn.App. 211, it was held: “The laying out of a road, street or alley upon a plat or plan, and also upon the ground, and the registration of the plat operates as a dedication of it, not only in favor of those who buy from the donor, relying upon the existence of the road, street or alley, but also in favor of all who buy on the general plan of the locality.” The question then arises as to the extent of the dedication or, in other words, how wide was the dedicated street? Looking to the evidence in the record on this question, there are two plats, both of which are recorded in the Register’s Office of Davidson County and both of which show Craig-head Avenue, and both of which plats include the property in question in this case. The first of these plats, Exhibit 3(h), is a survey made June 15, 1912 by W. B. Southgate, being a plat of the land bought by W. W. Berry of Susan B. Woods October 10, 1970, and surveyed June 15, 1912. Exhibit 3(f) is a deed from the heirs of W. W. Berry to Mary Bass, dated November 18, 1912, and in said deed it is recited that the heirs had the lands of W. W. Berry surveyed by W. B. Southgate into five lots to divide among the heirs, and said deed refers to the plat of this survey recorded in the Register’s Office. The first plat, Exhibit 3(h), shows Craighead Avenue and noted within the right-of-way of said street are the words and figures “about 60' wide”, said plat being referred to by book and page number from Berry to Bass and is referred to in the deed, Exhibit 3(e), from Bass to Franklin Limestone Company, and from Franklin Limestone Company to Warren Paint and Color Company, Exhibit 3(c), all of these parties being predecessors in title to the plaintiffs, Varallos. The second plat, Exhibit 3 (I), was recorded in May, 1935, entitled “Property of Franklin Limestone Co.” and is also a survey by W. B. Southgate, dated May, 1935, and is referred to as a subdivision of part of the property in question by Franklin Limestone Company in a conveyance dated June, 1935, Exhibit 3(d). This plat shows Craighead Avenue and within the right-of-way is designated at three separate places 60'. This plat is also referred to by book and page numbers in the deed from Franklin Limestone Company to Warren Paint and Color Company and, again, in the Warren Paint and Color Company’s deed to the Varallos, the plaintiffs herein. In addition to this, the plat is also referred to in a deed of trust executed by the Varallos to G. F. Turner, Exhibit 3(a). In Hudson v. Collier, 48 Tenn.App. 386, 395, 348 S.W.2d 350, 354, the Court quotes with approval from 16 Am.Jur., Dedication, Sec. 23, as follows: “In the interpretation of maps and plats all doubts as to the intention of the owner are resolved most strongly against him, but the plat should be considered as a whole, and the maker’s real intention sought therefrom.” And again (p. 401, 348 S.W.2d p. 356), quoting from Jones on Easements, Sec. 436: “In the same way a parcel of land designated on a plat as a park, public square, or common, with reference to which lots fronting upon it have been sold, is irrevocably dedicated to public use. There is no difference in the principle applicable to the dedication of public streets and a public square or park. In each case the dedication is to be considered with reference to the use to which the property may be applied or the purpose for which the dedication is made.” In 26 C.J.S. Dedication § 23, it is said: “Where an owner makes a sale of land with reference to a map or plat, in the absence of a manifestation of a contrary intention, he thereby manifests an intention to dedicate the streets and alleys shown thereon to the public use.” As was said in McKinney v. Duncan, 121 Tenn. 265, 118 S.W. 683, dedication is the appropriation of land, or an easement therein, by the owner, for the use of the public, and it may be express where the appropriation is formally declared, or by implication arising by operation of law from the owner’s conduct and the facts and circumstances of the case. One circumstance which should be noted as having to do with the dedication and use of the street in question and the alleged abandonment of a portion thereof, as insisted upon by the plaintiffs, is the fact that, according to the stipulations herein-above noted, the County constructed sewers, water mains and a fire hydrant within the sixty foot right-of-way on Craighead Street in front of appellees’ lot, as well as up and down the street. We find nowhere in the record evidence to support the contention of plaintiffs that Craighead Street was not dedicated as a public way sixty feet in width. And the testimony of Mr. Varallo that, “We were of the opinion that we owned right up to the edge of the blacktop,” and his testimony with regard to having paved that portion of the right-of-way in front of his place and having used it, has to do with matters occurring after plaintiffs acquired the property in 1947 and long after the dedication above referred to. When we consider the description in the deed to the Varallos and its reference to the plats, Exhibits 3(i) and 3(h), together with the fact that when the Varallos in 1947 constructed the first building on the property, the contractor filed an application for a building permit wherein the diagram sets out that the front of the building was twenty-five feet from the front property line, and another application to build a restaurant on the same lot, filed in 1949 (Exhibit No. 44), sets out that it was built thirty feet from the front property line, all indicate that when these buildings were constructed, the parties were all well aware that the right-of-way of Craighead Street was sixty feet in width. We think the record unmistakably shows a dedication of a sixty foot right-of-way and that the references in the chain of title of plaintiffs’ predecessors, as well as in their own deed show this sixty foot right-of-way. These facts and the long continued use of Craighead Street, all render the position of the plaintiffs untenable. One other matter that needs to be noted is that, by amendment, plaintiffs claim the land in question by adverse possession, but reference to the authorities clearly shows that such contention cannot be maintained. For instance, in Mayor, etc. v. Howard, 1 Tenn. Cases (Shannon) 68, it was held that, where a dedication is made, it cannot be lost or forfeited by mere nonuser by the public and is not subject to adverse possession, since the Statute of Limitations will not run against the City as to public rights. In City of Knoxville v. Gervin, 169 Tenn. 532, 539, 89 S.W.2d 348, 351, it is said: “The authorities are generally agreed that the title to public streets which have not been abandoned cannot be acquired by adverse possession and that in asserting title to public property a municipality is acting as a governmental agency of the state.” For the reasons hereinabove enumerated, while this Court is sympathetic with the position of the plaintiffs herein, nevertheless, we find it necessary to sustain the assignment of error and reverse the judgment of the Trial Court and dismiss the cause at plaintiffs’ cost. Reversed and dismissed. PURYEAR and TODD, JJ., concur.

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Donald E. CHAMBERS, Appellant, v. The STATE of Texas, Appellee. No. 47656. Court of Criminal Appeals of Texas. March 20, 1974. Rehearing Denied April 17, 1974. Lee A. Chagra, El Paso, for appellant. Steve W. Simmons, Dist. Atty., and William B. Hardie, Jr., Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant was convicted, in a trial before a jury, of murder with malice. Punishment was assessed by the court at life imprisonment. In appellant’s fourth ground of error, he contends that the evidence of the accomplice witness Munnerlyn was not sufficiently corroborated by other evidence tending to connect appellant with the offense. The record reflects that at about 7:00 or 7:30 A.M., December 24, 1972, Robert Munnerlyn contacted agents of the Federal Bureau of Investigation in El Paso, and told them that he had during the night of December 22 participated in the killing of two men in El Paso County. County officers were called into consultation, and at about noon Munnerlyn guided a group of officers to a site northeast of the City of El Paso, where they found a recently dug shallow grave containing the dead bodies of two men, later identified as the deceased Ray Tarver and his brother Mel Tarver. Each had been killed by buckshot fired from a shotgun. Officers took Mun-nerlyn to the courthouse, and started taking a statement from him. He indicated a group known as the Bandido Motorcycle Club. At 5:00 P.M., while the statement was being taken, officers were sent to keep a surveillance at an address given by Mun-nerlyn as appellant’s residence, where they were told appellant and the members of the club kept a large number of guns and ammunition. An assistant district attorney was called to the courthouse to assist in the investigation. While the officers were still talking to Munnerlyn, the officer on surveillance phoned in that it appeared that the group in the residence were loading a panel truck, and were leaving. Officer Tim-mons, in charge of getting Munnerlyn’s statement, and Assistant District Attorney Baker both testified that unless they hurried they might lose the opportunity of confronting appellant and the others in the house implicated by the informant. A search and arrest warrant was prepared with an affidavit by Timmons to which was attached the informer’s statement, and this was presented to Justice of the Peace Snooks, who issued the warrant. As a result of the search under the warrant, appellant and eight other men in the house were arrested and a number of weapons, including a shotgun, an M-1 semi-automatic rifle, ammunition, a blood-soaked blanket, burned wallets and parts of fired shotgun shells, a shovel and other items were seized. There was evidence independent of the accomplice witness that the deceased Tar-ver brothers were engaged in illicit drug business. On the evening of December 22, they returned from Juarez, Mexico to the residence of Frances and Jacqueline Con-nelly in El Paso where they were staying, with a sack of what the Connellys were told was amphetamine, or “speed.” Two men, one known to the Connellys as “Chunky,” later identified by Munnerlyn as a member of the Bandidos, came to the house and left with the “speed.” Deceased told the Connellys that he had cheated them, having sold them baking powder for $1,000.00 instead of the real drug. These men were seen by non-accomplice witnesses to leave in a beige, or brown, truck with a white or silver colored camper on it. The informer, Munnerlyn, testified that he was a “prospect” of the Bandido Motorcycle Club, a national organization with national headquarters in El Paso. He came to El Paso on December 20, and went to the residence of appellant, the national head of the Bandidos. On the night of December 22, appellant received a call from “Chunky” and, after the conversation, stated that the dope deal was a “ripoff” and stated that he was “going to get to the bottom of it.” Munnerlyn was told by appellant to load a shotgun, carbine, and ammunition into a brown or tan Chevrolet truck with a white camper on it. This truck bore a New Mexico license. Appellant and other members of the Bandidos and Munnerlyn got in the truck and another car, and went to “Chunky’s.” There they examined the sack of “dope,” confirmed that it was actually baking powder and four of the men were sent to get the Tarver brothers. Munnerlyn told of the two Tarver men being taken to a site in the country, at appellant’s order, where he said he was instructed to dig a grave, and where appellant shot and killed both of the Tarvers with the shotgun. The camper was used to take the men to this site. Appellant rode in the cab. After the killing, the grave was covered with dirt. Upon returning to appellant’s residence, Munnerlyn was instructed to destroy by burning certain items, including shotgun shells, the wallets of the victims, and a bloody blanket. In Cherb v. State, Tex.Cr.App., 472 S. W.2d 273, we stated: “The test of sufficiency of corroboration of the testimony 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.” The testimony concerning the sale to “Chunky” and his companions of the baking powder as amphetamine was corroborated by the Connellys. A brown truck with a white camper with “Chunky” in it was seen leaving the Connellys’ house by a non-accomplice witness. One of the officers watching appellant’s residence shortly prior to the raid observed a Chevrolet “cream colored” truck with an “aluminum colored” camper with a New Meixco license, No. 246 860, parked in the driveway of the residence. Impressions of boot prints taken approximately five feet from the grave matched the soles of boots worn by appellant. A plastic card case identified as being similar to the one carried by deceased was found in appellant’s home. Expert testimony was introduced that fired shotgun casings found at appellant’s home were expended from the shotgun found there. The partially destroyed wallets and bloody blanket were found in the location where Munnerlyn had told the officers they would be found. Blood taken from the deceased by a toxicologist matched the blood on the above mentioned blanket. The court submitted a charge on accomplice testimony, and instructed the jury that Munnerlyn was an accomplice as a matter of law. Each case must be considered on its own facts as to whether an accomplice witness has been sufficiently corroborated by facts and circumstances tending to connect the defendant with the offense. O’Donald v. State, Tex.Cr.App., 492 S.W.2d 584. The corroborating testimony need not supply direct evidence, it must only tend to connect the accused with the commission of the offense. Cherb v. State, supra. It is the combined cumulative weight of the evidence which supplies the answer to the test. O’Donald v. State, supra. Minor v. State, 108 Tex.Cr.R. 1, 299 S.W.2d 422; Clary v. State, Tex.Cr. App., 491 S.W.2d 900. We find that the testimony of the accomplice witness was sufficiently corroborated. Appellant’s fourth ground of error is overruled. Appellant, in his first ground of error, states that “the court erred in allowing the introduction of evidence illegally seized under a search warrant which did not meet the Fourth Amendment requirement that such warrant particularly describe the things to be seized.” Appellant’s complaint is addressed to the scope of the search, and not the validity of the warrant. We have heretofore noted that while Officer Timmons and Assistant District Attorney Baker were taking a written statement from the informer Munnerlyn the officer on surveillance of appellant’s home called by telephone and told them that it appeared that the men at the residence were preparing to load the camper-truck and leave. Due to the exigencies of the situation, Timmons and Baker cut short the written statement, Timmons executed an affidavit, to which the abbreviated signed statement of Munnerlyn was attached, seeking a warrant for the search of the premises at 5214 Beautonne, El Paso, for an automatic carbine machine gun. Munnerlyn’s statement recited some of the details of the shooting, stating that he was present and stated that afterwards he had seen the shotgun used to kill deceased and the carbine and ammunition returned to the Beautonne address, and to the best of his knowledge they were still there. Attaching the statement to the affidavit and warrant was sufficient to make such statement a part of the warrant. Phenix v. State, Tex.Cr.App., 488 S.W.2d 759. These instruments were presented to Justice of the Peace Snooks, who had previously served as coroner following discovery of the two bodies. He issued a search warrant authorizing the search of the Beautonne residence of appellant for the automatic machine gun and the arrest of appellant. The warrant was then executed at the Beautonne Street address. It was understood by Officer Timmons, who headed the search party, that a number of armed men who had recently committed a double murder were in the house, and a number of peace officers participated in the raid. At the motion to suppress evidence conducted prior to trial, Sergeant Timmons outlined the procedure used by the law enforcement officers in searching appellant’s residence. One officer acted as an evidence officer in order to list the items found by the officers in searching the premises. The evidence officer then cata-logued the items seized and the time of the seizure. Timmons also stated that, while the search warrant specifically mentioned only the M-2 rifle, officers knew of the existence of and the general location of the shotgun, expended shotgun shells, burned wallets and bloody blanket and of their relevancy to the offense because of statements of the informant. The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasion of governmental officials. Stanley v, Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969); Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. The requirement that a search warrant be specific prohibits general searches and prevents the vesting of complete discretion in the officer who executes that warrant. Berger v. New York, 388 U.S. 41, 87 S.Ct. 1873, 18 L.Ed.2d 1040 (1967); Marrón v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Haynes v. State, supra. Appellant’s complaint arises from the fact that the incriminating items of evidence relating to the double murder seized from the residence were not named in the warrant and, therefore, said items could not legally be seized. Appellant relies on Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022 (1971) to support his contention that the search was illegal. The principle articulated in Coolidge, supra, at 403 U.S. 484, 91 S.Ct. at 2047, is “. . . that the police must obtain a warrant when they intend to seize an object outside the scope of a valid search incident to arrest . . .” Coolidge, supra, is, therefore, not dispositive of the case at bar in which a valid search warrant was obtained by the police. The issue to be decided in this ground of error remains the extent to which evidence seized during a search conducted under an admittedly valid search warrant is admissible if it is not described in the warrant. See Marrón v. United States, supra. This narrow issue has been decided in Phenix v. State, Tex.Cr.App., 488 S.W.2d 759. In Phenix we quoted Gurleski v. United States, 405 F.2d 253 (5th Cir. 1968) for the proposition that if the “. . . ‘broad language’ of Marrón ‘were unwaveringly applied in every case, it is obvious that there could never be a valid seizure of anything not described in the search warrant. However, the Marrón doctrine has generally not prevailed when the search and seizure was considered reasonable under all the circumstances. Many lower and intermediate federal courts, including those of this circuit, have regarded Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), as formulating an exception to the strict language of Marrón, thus permitting the introduction of the evidence seized in searches of the type involved in the case sub judice.’ 405 F.2d at 257.” The reasoning of Harris v. United States, supra, while related to searches incident to a lawful arrest, applies with equal force to a search made under authority of a valid search warrant. Phenix v. State, supra, Gurleski v. United States, supra. As to appellant’s argument that the seized evidence was unrelated to and outside the scope of the search warrant, we note that the law is that mere evidence, as distinguished from fruits or instrumentalities of a crime, may be seized, provided there is a nexus between the items seized and the criminal investigation being undertaken. Warden, Maryland Penitentiary v. Hayden, supra. See also Haynes v. State, Tex.Cr.App., 475 S.W.2d 739. In Warden v. Hayden, the Supreme Court stated the rule as follows: “. . . The requirements of the Fourth Amendment can secure the same protection of privacy whether the search is for ‘mere evidence’ or for fruits, in-strumentalities or contraband. There must, of course, be a nexus — automatically provided in the case of fruits, in-strumentalities or contraband — between the item to be seized and criminal behavior. Thus in the case of ‘mere evidence,’ probable cause must be examined in terms of cause to believe that the evidence sought will aid in a particular apprehension or conviction. In so doing, consideration of police purposes will be required. * * * But no such problem is presented in this case. The clothes found in the washing machine matched the description of those worn by the robber and the police therefore could reasonably believe that the items would aid in the identification of the culprit. 387 U.S. at 306-307, 87 S.Ct. at 1650.” “See also Gurleski v. United States, 5 Cir. 1968, 405 F.2d 253, 256-260.” United States v. Munroe, 421 F.2d 644 (5th Cir. 1970) In Phenix v. State, supra, the officers went to the defendant’s apartment with a search warrant to search for marihuana. In such search, other articles, not mentioned in the warrant but having a connection with the alleged offense, were found and seized. The court, in holding same admissible on the trial, quoted from Bell v. State, 482 P.2d 854 [S.Ct.Alaska (1972)] as follows: “We think the rationale of Harris is equally applicable to the case where the search and seizure is carried out under the authority of a lawful search warrant. We can perceive no logical or constitutional reason, given a lawful entry pursuant to a search warrant by an officer who is conducting a good faith search, why the officer conducting the search should be prohibited from seizing evidence not described in the search warrant where the searching officer has a reasonable basis for drawing a connection between the observed evidentiary objects and the crime which formed the basis of the search warrant. We think it unrealistic in such circumstances to require the officer to obtain a second search warrant, particularly in a case where the location of the objects are already known and have for all practical purposes effectively been seized by the officer. “We therefore hold that an officer may seize evidence of a crime even though such property is not particularly described in the search warrant when the objects discovered and seized are reasonably related to the offense in question, when the searching officer at the time of the seizure has a reasonable basis for drawing a connection between the observed objects and the crime which furnished the basis for the search warrant, and the discovery of such property is made in the course of a good faith search conducted within the authorized perimeters of the search warrant.” The issue then becomes whether the officers making the search had a reasonable basis for believing that the seized evidence was reasonably related to the offense which formed the basis for the search warrant. As in United States v. Munroe, supra, this, in turn, takes us to the affidavit underlying the issuance of the search warrant. The statement of the informant attached to the search warrant affidavit indicates that an extensive investigation of appellant was underway in connection with a double murder. The officers were lawfully on the premises under the warrant. They had a reasonable belief from the statement of the informer attached to the affidavit to the warrant that appellant possessed a sizeable arsenal of weapons and ammunition. They knew that incriminating items relating to the murder had been concealed near the premises by the informant. While the search warrant was issued in order to seize an illegal weapon, appellant was connected in the affidavit directly to both the illegal possession of weapons and a double murder. In searching for the illegal weapon, the officers found the many items of evidence; namely, the shotgun, burned wallets and bloody blanket, that corroborated the informant’s statement. The nexus between the search for the weapon and the evidence of criminal behavior was thus established. The items of evidence seized by the police were thus subject to seizure. Appellant’s first ground of error is overruled. In his second ground, appellant contends that the court erred in overruling his motion for a new trial because the jury, in their deliberations, improperly examined “items of a testimonial nature” not introduced in evidence. During the jury deliberation, a juror in examining a shotgun case admitted in evidence found an envelope with a Houston address. Because Munnerlyn had testified that appellant told him he had killed two men in Houston, appellant claims the discovery of this envelope in the guncase belonging to appellant amounted to new evidence corroborating Munnerlyn’s testimony. Foreman of the jury Green testified at the hearing on the motion for a new trial that one of the jurors said immediately when the envelope was found that it had not been introduced in evidence, and that it was placed back in the case and ignored by the jury. He could not recall whether any remarks were made by any member of the jury concerning it. Another juror testified that when the envelope was discovered the jurors looked over it, and some juror said that it was not in evidence, and it should be disregarded, “put out of our minds and whatever.” We find that the trial court did not abuse his discretion in overruling appellant’s contention concerning the envelope. Broussard v. State, 505 S.W.2d 282 (No. 47,163, February 6, 1974), and cases therein cited; Williams v. State, 170 Tex.Cr.R. 595, 343 S.W.2d 263. Appellant in his third ground alleges reversible error in that “members of the jury misunderstood the law in the court’s charge to the jury.” During the discussions of the jury, a question arose as to the court’s charge on accomplice testimony, whether the jury could properly believe part of the accomplice’s testimony and disbelieve part, or whether they must accept all or reject all. The jury sent a note to the court inquiring whether all of the accomplice’s testimony must be corroborated. In reply, the court merely referred them to the charge. Only three of the jurors testified at the hearing on the motion for a new trial. Their testimony raised an issue of fact which the court, as the trier of fact, was called upon to decide. It was within his discretion as to what testimony was most credible. Daniel v. State, Tex.Cr.App., 486 S.W.2d 944. The two jurors who testified that they were affected by a discussion that the law required them to believe all of the accomplice’s testimony or disbelieve it all agreed that they did believe part of it and disbelieve other portions. The trial court did not abuse his discretion in overruling this contention. Crawford v. State, 149 Tex.Cr.R. 219, 193 S.W.2d 208; Daniel v. State, supra. Appellant’s fifth ground of error contends a pair of boots were illegally taken from appellant while he was in the El Paso County jail, and used in evidence against him, in violation of his rights under the Fourth Amendment. The contention is without merit. Olson v. State, Tex.Cr.App., 484 S.W.2d 756 (on rehearing). The judgment is affirmed. Opinion approved by the Court. . A “prospect” is one 'who is an apprentice; a prospective member wlio has not as yet earned full membership. A “patch holder” is a full fledged member, who has served his prospect period and proved worthy to wear the Bandido colors. . The record reflects that a seven page evidence inventory list was attached to the return of the search warrant.

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Jesse F. DEAL, Appellant, v. The STATE of Texas, Appellee. No. 48120. Court of Criminal Appeals of Texas. April 24, 1974. Chagra & Chagra, El Paso, for appellant. Steve W. Simmons, Dist. Atty., and Anita Ashton, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant, in a jury trial, was convicted of murder with malice. Punishment was assessed at twenty-nine years. This is a companion case to Chambers v. State, Tex.Cr.App., S08 S.W.2d 348, (No. 47,656, March 20, (1974), and involves the same murder of the same deceased. The cases were tried separately. Since the evidence introduced on the two trials is substantially the same, reference is made to the opinion in Chambers, supra, for a discussion of the facts. Testimony-dealing specifically with the appellant not discussed in Chambers will, where appropriate, be set forth. Appellant in his second ground of error contends that the evidence of the accomplice witness was not sufficiently corroborated by other evidence tending to connect appellant with the offense. The accomplice Munnerlyn testified substantially as he did in Chambers and his testimony will not be repeated in its entirety. His evidence very definitely reflects that appellant was a member of the Bandi-dos, and was present and actively participating in the events leading up to the shooting of deceased, and that he was present at the “grave” participating as a principal with Chambers and others in the shooting. After Chambers had heard from “Chunky” that deceased had sold “Chunky” baking powder instead of speed, as recited in Chambers, supra, Munnerlyn testified it was appellant, “Chunky,” Munnerlyn and one “Crazy Ray,” another member of the Bandidos, who were sent in the white camper to get Ray and Mel Tarver, the two men subsequently murdered. Munner-lyn testified that when they arrived at the Connellys’ home, where the Tarvers were staying, a man was knocking at the front door, and that when appellant and “Chunky” went to the door, they got in a fight with this man, causing him to run off. Thereafter, “Chunky” and appellant went in the house, and by force and use of firearms brought the two Tarver men to the camper, got them in it, and took them to Chambers’ house. From there, they were taken about 2⅝ miles north of El Paso in the camper by Chambers, appellant, “Crazy Ray” and Munnerlyn, where the shooting of the Tarvers occurred. Although appellant did not fire any shots, the testimony of Munnerlyn was that in every other way he actively supported, encouraged, and participated in the occurrence. In Chambers v. State, supra, we quoted from Cherb v. State, Tex.Cr.App., 472 S.W.2d 273, 279 as follows: “The test of sufficiency of corroboration of the testimony 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.” See also Booth v. State, Tex.Cr.App., 499 S.W.2d 129; Thompson v. State, Tex. Cr.App., 493 S.W.2d 913. Applying this test, we eliminate the testimony of the accomplice witness, and determine whether there is other inculpatory evidence of incriminating character in the record which tends to connect appellant with the commission of the crime. The murder of deceased was proved by the officers who discovered the two bodies at the grave and the medical testimony of the cause of death. Testimony of the fraudulent sale of baking powder to “Chunky” was given by the two Connel-lys and by witness Baird. Two witnesses who were at the Connellys’ residence to purchase some “speed” about 9:00 P.M. on December 22, 1972, identified appellant and “Chunky” as two of the men who came there and spoke to Mel Tarver, and called for Ray Tarver, the deceased. Baird, one of these witnesses, said that at the door of the house appellant threatened him with a gun, they engaged in a short fight and that he and the other witness were run off by appellant and “Chunky”. McCabe, who was with Baird, testified that these men arrived in a camper with New Mexico license plates. Both appellant and “Chunky” were at the Chambers’ home with Chambers when the officers raided the house, secured the weapons, and other objects, and arrested the men. Expert evidence reflected that expended shotgun shells found in the house were fired from the shotgun found there, and blood taken from the stains on the blanket found there matched blood taken from the deceased. A partially burned wallet found at the house was similar to deceased’s wallet. Boots taken from appellant in jail two days after the arrest were identified by Connelly as appearing to be the boots deceased Ray Tarver was wearing at his house on the night of the killing. Connelly called them “waffle stampers” because the soles were made like waffles. The cream colored Chevrolet truck with an aluminum colored camper and New Mexico license, parked in front of the Chambers’ home at the time of the raid, was identified by a non-accomplice witness as similar to the truck used by appellant and “Chunky” when they were at the Connel-lys’ house to get deceased and his brother about 9:00 on the night of the offense. Although the presence of appellant two days after the offense in the house where the death weapons were found by the officers would not alone be sufficient to tend to connect him with the crime, when coupled with the other circumstances shown it is a link in the chain which does contribute to the showing of his guilt. Cherb v. State, supra, and authorities there cited. We find that the evidence, when considered in its totality, is sufficient to tend to connect appellant with the commission of the offense, and to corroborate the testimony of the accomplice witness Munnerlyn. Appellant’s second ground of error is overruled. Appellant in his first ground of error alleges that “The court erred in allowing the introduction of evidence illegally seized under a search warrant which did not meet the Fourth Amendment requirements that such warrant particularly describe the things to be seized.” Appellant’s complaint is addressed to the scope of the search, and not to the validity of the warrant. By stipulation of the parties, the transcript of the evidence given at the hearing on the defendant’s motion to suppress in the trial of Donald E. Chambers before the same court and judge was admitted before the court in the instant case, without further evidence being introduced. This transcript of the evidence was considered by the court, and the appellant’s motion to suppress the evidence was overruled, and evidence concerning the seizure of the various articles by the officers under the warrant was admitted on the trial over appellant’s objection. In Chambers v. State, Tex.Cr.App., 508 S.W.2d 348, (No. 47,656 March 20, 1974), we passed on this same ground of error as applied to the same evidence, and overruled it. For the reasons stated in our opinion in Chambers, appellant’s first ground of error is overruled. Also, in Chambers, supra, we overruled the same contention now made by appellant in his third ground of error, where he contends that his boots were illegally taken from him for comparison while he was under arrest and confined in jail. The contention is without merit. Olson v. State, Tex.Cr.App., 484 S.W.2d 756 (on rehearing) ; United States v. Edwards, - U.S. • — ■, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Appellant has filed in this Court his First Supplemental Brief, in which he contends for the first time that “The trial court erred in allowing the introduction of evidence under a search warrant which did not meet the Fourth Amendment requirements that such warrant be issued by a neutral and detached magistrate.” He points out that Justice of the Peace Snooks acted as coroner at the grave side of deceased, and investigated the details of the deaths of deceased and his brother and that he also witnessed the statement of the informer, before the search warrant was issued by him. Appellant concludes that therefore Judge Snooks was not a “neutral and detached” magistrate when he listened to the facts and made an “independent determination” of probable cause to issue the warrant. The contention of appellant having been for the first time briefed on appeal does not meet the requirements of Art. 40.09, § 9, Vernon’s Ann.C.C.P. Fries v. State, Tex.Cr.App., 495 S.W.2d 909. However, since a question of constitutional dimension is raised, we shall consider appellant’s contention. Ellis v. State, Tex.Cr.App., 502 S.W.2d 146; Price v. State, Tex.Cr.App., 475 S.W.2d 742. In Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, cited by appellant in support of his contention, the Court held a search warrant to he invalid as violating the warrant requirement of the Fourth Amendment because issued by the “chief governmental agent of the State,” the Attorney General, who was actively in charge of the investigation, and the chief prosecutor at the trial. The Court in holding that the inferences to be drawn in determining probable cause for issuing a warrant requires a neutral and detached magistrate cited with approval the statement in Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436, also relied on by appellant, that the Fourth Amendment requires that in determining whether a search warrant should issue, “those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” Johnson involved a warrantless search which the Court held to be illegal, and the essence of the opinion was that the officers should have submitted their evidence of probable cause to a magistrate. See also United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L. Ed.2d 752, where the warrant was issued by a member of the executive branch of the United States government who was acting as prosecutor. Appellant also cites Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L. Ed.2d 917, as holding: “No search required to be made under a warrant is valid if the procedure for the issuance of the warrant is inadequate to ensure the sort of neutral contemplation by a magistrate of the grounds for the search and its proposed scope, which lies at the heart of the Fourth Amendment.” Sibron also involved a warrantless search, where the neutral contemplation of a magistrate was not utilized by the officers making the search. In acting as coroner at the scene of the crime, Judge Snooks was charged with the duty of obtaining information as to whether death was caused by some criminal act, and to furnish the foundation for a criminal prosecution in case the death was shown to be felonious. Parsons v. State, 160 Tex.Cr.R. 387, 271 S.W.2d 643, cert, denied, 348 U.S. 837, 75 S.Ct. 36, 99 L.Ed. 660. See Tocher v. State, Tex.Cr. App., 501 S.W.2d 921. The fact that in such capacity he may have secured some information concerning the manner in which the death of deceased occurred did not cause him to become a prosecutor, or a law enforcement officer. In issuing the search warrant, he acted upon the affidavit of the officer and the statement of the informer, both of which were attached to the warrant. Although he witnessed the statement made by the informer, this was incident to the issuance of the search warrant in performing the duties of his office as a magistrate. In performing his duties as a coroner and a magistrate, there is no showing that Justice of the Peace Snooks was anything other than a neutral and detached magistrate, duly qualified to determine from the affidavit and statement furnished him that probable cause existed for the issuance of the search warrant. The judgment is affirmed. Opinion approved by the Court.

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Ex parte Eugene MARTINEZ. No. 48323. Court of Criminal Appeals of Texas. April 24, 1974. Eugene Martinez, pro se. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This is a post conviction habeas corpus proceeding brought under the provisions of Article 11.07, Vernon’s Ann.C.C.P., by the petitioner, an inmate of the Texas Department of Corrections. Petitioner was convicted upon his plea of guilty for the offense of burglary in Cause No. 6252 in the District Court of Fayette County on April 25, 1960. Punishment was assessed at twelve years’ confinement and no appeal was perfected. Two prior convictions alleged for enhancement were evidently dropped on motions by the State. Petitioner was also convicted of the offense of theft of property over the value of $50.00 in Cause No. 6250 in the District Court of Fayette County on April 25, 1960. Two prior convictions (Cause Nos. 6649 and 5444) were alleged for enhancement and punishment was assessed at life in the cause, the sentence to begin when the judgment and sentence in Cause No. 6252 ceased to operate. On November 1, 1967, petitioner filed an application for writ of habeas corpus alleging that his conviction in Cause No. 6250 was void because one of the prior convictions alleged for enhancement (Cause No. 6649) was void due to the fact that he was not represented by counsel. The trial judge entered an order on November 30, 1967, stating that the “judgment in Cause No. 6649 is void and therefore could not be used to enhance the punishment in Cause No. 6250” but “that the judgment and sentence in Cause No. 6252 confining petitioner for twelve years was valid and has not been fully served and therefore petitioner was not entitled to be released.” On December 28, 1973, petitioner filed another application for writ of habeas corpus in Cause No. 6250 alleging that his conviction was void due to the use of a constitutionally void prior conviction (Cause No. 6649) for enhancement purposes. Petitioner alleges that Cause No. 6649, wherein he pled guilty to the offense of burglary on April 15, 1957, was void because (1) he was not represented by counsel; (2) he was not advised that he was entitled to have counsel appointed for him if he so desired; and (3) he was indigent and without funds to employ an attorney. On January 28, 1974, the trial judge entered an order stating that petitioner’s enhanced sentence in Cause No. 6250 was based on a void prior conviction wherein petitioner was not represented by counsel. The record supports this finding. Petitioner’s trial resulting in the challenged conviction as stated above was had on April 25, 1960, over seven years before the United States Supreme Court’s decision in Bur-gett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). Therefore, we conclude petitioner’s conviction was void. We next consider what relief is appropriate. The indictment in Cause No. 6250 alleged in the first paragraph that petitioner committed the offense of theft of property over the value of $50.00. The second paragraph of the indictment involved Cause No. 6649, which we have concluded was a void conviction. The third paragraph alleged that petitioner on the 20th day of June, 1955, in Cause No. 5444 in the District Court of Gonzales County, was duly and legally convicted of the offense of burglary. We find that the first and third paragraphs in petitioner’s indictment are valid and sufficient under Article 62, Vernon’s Ann.P.C. Therefore, we hold that petitioner is entitled to relief from the life sentence under which he is confined. See Ex parte Swinney, 499 S.W.2d 101 (Tex. Cr.App.1973); Ex parte Scott, 485 S.W.2d 921 (Tex.Cr.App.1972). Thus, it is ordered that petitioner’s confinement under this conviction cannot exceed ten years under Artilce 62, supra. We have ascertained that the petitioner has served and has credit for sufficient time to complete the above referred to sentence. Therefore, he is ordered discharged. A copy of this opinion will be sent to the Texas Department of Corrections. It is so ordered. . The trial judge also stated in his order that • the petitioner has probably now completed his twelve year sentence for burglary and is confined only under the life sentence as an habitual.

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Ex parte Miguel Alvarado CALDERON. No. 48290. Court of Criminal Appeals of Texas. April 17, 1974. Rehearing Denied May 8, 1974. R. Norvell Graham, Jr., San Antonio, for petitioner. Ted Butler, Dist. Atty., and Bill Harris, Asst. Dist. Atty., and Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ODOM, Judge. This is a habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P., in which petitioner seeks his release from confinement in the Texas Department of Corrections. Petitioner was convicted on his pleas of guilty for the offenses of statutory rape, fondling, and indecent exposure on July 7, 1971. His punishment was assessed at twelve years in each case, the sentences to run concurrently. Petitioner challenges his convictions on the ground that all three convictions arose out of the same transaction. The record reflects that petitioner indecently exposed himself, fondled, and raped the prosecutrix on April 30, 1971. Testifying at the habeas corpus hearing, petitioner stated that he pled guilty to the offenses of statutory rape, fondling, and indecent exposure on July 12, 1971; that all of the above transactions involved one girl; that all three offenses occurred on April 30, 1971, at approximately 4:30 in the afternoon; and that he did not see the girl at any other time then on April 30, 1971, at approximately 4:30 in the afternoon. The State did not cross-examine him or offer any evidence. The trial court filed findings of fact and conclusions of law, stating in part: “I find as a matter of law and fact that the convictions in Cause 71-1181 (the exposure cause), 71-1182 (the statutory rape cause), and 71-1183 (the fondling cause) entitled The State of Texas Vs.: Miguel Alvarado Calderon, grew out of the same transaction.” Under the doctrine of carving , if a continuous assault is made on the same person in the same transaction, the State can carve but one conviction out of the event. See 1 Branch’s Ann.P.C., 2nd ed., Sec. 654, p. 625. In Duckett v. State, 454 S.W.2d 755 (Tex.Cr.App.1970), this Court stated: “The inhibition against double jeopardy is determined by the facts and circumstances and not by the name of the offense. The record before us in the case at bar portrays a definite illustration of the application of the principle that when one has been convicted, the State cannot, upon the same evidence, again convict him of the same act. The proof is conclusive that in appellant’s conviction for assault to murder he was convicted of the same transaction and upon the same evidence as that upon which he was earlier convicted of the offense of robbery by assault with a firearm.” See also Paschal v. State, 49 Tex.Cr.R. 911, 90 S.W.2d 878 (Tex.Cr.App.1905). In Price v. State, 475 S.W.2d 742 (Tex. Cr.App.1972), the defendant was convicted by separate informations for the offenses of false imprisonment and aggravated assault, the offenses arising out of the same transactions. Reversing the conviction for aggravated assault, we stated: “ The prosecuting attorney may carve as large an offense out of a single transaction as he can, but he must cut only once.’ In the present case the transaction over a period of some ten to twelve minutes was a single transaction, the evidence was the same, and appellant was convicted of two separate offenses.” Herein, although the three offenses are in contemplation of law separate and distinct, they were on the facts in these cases all proved by the same acts and evidence as a single assault. The stipulated evidence introduced to support each of petitioner’s pleas of guilty was exactly identical, except for variation in numbering. The situation at bar is unlike Lee v. State, 505 S.W.2d 816 (Tex.Cr.App.1974) wherein the defendant was convicted upon three indictments alleging sodomy on the same victim on the same date. There we held that the offenses were separate and distinct both in contemplation of law and upon the facts of those cases, the three offenses not having been proven by the same acts or evidence. In the instant cases, the trial court committed fundamental error in accepting petitioner’s pleas of guilty to two of the indictments in question. See and compare Ellis v. State, 502 S.W.2d 146 (Tex.Cr.App.1973); Ex parte Easley, 490 S.W.2d 570 (Tex.Cr.App.1972); Jones v. State, 482 S.W.2d 194 (Tex.Cr.App.1972); Benard v. State, 481 S.W.2d 427 (Tex.Cr. App.1972) with Crabb v. State, 503 S.W.2d 260 (Tex.Cr.App.1974) ; Grant v. State, 505 S.W.2d 279 (Tex.Cr.App. 1974); Waffer v. State, 504 S.W.2d 408 (Tex.Cr.App.1974); Jones v. State, 502 S.W.2d 164 (Tex.Cr. App.1973) ; McMillan v. State, 468 S.W.2d 444 (Tex.Cr.App. 1971). The doctrine of carving having been violated, two of the three convictions must fall. The record reflects that petitioner entered his pleas of guilty to all three indictments in the same proceeding. However, it does not reflect which judgment was entered first. Presumptively, petitioner was first indicted in the exposure cause. This is due to the fact that the indictment number in the exposure cause is a lower number than the indictments in the other two causes. Therefore, we must assume, since the stipulated evidence to support all three convictions was the same, the petitioner’s plea of guilty to the exposure cause was valid and prior in time to his pleas in the other two causes. Thus, petitioner is entitled to relief from confinement for his rape conviction and fondling conviction. Relief as to his conviction in the exposure cause is in all respects denied.

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Caselaw Access Project

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Dan Larry FRAZER, Appellant, v. The STATE of Texas, Appellee. No. 46822. Court of Criminal Appeals of Texas. Jan. 16, 1974. Rehearing Denied April 17, 1974. Second Rehearing Denied May 8, 1974. Fred Time, Dallas, for appellant. Henry Wade, Dist. Atty., and William J. Teitelbaum, Asst. Dist. Atty., Dallas, Jim D. Vollers, State’s Atty., Buddy Stevens, Asst. State's Atty., Austin, for the State. OPINION MORRISON, Judge. The offense is possession of marihuana; the punishment, two (2) years. As a sole ground of error appellant contends the trial court erred in overruling his motion to suppress evidence, which was founded on the contention that the evidence was illegally seized. On July 3, 1971, Mr. Russell, the Chief of Security for the Dallas Market Center, noticed an automobile occupying two spaces in the Market parking area. He sought out the appellant, who admitted it was his, and drove him back to move the car. Officer Tilton, an off-duty officer of the Dallas Police Department, who was working in the area, saw appellant flick or throw something under Russell’s car as Russell and appellant entered it. On investigation the officer found a bottle in the area that the car had occupied. The bottle contained a substance which, in the opinion of the officer, was marihuana. The officer walked over to the area in which appellant’s car was parked, and questioned appellant concerning the bottle. Appellant denied knowledge of the bottle and gave consent to a search of the car; however, this consent was immediately revoked. Nevertheless, the officers searched the car and found two containers of marihuana in the passenger area. Appellant cites several cases in which the “plain view” doctrine was invoked. He urges that they are distinguishable for the reason that in those cases the officers who found the abandoned property were able to identify it as the identical property that fell from the defendant’s hand. If appellant’s contention be correct, it is not supported by the record. The officer testified that after the bottle was released from appellant’s hand he saw what it was and saw the cap come off. See also Gamez v. State, Tex.Cr. App., 403 S.W.2d 418. The subsequent search of appellant’s automobile presents a different problem. It appears that Gasery v. State, Tex.Cr. App., 465 S.W.2d 377, and cases there cited are in point. In that case, the defendant was arrested for burglary when he was found prying on an air conditioner trying to get into a building. The officers searched a car parked in the immediate area, and seized a stolen bank bag, tools, and property taken in another burglary. In affirming, this Court held there was probable cause for searching the automobile. Likewise, we hold that probable cause to search the automobile existed in the case at bar. Cf. Hensley v. State, Tex.Cr.App., 494 S.W.2d 816. If we be in error as to the validity of the search of appellant’s automobile, this conviction is nevertheless sustainable on the basis of the quantity of marihuana found under Officer Russell’s automobile. Officer Tilton testified that, in his opinion, the bottle which he saw appellant “flip” contained marihuana. Such testimony is sufficient to sustain a conviction. Boothe v. State, Tex.Cr.App., 474 S.W.2d 219. Also it was stipulated that the bottle contained marihuana. The judgment is affirmed. ROBERTS, Judge (concurring in part and dissenting in part). The trial in this case was before the court; this following a lengthy hearing on a defense motion to suppress evidence because of an alleged illegal search. During the actual trial, the defense counsel did agree that the judge should consider all the evidence presented at the hearing on the motion. This evidence included testimony by the arresting officer that after he retrieved the bottle which he saw appellant “flick” away, he examined the contents thereof, and concluded that it contained marihuana. On this basis, the evidence is sufficient to sustain the conviction. If the conviction had to stand or fall depending on the legality of the search of the appellant’s automobile, I would vote for reversal of the cause, as the search of that vehicle was illegal. The record reflects that on the day in question the appellant’s vehicle was parked across Industrial Boulevard from the area where the appellant got into the automobile with the security officer and rode over to his auto. Because of the heat, the appellant had parked his car, taking up two parking spaces, so as to take advantage of the shade offered by a tree located nearby. His trunk was full of candles which he was selling at the trade fair, and the appellant showed this to the security guard upon their arrival at the vehicle. The police officer who arrested the appellant was working pedestrian traffic at a signal light some “thirty-five to fifty feet” from where appellant and the security guard entered their vehicle. Further, the security officer stated that he did not see or hear any container being thrown and that as far as he was concerned the appellant was free to leave after the parking violation was cleared up. There was no testimony from this officer regarding the subsequent search of the appellant’s automobile. The arresting officer stated that at the time in question he was working as patrol officer at a pedestrian crossing between the Market Hall and the Dallas Trade Mart. After the “flick,” the officer followed appellant and the security guard to appellant’s automobile and there searched appellant’s person after asking him if “he had any more of this with him.” The appellant denied knowledge of the bottle, and the search of appellant’s person revealed nothing of consequence. The officer who arrested the appellant testified that after finding the bottle he made up his mind at that point to arrest appellant for possession of marihuana. He candidly admitted that the search of the appellant’s automobile was to determine if there was any more marihuana there. The officer further testified that he told appellant several times to shut-up and be quiet because “he was making protests.” Also, this officer verified that the appellant withdrew his consent to search before the search got underway, but that the search continued, lasting some twenty or thirty minutes, while appellant continued to protest. Using the majority’s logic, probable cause would have existed for a search at the next location appellant proceeded to, period, whether it had been a car, a house or an apartment. I must inquire — where would such “probable cause” have ended— after how many stops ? The one case cited by the majority is not at all in point. In Gasery v. State, supra, the accused was arrested at approximately 3:00 o’clock in the morning behind a drug store. When arrested, he was in the process of prying on an air conditioner trying to get into the building. The significant facts which the majority fail to point out, however, are that in Gasery the accused was using a tire tool when arrested and the automobile which was subsequently searched was parked in the immediate vicinity. Therefore, there at least existed a logical affirmative link in that case between an implement the accused was using when arrested and the nearby automobile. Further, the Court in Gasery obviously did not intend to lay down a blanket rule that vehicles found near an accused when lawfully arrested may always be searched, as the Court specifically limited the holding to “the evidence present in this case.” How logical is it to conjure up probable cause after the “flick” incident, to make an exhaustive search of an automobile completely disconnected with the facts which aroused the officer’s suspicion? The reasoning behind the majority’s opinion appears to be that if a person “flicks” away drugs he must necessarily have more drugs stashed away at the location to which he next proceeds. The response that, “Well, this appellant did have more drugs there” is valueless; as often stated, the fruits of an illegal search cannot supply the probable cause for that search. The concern should be as much for future persons’ rights as those of the present appellant. Because of our system of stare decisis, what happens today does matter — it matters a great deal and the search of the car should be labeled illegal, for it clearly was. Therefore, I concur in the result reached, but dissent from any holding by the Court that the search of the automobile was legal. ODOM, J., joins in this opinion. OPINION ON APPELLANT’S MOTION FOR REHEARING ROBERTS, Judge. A majority of this Court now conclude that the search of the appellant’s automobile was, in fact, illegal. (See this writer’s opinion concurring in part and dissenting in part, filed on original submission.) Therefore, that portion of the original opinion which held the search of the vehicle to be legal is hereby overruled. Nevertheless, we find the evidence sufficient to support the verdict. This case was tried before the court; both sides agreed that the evidence heard at the pre-trial suppression hearing would serve as evidence in this case. Such agreement is evidenced in the record before this Court by an instrument which reflects the appellant’s written consent to stipulations of evidence. Art. 1.15, Vernon’s Ann.C.C.P., as amended, states, in part: “The evidence may be stipulated if the defendant in such case consents in writing, in open court, to waive the appearance, confrontation, and cross-examination of witnesses, and further consents either to an oral stipulation of the evidence and testimony or to the introduction of testimony by affidavits, written statements of witnesses, and any other documentary evidence in support of the judgment of the court. Such waiver and consent must be approved by the court in writing, and be filed in the file of the papers of the cause.” See Keeble v. State, Tex.Cr.App., 506 S. W.2d 879 (delivered March 20, 1974). As was pointed out in the Court’s opinions on original submission, the stipulated evidence in this cause included testimony by the arresting officer that after he retrieved the bottle which he saw the appellant “flick” away, he examined the contents thereof, and concluded that it contained marihuana. Such testimony supplied the trial court with adequate evidence to support the conviction. Therefore, the appellant’s motion for rehearing is considered, for the limited purpose of establishing the illegality of the search of the automobile; however, since the disposition of the cause remains the same, the motion is overruled. DOUGLAS, J., concurs in the result for the reasons stated in the original opinion. . Miller v. State, Tex.Cr.App., 458 S.W.2d 680; Jimenez v. State, Tex.Cr.App., 421 S.W.2d 910; Mendez v. State, Tex.Cr.App., 362 S.W.2d 841; Rodriguez v. State, 172 Tex.Cr.R. 540, 360 S.W.2d 406; Nava v. State, 170 Tex.Cr.R. 355, 340 S.W.2d 955; Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781. . “MR. HILL [prosecutor] : It’s further agreed and stipulated that the vegetable material Officer Tilton found was, in fact, marihuana.” * ⅝ ⅝ * Sfc “MR. TIME [appellant’s counsel] : No objection, with that stipulation . . . ”

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2024-08-24T03:29:51.129235

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Lawrence Edward BROWN, Appellant, v. The STATE of Texas, Appellee. No. 48367. Court of Criminal Appeals of Texas. April 24, 1974. Jim Hamilton, Houston, for appellant. Carol Vance, Dist. Atty., Phyllis Bell and Herbert Hancock, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., ' Austin, for the State. OPINION ODOM, Judge. This appeal is from an order revoking probation. Appellant was convicted of the offense of felony theft on November 24, 1971, and was placed on probation for five years in cause number 165,987. Two of the conditions of said probation were that he “Commit no offense against the laws of this or any other State or the United States,” and “Report to the probation officer as directed.” The State’s First Amended Motion to Revoke Probation was filed on November 29, 1972, in causes numbered 167,741 and 165,987, alleging that appellant violated the terms and conditions of his probation in that he ‘“failed to report to his probation officer since Feb. 1, 1972, and all efforts to contact him have failed. That probationer is currently $20.00 in arrears in his supervisory fee. That probationer committed the offense of robbery by assault on May 7, 1972, in Harris County, Texas.” On December 12, 1972, causes numbered 167,141 and 165,987 came on for hearing on the motion to revoke. It then being discovered that appellant was not the defendant in cause number 167,741, alleged in the motion to revoke, that portion was abandoned and the hearing proceeded in cause number 165,987. No evidence of the commission of the alleged offense having been introduced, at the conclusion of the hearing the court revoked appellant’s probation in cause number 165,987 upon its finding that appellant “failed or refused to report to the Probation Department, as ordered by the court,” and “refused to pay supervisory fee, in that he was $20.00 in the rear in payments.” Appellant contends the court abused its discretion in revoking his probation because the record does not show he violated the terms of his probation as alleged, in that the condition requiring him to report to the probation officer as directed constituted an improper delegation of authority and in that the requirement of payment of a supervisory fee was not a condition of his probation. The record contains an exhibit introduced at the hearing on the motion to revoke entitled Conditions of Probation which was signed by appellant acknowledging his receipt of a copy thereof. Among the conditions listed are: “Report to the probation officer as directed, not less than once a month; Report to the Adult Probation Department, Harris County, on December 7, 6: P.M. ⅜⅜⅞ e« tne same day el eaeh succeeding men-⅛ until discharged from prefeatie». “And pay a $150.00 Supervision Fee to Harris County, Texas, at the rate of $10.00 per month, beginning Jan. 1, 1971. All payments to be paid through the Adult Probation Department of Harris County, Texas. Personal or Company checks are not accepted.” However, the instrument appears on its face to be a list of conditions of probation for both causes 167,141 and 165,987. The verdict and judgment filed in cause number 165,987, in which probation was revoked, on the other hand, recites the following terms of probation: “Report to the probation officer as directed; . . . No Supervisory Fee.” (Emphasis supplied). It therefore appears from the record that no supervisory fee was imposed in cause 165,987, and that the supervisory fee referred to in the exhibit, if imposed at all, must have been imposed in cause 167,141, said exhibit on its face appearing to be a combined statement of the conditions from both causes. It appearing that no supervisory fee was imposed, it was an abuse of discretion to revoke appellant’s probation for failure to pay same. The other ground upon which appellant’s probation was revoked was his failure to report to the probation officer as directed. Again there is a conflict between the pronouncement of conditions in open court and the recital in the document which on its face appears to be a notice of conditions of probation for both this case and another. In view of the facts of this case we are compelled to conclude that those conditions pronounced by the court in its judgment control over the conflicting terms found in the document which contains conditions imposed in another cause not before us. Accordingly, the issue is whether the court abused its discretion in revoking appellant’s probation for failure to report to the probation officer as directed. Such requirement standing alone constitutes an improper delegation of the setting of terms of probation to the probation officer. See DeLeon v. State, Tex.Cr. App., 466 S.W.2d 573; Cox v. State, Tex. Cr.App., 445 S.W.2d 200; McDonald v. State, Tex.Cr.App., 442 S.W.2d 386; Campbell v. State, Tex.Cr.App., 420 S.W. 2d 715. Appellant’s probation officer testified that appellant reported on January 4, 1972, but did not report thereafter. He also testified that appellant was at that time told to report again on February 1, 1972, but that he failed to do so, and that he was sent a registered letter directing him to report, the returned receipt being signed by appellant and indicating delivery in February 1972. The delegation of authority being improper, it was an abuse of discretion for the court to revoke probation thereon. The exercise of improperly delegated authority by a probation officer cannot make the delegation effective, although on different facts, where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed. Here, however, no such history of acceptance of the delegation of authority appears in the record, but rather the facts stated above demonstrate the contrary. Upon the facts of this case we find the revocation of probation constituted an abuse of discretion. The judgment is reversed. . Appellant had been the defendant in 167,141, which cause was not alleged in the motion to revoke. . Said document contains nothing to indicate that it was filed in the record of either cause at the time of its issuance, nor does it appear to be an order duly entered by the court in either cause. . We also observe there was no evidence of appellant’s ability to make any such payments. See Gormany v. State, Tex.Cr.App., 486 S.W. 2d 324; Matthews v. State, Tex.Cr.App., 478 S.W.2d 943; Cotton v. State, Tex.Cr. App., 472 S.W.2d 526. .We also observe that the terms stated on the docket sheet, with respect to grounds for revocation, correspond to those stated in the judgment and not to those appearing in the exhibit introduced at the hearing.

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Pedro MOYA, Jr., Appellant, v. The STATE of Texas, Appellee. No. 48042. Court of Criminal Appeals of Texas. April 24, 1974. Doyle Keith Woodley and Ben D. Sud-derth, Comanche, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. The appellant was convicted of the offense of burglary. The jury assessed his sentence at five years, and granted probation. Appellant’s first ground of error urges that his motion to quash the indictment should have been granted because Mexican-American persons were systematically excluded from grand jury service in Comanche County. Appellant proved that from the March, 1966 term of the grand jury to the March, 1973 term, no persons with Spanish surnames were selected for grand jury service. No proof was offered regarding the racial make-up of the grand jury commissioners during this period, and no proof was offered, beyond the list of names, of the actual racial background of the grand jurors during this period. Two witnesses for the defense testified that, in their opinions, as many as fifty-seven Mexican-American residents of the county might be qualified as grand jurors, although none of these persons were named. The record reveals that the total population of the county was 11,898 as of 1970. In view of the fact that the percentage of those qualified who were of Mexican-American extraction was so small as to be almost infinitesimal, and in view of the absence of further evidence which might indicate that discrimination has occurred, we conclude that appellant has not made out a prima facie case of denial of equal protection. Compare Gonzales v. State, 414 S.W.2d 181 (Tex.Cr.App. 1967). Appellant’s first and second grounds of error are overruled. Appellant’s third ground of error complains that the court improperly charged the jury on the issue of whether appellant was properly warned by the police officer who took his confession. At trial, appellant conceded that he was warned by a magistrate, but he contends there is no evidence that he was warned by the police officer, Bill Vinyard. The court charged the jury that they must disregard the confession if the evidence failed to show that Vinyard gave the proper warnings. The charge made no mention of the magistrate’s warnings. In view of the fact that appellant was warned, this charge, instructing the jury to disregard if they found only that Vinyard failed to warn appellant, was more favorable than that to which appellant was actually entitled. There was no error. Appellant’s last ground of error urges that one of the grand jury commissioners was disqualified under the provisions of Art. 19.01, Vernon’s Ann.C.C.P. His contention was based upon the fact that one of the grand jury commissioners was the complaining witness in certain matters which resulted in indictments against other persons. Appellant urges that because of this fact the commissioner was disqualified under subsection (3) of Art. 19.01, supra. Evidence in support of this contention was not presented until after both sides had rested at the punishment stage. We have held that any such contention comes too late when raised for the first time after the jury has reached a verdict. See Hicks v. State, 493 S.W.2d 833 (Tex.Cr. App.1973) and cases there cited. However, it is questionable that being the complaining witness in an unrelated case is sufficient to violate the qualification that one “Have no suit which requires [the] intervention of a jury.” See Art. 19.01(3), supra. This is especially true where, as here, there is no evidence indicating that the grand jurors were corruptly selected. Compare Harris v. State, 123 Tex.Cr.R. 161, 58 S.W.2d 513 (Tex.Cr. App. 1933). As noted, the jury sentenced appellant to five years’ confinement, but granted probation. However, the judgment reflects that appellant was sentenced to four years, probated. In view of this error, the judgment is reformed to reflect the sentence imposed by the jury, five years, probated. The judgment, as reformed, is affirmed. . Art. 19.01, V.A.C.C.P., providing for the appointment of jury commissioners reads, in part, as follows: “ . . . they shall possess the following qualifications: “ . . . 3. Have no suit in said court which requires [the] intervention of a jury; ...”

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Robert Larry HORNER, Appellant, v. The STATE of Texas, Appellee. No. 47580. Court of Criminal Appeals of Texas. April 24, 1974. Mark Pool, Greenville, for appellant. Larry Miller, Dist. Atty., Greenville, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION BILL J. CORNELIUS, Commissioner. Appellant was convicted of murder with malice and assessed punishment at seventy-nine years confinement. The sufficiency of the evidence is not challenged. The first ground of error urges that a mistrial should have been declared when the prosecuting attorney made the following comment in his jury summation at the guilt-innocence stage of the trial: “Mr. Pool talks about, to you, everybody who testified in this case but his own client. He makes no reference to his actions out there on that night.” Appellant’s motion for mistrial was denied. For comments to be prejudicial error as constituting references to the accused’s failure to testify, the inference that the accused’s failure to testify is being referred to must be a necessary one. Richardson v. State, 172 Tex.Cr.R. 299, 356 S.W. 2d 676; Lewis v. State, 155 Tex.Cr.R. 514, 236 S.W.2d 812. The comment complained of here does not fall into that category. In fact, it appears that the comment was referring to defense counsel’s propensity to talk about what others did on the night of the murder and his failure to talk about the appellant’s actions “ . . . out there on that night.” Ground of Error Number One is overruled. Appellant next asserts that the trial court should have declared a mistrial when the prosecuting attorney on voir dire examination of the jury panel made the following comment: “There is one other thing that a jury cannot consider in its deliberations, and I want to briefly touch on that. At no time in the deliberations in the jury room can the twelve of you consider how many years a person will actually have to serve. This is something that should not — cannot come before the jury in the jury room. Whether it be one-fifth of the time assessed or whatever. I do want to make that point very — ” Objection to the comment was sustained and the Court at that time instructed the jury panel as follows: “Judge of the court will give you written instructions as to what the law is, and what you can consider and what you cannot consider. I will instruct the panel not to interpret the State’s remarks relative to one-fifth of anything, not to consider that, that there is going to be any term set and there is not going to be any finding of guilt — that that was merely an explanatory remark by the State with reference to its case.” Appellant’s motion for a mistrial was denied. Even if the quoted comment constituted error, the trial court’s oral instruction and the written instruction on punishment which was given in the Court’s charge were sufficient to cure any error. Bradley v. State, Tex.Cr.App., 489 S.W.2d 896; Lenzi v. State, Tex.Cr.App., 456 S.W.2d 99; Gray v. State, Tex.Cr.App., 477 S.W.2d 635. Ground of Error Number Two is overruled. In his third ground of error, appellant contends he should have been allowed to put the witness Raymond Rodriguez on the stand in order that his refusal to testify on the grounds of self-incrimination (which refusal was known in advance by the defense, the prosecution and the Court) might be demonstrated to the jury. Appellant’s argument in support of this contention is that Rodriguez, who was a co-defendant tried separately, “ . . . should be brought in front of the jury so that the defendant can show that he refuses to answer questions concerning a confession in which he took the sole blame for the incident.” A hearing held out of the presence of the jury was conducted by the Court on appellant’s request and Rodriguez refused to answer any questions except to give his name and address. It appears that this exact question has not been decided, but this Court has repeatedly held that when it is known that self-incrimination will be claimed by a witness, it is prejudicial error for the prosecution to call that witness to the stand merely to force him to claim his privilege in the presence of the jury. Not only would such action be prejudicial because it might be taken by the jury as an incriminating fact against the defendant, but it also would tend to induce the jury to speculate on matters not in evidence and infer the existence of facts which could not be proved by the witness himself. Washburn v. State, 164 Tex.Cr.R. 448, 299 S.W.2d 706; Johnson v. State, 158 Tex.Cr.R. 6, 252 S.W. 2d 462; Rice v. State, 121 Tex.Cr.R. 68, 51 S.W.2d 364; Rice v. State, 123 Tex.Cr.R. 326, 59 S.W.2d 119; Garland v. State, 51 Tex.Cr.R. 643, 104 S.W. 898. The same reasons would compel the conclusion that the defense should likewise be precluded from taking such action. Furthermore, this Court has recognized the general rule that when a witness, other than the accused, declines to answer a question on grounds of self-incrimination, his refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant. See Glasper v. State, Tex.Cr. App., 486 S.W.2d 3S0. Therefore, we cannot see how appellant was harmed by the Court’s action in this matter. Ground of Error Number Three is overruled. We find no reversible error and the judgment of the trial court is affirmed. Opinion approved by the Court.

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Joe CORONADO, Appellant, v. The STATE of Texas, Appellee. No. 48118. Court of Criminal Appeals of Texas. April 24, 1974. Mary B. Edwards, Houston, for appellant. Carol S. Vance, Dist. Atty., Ted Poe and Bert Graham, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for felony theft. The court assessed punishment, enhanced under Article 62, V.A.P.C., at ten years. Appellant first challenges the sufficiency of the evidence to support the conviction. The record discloses that the complaining witness, Jessie Montemayor, had been working on his automobile in the front yard of his home in Houston on the afternoon of October 1, 1972. When he finished, he placed his tools in two toolboxes, placed them on his front porch and went inside the house. Martha Perez testified that she and her cousin, Rosa Anita de la Cerda, were standing in front of her home, directly across the street from the Montemayor home, when they noticed a black and gray Buick Riviera drive down the street. A short time later, the Buick returned and drove more slowly past the Montemayor house. Within another three minutes, the Buick reappeared and parked at the opposite corner of a nearby intersection, some sixty feet from the Montemayor house. Mrs. Perez positively identified appellant, whom she knew, as the driver of the Buick. Mrs. Perez further stated that an unknown man got out of the Buick, walked down the street and up onto the Montemay- or porch. He then picked up the two toolboxes, walked hurriedly back to the Buick, and placed the boxes inside. The two men then drove off. Mrs. Perez stated that, although her attention was centered on the man who took the toolboxes, she noticed that the automobile was parked pointing away from the Montemayor house and that appellant never appeared to glance in any direction but straight ahead. She stated he did not appear to be nervous or apprehensive. Appellant did, however, “stare” at his passenger when he returned to the automobile with the tools and got in. Mrs. de la Cer-da testified to essentially the same facts. Appellant did not testify. The jury was charged on the law of principals. Appellant contends that the State produced no evidence of any wrongful intent on his part to take the tools. Specific intent to commit theft can be inferred from the surrounding circumstances. Hawkins v. State, Tex.Cr. App., 467 S.W.2d 465. While mere presence at the scene of the commission of an offense will not constitute one a principal, it is' a circumstance tending to prove that a person is a principal, and, taken with other facts, may be sufficient to show that he was a participant. Childress v. State, Tex.Cr.App., 465 S.W.2d 947; Jones v. State, Tex.Cr.App., 500 S.W.2d 661. We hold that the facts of this case are sufficient to support the jury’s determination of guilt. Appellant next contends that there is insufficient evidence to show the value of the items taken as exceeding $50. The indictment charged the appellant with taking “one tool box and assorted tools;” the proof showed the taking of two toolboxes and assorted tools. Montemayor valued the tools at the time of the offense at approximately one-half of the original purchase price, or a total value of over $300. It is axiomatic that a conviction cannot be had for property not alleged to be stolen. Ballinger v. State, Tex.Cr.App., 481 S.W.2d 421. The proof showed each toolbox to be worth $10 and that each contained at least $52.50 worth of wrenches. We therefore hold that the evidence is sufficient to support a conviction for felony theft, as alleged in the indictment. Third, appellant contends that the trial court erred in refusing to admit the testimony of defense witness Titus B. Edwards, appellant’s co-counsel. Appellant sought his testimony concerning a certain conversation he had with one Juan Pedro Romero. Romero had been identified by Mrs. de la Cerda as the man who took the toolboxes from the porch. Romero was called to the stand out of the presence of the jury but refused to testify, invoking his privilege against self-incrimination. Appellant then called Edwards and attempted to elicit from him the substance of the conversation between the two men. The State’s repeated objections to such testimony were sustained, whereupon the following occurred: “MRS. EDWARDS (counsel for. appellant) : No further questions. “THE COURT: Does that conclude your proffer, or do you have any further evidence on the proffer ? “MRS. EDWARDS: No further evidence on the proffer. May I have a minute, your Honor ? “THE COURT: Yes, ma’am. “MRS. EDWARDS: I would like to have the jury brought back now, if it please the Court. “THE COURT: First, before we do, is there any objection to the proffer testimony by the State being presented to the jury? “MR. GRAHAM: Yes, your Honor. “THE COURT: Do you want to present this testimony to the jury? “MRS. EDWARDS: No. It has no value. No weight. “THE COURT: You do not offer it to the jury? “MRS. EDWARDS: No. “THE COURT: All right, there is nothing for the Court to rule on.” Nowhere in the record is there any showing by appellant as to what the testimony of Edwards would have been. Without such a showing nothing is presented for review. East v. State, Tex.Cr.App., 420 S.W.2d 414; Mabry v. State, Tex.Cr. App., 492 S.W.2d 951. Appellant finally contends that the trial court erred in failing to rule on the admissibility of certain fingerprint evidence used to prove appellant’s prior conviction for enhancement purposes. At the hearing on punishment, it was shown that appellant’s knowh fingerprints matched those contained on three “jail cards” marked State’s Exhibits 1, 2, and 3. The State also elicited testimony that the jail cards contained information to four prior indictments against appellant. However, the jail cards were never offered in evidence and the State proved appellant’s prior felony theft conviction by other means. At no time did appellant object to the State’s use of the jail cards. Absent an objection, error, if any, was waived and nothing is presented for review by this Court. Anderson v. State, Tex.Cr.App., 486 S.W.2d 569; Pitts v. State, Tex.Cr. App., 478 S.W.2d 555. There being no reversible error, the judgment is affirmed.

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Raymond C. GUZMAN, Appellant, v. The STATE of Texas, Appellee. No. 48005. Court of Criminal Appeals of Texas. April 17, 1974. Rehearing Denied May 8, 1974. W. C. Wiebusch, Houston, for appellant. Carol S. Vance, Dist. Atty., James Brough and Jim Ezer, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. The appellant was convicted by a jury of the offense of possession of heroin. The court assessed his punishment at IS years’ imprisonment. Appellant’s first two grounds of error relate to the admission into evidence of a quantity of heroin seized during the execution of a search warrant at his mother’s home. The evidence reflects that on July 30, 1971, a search warrant directing appellant’s arrest was issued, ordering the executing officers to search a private residence described as “a one-story white frame building situated in the City of Houston, Harris County, Texas, located at 7307 Avenue ‘L’ ”. The officers located the appellant at a bar some distance from the Avenue L address and arrested him. They then placed him in a police car and carried him to Avenue L. On the way to the site, the appellant told the officers that we would give them the heroin since they were going to find it anyway. When asked why he was being so cooperative, he stated that his mother lived there, that she was old, and that he wished to avoid having her excited by a search. Upon arriving at the location to be searched, the officers observed that the lot contained two separate houses surrounded by a single fence. One was a small unpainted one-room frame building, while the other was a white frame multi-room house, somewhat larger than the first. Appellant led the officers into the white house, and into a bedroom in the back of it. There he started to lift up the mattress on the bed. One of the officers intervened and, lifting the mattress himself, saw some cellophane envelopes which contained a substance later shown to be heroin. A further search of the bed revealed an orange-drink carton stuffed into a pillow. The carton held other envelopes which also contained heroin. At the hearing on appellant’s motion to suppress, evidence showed that the actual address of the house searched was 7309 Avenue L and that 7307 Avenue L was the address of the smaller, unpainted house on the same lot. Appellant, relying on Balch v. State, 134 Tex.Cr.R. 327, 115 S.W.2d 676 (Tex.Cr. App.1938), argues that the warrant did not authorize a search of the premises numbered 7309 Avenue L. Balch v. State, supra, is not strictly in point however, for in that case the address contained in the search warrant was that of a vacant lot. See also Ervin v. State, 165 Tex.Cr.R. 391, 307 S.W.2d 955 (1957). In the instant case, both houses were contained within the same lot, surrounded by a single fence. Further, while the actual number of the house searched was not that number listed in the warrant, the house otherwise conformed in all respects to the description given in the warrant. The smaller house, actually number 7307, did not match any of the physical characteristics of the house to be searched. Under the circumstances, if no further description of the house to be searched had been given, other than its number, a more serious question would have been presented. However, the executing officers were entitled to rely upon the entire description given in the warrant. See Crumpton v. State, 147 Tex.Cr.R. 54, 178 S.W.2d 273 (1944). This included the physical description (which matched that of the house searched) and the allegations of control and occupancy. The warrant was sufficient to inform the officers of the location of the house they were to search. See Tyra v. State, 496 S.W.2d 75 (Tex. Cr.App.1973). Appellant also contends that the court erred in not granting his motion for instructed verdict. Since his fifth ground of error challenges the sufficiency of the evidence, these grounds of error will be discussed together. In view of appellant’s oral statement that he would show the heroin to the policemen, and in view of his subsequent actions in leading them to it, appellant’s contention that there was no affirmative link connecting him to the narcotic is without merit. Appellant’s fourth ground of error urges that the court improperly instructed the jury that conviction could be had on possession or control. Such instructions have been held proper. See Noah v. State, 495 S.W.2d 260 (Tex.Cr.App.1973). The judgment is affirmed.

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Harold Ray POWERS, Appellant, v. The STATE of Texas, Appellee. No. 47630. Court of Criminal Appeals of Texas. April 24, 1974. W. B. Wright, Cisco, for appellant. Emory Walton, Dist. Atty., Eastland, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ONION, Presiding Judge. This appeal is from a conviction for murder with malice aforethought where the punishment was assessed by the jury at one hundred one (101) years. Appellant’s trial was conducted in East-land County following a change of venue from Brown County, where the offense was alleged to have occurred. At the outset appellant complains of the admission of an extraneous offense into evidence by virtue of inclusion in his extrajudicial confession to the offense charged. A recital of the facts is necessary for the proper disposition of this contention. The record reflects that the 23 year old appellant was on leave from the United States Navy at the time of the alleged offense and was staying at his mother’s house in Brownwood. On November 30, 1970, he borrowed his sister’s 1964 Ford stationwagon and drove to a relative’s home, where he drank some beer and traded his .30-30 caliber rifle and some cash for a .22 caliber rifle and an Italian made rifle. Thereafter, he proceeded to a private club where he chanced to meet the deceased, Gordon Bengston, who had flown into Brownwood that afternoon and had registered at the Riverside Motel. After some drinks, the appellant and Bengston drove in appellant’s borrowed vehicle to The Chart Room at the Flagship Inn on Lake Brownwood, where they continued to drink with Bengston buying the drinks. After midnight, they drove towards Brownwood, but turned off the Brown-wood-Cross Plains Highway onto the Baptist Encampment Road, and after about one-half mile they stopped to urinate. After the appellant was unable to start the stationwagon, they walked, looking for house lights and a telephone. Being unsuccessful, they returned to the vehicle, which still would not start. Bengston continued to complain about being stranded. Appellant removed the .22 caliber rifle from the vehicle.and shot Bengston in the back of the head. Bengston fell forward and started crawling towards the appellant, who then struck him in the head with the rifle butt. When Bengston rolled over on his back, appellant pulled out a pocket knife and stabbed him in the throat and then slashed his neck, which act resulted in hemorrhaging, which medical testimony showed was the cause of death. Appellant went through Bengston’s pockets and took some money, a memo book, motel key, etc., but overlooked most of Bengston’s cash. He then dragged the body through the grass and attempted to throw it over a fence, but could not because the body was too heavy for him. Appellant then walked to the main highway, caught a ride into Brownwood, where, according to his confession, at about 2:30 a. m. he broke into a woman’s clothing store and took some wigs, pantyhose, a dress, perfume, and some coins, etc. He then proceeded to his mother’s house two and one-half blocks away, leaving the items taken on the front porch. Early the next morning he was awakened by his sister, who wanted her stationwagon the appellant had borrowed. Appellant went to Buddie’s Super Market and called a taxi cab, which carried him seven miles out to the Baptist Encampment road from which point he walked to the spot where he left the stationwagon. There he encountered officers already on the scene who arrested him for public intoxication and later charged him with that offense and the offense of murder. At the time he was booked at the jail it was discovered he was wearing pantyhose under his clothes. The confession was taken from the appellant in the late afternoon. Prior to trial the appellant filed a motion in limine requesting that the court excise from the confession any reference to the offense of burglary, contending it was an extraneous offense in no way connected with the alleged offense of murder. The motion was overruled. Prior to the introduction of the confession into evidence, the appellant repeatedly objected to the admissibility of the extraneous offense. The confession in its entirety was introduced into evidence in the State’s case in chief. In Young v. State, 159 Tex.Cr.R. 164, 261 S.W.2d 836 ( 1953), it was stated: “The general rule in all English speaking jurisdictions is that an accused is entitled to be tried on the accusation made in the State’s pleading and not on some collateral crime, or for being a criminal generally. The rule is now deemed axiomatic and is followed in all jurisdictions.” Further, in 23 Tex.Jur.2d, Evidence, Sec. 194, p. 294, it is stated: “As a general rule, in criminal cases the accused can be convicted, if at all, only by evidence that shows that he is guilty of the offense charged. Consequently, evidence that he has committed other crimes that are remote and wholly disconnected from the offense with which he is charged is ordinarily inadmissible. . . .” There are, of course, exceptions to the general rule. Only recently in Albrecht v. State, 486 S.W.2d 97, 100 (Tex.Cr.App. 1972), this court wrote: “Evidence of extraneous offenses committed by the accused has been held admissible: (1) To show the context in which the criminal act occurred — what has been termed the ‘res gestae’ — under the reasoning that events do not occur in a vacuum and that the jury has a right to hear what occurred immediately prior to and subsequent to the commission of that act so that they may realistically evaluate the evidence. (2) To circumstantially prove identity where the state lacks direct evidence on this issue. (3) To prove scienter, where intent or guilty knowledge is an essential element of the state’s case and cannot be inferred from the act itself. (4) To prove malice or state of mind, when malice is an essential element ofjhe state’s case and cannot be inferred from the criminal act. (5) To show the accused’s motive, particularly where the commission of the offense at bar is either conditioned upon the commission of the extraneous offense or is a part of a continuing plan or scheme of which the crime on trial is also a part. (6) To refute a defensive theory raised by the accused.” These exceptions are not mutually exclusive — Albrecht v. State, supra. In the instant case, in light of the extrajudicial statement completely confessing the murder offense charged and the testimony placing the appellant in company with the deceased shortly before the murder, the extraneous offense of burglary was not admissible to prove identity, intent, scienter, malice or motive, etc. As Haiti v. State, 416 S.W.2d 824 (Tex.Cr.App.1967), made clear the rule is consistent that if the testimony of the State leaves no question as to intent or identity, etc., proof of an independent crime is not admissible. See also Bennett v. State, 422 S.W.2d 438 (Tex.Cr.App. 1967); Shaw v. State, 479 S.W.2d 918 (Tex. Cr. App. 1971). The State seeks to justify the admission of the extraneous offense as part of the “res gestae” of the charged offense, contending that it was so closely interwoven, blended or tied together therewith to make it admissible. See, i. e., Joshlin v. State, 488 S.W.2d 773 (Tex.Cr.App.1972), and cases there cited; Washington v. State, 496 S.W.2d 77 (Tex.Cr.App.1973). Here, the extraneous offense occurred some two to two and one-half hours after the alleged offense and some seven or eight miles away, without any showing that it was part of the same continuing transaction. The State, nevertheless, urges that such evidence showed flight and the commission of an extraneous offense while the accused is attempting to flee may in a proper case be admissible. See Al-brecht v. State, supra; Woods v. State, 480 S.W.2d 664 (Tex.Cr.App.1972). We cannot agree. The evidence reflects that appellant left the scene of the crime, but went back to Brownwood, where he had been staying, and went to sleep in his bed at his mother’s house and returned to the scene of the crime the next morning. Cf. Jones v. State, 481 S.W.2d 900 (Tex.Cr. App.1972). Further, the State urges that the extraneous offense was admissible to defeat the defensive theory of insanity at the time of the commission of the offense. The State recognizes that the extraneous offense was introduced when the extrajudicial confession was offered at the beginning of the State’s case in chief and long before the defensive theory was raised, but relying upon Johnson v. State, 494 S.W.2d 870 (Tex.Cr.App.1973), and Gilmore v. State, 493 S.W.2d 163 (Tex.Cr.App.1973), contends that since such evidence would have been admissible on rebuttal, the error, if any, as to the time of presentation, is rendered harmless. While we agree with the proposition of law cited in Johnson and Gilmore, we cannot agree that the extraneous offense tended to defeat or discredit the defensive theory of insanity, thus rendering such evidence admissible. For the admission of the extraneous offense, upon which the State clearly need not have relied for conviction, the judgment is reversed and the cause remanded. .We are not here dealing with a confession in which the admission of the extraneous offense in said confession is not severable from the bal-anee of the confession admitting the charged offense as in Richardson v. State, 101 Tex.Cr. R. 467, 276 S.W.2d 270 (1925).

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Obie RICHARDSON, Appellant, v. The STATE of Texas, Appellee. No. 47658. Court of Criminal Appeals of Texas. March 13, 1974. Ed P. Williams, Corpus Christi, for appellant. William B. Mobley, Jr., Dist. Atty., John Potter, Asst. Dist. Atty., Corpus Christi, Jim D. Vollers, State’s Atty., and Buddy Stevens, Asst. State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from a conviction for sale of dangerous drugs. The jury assessed punishment at eight years. Appellant was convicted of the sale of four amphetamine tablets to Alan Tittle, an undercover agent for the Department of Public Safety. The sufficiency of the evidence is not challenged. Appellant first contends that the trial court committed reversible error in failing to arraign him until after the State had closed its case. The record discloses that the indictment was returned by the grand jury on March 30, 1972, and that appellant was arrested on August 21, 1972. Appellant received a copy of the indictment on August 24. At trial, the jury was sworn and impanelled, the indictment was read to the appellant, and his counsel entered a plea of not guilty for appellant. After the State had rested its case at the guilt stage of the trial, appellant took the stand and for the first time asserted his claim that he had not been previously arraigned. Conflicting testimony was introduced regarding whether appellant’s counsel had entered an appearance for him at an April 7 arraignment. Nevertheless, the trial court granted the State’s motion to reopen for the purpose of arraigning appellant. The jury was removed from the courtroom, appellant was then arraigned, and, appellant refusing to enter a plea, the court entered a plea of not guilty for him. The jury was returned and testimony was heard from three more witnesses. Article 26.01, Vernon’s Ann.C.C. P., requires arraignment in all felony cases and all misdemeanor cases punishable by imprisonment. The purpose of arraignment is to determine the identity and the plea of the person charged. Because arraignment is not a part of trial by jury, it may be waived by a defendant. Eckels v. State, 153 Tex.Cr.R. 402, 220 S.W.2d 175. An accused’s right to arraignment is waived when a defendant raises the question of arraignment for the first time in his motion for new trial. Vanwright v. State, Tex.Cr.App., 454 S.W.2d 406. We hold that when the appellant, represented by counsel, entered his plea to the indictment, he waived the right to arraignment. There was no purpose for arraignment because the appellant had already entered his plea to the indictment at the trial on the merits and there was no question of identity. Any cases that might be construed to the contrary are overruled. Appellant next contends that the trial court erred in refusing to require the State’s witness, Department of Public Safety undercover narcotics agent Alan Tittle, to disclose his residential address, his wife’s name, the name of his bank, and the names and addresses of some of his associates. He urges that such refusal improperly limited his right to cross-examine the witness and test his credibility. Appellant relies upon Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956, and Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624. In those cases, a trial court ruling that defense counsel could not inquire on cross-examination as to the present place of residence of a witness was held to be error on the grounds that the question put forth was “an appropriate preliminary to the cross examination of the witness” and served as “an essential step in identifying the witness with his environment, to which cross examination may always be directed.” This Court refused to apply the Smith and Alford rule under the circumstances presented in Waston v. State, Tex.Cr.App., 488 S.W.2d 816, and Winkle v. State, Tex. Cr.App., 488 S.W.2d 798. In Watson, citing and relying upon Baldwin v. State, Tex.Cr.App., 478 S.W.2d 476, we held that the trial court properly refused to require a witness, an undercover narcotics agent, to disclose his place of residence at the time he allegedly purchased heroin from the appellant. Noting that the security risk was obvious, we refused to require disclosure where no particularized need for the information was shown. Applying the same reasoning in Winkle, we upheld the trial court’s refusal to require the prosecu-trix in a rape case to divulge her current address and place of employment where the defendant knew her address at the time of the offense and had threatened the lives of the prosecutrix and her family. We held that “[t]he court properly limited the answer because her answer might have endangered the witness or her family.” Id, at 800. More recently, in Satterwhite v. State, Tex.Cr.App., 499 S.W.2d 314, we held that the trial court did not err in limiting the cross-examination of the prosecutrix in a rape case to testimony regarding her background in her home city of Corpus Christi shown to be relevant and to have probative value, and refusing disclosure of her current Houston residence address. The scope of cross-examination is within the control of the trial judge in the exercise of his sound discretion. Watson v. State, supra, citing 62 Tex.Jur.2d, Witnesses, Section 861. Absent a showing of a particularized need under the circumstances of this case, the trial court did not err in refusing to require the witness to answer the defense counsel’s questions regarding his residential address, his bank, and his social acquaintances. Appellant’s final complaint is that the trial court erred in admitting evidence of a prior conviction at the punishment stage of the trial. The record discloses that appellant’s counsel stipulated that appellant was one and the same person previously convicted of burglary. The State introduced evidence that appellant’s sentence had been probated and later revoked upon a subsequent conviction for burglary. Appellant, however, urges that the prior conviction may not be properly introduced in evidence because he had received a full pardon from the Governor of Texas. If there was a pardon, it was never introduced in evidence and is not included in the record on appeal. Appellant did not object to the introduction of the prior conviction. Error, if any, was not preserved and nothing is presented for review on appeal. There being no reversible error, the judgment is affirmed. . If tlie name is incorrect in the indictment, a defendant may suggest a name change. Article 26.15, V.A.C.C.P.

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John Frank DELGADILLO, Appellant, v. The STATE of Texas, Appellee. No. 48250. Court of Criminal Appeals of Texas. April 24, 1974. Fredrick J. Griffin, Amarillo, for appellant. Tom Curtis, Dist. Atty., and Rusty Busby, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. Appellant was convicted of the felony offense of driving upon a public street while intoxicated. Punishment was assessed at two years’ confinement. Only one ground of error is urged on appeal and it relates to the prosecutor’s action in placing upon his table an ice-pick in view of the jury during the trial when such instrument was never introduced into evidence. During a recess outside the presence of the jury, defense counsel apparently noticed the ice-pick, and then the following colloquy occurred: “DEFENSE COUNSEL: I would like at this time to make a motion for mistrial based on the fact that all during this trial the prosecution has had an ice pick setting on the table and I was under the impression that they intended to use it in evidence and think probably the jury has. The State didn’t comment on it and they have rested. There has been no introduction of this ice pick into evidence and there is no showing of a possibility of linking it to this particular situation and under certain circumstances an ice pick can be a very dangerous weapon and I think to exhibit this in front of a jury is error, if they have no intention of showing this to the court and jury. “PROSECUTOR: The State had no intention of exhibiting it, Your Honor. The ice pick is and has been on my table. I will be glad to remove it if it’s offensive in any way. It doesn’t have any hidden meaning whatsoever. “THE COURT: How long has the ice pick been on the table ? “DEFENSE COUNSEL: Your Honor, it has been here since the beginning of the trial. They brought it down with the— “THE COURT: Well, I was asking the State’s Attorney. “PROSECUTOR: Yes, it’s been here since the beginning of the trial. “THE COURT: All right, put it up. I will deny your motion for mistrial. What is the purpose of the ice pick? “PROSECUTOR: The ice pick was taken from the defendant’s car at the time the arrest was made. I had it here. I thought possibly some time during the course of the trial it might be admissible. I don’t really see that it has any relevancy. Really, it was brought down with the bottle of whiskey by the police officer and handed to me. He said he took it out of his car and I made the statement to the police officer that it had no relevancy. “THE COURT: All right. Well, conceal the ice pick. I will deny your motion for a mistrial. Bring the jury back in.” At this point in the trial, the State had rested its case, and cross-examination of a defense witness was taking place. Further, we have read the entire record and find no reference by either side to this ice-pick or its presence in the courtroom. Although it is quite likely that it was viewed by some of the jurors, there is nothing in the record to support such an assumption. None of the jurors were called to testify on this matter. The appellant’s complaint was made outside the presence of the jury, so they were not informed of it then either. Also, the appellant never actually voiced an objection to the instrument, but, instead, made only a motion for mistrial, late into the trial. See Melton v. State, Tex.Cr.App., 508 S.W.2d 104 (delivered April 17, 1974). No instruction for the jury to disregard was sought. The trial judge ordered the object removed as soon as it was brought to his attention. We do not intend to imply that we condone a prosecutor displaying potentially prejudicial objects before the jury, knowing full well they will not be introduced. However, the record in this cause reflects no bad faith on the part of the prosecutor. Apparently, the ice-pick was retrieved from the appellant’s automobile upon his arrest, along with a whiskey bottle. The presence of the bottle was brought to the jury’s attention, as was the fact that the appellant fought with the arresting officers. No mention was made of any weapon being used during the scuffle, however. We cannot conclude that the presence of the ice-pick, without any showing of prejudice or harm, constitutes reversible error. The judgment is affirmed.

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Jimmy Placido CHAVEZ, Appellant, v. The STATE of Texas, Appellee. No. 47784. Court of Criminal Appeals of Texas. April 24, 1974. Jerry Hollingsworth, Frank J. Baugh-man, Amarillo, for appellant. Tom Curtis, Dist. Atty., John J. Wheir, Asst. Dist. Atty., Amarillo, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. The appellant was indicted for the offense of rape, alleged to have occurred on July 6, 1965. He plead “guilty”, and was assessed the death penalty by a jury on December 14, 1965. We affirmed the original appeal. See Chavez v. State, 408 S. W.2d 714 (Tex.Cr.App.1966). Subsequently, we granted a writ of habeas corpus and remanded the appellant for a new trial. See Ex parte Chavez, 482 S.W.2d 175 (T ex. Cr. App.1972). The case was retried on February 6, 1973, at which time appellant plead “Not Guilty.” The jury found him guilty, and the court assessed his penalty at sixty years’ confinement. This appeal arises from the second trial. Appellant’s first ground of error urges that the court erred in allowing the State to introduce portions of his testimony at the former trial. Appellant did not testify at the second trial; however, at his first trial he testified in an effort to mitigate punishment. The testimony was highly incriminating and amounted to an admission of guilt. At the second trial, the State produced a transcript of this testimony and had it read into the record, deleting at the court’s order those portions referring to appellant’s prior plea of guilty. Appellant contends that this action violated his Fifth Amendment privilege under the United States Constitution and Art. 40.08, Vernon’s Ann.C.C.P. This contention has been raised before this Court many times in the past, and has uniformly been held to be without merit. See Collins v. State, 39 Tex.Cr.R. 441, 46 S.W. 933 (1898); Preston v. State, 41 Tex.Cr.R. 300, S3 S.W. 881 (1889-on motion for rehearing); Wooley v. State, 64 S.W. 1054 (Tex.Cr.App. 1901); Roberts v. State, 89 Tex.Cr.R. 454, 231 S.W. 759 (1921) ; and Rodriguez v. State, 130 Tex. Cr.R. 438, 94 S.W.2d 476 (1936). Also see Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) and Ed-monds v. United States, 106 U.S.App.D.C. 373, 273 F.2d 108 (1959). These cases hold or recognize that an accused, taking the stand on his own behalf, waives the privilege, so that his testimony may be used against him at a subsequent trial of the same case. Appellant’s second ground of error contends that the court allowed reference to be made to appellant’s former plea of guilty in violation of Art. 40.08, supra. We have examined the testimony which was actually presented and find no references to a plea of guilty. As previously noted, the court instructed that all such references should be deleted before the evidence was presented to the jury. In his third ground of error, appellant urges that the court should have granted his motion for an instructed verdict because the victim did not testify. It appears that the victim did testify at appellant’s first trial, but that she was unavailable at the time of the second trial. No part of her prior testimony was offered by the State. Although he did not argue on this basis at trial, appellant now contends that her absence denied him his right to confrontation of the witnesses against him. It will be observed that the victim was not a witness against appellant since she was not present at the trial and none of her prior testimony was used. Appellant’s contention is without merit. Appellant additionally contends, in the same ground of error, that in the absence of the victim’s testimony there was no proof of her age or that she was not appellant’s wife. This contention is not presented in compliance with Art. 40.09, V.A.C.C.P., was not urged in the trial court, and is therefore not properly before us for review. However, it will be discussed in connection with appellant’s fourth ground of error which challenges the sufficiency of the evidence. The State showed, through the testimony of two witnesses, that the victim was between seven and eight years of age at the time of the offense. “The proof in this case showing the prosecutrix to be of the tender age of 8 years, no further testimony would be needed to establish the fact that she was not appellant’s wife.” See Brown v. State, 112 Tex.Cr.R. 92, 14 S.W. 2d 63, 67 (1929) and cases there cited. Appellant’s last contention is that, absent the testimony of the victim, there was insufficient evidence of penetration. When coupled with appellant’s judicial confession from the prior trial (see the discussion of ground of error # 1, supra), in which he admitted having sexual intercourse with a “little girl” and that it must have been the complaining witness, the State’s evidence, which was substantially the same as that set out in Chavez v. State, supra, was ample. The judgment is affirmed. . Art. 40.08, V.A.C.C.P., states : “The effect of a new trial is to place the cause in the same position in which it was before any trial had taken place. The former conviction shall be regarded as no presumption of guilt, nor shall it be alluded to in argument.”

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Ex parte Marvin DICKERSON. No. 48378. Court of Criminal Appeals of Texas. April 24, 1974. Douglas Tinker and Donald B. Bailey, Jr., Corpus Christi, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is a post conviction habeas corpus proceeding under Article 11.07, Vernon’s Ann.C.C.P. On February 25, 1972, the applicant, upon entering pleas of guilty, was convicted for the offense of burglary in two cases, cause numbers 14,443 and 14,444. Punishment was assessed at twelve years in each case, the sentences to run concurrently. The sole complaint is that appellant was not properly admonished under Article 26.-13, V.A.C.C.P., before the trial court accepted his pleas of guilty. The record reflects that the trial court properly admonished the appellant as to the range of punishment and ascertained that he was sane. The trial court conducted a habeas corpus hearing and entered findings of fact, concluding that “the trial court did not inquire of the Defendant whether he was influenced by any consideration of fear or by any persuasion or delusive hope of pardon before receiving the Petitioner’s pleas of guilty.” The evidence supports this conclusion. Because the trial court did not properly ascertain whether the applicant entered his pleas of guilty by reason of fear, persuasion or hope of pardon, both convictions must be set aside. See Ex parte Scott, Tex. Cr.App., 505 S.W.2d 602. The relief sought is granted and the applicant is ordered released to the sheriff of Nueces County to answer to the indictments for burglary in trial court cause numbers 14,443 and 14,444.

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Ismael GONZALEZ, Appellant, v. The STATE of Texas, Appellee. No. 48393. Court of Criminal Appeals of Texas. April 24, 1974. Michael R. Gibson, El Paso, for appellant. Steve W. Simmons, Dist. Atty., Anita Ashton, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. This is an appeal from an order revoking probation. The appellant entered a plea of guilty before the Court to the offense of arson on October 23, 1970, and was placed on probation for a period of five years. After hearing a motion to revoke probation the Court revoked probation and pronounced sentence on October 4, 1973. The appellant urges that his conviction was void because the trial court did not sign the judgment and because the record fails to show the District Attorney consented to and approved the appellant’s waiver of his right to trial by jury. The failure of the judge to sign the judgment does not affect its validity. Kin-ard v. State, 477 S.W.2d 896 (Tex.Cr.App. 1972) and cases cited therein. Appellant notes that the attorney for the State did not sign a form included in the record showing his consent to the waiver of jury trial in appellant’s original conviction. See Article 1.13, Vernon’s Ann.C.C.P. He says this shows that the attorney for the State did not consent in writing to the jury waiver. We note that appellant did not raise this alleged infirmity after the original conviction, but brings the question to our attention for the first time on appeal of the probation revocation. The waiver form itself, signed by appellant, states that the appellant has “obtained the consent and approval of the attorney representing the State” to the jury waiver. The Court’s approval of the waiver also states that the written consent of the attorney representing the State has been duly signed by him and filed with the papers in the cause before appellant’s plea. Finally, the judgment in the cause states that a written consent to jury waiver has been signed by the attorney for the State and filed with the papers in the cause. We do not think it has been shown that the attorney for the State failed to consent in writing to jury waiver in the original cause. See Ex parte Smith, 449 S.W.2d 266 (Tex.Cr.App.1970); Ex parte Johnson, 164 Tex.Cr.R. 33, 296 S.W.2d239 (1956). Further, the appellant contends the evidence is insufficient to authorize revocation of probation. The appellant was alleged to have violated the condition of probation that he commit no offense against the laws of this State. The Court found that he had violated this condition of probation by committing aggravated assaults upon Celia Gonzalez on both February 5, 1973, and April 3, 1973. The record shows that on February 5, 1973, appellant came to see his ex-wife Celia Gonzalez at the office of Dr. Truett L. Maddox, for whom she was working as a dental assistant. Both Mrs. Gonzalez and Dr. Maddox testified that appellant was drunk at the time. Mrs. Gonzalez sat down in the office to talk with him, but when he said nothing, she rose to leave. As she rose appellant grabbed her by the arm and shoved her back against a chair “real hard,” resulting in a scratch on her arm. There was also testimony that shortly thereafter appellant threatened Mrs. Gonzalez with his fist. Mrs. Gonzalez also testified that on the evening of April 3, 1973, appellant, sober this time, came to her house. Once inside, appellant took her by the arm into the bedroom, pushed her against the bed, and began accusing her of certain things. When she denied these accusations, he punched her in the face with his fist, bruising her jaw and causing her gums to bleed. He opened her purse and began looking into it. When he found a spray can of “Mace” he began spraying it all over the house, causing her children to cry and putting Mrs. Gonzalez in great fear. Appellant did produce two alibi witnesses to testify concerning the latter date, April 3, 1973. However, the trial court is the trier of facts in a probation revocation hearing, and is the sole judge of the witnesses’ credibility and the weight to be given their testimony. See Beck v. State, 492 S.W.2d 536 (Tex.Cr.App.1973); Guil-lory v. State, 487 S.W.2d 327 (Tex.Cr. App.1972); Parsons v. State, 486 S.W.2d 313 (Tex.Cr.App.1972). We find the evidence sufficient to support the Court’s exercise of discretion in revoking appellant’s probation. Lastly, the appellant says the Court refused despite a request to make written findings of fact and conclusions of law. This complaint has no merit. The record reflects fully adequate findings, recited in detail in the judgment, including findings that appellant, an adult male, on February 5, 1973, and April 3, 1973, committed aggravated assaults on Celia Gonzalez, a female. Furthermore, before the record was submitted to this Court, detailed findings of fact and conclusions of law were made and filed by the trial court. No abuse of discretion is shown. See Garcia v. State, 499 S.W.2d 126 (Tex.Cr.App.1973). Finding no abuse of discretion, we affirm the judgment. Opinion approved by the Court.

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Ex parte Stamatios PSAROUDIS. No. 48312. Court of Criminal Appeals of Texas. April 24, 1974. Dick DeGuerin, Houston, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DOUGLAS, Judge. This is an appeal from an order denying relief after a hearing in a habeas corpus proceeding seeking discharge and reduction of bail after indictment but before trial. On November 5, 1973, the grand jury in Harris County returned two indictments against the appellant alleging that the appellant delivered hashish to one Jerry D. Powell and that the appellant possessed hashish. The offenses were alleged to have occurred on November 1, 1973. Bail was set at $50,000 for each offense. Initially, appellant contends that there is no valid law in Texas prohibiting the possession or delivery of hashish. He argues that Section 4.02 of the Texas Controlled Substances Act, Vernon’s Texas Session Law, Chapter 429, page 1148, effective August 27, 1973, Vernon’s Ann.Civ.St., excludes hashish. If there is no valid statute under which he can he charged, he is entitled to be discharged. See Ex parte Sanford, 163 Tex.Cr.R. 160, 289 S.W.2d 776. Floyd McDonald, a chemist and toxicologist, called by the appellant, testified that hashish is a resinous extract of marihuana plants and that hashish is contained within the definition of “prohibitive substances” in Subparagraph (c), Penalty Group 2 of Section 4.02 of the Texas Controlled Substances Act. He further testified that hashish contains tetrahydrocannabinol. Section 2.03(d)(17) of the Act provides that “tetrahydrocannabinols and synthetic equivalents . . . contained in the plant, or in the resinous extractives of cannabis . . are controlled substances. A controlled substance defined in Section 1.02(5) is “a drug, substance, or immediate precursor” listed in Schedules I through V and Penalty Groups 1 through 4 of this Act. It is also provided in Section 2.01 that the substances listed in Schedules I-V and Penalty Groups 1-4 shall be controlled substances. The appellant recognizes this but contends that the penalty section of the Act excludes hashish, and therefore one cannot be punished for its possession. He cites Section 4.02(c), Subsection N: “Tetrahydrocannabinols other than marihuana and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following: “delta-1 cis or trans tetrahydrocan-nabinol, and their optical isomers; “delta-6 cis or trans tetrahydrocan-nabinol, and their optical isomers; “delta-3, 4 cis or trans tetrahydrocan-nabinol, and its optical isomers.” (Emphasis Supplied) He contends that the phrase “other than marihuana” excludes hashish from the penalty provisions of the statute. This phrase creates some confusion as to what is excepted from the tetrahydrocan-nabinols which have been prohibited. This confusion can be resolved by referring to Schedule I, Section 2.03(d) (17): “Tetrahydrocannabinols and synthetic equivalents of the substances contained in the plant, or in the resinous extrac-tives of cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as the following : “delta-1 cis or trans tetrahydrocan-nabinol, and their optical isomers; “delta-6 cis or trans tetrahydrocan-nabinol, and their optical isomers ; “delta-3, 4 cis or trans tetrahydrocan-nabinol, and its optical isomers.” An examination of these two paragraphs reveals that the only change between the penalty group and the schedule is the addition of the words “other than marihuana” after the first reference to tetrahydrocan-nabinol in the penalty group. It is therefore obvious that grammatically these three words should be set off by commas in order to make the penalty group listing understandable and consistent with the same listing in Schedule I. The intent of the Legislature was to exclude marihuana from this section but did not mean to exclude any other substances contained in marihuana or the resinous extractives of cannabis or similar synthetic substances. This result is strengthened by the definition of marihuana which is contained in Section 1.02(17), wherein it is stated that the definition of marihuana “does not include the resin extracted from any part of such plant or any compound, manufacture, salt, derivative, mixture, or preparation of the resin.” This interpretation is further strengthened by the provision in Section 4.03 and Section 4.04 covering the unlawful manufacture or delivery and unlawful possession of controlled substances and Section 4.0S which separately treats the establishment of penalties for possession and delivery of marihuana. The chemist, McDonald, was of the opinion that hashish was included within the penalty group in question. However, he was of the opinion that natural tetrahy-drocannabinols were within the group and it only excluded marihuana and synthetic tetrahydrocannabinols. This interpretation would be directly in conflict with the listing of tetrahydrocannabinol, both natural and synthetic, as prohibited substance in Schedule I, Section 2.03(d) (17). The Legislature did not intend to penalize the possession or transfer of tetrahydrocan-nabinols in their natural state and yet not prohibit the possession or transfer of synthetic substances with exactly the same or similar chemical structure and pharmacological acitivity. An examination of the legislative history of the control of the substance in question further illustrates the incorrectness of the interpretation urged by the applicant in this case. It should be remembered that under the statute which preceded this enactment (Article 725b, Vernon’s Ann.P.C.) cannabis was included within the definition of narcotic drugs and the term “cannabis” specifically included the resin extracted from any part of such plant, and furthermore more specifically included hashish (Article 725b, Section 1(13), V.A.P.C.). The movement within the Legislature which resulted in the enactment of the provisions for a lesser penalty for the possession of smaller amounts of marihuana was restricted to marihuana and did not include the concentrated extract of marihuana which contained a higher percentage of te-trahydrocannabinol. The overall provisions of the Controlled Substances Act, as outlined hereinabove, illustrate that only marihuana was meant to be excepted from the provisions of the Act and included within that portion of the Act providing for a lesser penalty. This is illustrated by the specific exception from the definition of marihuana of the resin extracted from any part of such plant. These are matters which are considered by this Court in determining the legislative intent. “Notice may be taken of contemporary history, the circumstances of business usage, and the life and habits of the people at the time of the passage of the act. Reference may also be had to legislative history, including the circumstances attending the adoption of an amendment, messages from the executive, debates, committee reports, and legislative proceedings generally. In a proper case, regard will be had to the public or legislative policy, the contemporaneous, executive, departmental, or legislative construction of an act, and any change that may have been made in the statutory language.” 53 Tex.Jur.2d, Statutes, Section 167, page 247. To adopt the construction urged by appellant would create a conflict between the Schedule and the Penalty Groups and prohibit the transfer and possession of natural tetrahydrocannabinols but not the synthetic equivalents. “The Court will never adopt a construction that will make a statute absurd or ridiculous, or one that will lead to absurd conclusions or consequences, if the language of the enactment is susceptible of any other meaning.” 53 Tex.Jur.2d, Statutes, Section 165, page 243. Considering the act as a whole, we conclude that the Legislature did not intend to, and did not, exclude hashish from the list of controlled substances. Next, appellant contends that the bail is excessive. At the habeas corpus hearing on January 24, 1974, the indictment, capias and return in each case were introduced. Francis Psaroudis, the wife of appellant, testified that she, for her husband, was unable to make the bail of $100,000 but that she could make the bail if it were lowered to $10,000. Ex parte Roberts, Tex.Cr.App., 468 S.W.2d 410, cited Article 17.15, Vernon’s Ann.C.C.P., and quoted the applicable rules contained therein for fixing the amount of bail. Among those rules it is stated that “the bail shall be sufficiently high to give reasonable assurance that the undertaking will be complied with,” and “the nature of the offense [as well as] the circumstances under which it was committed are to be considered.” The ability or inability of the accused to make bail does not, alone, control the amount. Ex parte Roberts, supra. The record reflects that the appellant is a Greek citizen with a valid passport and holds a current and valid residency permit allowing him to live and work in the United States. He is alleged to have sold approximately thirty pounds of hashish to a Department of Public Safety under cover agent for $11,000. There is testimony that the value of hashish on the streets is approximately $800 a pound when sold by the pound but there is a discount when purchased in larger quantities. The maximum punishment for each of these offenses is ten years. There was evidence adduced that the appellant’s family lived with him in Houston and that he had not previously been convicted of any crime. Mrs. Psaroudis testified that her husband would be willing to surrender his passport and exit permit pending disposition of this case. We hold that hashish is prohibited by the Controlled Substances Act. We hold that the bail is excessive. The order of the trial court setting bail at $50,000 in each case is set aside and bail is set in the sum of $25,000 in each case. It is so ordered.

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James Allen TAYLOR, Appellant, v. The STATE of Texas, Appellee. No. 47009. Court of Criminal Appeals of Texas. April 24, 1974. Will Gray (On appeal only), Houston, for appellant. Carol S. Vance, Dist. Atty., Phyllis Bell and George ICaram, Asst. Dist. Attys., Houston, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION DALLY, Commissioner. The conviction is for burglary with intent to commit theft; the punishment, eight years imprisonment. The first question presented is whether the evidence is sufficient to show want of consent of the alleged owner to the entry and taking of his property. A review of many cases confirms the accuracy of the following quotation from Branch’s Penal Code: “While it is not necessary to prove the owner’s want of consent to a forcible entry of his premises (cited cases omitted), yet where the burglary alleged is one with the intent to commit theft and the owner is present and testifies in court, it is then necessary for him to testify that he did not give his consent to the defendant to take any of his property which may have been stolen. There is some quibbling in the cases as to whether the State is required to prove that the owner did not consent to both the theft, where one is committed, and also entry, the whole reasoning in burglary cases, whether erroneous or otherwise, apparently being based on the want of the owner’s consent to the taking of his property. (Cited cases omitted.) The general practice in burglary cases is for the State, wherever possible, to prove both such facts; that is, that the owner did not consent to either the entry or to the taking of any of his property. In any event, proof of both of such facts is the safer practice. (Cited cases omitted.) Such facts may be proved by circumstantial evidence- where that is the only evidence available.” 4 Branch’s Ann.P.C.2d, 865, § 2536. Some of the more recent cases which are in accord with the cases cited in Branch’s in support of the above quoted rules are Wilson v. State, 168 Tex.Cr.R. 420, 328 S.W.2d 305 (1959); Stallworth v. State, 167 Tex.Cr.R. 19, 316 S.W.2d 417 (1958); and Mitchell v. State, 166 Tex.Cr. R. 291, 313 S.W.2d 286 (1958). But see and compare Casarez v. State, 468 S.W.2d 412 (Tex.Cr.App.1971) and Sizemore v. State, 496 S.W.2d 80 (Tex.Cr.App. 1973). In this case, although the alleged owner was a witness, he failed to testify that he did not give the appellant consent to enter the premises or to take personal property therefrom. The State candidly suggests that for this reason the evidence is insufficient unless the line of cases represented by those above cited is overruled. It appears this is a rather unique rule that requires lack of consent, one element of the offense of burglary with the intent to commit theft or theft, to be proved by testimonial rather than circumstantial evidence, unless it is shown testimonial evidence is not available. The earlier cases in this State permitted such proof to be made by circumstantial evidence. See, e. g., Wilson v. State, 45 Tex. 76 (1876) and McMahon v. State, 1 Tex.App. 102 (1876). In Wilson v. State, supra, the defendant was charged with theft of a gelding belonging to Granville Crinen The defendant requested that the jury be instructed the State must prove that Criner did not give him consent to take the gelding by Criner’s own testimony or by the confession of the defendant. The trial court refused to do so and charged the jury as follows: “[T]he want of the owner’s consent could be established by evidence of the party from whom the property was taken, or the party who was the owner, or it may be established by facts and circumstances, provided such circumstances so proven are of such nature as to exclude absolutely every reasonable presumption that the owner gave his consent to the taking.” The Supreme Court held the charge given to be proper. In McMahon v. State, supra, the alleged owner who testified concerning the theft of a gelding did not testify that he did not give his consent to the taking of the gelding and it was held that such proof could be made circumstantial evidence. The Court in that case said: “While it is conceded that want of consent of the owner to the taking, in a charge of theft, is a necessary ingredient to the crime, yet it is believed that this want of consent may be established by circumstantial as well as direct testimony. This we regard as a settled proposition laid down by the elementary writers, and acted on by our Supreme Court without variations, from the decision of Henderson v. State, 14 Tex. 503 down to the present time.” However, later in the last century the rule was changed and it has been perpetuated for many years. See e. g., Schultz v. State, 20 Tex.App. 308 (1886) and Good v. State, 30 Tex.App. 276, 17 S.W. 409 (1891). In Schultz v. State, supra, the Court stated: “In a trial for theft the want of the owner’s consent to the taking of the property by the accused may be shown by circumstances which absolutely exclude every reasonable presumption that the owner gave his consent. (Rains v. The State, 7 Tex.App., 588; Stewart v. The State, 9 Tex. App., 321; Spruill v. The State, 10 Tex.App., 695; Wilson v. The State, 12 Tex.App., 481; Clayton v. The State, 15 Tex.App., 348; Miller v. The State, 18 Tex.App., 34.) “But it is insisted that, whilst such proof can be made by circumstantial evidence, circumstantial proof cannot be resorted to so long as positive or direct proof is available. This rule is also settled, provided the party made objection at the time to the proof by circumstantial evidence. Such objection, to avail an appellant in this court, must appear by a proper bill of exception showing that such circumstantial evidence was objected to when tendered on the trial. (Stewart v. The State, 9 Tex.App., 321; Williams v. The State, 19 Tex.App., 277.) In this case no objection was taken or bill of exception reserved to the proof adduced, as above stated, to show Holt’s want of consent; and the charge of the court fully presented the law with regard to proof of want of consent by circumstantial testimony. We cannot see that appellant is in an attitude to make complaint of this matter.” In Good v. State, supra, it was said: “We are of [the] opinion the judgment should be reversed for the insufficiency of the evidence. In this connection we would also call attention to the fact that, notwithstanding the alleged owner was a witness in the case, there is no direct and positive proof of his want of consent to the taking of the animal, but proof of same is left to be inferred alone from the circumstances in evidence.” Among the cases requiring direct or testimonial evidence to prove a want of consent to the entry or taking in burglary and theft cases are: Wisdom v. State, 61 S.W. 926 (Tex.Cr.App.1901); Caddell v. State, 42 Tex.Cr.R. 579, 90 S.W. 1013 (1905); Brown v. State, 58 Tex.Cr.R. 336, 125 S. W. 915 (1910); Meredith v. State, 85 Tex.Cr.R. 239, 211 S.W. 227 (1919); Hunt v. State, 89 Tex.Cr.R. 404, 231 S.W. 775 (1921); Herrin v. State, 97 Tex.Cr.R. 494, 262 S.W. 486 (1924); Mitchell v. State, 117 Tex.Cr.R. 78, 38 S.W.2d 331 (1931); Dillard v. State, 126 Tex.Cr.R. 292, 71 S.W.2d 529 (1934). The reasoning advanced in support of the rule in many of the cases is 'that circumstantial evidence could not be resorted to where direct evidence was obtainable, because testimonial evidence was the best evidence and that the best evidence obtainable must be adduced. This was an incorrect application of the best evidence rule which relates to documents and written evidence. See and compare Casino v. State, 495 S.W.2d 232 (Tex.Cr.App.1973) ; Over-ton v. State, 490 S.W.2d 556 (Tex.Cr.App. 1973). See also 2 McCormick and Ray, Evidence, § 1561 at pp. 399-400. The facts in the case at bar illustrate that circumstantial evidence has probative value equal to testimonial evidence to show the owner’s lack of consent to the entry and taking of his property. As Mrs. Tallie Devereaux was preparing breakfast around 9:15 a. m. on December 2, 1971, she heard the front door bell ring. She looked through the blinds at a window and saw the appellant, who was wearing a leather jacket, at her door. Mrs. Dever-eaux recognized appellant as the same man she had seen walking down her street exactly two weeks earlier before another burglary of her home. Because she did not want to “take any chances” she did not answer the door. Instead, when the door bell ringing persisted, Mrs. Devereaux gathered up her two small children and went to her bedroom. She called her husband as soon as the man stopped ringing the door bell, and told him what had happened. She went to the back bedroom after hanging up the telephone, and through the window she saw “two guys” wearing leather jackets. They had just come over her back fence and were headed toward the back part of the house. She could not identify either man positively. She ran and called the police at this point, and then telephoned her mother. While talking to her mother, she heard the back window being broken. Her mother told Mrs. Devereaux to “grab the kids and run into the bathroom and lock it up.” This Mrs. Devereaux did. While in the bathroom she heard footsteps and voices all over the house. The voices were gone in eight to ten minutes, and Mrs. Devereaux opened the bathroom door to find her bedroom ransacked, her purse rifled, and a television and stereo gone. Tallie Devereaux himself testified that, after receiving the call from his wife, he left work and hurriedly drove home. As he turned onto a street very near his home, he noticed a yellow and black van truck with the hood up and lights flashing. As he reached his driveway he saw two men in his backyard. One of them was handing Devereaux’s television to a third man outside the fence, whom Devereaux identified as the appellant. Devereaux heard someone say something, and saw the appellant drop the television set and begin running back toward the van truck. The two other men jumped the fence and followed. Dever-eaux ran back into his front yard, where he saw his brother-in-law just driving up. They both got in a car and gave chase to the truck. The appellant, who was driving, saw Devereaux when he pulled up beside the van, and began trying to get away in the van. When Devereaux shot his brother-in-law’s gun into the air, however, the van stopped. Two men in the van leapt out and escaped afoot, but Devereaux and his brother-in-law were able to apprehend appellant and another man. This evidence is sufficient to prove circumstantially a want of consent. We hold that proof of lack of consent to the entry and taking of personal property in prosecutions for burglary with intent to commit theft or theft may be made by circumstantial evidence the same as any other issue in a criminal case may be proved by circumstantial evidence. Cases holding to the contrary are overruled. The appellant urges that the trial court committed reversible error when it admitted “evidence of an extraneous offense, a prior burglary of the Devereaux house.” When the questioned evidence was admitted in the form of Mrs. Dever-eaux’s testimony, however, appellant made no objection on the ground now presented. His only objection was to the materiality and relevancy of the evidence. It was only after Mrs. Devereaux had testified in detail to observing appellant just before a prior burglary of her house, and after further hearing on the matter out of the presence of the jury, that appellant objected that the testimony amounted to evidence of an extraneaous offense. In order to preserve error, an objection to inadmissible evidence must be urged at the earliest possible opportunity. Navajar v. State, 496 S.W.2d 61 (Tex.Cr.App.1973); Horn v. State, 491 S.W.2d 170 (Tex.Cr.App.1973) ; Lucas v. State, 444 S.W.2d 638 (Tex.Cr. App.1969). Moreover, appellant has not shown any legitimate reason for delaying his objection. Lucas v. State, supra. We overrule this ground of error. Appellant says finally that he was entitled to an instructed verdict of acquittal because the State failed to prove that the burglarized house was occupied and controlled by Tallie Devereaux. However, Devereaux testified that on the date in question he resided at the address alleged in the indictment, with his wife and two children, and he continually referred to the premises as “my house” or “my home.” His wife testified that she resided at the burglarized house. The effect of the testimony of Mrs. Devereaux and Devereaux himself, viewed as a whole, was to warrant fully the jury’s finding that the premises alleged in the indictment were occupied and controlled by Devereaux. See Clark v. State, 500 S.W.2d 507 (Tex.Cr.App.1973); Holman v. State, 471 S.W.2d 394 (Tex.Cr. App.1971); Maxey v. State, 424 S.W.2d 639 (Tex.Cr.App.1968). The judgment is affirmed. Opinion approved by the Court. ONION, Presiding Judge (dissenting). Color me amazed once again. See Al-drighetti v. State, 507 S.W.2d 770 (dissenting opinion delivered March 27, 1974). The appellant raises two and only two grounds of error. They are as follows: “1. The Court committed reversible error in admitting evidence of an extraneous offense, a prior burglary of the Devereaux house. “2. The Court committed reversible error in denying Mr. Taylor’s motion for an instructed verdict of acquittal on the ground that the State had failed to prove that the burglarized house was occupied and controlled by Tallie Devereaux.” In his argument under the second ground of error appellant reviewed the evidence and then stated: “While the foregoing evidence appears sufficient under the authorities to establish the indictment allegations that the house in question was occuped (sic) and controlled by Tallie Devereaux, the issue is raised by counsel on appeal as the only other possible point of error contained in the record.” The record supports the conclusion that Tallie Devereaux occupied and controlled the premises in question as alleged. Nevertheless, the majority reaches out and says: “The first question presented is whether the evidence is sufficient to show want of consent of the alleged owner to the entry and taking of his property.” Even though this is not a ground of error, the majority overturns well-settled law, not only in burglary cases, but in theft cases as well, all unnecessarily in my opinion. The long-standing rule being interred today is well described in 55 Tex.Jur.2d, Theft, Sec. 185, pp. 445-447 — circumstantial evidence, as follows: “Where positive and direct proof is available, want of consent cannot ordinarily be shown by circumstantial evidence. The best evidence of want of consent is the testimony of the owner, and circumstantial evidence is inadmissible to show want of consent unless it appears that the owner is inaccessible by the use of ordinary diligence or is beyond the reach of legal process. Thus where the owner is present and has failed to give direct and positive testimony as to his want of consent to the taking, such want of consent will not be inferred from other circumstances in the evidence. But want of consent may be proved by circumstantial evidence when the owner is dead or is incompetent to testify, or where without fault on the part of the state direct testimony cannot be produced, or where it is alleged that the owner is unknown, or where no objection is made when the evidence is offered. And where the evidence, though circumstantial, shows an absolute want of consent, a conviction will not be reversed because want of consent was not proved by the direct and positive testimony of the owner who was a witness in the case. “Where circumstantial evidence is relied on the circumstances proved must absolutely exclude every reasonable presumption that the owner gave his consent. The rule permitting want of consent to be shown by circumstantial evidence in certain cases does not make admissible for that purpose testimony that would be inadmissible under other rules of evidence, such as that as to hearsay.” It is clear that the rule prohibits the use of circumstantial evidence only where direct evidence of the fact is attainable, which in my opinion is a sound rule. While some of the cases refer to the attainable direct evidence as being the best evidence, there is nothing to indicate the court was relying upon the best evidence rule about writings as now assumed by the majority to reach their desired result. I dissent. . The State with commendable candor concludes its brief as follows: “In the instant case, the alleged owner Tallie Devereaux testified as a witness for the State and failed to testify to his lack of consent either to the entry or to the taking of his property. Although the circumstantial evidence of want of consent is strong in the instant case and is considered sufficient in other jurisdictions, the rule in Texas is otherwise. Therefore, unless the above rule as announced more recently in Stall-worth v. State, 167 Tex.Cr.R. 19, S16 S.W. 2d 417; Wilson v. State, 168 Tex.Cr.R. 420, 328 S.W.2d 305 and distinguished on the facts in Chavez v. State, Tex.Or.App., 479 S.W.2d 687, be overruled and set aside it appears that the evidence is insufficient to support the conviction.” . “§ 1561. The Best Evidence Rule is a Rule about Writings Only. “In the earlier textbooks and decisions (footnote omitted) it is broadly stated, affirmatively, that the ‘best’ evidence of which the case is susceptible is all that the law requires, and negatively, that no other than such ‘best’ evidence is admissible. While the former or affirmative statement might be a very desirable rule, yet it is believed that today the assertion in neither of its forms represents an actual general rule of law. Although there are a few other rules requiring that evidence of a certain type be produced (or shown unavailable) before other evidence of the same fact may be admitted, such as the rule requiring the production of attesting witnesses, (footnote omitted) the ‘Best Evidence Rule’ today is confined in its application to the requirement that to prove the contents of a document, the original document must be produced.

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Ex parte Delmar Lee WATSON. No. 48377. Court of Criminal Appeals of Texas. April 24, 1974. Robert Scogin (Court-Appointed), Kermit, for appellant. Jim D. Vollers, State’s Atty., Austin, for the State. OPINION ROBERTS, Judge. This is an appeal from a hearing at which petitioner’s application for habeas corpus was denied. The petitioner plead guilty in 1973 to two charges of forgery, and was sentenced to five years’ imprisonment on each, although the sentences were to run concurrently. No appeal from the convictions was taken. Petitioner raises several contentions in urging that the writ should be granted; however, in view of our disposition of his contention regarding Art. 26.13, Vernon’s Ann.C.C.P. admonishments, it will not be necessary to discuss the others. With regard to cause # 2426, the record reveals the following: “THE COURT: How do you wish to plead ? “MR. WATSON: Guilty. “THE COURT: Now then, after you have consented to waive a trial by a Jury and after the indictment has been read to you and you have entered your plea, I wish to admonish you at this time of the consequences of the plea. This is not because of any promise made to you that you’re entering this plea? “MR. WATSON: No. “THE COURT: All right. You understand what you’re charged with ? “MR. WATSON: Yeah. “THE COURT: You understand that the punishment for forgery is by confinement in the State Penitentiary for a period of not less than two nor more than seven years ? “MR. WATSON: Yeah. “THE COURT: And knowing all these things, do you still insist on entering your plea of guilty ? “MR. WATSON: Yes. “THE COURT: All right. You’re in your right mind at this time and understand everything that is going on here? “MR. WATSON: Yes. “PROSECUTING ATTORNEY: Is the Court making a finding, for the record, that he is in his right mind at this time? “THE COURT: Yes. For the purpose of the record, I do find that the Defendant is sane and understands what is going on here and that he has intelligently and knowingly entered his plea of guilty. “PROSECUTING ATTORNEY: Does the Court find that be is entering his plea not because of any coercion or duress or promise of reward or hope for pardon prompting him to confess his guilt? “THE COURT: Yes, I do so find.” The court had previously asked petitioner if he was waiving a jury trial . . . not because of any promise or any delusive hope of reward or delusive hope of pardon?” The court had also inquired as to his sanity. However, these admonishments related to the waiver of the jury. As will be seen from the portion of the record quoted above, no questions were directed to the petitioner regarding considerations of fear, persuasion, or delusive hope of pardon. The court’s finding that the plea was voluntary was made at the request of the prosecuting attorney, and although the finding was in the form of an admonishment, such an admonishment was never given to the petitioner. With regard to cause #2425, the record reveals almost exactly the same sequence of events in almost exactly the same language. This petitioner was no more properly admonished than was the petitioner in Ex Parte Williams, 499 S.W.2d 172 (Tex.Cr. App.1973). The terms of Art. 26.13, V.A. C.C.P., require that the relief he seeks be granted. It is therefore ordered that the petitioner be released from further confinement under the judgments in question and that he be surrendered to the Sheriff of Winkler County to answer the indictments against him in these causes. DOUGLAS and ODOM, JJ„ dissent.

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James Leroy HICKS, Appellant, v. The STATE of Texas, Appellee. No. 48157. Court of Criminal Appeals of Texas. April 24, 1974. Richard H. Kelsey, Curtis M. Loveless, Denton, for appellant. John Lawhon, Dist. Atty. and Michael W. George, Asst. Dist. Atty., Denton, Jim D. Vollers, State’s Atty., Austin, for the State. OPINION GREEN, Commissioner. Appellant, in a trial by jury, was convicted of rape. Punishment was assessed by the jury at life imprisonment. Appellant presents nine grounds of error on appeal. The sufficiency of the evidence is not challenged and, therefore, only a brief recitation of the facts will be necessary. The evidence reflects that on November 16, 1971, the complaining witness was in Denton seeking employment. After completing a phone call in front of the General Telephone office the complaining witness was approached by the appellant. The appellant prevented the complaining witness from closing her car door and stated, “Move over I have a gun.” Appellant proceeded to take the complaining witness to a farm road outside of town where the rape occurred. The appellant then abandoned the complaining witness and left with her automobile. Appellant was arrested the same afternoon in Denison while driving the automobile of the complaining witness. A pistol was also recovered from appellant at the arrest scene. In his first ground of error the appellant complains the trial court improperly spoke to the husband of one of the jurors in violation of Art. 40.03, Vernon’s Ann.C. C.P. The incident arose when the juror’s husband called the trial court to determine if his wife had to report for jury duty in view of the inclement weather conditions. The trial judge told the juror’s husband the defendant and his attorney would not agree to a partial jury. In the instant case there was no direct conversation between the juror and the trial court. In the conversation with the juror’s husband no facts of the case were discussed. There is nothing in the record which reflects that appellant was harmed by the judge’s remark. Appellant’s first ground of error is overruled. In his second ground of error, appellant contends the trial court erred in admitting into evidence the pistol recovered from appellant at the time of his arrest. It is appellant’s contention that there was no testimony linking said pistol to the crime in question. The evidence indicates that while the offense was being committed the pistol was either covered by a paper sack or holstered a major portion of the time. The complaining witness could not. describe the weapon on direct examination. As a general rule an object offered in evidence should not be rejected because it is not positively identified as the exact object that was connected with the crime. Pryor v. State, 449 S.W.2d 482 (Tex.Cr.App., 1969). The fact a pistol was used in the crime and that appellant was arrested within hours of the crime in possession of a pistol makes the evidence of obvious probative value. Any conflict in the testimony or question of identity concerning the evidence is to be resolved by the jury and does not affect its admissibility. Haywood v. State, 507 S.W.2d 756, (Tex.Cr.App.1974); Pryor, supra. The court did not abuse its discretion in. admitting the pistol into evidence. Furthermore, when the accused flees the scene of a crime, a weapon in his possession at the time of his arrest is admissible under the general doctrine of flight and it makes no difference whether the weapon is the same as used in the crime for which a defendant is arrested. Rodgers v. State, 468 S.W.2d 438 (Tex.Cr.App.1971); Churchill v. State, 167 Tex.Cr.R. 26, 317 S.W.2d 541 (1958); Wilson v. State, 436 S.W.2d 542 (Tex.Cr. App.1968). Appellant’s second ground of error is overruled. In his third ground of error, appellant contends the trial court abused its discretion in failing to grant his motion for continuance. Counsel for appellant was appointed on December 13, 1971 and the voir dire began on January 3, 1972, with the trial beginning on January 4. Appellant contends that due to the interruption of the holiday season the length of time is insufficient to prepare an adequate defense. Article 26.04, V.A.C.C.P., states: “ . . . the appointed counsel is entitled to ten days to prepare for trial . . ' . ” After that time has expired a motion for continuance is addressed to the discretion of the trial court. Coleman v. State, 481 S.W.2d 872 (Tex.Cr.App.1972); Thomas v. State, 451 S.W.2d 907 (Tex.Cr.App.1970). We do not find the court’s discretion to have been abused. Appellant’s third ground of error is overruled. In his fourth ground of error, appellant contends the trial court erred in failing to give appellant a pretrial hearing. It was the practice of the district courts of Denton County for the past several years to have pretrial motions on the Friday, ten days prior to Monday settings. This notice was reflected on the docket sheets. The question of waiver is in dispute since appellant’s counsel was appointed after the docket settings had been mailed out. Appellant’s counsel admitted that he had notice after his appointment of the trial setting. Prior to the case going to trial, the court heard and ruled on appellant’s motion for continuance, and motion to quash the indictment. However, Article 28.01, V.A.C.C.P., authorizing the court to set any criminal case for a pretrial hearing before it is set -for trial upon the merits is not mandatory upon the court but is directed to the court’s discretion. Bell v. State, 442 S.W.2d 716 (Tex.Cr. App.1969). The appellant has failed to show any abuse of discretion on the part of the trial court in failing to allow a pretrial hearing. Appellant’s ground of error is overruled. In his fifth ground of error, appellant claims the trial court erred in failing to quash the indictment for charging more than one offense. Appellant was indicted in separate counts for rape and robbery. The State, prior to trial, elected to go on the first count of rape. Although Article 21.24, V.A.C.C.P., provides that the indictment may not charge more than one offense, it does not prohibit alleging several ways in which an offense was committed or charging more than one offense based upon the same incident or transaction. Martinez v. State, 498 S.W. 2d 938 (Tex.Cr.App.1973); Breeden v. State, 438 S.W.2d 105 (Tex.Cr.App.1969). Appellant’s fifth ground of error is overruled. Grounds of error six, seven, eight, and nine were raised by the appellant himself in a letter to his counsel on appeal to be included in the brief now before the Court. The grounds of error are not briefed and no argument is presented. Appellant fails to specify what the errors are, if any, or to specifically refer to the portion of the record wherein the alleged errors occurred. These grounds have been considered and present no error. Appellant’s grounds of error six, seven, eight, and nine are overruled. The judgment is affirmed. Opinion approved by the Court.

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CITY OF SAN MARCOS, Texas, Appellant, v. LOWER COLORADO RIVER AUTHORITY, Appellee. No. 12110. Court of Civil Appeals of Texas, Austin. April 10, 1974. Rehearing Denied April 24, 1974. James W. Wilson, McGinnis, Lochridge & Kilgore, Austin, for appellant. C. C. Small, Jr., Small, Craig & Werken-thin, Austin, for appellee. O’QUINN, Justice. The City of San Marcos brought this lawsuit against the Lower Colorado River Authority seeking a declaratory judgment asseverating its power as a home rule city to fix rates charged by any electrical utility serving its inhabitants, including rates charged by the Authority selling at retail in San Marcos. The City also sought to enjoin the Authority from increasing its rates beyond charges prescribed in a city ordinance adopted December 19, 1972, without prior approval of the city council. The City sought alternatively to set aside action of the Authority’s board of directors adopting increased rates on October 19, 1972, on the ground that the Authority had failed to comply with the Texas Open Meeting Law (Article 6252-17, Vernon’s Ann.Civ.Sts.). The Authority answered and disputed the City’s claim of jurisdiction over rates charged by the Authority and asserted its own exclusive power to set rates for its electric service. The Authority denied that the increased rates adopted by its directors were invalid by reason of noncompliance with the Open Meeting Law. The Authority alternatively contended that the City’s rate ordinance was void for lack of notice to the Authority prior to adoption. The Authority prayed for declaratory judgment affirming its contentions. The trial court entered judgment declaring that the City of San Marcos was without jurisdiction to set rates for the sale of electricity by the Lower Colorado River Authority within the City’s corporate limits. We will reverse that part of the judgment of the trial court and render judgment that the City of San Marcos has exclusive jurisdiction to fix rates for the sale of electricity to the inhabitants of the City. The trial court further rendered judgment that the rate ordinance adopted by the City was void for lack of notice to the Authority, and that the two attempts by the Authority to fix rates were invalid because of noncompliance with the Open Meeting Law. The court also denied the City injunctive relief. These actions of the court will be considered and disposed of incidental to decision on the principal issue of jurisdiction to fix rates. The City of San Marcos, being a home rule city, operates under the provisions of section 5, Article XI, of the Constitution of Texas, Vernon’s Ann.Tex.Const. (As amended November 5, 1912). The effect of the home rule amendment is to authorize the citizens of any city having more than 5,000 inhabitants to adopt a charter which becomes the basic law of the city and may contain any provisions approved by the people not inconsistent with the general laws of the state or the Constitution. The voters of San Marcos adopted a charter in February of 1967, and in Article XI of the charter delegated to the city council “ . . . full power, ” after notice and hearing, to regulate by ordinance, the rates of every public utility operating in the City ...” (sec. 11.09, Art. XI, San Marcos Charter). In April of 1967, two months after adoption of the home rule charter, the city council of San Marcos granted a franchise for a term of ten years to the Lower Colorado River Authority under which the Authority was accorded the right to distribute “electric power and energy for lights, heat and power, including distribution of electric power and energy to the City and its inhabitants . . . ” The Authority acquired the electrical distribution physical properties within the City of San Marcos from the Texas Power and Light Company in September of 1939, an acquisition which also included a franchise for fifty years dating from June 11, 1925. Following the home rule amendment to the Constitution in 1912, the Legislature in 1913 enacted laws enumerating “for greater certainty” numerous powers that might be exercised by cities adopting charters for local self-government. (Art. 1175, Vernon’s Anno.Civ.Sts.; Acts 1913, p. 307). Among the powers enumerated by the Legislature is the power of home rule cities to grant franchises and fix utility rates: “12. To prohibit the use of any street, alley, highway or grounds of the city by any telegraph, telephone, electric light, street railway, interurban railway, steam railway, gas company, or any other character of public utility without first obtaining the consent of the governing authorities expressed by ordinance . . . [and] To determine, fix and regulate the charges, fares or rates of any person, firm or corporation enjoying or that may enjoy the franchise or exercising any other public privilege in said city . . . ” (Emphasis supplied) (Subd. 12, Art. 1175) In the same Act of 1913 the Legislature stated, in Article 1176, “The enumeration of powers hereinabove made shall never be construed to preclude, by implication or otherwise, any such city from exercising the powers incident to the enjoyment of local self-government, provided that such powers shall not be inhibited by the State Constitution.” (Emphasis supplied) San Marcos, as a home rule city, must look to its own charter in determining whether it has power to fix electric utility rates, and will look to enactments of the Legislature only to ascertain whether by general law any limitations on the charter power have been imposed. Yellow Cab Transit Co. v. Tuck, 115 S.W.2d 455 (Tex.Civ.App. Dallas 1938, writ ref.); Forwood v. City of Taylor, 147 Tex. 161, 214 S.W.2d 282 (1948); State v. City of La Porte, 386 S.W.2d 782 (Tex.Sup. 1965). The Authority contends that Article 1175 limits the charter power because by its terms the statute does not embrace a “municipal corporation such as” the Lower Colorado River Authority, created by Article 8280-107, V.A.C.S. (Acts 1934, 43rd Leg., 4th C.S., p. 19, ch. 7). The Authority argues that the words “person, firm or corporation” employed in the Article 1175 must be construed to exclude a corporation created by the Legislature, as distinguished from a private corporation. Reliance in this position is on the rule stated by the Supreme Court in State v. Central Power and Light Company, 139 Tex. 51, 161 S. W.2d 766 (1942), in which the Court held that the Texas anti-trust statutes were “not intended to include a combination between a municipality and a third party.” We find the rule of that case inapplicable to the statute here under consideration. When all of the language of subdivision 12 of Article 1175 is examined, it becomes apparent that the words “person, firm or corporation” are used, not in a restrictive sense as to the peculiar character or origin of the utility that may occupy the streets of a city for the purpose of selling services to the inhabitants, but rather as descriptive of any and all entities “that may enjoy the franchise or [may be] exercising any other public privilege in said city.” In fact, the statute, after enumerating specific types of utilities to be denied use of streets until consent is given by city ordinance, enlarges the scope of the list to include “any other character of public utility.” Read with Article 1176, set out above in full, the provisions of subdivision 12 of Article 1175 make clear the intention of the Legislature not “to preclude, by implication or otherwise, any such city from exercising the powers incident to the enjoyment of local self-government . ” It is an established rule that courts will construe the language of a statute liberally to reach the true objective of the enactment and thereby give effect to the legislative intent. Lone Star Gas Company v. Sheaner, 157 Tex. 508, 305 S.W.2d 150 (1957); Whitmarsh v. Buckley, 324 S. W.2d 298 (Tex.Civ.App. Houston 1959, no writ); 53 Tex.Jur.2d, Statutes, secs. 194 et seq. The courts must ascertain the purpose for which the statute was enacted, as the dominant consideration in construing a statute is the intention of the Legislature. Flowers v. Dempsey-Tegeler and Company, 472 S.W.2d 112, 115 (Tex.Sup.1971). The statute under consideration in State v. Central Power and Light, supra, as pointed out by the Supreme Court, was “highly penalizing in its nature,” being an anti-trust law, found in both civil and criminal statutes of the state. “It is thought,” the Court stated, “that if the Legislature had intended to visit such severe penalties on municipalities, it would have used more apt language to describe them.” (161 S.W.2d 768, col. 2) Ordinarily, statutes imposing penalties or forfeitures, levying a tax, or in derogation of common law will be strictly construed in determining whether the act applies to persons or entities not clearly included by the language of the law. See 53 Tex.Jur.2d, Statutes, secs. 195 et seq. and cases cited. Attorney’s fees, authorized under Article 2226, which are in the nature of a penalty or punishment for failure to pay a just debt (Huff v. Fidelity Union Life Insurance Co., 158 Tex. 433, 312 S.W.2d 493), may not be collected from a municipal corporation since municipalities are not construed to be within the words “against a person or corporation” found in the statute. City of Houston v. L. J. Fuller, Inc., 311 S.W.2d 285 (Tex.Civ.App. Houston 1958, no writ) ; City of Houston v. Howe and Wise, 323 S.W.2d 134, 151 (Tex.Civ. App. Houston 1959, writ ref. n. r. e.). The anti-trust statutes, construed in State v. Central Power and Light, were given the same strict construction in State v. Fairbanks-Morse and Company, 246 S.W. 2d 647, 658 (Tex.Civ.App. Dallas 1952, writ ref. n. r. e.). Article 7589a, an act making it unlawful “for any person, firm or private corporation to divert the natural flow” of surface waters to the damage of other property owners was held by the Supreme Court not to include municipal corporations. City of Houston v. Renault, Inc., 431 S.W.2d 322 (Tex.Sup.1968). The rules of strict construction and liberal construction of a statute were juxtaposed in a decision by the San Antonio Court of Civil Appeals in 1963. The Court cited State v. Central Power and Light in support of a strict construction when the statute “identifies the person against whom a violation is charged,” but said that when the statute is intended to protect an interest, a liberal construction is followed. City of Corpus Christi v. Atlantic Mills Servicing Corporation, 368 S.W.2d 640 (Tex. Civ.App. San Antonio 1963, writ ref. n. r. e.). We hold that the purpose of subdivision 12 of Article 1175, as expressed in that statute and in Article 1176, was to make clear the constitutional power of home rule cities to require all utilities to obtain a franchise to occupy the public streets and to render utility services to the inhabitants thereafter subject to the powers of the city to fix and regulate rates and charges for such services. If we entertained any doubt that the statute is applicable to all utilities, including the Lower Colorado River Authority, we would find further support for our holding in Article 1436a, enacted in 1949. (Art. 1436a, V.A. C.S.; Acts 1949, 51st Leg., p. 427, ch. 228, as amended by Acts 1967, 60th Leg., pp. 730, 731, ch. 306, sec. 2, eff. August 28, 1967.) Article 1436a deals specifically with the subject of the types of corporations required to obtain franchises from all cities within which these utilities operate. The statute names corporations organized “under the Electric Cooperative Corporation Act [Art. 1528b] . . . and all other corporations (including River Authorities created by the Legislature of this State) engaged in distribution of electric energy . . . ” (Emphasis supplied) The Authority argues that Articles 1436a and 1175 may not be read in pari materia because the latter is found in Title 28, dealing with cities, towns and villages, and the former is found in Title 32 on corporations. Both statutes deal in part with the legal entities required to obtain franchises from cities before entering to. serve the inhabitants as a utility. The two statutes relate to the same class of entities and to the same subject matter and are therefore in pari materia. Calvert v. Fort Worth National Bank, 163 Tex. 405, 356 S.W.2d 918 (1962); Bowling v. City of Pearland, 478 S.W.2d 143 (Tex.Civ.App. Houston 14th 1972, writ dsmd.) ; 53 Tex.Jur.2d, Statutes, sec. 186. The Authority contends that the power “of a home rule city to regulate rates, regardless of whether the source of that authority is a statutory grant (Art. 1175) or the city charter promulgated under the Home Rule Amendment, has been abrogated by the specific legislative delegation of power to the LCRA to set its own rates (Art. 8280-107).” The Lower Colorado River Authority was created at the fourth called session of the 43rd Texas Legislature in 1934 (Acts 1934, 43rd Leg., 4th C.S., p. 19, ch. 7; Art. 8280-107, V.A.C.S.), pursuant to provisions of Section 59 of Article 16 of the Constitution, Vernon’s Ann.St. In Section 8 of the Act the governing board of the Authority was enjoined to “establish and collect rates and other charges for the sale or use of water, water connections, power, electric energy or other services sold, furnished, or supplied by the District which fees and charges shall be reasonable and non-discriminatory and sufficient to produce revenues adequate; “(a) to pay all expenses . . . [of] operation and maintenance . “(b) to pay the interest on and principal of all bonds issued under this Act . “(c) to pay all sinking fund and/or reserve fund payments agreed to be made in respect of any such bonds . . . out of such revenues . “(d) to fulfill the terms of any agreements made with the holders of such bonds The Authority argues that in granting these powers to the Authority the Legislature abrogated, or repealed, the provisions of Article 1175, recognizing rate making powers of home rule cities, and set aside the constitutional charter powers of home rule cities to fix utility rates in those cities in which the Authority is permitted to enter and serve the inhabitants as a public utility. This contention is without support, unless by clear and express terms, or by clear implication, the state delegated its inherent power to regulate rates of a public utility to the Lower Colorado River Authority in explicit terms of the Special Act creating the Authority, and all doubts as to such delegation by the Legislature must be resolved against the Authority. Texas-Louisiana Power Company v. City of Farmers-ville, 67 S.W.2d 235, 238 (Tex.Comm.App. 1933); Southwestern Bell Telephone Company v. Houston Independent School District, 397 S.W.2d 419 (Tex.Sup.1965). In the same section in which the Legislature permitted the governing board of the Authority “to establish and collect rates” the ’ state reserved its inherent power to regulate rates of the Authority in clear terms: “Nothing herein shall he construed as depriving the State of Texas of its power to regulate and control fees and/or charges to he collected for the use of . . power, electric energy, or any other service . . subject to the proviso that regulatory authorities shall not set rates which impair the security of bondholders. (Emphasis supplied) Neither by express language, nor by clear implication, did the Legislature delegate to the Authority the power “to regulate and control” such rates as the governing board might “establish,” but, on the contrary, the Legislature expressly reserved that power and declared that nothing should be “construed as depriving the State ... of its power to regulate and control” rates established by the Authority. Since 1907 the power of the state to regulate rates charged by public utilities within the corporate boundaries of cities has been delegated by the Legislature to the cities. (Acts 1907, 30th Leg., p. 217, ch. 117; Arts. 1119 through 1123, V.A.C.S., to which was added Art. 1124 in 1921 to include home rule cities and prescribe standards in fixing rates: Acts 1921, 37th Leg., 1st C.S., p. 152, ch. 48). After adoption of the home rule amendment to the Constitution by the electorate in 1912, the Legislature in 1913 recognized and enumerated “for greater certainty” the delegation by the state of utility rate making power to home rule cities (Art. 1175, subd. 12). Thus since 1907 it has been the policy of this state that the power to regulate utility rates within the boundaries of cities has been delegated to the cities, subject to procedures prescribed by the state for arriving at reasonable rates, with the right of appeal to the courts to test reasonableness of the rates fixed. That the Legislature may delegate power to regulate utility rates to cities “as to utilities operating within the limits of such municipal corporations” is firmly established, and when the power is so delegated to the cities, it may be exercised fully to accomplish the purposes for which it was granted. Texas-Louisiana Power Company v. City of Farmersville, supra, {67 S.W.2d at 239); Kousal v. Texas Power and Light Company, 142 Tex. 451, 179 S.W.2d 283, 285 (Tex.Comm.App.1944, opinion adopted). It is compatible with the state policy of delegating rate making to the cities for home rule cities to provide by charter that utility rates within the city will be regulated by the local governing body. This was recognized by the Legislature in Subdivision 12 of Article 1175, which was not a grant of such power, but a general law to which the cities must look only to ascertain whether the charter power is limited or curtailed in any manner. We have already considered this matter and concluded that Article 1175 does not limit, change, or curtail the provisions of the San Marcos city charter empowering the city council to fix rates charged by utilities operating within the city limits to serve the inhabitants. The Legislature could withdraw from all cities of the state, including home rule cities, the power to regulate rates of utilities operating within the cities and provide some other means of regulating rates. Only by a general law, however, may the Legislature limit charter powers of a home rule city. Although “by general laws enacted by the Legislature of this State” the broad powers granted to home rule cities by the Constitution (Art. XI, Sec. 5) may be limited, the intention of the Legislature to impose such limitations must “appear with unmistakable clarity.” City of Sweetwater v. Geron, 380 S.W.2d 550, 552 (Tex.Sup. 1964); Wagstaff v. City of Groves, 419 S.W.2d 441, 443 (Tex.Civ.App. Beaumont 1967, writ ref. n. r. e.) ; City of Corpus Christi v. Continental Bus Systems, Inc., 445 S.W.2d 12, 17 (Tex.Civ.App. Austin 1969, writ ref. n. r. e., in written opinion, Tex.Sup, 453 S.W.2d470). Typical of instances in which the courts have considered the problem of consistency between general laws enacted by the Legislature and provisions of home rule charters are the decisions in these cases: Allen v. City of Austin, 116 S.W.2d 468 (Tex.Civ. App. Austin 1938, writ ref.); State v. Self, 191 S.W.2d 756 (Tex.Civ.App. San Antonio 1945, no writ) ; City of Beaumont v. Fall, 116 Tex. 314, 291 S.W. 202 (1927); Xydias Amusement Co. v. City of Houston, 185 S.W. 415 (Tex.Civ.App. Galveston 1916, writ ref.); Temple Independent School District v. Proctor, 97 S.W.2d 1047 (Tex.Civ.App. Austin 1936, writ ref.); City of Lubbock v. South Plains Hardware Co, 111 S.W.2d 343 (Tex.Civ.App. Amarillo 1937, no writ) ; Prescott v. City of Bor-ger, 158 S.W.2d 578 (Tex.Civ.App. Amarillo 1942, writ ref.). Even if the Special Act which created the Authority could be termed a “general law,” we find nothing in the Act to indicate with unmistakable clarity that the Legislature intended to withdraw from home rule cities the delegated power to fix utility rates within the limits of the cities. In fact, as already stated, the Act itself indicates clearly the contrary, by reason of the state’s reservation of power to regulate: whatever rates should be established by the governing board of the Authority. Provisions of the Act that rates as regulated would not impair the obligations of the Authority’s bonds merely recognized the state’s existing standards for fixing rates of utilities. The parties have stipulated that the Authority “would not have been in default on any bonds had it not adopted the October 19, 1972, rate increases, nor would it have been in violation of any covenant of its bond indenture” which accompanied the stipulation. Appellant City of San Marcos agrees that “the covenant of the Legislature to respect the interests of the bondholders is as binding on San Marcos as it is on the LCRA, and if the City were to prescribe rates which would prejudice the interests of bondholders, they would be set aside in court at the instance of either the LCRA or the bondholders. Compliance with the covenant in Section 8 is a matter of the adequacy of rates, not a matter of jurisdiction.” We agree with this statement. The Lower Colorado River Authority was not removed from the rate making jurisdiction of the state, nor was it removed from the duly delegated power of a home rule city to fix utility rates within its corporate limits. We consider the rule of law on this issue to be the same rule applied by this Court in Trinity River Authority v. Texas Water Rights Commission, 481 S. W.2d 192, 194 (Tex.Civ.App. Austin 1972, writ ref. n. r. e.). In the Special Act creating and empowering the Trinity River Authority the Legislature reserved to the Board of Water Engineers, now the Texas Water Rights Commission, the power already delegated to that body to prescribe rates for sale of water. In the Special Act creating the Lower Colorado River Authority similar reservation was made to the state, and by clear implication to the cities having that power by prior delegation as to utilities serving their inhabitants, a power not withdrawn or limited by general law. For additional reasons, the Special Act which gave birth to the Authority was not such a general law as would repeal or limit the charter powers of home rule cities in this state. It is true that the Act is not a “local” or “special” law within Article III, section 56, of the Constitution, prohibiting the Legislature from passing such laws with respect to enumerated subjects “except as otherwise provided in” the Constitution. Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629, 636 (1935). But it does not follow that the Act is a “general law.” The Act was passed pursuant to power derived by the Legislature under Article XVI, section 59, authorizing the creation of conservation and reclamation districts, one of the exceptions referred to in Article III, section 56. The Act establishes the home office of the corporation in Austin, and fixes its boundaries within the counties of Blanco, Burnet, Llano, Travis, Bastrop, Fayette, Colorado, Wharton, San Saba, and Matagorda. The Authority is authorized by the Act to sell electric energy within or without the boundaries of the district. Article 8280-107 is a special law, made constitutional by Article XVI, section 59, of the Constitution, as an exception to the prohibition of Article III, section 56, against “local and special laws.” See Hall v. Bell County, 138 S.W. 178 (Tex.Civ.App. Austin 1911, affirmed 105 Tex. 558, 153 S.W. 121); 10 Tex.L.R. 108. Despite its constitutional validity, Article 8280-107 is not a general law, but a Special Act. A special law does not fall within the provision of Article XI, section 5, of the Constitution requiring that home rule charters shall not contain any provision inconsistent with “the general laws enacted by the Legislature of this State.” (Emphasis supplied) The rule that a valid special law, one not within the prohibition of Article III, section 56, of the Constitution, creates an exception to the general law and is controlling if in conflict, has no application to conflict of a special law with home rule charters. (For rule, see Jefferson County v. Board of County & District Road Indebtedness, 143 Tex. 99, 182 S.W.2d 908 (1944); City of Piney Point Village v. Harris County, 479 S.W.2d 358, 365 (Tex. Civ.App. Houston 1st 1972, writ ref. n. r. e., cert. den. 410 U.S. 976, 93 S.Ct. 1503, 36 L.Ed.2d 173). We do not have before us, and therefore do not pass on, whether the Special Act creating the Authority would prevail over the general laws under which “general law” cities operate. (General Law Cities, Article XI, sec. 4, Constitution) . We do hold that the provisions of the Special Act do not prevail over the charter provisions of a home rule city if there is conflict between the Act and the charter. The Legislature may not pass any local or special law to amend, alter, or repeal provisions of an existing home rule charter or to grant a new charter. City of Fort Worth v. Bobbitt, 121 Tex. 14, 36 S. W.2d 470 (1931); State v. Vincent, 217 S. W. 402 (Tex.Civ.App. Amarillo 1919, affirmed 235 S.W. 1084, Tex.Comm.App. 1921, opinion adopted); Smith Bros. Inc. y. Lucas, 15 S.W.2d 27 (Tex.Civ.App. Dallas 1928, 26 S.W.2d 1055, Tex.Comm.App. 1930); Le Gois v. State, 80 Tex.Cr.R. 356, 190 S.W. 724. This rule has been stated clearly in the following language: “. . . the Legislature may regulate home rule cities in such manner as it sees fit, provided it does not do so by local or special laws.” Dry v. Davidson, 115 S.W. 2d 689, 691 (Tex.Civ.App. Galveston 1938, writ ref.). In view of our disposition of the principal issue of jurisdiction to fix utility rates within the city limits of San Marcos, we do not reach the several contentions of the parties urged under other issues, except as to validity or invalidity of actions by both parties in attempting to set new rates. The trial court correctly adjudged that the rate ordinance passed by the city council of the City of San Marcos on December 19, 1972, was void for the reason that proper notice was not afforded the Lower Colorado River Authority in accordance with provisions of the city charter. The court also correctly adjudged that the rates set by the Lower Colorado River Authority on October 19, 1972, to-apply in San Marcos, were void and of no effect; and that the rates thereafter set by the Authority on May 24, 1973, were void for failure of the governing board to give notice as required by the Texas Open Meeting Law (Article 6252-17, V.A.C.S.). The trial court also correctly denied the prayer of the City of San Marcos to enjoin the Authority from collecting rates in excess of the rates fixed by the void city ordinance of December 19, 1972. The trial court erred in entering its declaratory judgment that the City of San Marcos had no power, jurisdiction, or authority to set rates for the sale of electricity by the Lower Colorado River Authority within the limits of the City of San Marcos. We reverse that judgment and render judgment that the City of San Marcos has exclusive power, after notice and hearing, to regulate by ordinance the rates of the Lower Colorado River Authority operating in the corporate limits of the City, subject to review as provided by law. Judgment of the trial court is affirmed in part and in part is reversed and rendered.

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Mrs. J. D. VanHUSS et al., Appellants, v. Bob BUCHANAN, Appellee. No. 17493. Court of Civil Appeals of Texas, Port Worth. April 5, 1974. Rehearing Denied May 3, 1974, Per Opinion. Rehearing Denied June 7, 1974. Schenk, Wesbrooks, Smith & Douglass, and Perry Wesbrooks, Wichita Falls, for appellants. W. B. Woodruff, Jr., Decatur, for appel-lee. OPINION BREWSTER, Justice. This is an appeal by the two defendants in the case, Mrs. J. D. VanHuss and her son, Jack VanHuss, from orders overruling their pleas of privilege. Both defendants lived outside the county of suit. The plaintiff, Bob Buchanan, sued the defendants in Wise County, Texas, seeking to recover from both a joint and several judgment on a $40,000.00 note that was executed by Mrs. J. D. VanHuss and one of her other sons, T. L. VanHuss, who had died prior to the time the suit -was filed. The principal and interest of the note were, by its terms, made payable in Wise County, Texas. The makers of the note also executed a security agreement by the terms of which they conveyed to plaintiff a security interest in 2,000 pounds of A.M. P.I. Milk Marketing Base as security for the payment of the note. Plaintiff sought as against Mrs. VanHuss a judgment on the note plus a foreclosure of the security agreement lien. The plaintiff’s petition alleged that T. L. VanHuss, a co-maker of the note, was dead, that he died intestate, that he had never been married, that he left no descendants, that there was no administration on his estate, and that he left as his only heirs, his mother who is the defendant, Mrs. J. D. VanHuss, and his brother, who is the other defendant, Jack VanHuss. He further alleged that he was suing Jack VanHuss in his capacity as an heir at law of T. L. VanHuss, deceased, who had been an owner at the time of his death of the property that was the subject matter of the security agreement that is herein sought to be foreclosed. Plaintiff alleged that Jack VanHuss was in possession of this property, and was claiming some sort of right or title to it. The defendant, Jack VanHuss, was also sued in his individual capacity. Mrs. VanHuss’ point of error is that the trial court erred in overruling her plea of privilege to be sued in Clay County, the county of her residence. We overrule this point. Plaintiff contended he had a right to keep venue as to Mrs. VanHuss in Wise County by virtue of Subd. 5, Art. 1995, Vernon’s Ann.Civ.St, because the written contract sued on was by its terms made payable in Wise County, Texas. The law is that to keep venue in the county of suit under Art. 1995, Subd. 5, the plaintiff must prove by a preponderance of the evidence at the venue hearing that the contract in writing that is sued on was executed by defendant and 'that the terms of the contract bound the defendant to perform the contract in the county of suit. Pinkston-Hollar, Inc. v. Big Three Welding Supply Co., 378 S.W.2d 715 (Fort Worth, Tex.Civ.App., 1964, no writ hist.). In this case Mrs. VanHuss did not deny under oath the execution of the note sued on as is required by Rule 93, Texas Rules of Civil Procedure. Therefore, it was not necessary that plaintiff prove execution of the note by her. It was only necessary under those circumstances that the note be introduced into evidence in order to prove up its terms. Thompson v. Republic Acceptance Corporation, 388 S. W.2d 404 (Tex.Sup., 1965). The plaintiff here did introduce the note into evidence and it was received without objection. It showed by its terms that it was made performable by Mrs. VanHuss in the county, of suit. This was all that plaintiff had to prove under the facts of this case in order to show his right to keep venue of Mrs. VanHuss’ case in Wise County under Subd. 5, Art. 1995. See 60 Tex.Jur.2d, Venue, Sections 210 and 211. Mrs. VanHuss contends that the rules we have announced above should not apply here because the contract sued on was illegal and void because in violation of the antitrust laws. We overrule this contention. Neither defendant pleaded in the trial court that the contract sued on was illegal or that it was in violation of the antitrust laws. Because of this the defense of illegality was waived. Under Rule 94, T.R.C.P., illegality is an affirmative defense that must be pleaded. If illegality is not affirmatively pleaded as a defense, it is waived. Free-Flow Muffler Company v. Kliewer, 283 S.W.2d 778 (Texarkana, Tex.Civ.App., 1955, ref. n. r. e.); Chapman v. Tyler Bank & Trust Company, 396 S.W.2d 143 (Tyler Tex.Civ. App., 1965, ref., n. r. e.); and Bachman Center Corporation v. Sale, 359 S.W.2d 290 (Dallas, Tex.Civ.App., 1962, ref., n. r. e.) The contracts here sued upon do not show on their face that they are illegal as being in violation of the antitrust laws. In addition to what we have said, whether or not a contract is illegal is a defensive matter, and it is not one of the venue facts to be determined at the venue hearing. 60 Tex.Jur.2d, Venue, Sec. 210, notes 10 and 11; and Arnold v. Wheeler, 304 S.W.2d 368 (San Antonio, Tex.Civ. App., 1957, ref., n. r. e.). The second point of error urged by defendants is that the court erred in overruling the plea of privilege of defendant, Jack VanHuss. We also overrule this point. Plaintiff contends that he is entitled to keep venue of the case against Jack Van-Huss in Wise County, Texas, under Art. 1995, subd. 29a, V.A.C.S. It provides in substance that when there are two or more defendants in any suit and it is lawfully maintainable in the county of suit against one of them under the provisions of Art. 1995, then it can be maintained in that county against any and all necessary parties. The following is from McDonald’s “Texas Civil Practice”, Vol. 1, Sec. 4.36, note 27: “Before exception 29a can apply, four conditions must exist: the action must be against two or more defendants; all of them must reside outside the county of suit; venue must be proper against at least one of the defendants under some exception to the general venue rule; and the defendant urging his privilege must be a necessary party to the claim against the defendant as to whom venue is proper. The venue facts thus become clear: “(I) Plaintiff must establish the propriety of venue as to some defendant under some exception to the general venue rule. . The controverting affidavit must allege, and plaintiff must establish, facts which sustain the venue of the action in the county of suit as against one defendant ; . . . . “(II) Plaintiff must show that the defendant urging his plea of privilege is a necessary party upon the cause of action as to which venue against the codefendant has been established.” In this case, as demonstrated above, the plaintiff, at the venue hearing, alleged and proved that he had a right to try the case in Wise County as against Mrs. VanHuss under Subd. 5 of Art. 1995, V.A.C.S. The case was brought against two defendants, neither of whom lived in Wise County. The remaining question for our determination is whether the plaintiff alleged and proved at the venue hearing that Jack VanHuss is a necessary party to the cause of action as to which venue against Mrs. J. D. VanHuss has been established. Before 1956 some cases had held that “Whether a defendant is a necessary party pertains to the nature of the suit and is provable by the allegations of the plaintiff’s petition.” See 60 Tex.Jur.2d, Venue, Sec. 221, page 121-122, note 4. But in 1956 the Supreme Court in Lad-ner v. Reliance Corp., 156 Tex. 158, 293 S. W.2d 758, overruled the holdings of those cases on that point saying at page 763 of the opinion the following: “It is our opinion that a plaintiff who relies on Subdivision 29a to maintain venue of a defendant in the county of suit must not only allege the facts which make such defendant a necessary party to the suit within the meaning of that subdivision, but must also prove by independent evidence all of such facts except those which are taken as admitted under the pleadings or which are established as a matter of law by the allegations of the petition.” At page 764 of the opinion in that case the court defined a necessary party as follows : “Every person whose joinder is necessary to afford the plaintiff the full relief to which he is entitled in the suit which can thus be maintained in that county is a necessary party within the meaning of Subdivision 29a.” In this case the plaintiff had sought a joint and several judgment against the two defendants for the amount of the note plus a foreclosure against both defendants of the lien created by the security agreement. As noted, defendant, Jack VanHuss, was sued here in his individual capacity and also in his capacity of being an heir of T. L. VanHuss who was a co-maker of the note and who also owned an interest in the property covered by the security agreement that is herein sought to be foreclosed. Section 37, Probate Code, V.A.C.S., V. A.T.S., provides in part as follows: “. . . whenever a person dies intestate, all of his estate shall vest immediately in his heirs at law, but . . . shall still be liable and subject in their hands to the payment of the debts of the intestate Section 38, Probate Code, V.A.C.S., in substance provides that if a person owning property dies intestate, leaving no spouse and leaving no children, but leaving surviving only one parent and brothers or sisters or both, that his interest in the property shall descend one-half to the surviving parent and the other one-half to his surviving brothers and sisters. Under the facts alleged by plaintiff the title to one-half of the interest in the mortgaged property that T. L. VanHuss had owned, the lien on which plaintiff seeks herein to foreclose, passed by inheritance to and vested in the defendant, Jack VanHuss, at the death of T. L. VanHuss by virtue of him being an heir of the said T. L. VanHuss. But because of the above set out provisions of the Probate Code, Jack VanHuss acquired title to this one-half interest in the mortgaged property subject to the payment of the debts of the intestate, T. L. VanHuss. The law is that an heir who has received property of the estate to which he is an heir is only personally liable to the creditors of such estate to the extent of the value of the estate’s property that he has received. See cases listed in Notes 10 and 11, under Section 37 of the Probate Code, 17A V.A.C.S., appearing at pages 118 through 121, inclusive. In this case, at the hearing, evidence was offered that T. L. VanHuss died intestate before the hearing, that he was a single man, that he had no children, that the only parent he left surviving was the other defendant, Mrs. J. D. VanHuss, and that the defendant, Jack VanHuss, was his brother and that no other brothers or sisters survived him. There was evidence that there was no administration on his estate. It is true that there was no direct testimony that T. L. VanHuss executed the note and security agreement sued upon here but such proof was not necessary in this case. This fact was alleged by the plaintiff and Jack VanHuss did not deny under oath that his ancestor, T. L. Van-Huss, executed such instruments as is required by Rule 93, T.R.C.P. Jack Van-Huss was sued here in his capacity as an heir and in order to place on plaintiff the burden of proving at the venue hearing the execution by the ancestor, T. L. VanHuss, of the written agreements on which the suit was based, it was necessary for Jack VanHuss to deny under oath that his ancestor from whom he acquired title had executed such instruments. The note and security agreement were both introduced into evidence without objection of any kind. See Newsom v. Fikes, 153 S.W.2d 962 (Fort Worth, Tex.Civ.App., 1941, ref., w. o. m.); Smith v. Smith, 200 S.W. 540 (El Paso, Tex.Civ.App., 1917, no writ hist.); and Graser v. Graser, 212 S.W.2d 859 (Waco, Tex.Civ.App., 1948, reversed on other grounds in 147 Tex. 404, 215 S.W. 2d 867). Evidence was also offered at the hearing to prove that after the death of T. L. VanHuss the defendant had taken over the possession and control of the property on which the said T. L. VanHuss and Mrs. J. D. VanHuss had granted the lien or security agreement that is herein sought to be foreclosed and that he was claiming an interest therein. The lien on this property was given as the security for the payment of the $40,000.00 note on which there was a balance due of over $33,000.00 at the time of the hearing. We hold that plaintiff proved sufficient facts at the venue hearing to show that Jack VanHuss was a necessary party to the suit against Mrs. VanHuss for recovery on the note and for a foreclosure of the security agreement lien. In the Ladner case, supra, the court said, 293 S.W.2d at page 764 of its opinion: “Where the plaintiff, if he recovers, will be entitled to a joint judgment against two defendants and the suit is maintainable where brought as to one of the defendants under another subdivision of Art. 1995, the other defendant is a necessary party within the meaning of Subdivision 29a.” That court also said at page 763: “A . person in possession of or claiming an interest in the security is a necessary party to an action to foreclose a note and mortgage on either real or personal property.” In the case of Pioneer Building & Loan Ass’n v. Gray, 132 Tex. 509, 125 S.W.2d 284 (Tex.Com.App., 1939, opinion adopted by the Supreme Court) the plaintiff sued the maker of a note for judgment on the note and for foreclosure of a lien on property mortgaged to secure payment of the note. After the note and mortgage were executed the owner of the mortgaged property conveyed it to a third person. The plaintiff also made this third person to whom the mortgaged property was conveyed a party defendant seeking a foreclosure against him and the court held that he was a necessary party to the suit against the maker of the note, within the meaning of Subd. 29a, Art. 1995, V.A.C.S. In Clingingsmith v. Bond, 150 Tex. 419, 241 S.W.2d 616 (1951) the plaintiff delivered property to one Sheer on consignment with the agreement that Sheer would account to him within one and one-half months after delivery. Sheer then delivered to Case a plate of the diamond rings that plaintiff had let Sheer have. Sheer put them up with Case as security for a $1,000.00 loan. Case started claiming title to the rings. Plaintiff sued Sheer and Case to recover the property and the question was whether Case was a necessary party within the meaning of Subd. 29a. The court held that Case was a necessary party saying at page 617 of the opinion: “In this case relator seeks to recover all of the property delivered to Sheer, including that subsequently pawned to Case and now held by him under his replevy bond. In order for relator to obtain the complete relief sought, Case must be made a party to the suit, for unless he is a party, a judgment entered by the trial court awarding title and possession of the property to relator would not be binding upon him, and in order for relator to then gain title and possession of the property held by Case, or its value, another suit would have to be filed. “We therefore conclude that as to respondent Case, venue properly lies in Dallas County by virtue of Subdivision 29a The judgment is affirmed. ON MOTION FOR REHEARING In our opinion in this case we held that because the defendants did not plead illegality as a defense prior to the venue hearing that the defendant waived such defense. Our holding applies only to the issues raised for the court’s consideration at the venue hearing. We recognize the fact that the defendant would have a right to later plead illegality as a defense and have it considered at the trial on the merits. With this clarification the appellants’ motion for rehearing is overruled.

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DELHI GAS PIPELINE COMPANY, Appellant, v. E. C. HEDDIN et ux., Appellees. No. 736. Court of Civil Appeals of Texas, Tyler. March 28, 1974. Rehearing Denied April 25, 1974. Jackson, Walker, Winstead, Cantwell & Miller, Jack Pew, Jr., Dallas, for appellant. Wynne & Wynne, Wills Point, Elliott & Bass, Clyde Elliott, Jr., Canton, for appel-lees. DUNAGAN, Chief Justice. This is one of a number of appeals concerning the condemnation of a strip of land through Van Zandt County, Texas, for purposes of laying a gas transmission pipeline. Delhi Gas Pipeline Company, appellant-condemnor, brought this suit against E. C. Heddin and wife, Lillie Belle Heddin, appellees, to determine the amount of loss, if any, in market value of the Hed-dins’ property suffered after a 1.5-acre easement from their land was taken to construct a gas pipeline. The Heddins own a 75-acre rectangular-shaped tract in Van Zandt County, Texas. The easement runs generally north to south with three-fourths of the property to the west side of the pipeline and the remaining one-fourth east of the line. The land actually condemned for purposes of the easement is 50 feet wide and 1,677 feet long, leaving a remainder of 73.5 acres. The property has no • utilities, no improvements and is uninhabited ; it has been used in the past for ranching. The right-of-way easement houses a pipeline 12¾ inches in outside diameter, buried thirty-six inches under the ground. Admittedly, the gas transported contains approximately 3.2 percent hydrogen sulfide, a lethal poison. It is the dangerous nature of the contents of this line and the fear created by its presence on the land which generates the entire controversy of this appeal. In answer t'o special issues, the jury found: (1) the per acre value of the property actually taken for the easement before the taking was $405.00; (2) the per acre value of the property actually taken for the easement after the taking was $48.00; (3) the per acre value of the remainder before the taking was $405.00; and (4) the per acre value of the remainder after the taking was $175.00. However, the lowest value of the remainder after the taking testified to by any witness was $200.00. Accordingly, appellees remitted $25.00 per average acre of the damage to the remainder, and the court, upon appellees’ motion, amended the answer to special issue number four to read $200.00 per average acre instead of $175.00. Upon this verdict— that the 1.5-acre tract taken for the easement was damaged $357.00 per acre and the 73.5-acre remainder was damaged $205.00 per acre, the trial court rendered judgment for appellees in the amount of $15,603.00, less deposits. Appellant contends the jury placed the market value of the land very low after the pipeline was installed as a result of improper influence on them arising out of error on the part of the trial court in allowing certain inflammatory and prejudicial evidence to be presented. We affirm the trial court. This case involves the same appellant and the same pipeline as another case decided this same day styled Delhi Gas Pipeline Company v. Mangum et ux., Tex. Civ. App., 507 S.W.2d 631. Reference will frequently be made to the Mangum case for the applicable law and its explanation as previously determined by us. Appellant’s first point of error is directed at the appellees’ witness, Robinson, a real estate appraiser. As in the Mangum case, the appellant made objection that Robinson’s testimony was hearsay and as such, inadmissible. The objection was overruled and he was permitted to tell about a pipeline rupture which took place near Edgewood, Texas, approximately three miles from defendants’ property. Robinson related how the Tommy Reid family, who live near the place of the rupture, smelled gas during the night and escaped from their home only to return after the line was repaired and find their pets dead. Two dogs and a cat were killed, along with ten head of cattle in the pasture. The Reid family also suffered considerable damage from tarnished metal fixtures in their home. In our decision in the Mangum case, this day delivered, we held the admission of this hearsay evidence to be reversible error. However, in the instant case another witness, Parkinson, appeared and testified as an eye witness. No objection was made that Parkinson was testifying from hearsay and he gave approximately the same account of what happened as did Robinson. Appellant’s third point of error complains of testimony given by the appellees’ witness, Lahecka, concerning the contents of certain Railroad Commission reports. Lahecka was put on the stand as an expert in transportation of petroleum products. His testimony covered a variety of related areas, concentrating primarily on the dangerous nature of natural gas transmission pipelines. When asked about the pipeline leaks Delhi had reported to the Railroad Commission, the following took place: “MR. ELLIOTT: I asked him if he had been down to Austin and to the Utilities Commission. “THE COURT: I would overrule the objection and ask you to answer. “A. Yes, I have been in the Utility Division of the Railroad Commission in Austin. “Q. Has the Delhi Gas Pipeline Company reported leaks on their line ? “MR. HARTMAN: That’s the objection we make, Your Honor. It is rank hearsay and not the best evidence of what was done. It’s just a case of testifying to what he may or may not have seen, and it is complete hearsay. “Q. You are testifying to what you saw, aren’t you, Mr. Lahecka ? “A. That is correct. “THE COURT: Objection overruled. “MR. HARTMAN: Note our exceptions. “Q. Did you see reports of leaks by the Delhi Gas Pipeline Company to the Railroad Commission? “A. Yes, I did. “Q. And of course, you have compared the Pan American line to the Delhi Line. Are you aware of any leaks that occurred on the Pan American Line ? “A. The one that I am aware of is the one that occurred — I didn’t look at the report on the Pan American Line, but the fact that I was on the ground and saw where the line had had a leak north of town here, did show me that in this area they did have a leak, and that occurred.” It appears to us that both objections of appellant were well taken. The best evidence rule is most frequently applied in the case of written instruments. In applying the rule with respect to proving the contents of a written instrument, it is uniformly held that the instrument itself is the best evidence of its contents. Accordingly, the contents of an instrument in writing may not ordinarily be proved by parol evidence or by a mere copy of the instrument. 23 Tex.Jur.2d sec. 217. Furthermore, the hearsay rule is just as applicable to statements in writing as it is to oral statements. 24 Tex.Jur.2d, Evidence, sec. 562. Oral testimony based on entries contained in books or reports, without producing the source of such information or showing a legally valid reason for their non-production, is hearsay. 24 Tex.Jur.2d p. 66, sec. 562; Howard v. State, 35 Tex. Cr.R. 136, 32 S.W. 544 (1895). Even though error has been shown in the trial of the cause, it yet must be proven harmful before we can upset the trial court judgment. Lahecka had earlier testified, without objection, that this type of pipeline does rupture and explode as a matter of record. The objection to the admission of evidence is waived where similar evidence is admitted without objection. State of Texas v. Curtis, 409 S.W.2d 622 (Tex.Civ.App., Waco, 1966, n.w.h.) ; Lone Star Gas Company v. Mitchell, 407 S.W.2d 543 (Tex.Civ.App., Tyler, 1966 n.w.h.); Rowe v. Liles, 226 S.W.2d 253 (Tex.Civ. App., Waco, 1950, writ ref.). Moreover, the rule is well established in this State that the trial court’s admission of evidence over objection is deemed to be harmless if the objecting party permits similar evidence to be introduced without objection. Medina Electric Cooperative, Inc. v. Ball, 368 S.W.2d 227 (Tex.Civ.App., San Antonio, 1963, n.w.h.) ; Rowe v. Liles, supra; 23 Tex.Jur.2d, sec. 208, p. 320. Question of whether error, if any, probably caused rendition of an improper judgment must be determined by the appellate court in the exercise of its sound discretion from the record as a whole, including the state of the evidence. Rule 434, Texas Rules Civil Procedure; Carter v. City of Tyler, 454 S.W.2d 771 (Tex.Civ.App., Tyler, 1970 writ ref., n.r.e.) ; Purvis v. Johnson, 430 S.W.2d 226 (Tex.Civ.App., San Antonio, 1968, n.w.h.). The burden of proving harmful error rests squarely on the shoulders of the appellant. City of Galveston v. Hill, 151 Tex. 139, 246 S.W.2d 860 (1952). Appellant has failed to demonstrate that such testimony was calculated to cause, and probably did cause the rendition of an improper judgment. Rule 434, T.R.C.P. Appellant’s points one and three are overruled. Finally, appellant alleges the trial court erred in permitting appellees’ witness, Parkinson, to testify that a pipeline had ruptured on his property in Edgewood, Texas, killing livestock and causing damage to his daughter’s house, over objection that such testimony had not been shown to be material to the market value of the property involved in the present case. Essentially the appellant is claiming that the requisite degree of similarity has not been shown between the two pipelines prior to the introduction of evidence about the ruptured line. When discussing this point in the Mangum case, we held: “ * * * We believe that evidence that two pipelines are generally similar in their important or essential characteristics so that they are alike in the main, or with regard to the overall picture, must be presented before evidence of a rupture or explosion of one of them may be offered in a condemnation case such as this.” Examination of the record reveals that appellees’ witnesses, Lahecka, Robinson and Parkinson, gave testimony for purposes of showing the similarity between the two pipelines. A partial list of the factors considered on both lines included the use of x-ray welded joints, outside wrapping of the lines, the size of the lines, the type of product transported, the pressure of the lines, the type of pipe used, the use of rust inhibitors inside the pipe, the installation of cathodic bed protection, the use of lock valves, the use of monitoring systems and the location and distance between the point of the rupture on the Pan American line and the appellees’ property. Appellant raised no objection to the qualifications of the witnesses to give such testimony. Although we recognize other important considerations could exist, the degree of similarity was such that we find no clear abuse of discretion on the part of the trial judge in admitting the evidence concerning the Pan American rupture. Each of appellant’s points has been considered. In our opinion neither presents reversible error and accordingly they are overruled. Finding no reversible error, the judgment of the trial court is affirmed.