State v. Cherry

• Citation: 387 S.W.2d 149
• Decision Date: 08 January 1965
• Docket Number: No. 16493,16493
• Parties: The STATE of Texas, Appellant, v. James W. CHERRY et al. (1963 Pontiac Automobile), Appellees.
• Court: Texas Court of Appeals

Page 149

387 S.W.2d 149

The STATE of Texas, Appellant, v. James W. CHERRY et al. (1963 Pontiac Automobile), Appellees.

No. 16493.

Court of Civil Appeals of Texas, Dallas.

Jan. 8, 1965.

Rehearing Denied Feb. 19, 1965.

Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for appellant.

June R. Welch, Dallas, for appellees.

BATEMAN, Justice.

This is a suit by the State of Texas for forfeiture of a 1963 Pontiac automobile alleged to have been used in the transportation, concealment and possession of contraband narcotics. The suit was pursuant to Art. 725d, Vernon's Ann.Penal Code. The car was seized on July 3, 1963 while in the possession of James W. Cherry. On September 4, 1963 the State filed its petition entitled 'Notice of Seizure and Intended Forfeiture,' alleging Cherry to be the record owner.

At the time of the seizure the automobile bore Georgia license plates. It was seen by two Dallas city policemen at about 4:00 o'clock in the morning being operated at a high rate of speed. When they overtook the car a preliminary search for weapons revealed a bottle of pills on Cherry's person, which led to further search and the discovery of narcotics in the car. The Dallas police then undertook to ascertain from the appropriate department of the State of Georgia who the licensed owner of the automobile was. Correspondence between Dallas and Atlanta, Georgia began shortly after July 3, 1963 and apparently ended with receipt by an Assistant District Attorney of Dallas County of a letter dated August 19, 1963, from the Department of Revenue, Motor Vehicle Unit, State of Georgia, which revealed that, although license plates for the car in question had been issued to James W. Cherry, no certificate of title had been issued to him because his application was not accompanied by a Manufacturer's Statement of Origin. Georgia notified the Assistant District Attorney by letter dated August 15, 1963 that Cherry's application did not show the name of any lien holder.

Although not named as a party, Edytha Pollock Cherry filed an answer in which she denied under oath that the automobile was used in violation of Articles 725b, 726d and 725d of the Penal Code of Texas. Her testimony established without dispute that she was the owner of the car, having purchased it prior to her marriage to James W. Cherry. She resided in Alabama and knew nothing of Cherry's efforts to register the car in his own name in Georgia. The purchase price of the car was fully paid.

L. C. Johnson intervened in the suit claiming a valid lien on the car given him by Edytha P. Cherry. His undisputed testimony showed that after the seizure of the automobile and arrest of Cherry on July 3, 1963 he had become surety on several bail bonds for Cherry and that to secure himself against loss thereon he had obtained from Mrs. Cherry a bill of sale to the automobile dated July 26, 1963. In addition to this bill of sale, Johnson introduced in evidence an instrument also dated July 26, 1963, consisting of a promissory note signed by James W. Cherry payable to Johnson in the sum of $3,500 and a chattel mortgage on the automobile. He also testified that when he first became interested in the matter the automobile was in possession of the Dallas Police Department, that he discussed the matter with Mr. John Orvis, Assistant District Attorney of Dallas County, telling him that he was contemplating taking the automobile as security on the bonds, and that Orvis told him that he had had no notification that any forfeiture was to take place and that he felt that if there was going to be a forfeiture it would already have been filed because Cherry had then been in jail about a month; that Orvis told him that forfeitures had to be filed immediately and, since it had been almost thirty days since the seizure, he didn't see how they would file a forfeiture on it, and that he 'didn't have time to fool with those things until they were actually presented' to him.

John Orvis, Assistant District Attorney of Dallas County, testified that he told Johnson and his attorney that he did not have the case and did not know if it would be turned over to the Federal authorities or if it would be referred to his office; that his office had not accepted it and that he had no power whatsoever to release the automobile; that he did not tell Johnson that no forfeiture proceedings would be filed; that he had no discretion at that time either to accept the case or release it. Orvis also testified that this matter was referred to his office about the middle of August 1963, which was during vacation time, that pleadings were drawn and sent back to the Dallas Police Department for the signature and oath of the seizing officer, and were returned to his office 'around about Labor Day, 1963.'

The jury found in response to special issues: (1) through (6) that immediately before its seizure the automobile in question was being used to transport, conceal and possess certain narcotic drugs; (7) that they did not find that James Walter Cherry was the owner of the automobile on July 3, 1963, but (8) that Edytha Pollock Cherry was; (9) that there was no lien on the automobile on July 3, 1963; (10) that after seizure of the automobile John Orvis did not represent to L. C. Johnson that the State of Texas would not institute proceedings to forfeit such automobile; (14) that S. O. Sorsby (the seizing officer) failed to file a notice of seizure of the automobile in question immediately with the Clerk of the District Court of Dallas County; (15) that L. C. Johnson accepted the automobile in question as security for bail bonds made by Cherry in reliance upon the failure of the State of Texas to file notice of forfeiture immediately after the seizure of the automobile; (16) that the State did not waive its right to forfeit the automobile in question; and (17) that $1,855 was still owing and unpaid by Cherry and wife for the making of bail bonds by L. C. Johnson. Appellant moved for judgment on the verdict, which motion was overruled, and the court rendered judgment that appellant take nothing by its suit, that the forfeiture be denied and that appellant deliver the automobile to Edytha Pollock Cherry, owner, or to L. C. Johnson.

The appellant contends under four points of error that the undisputed facts, together with the jury findings in response to Special Issues 1 through 6, clearly establish the right of appellant under the provisions of Art. 725d, V.A.P.C., to the forfeiture, despite the other findings. The appellees contend, on the other hand, that appellant did not fully comply with the requirements of Art. 725d, in that (1) it did not ascertain and notify the owner and lien holder, as required by Subsections (c) and (d) of Section 4 of the Act, and (2) the forfeiture notice was not filed 'immediately', as provided in the first sentence of Section 4 of the Act, arguing that the provisions of a forfeiture statute must be strictly construed and that under such strict construction the State must be held to have lost its right of forfeiture.

This statute was carefully analyzed by our Supreme Court in State v. Richards, 157 Tex. 166, 301 S.W.2d 597. As points out therein, the language of the first clause of Section 2 is sufficiently broad and comprehensive to require the forfeiture of the property rights of all persons interested in a vehicle used in the transportation of contraband drugs, regardless of their complicity or innocence of any wrongdoing; and that provision is then made for the protection of innocent common carriers, bona fide lien holders and owners whose vehicles are unlawfully taken from them by the wrongdoer. It was held in that case that an automobile loaned by an innocent owner to one who used it unlawfully in this respect was subject to forfeiture, and that the...