43 Cal.2d 553 (1954)
THE PEOPLE, Respondent,
v.
HENRY C. SIMPSON, Appellant.
Crim. No. 5547.
Supreme Court of California. In Bank.
Oct. 26, 1954.
 Norman Leonard, under appointment by the Supreme Court, for Appellant.
 Edmund G. Brown, Attorney General, Doris H. Maier and Frederick G. Girard, Deputy Attorneys General, for Respondent.
 CARTER, J.
 Henry C. Simpson and Clarence Eugene Simpson were jointly charged by indictment with the murder of Vivian Simpson on or about March 10th, 1953. Clarence Simpson, being 13 years of age, was certified to the juvenile court and proceedings against him suspended. Defendant pleaded not guilty and not guilty by reason of insanity. After a jury trial, he was found guilty of murder in the first degree without recommendation; he was also found sane at the time the crime was committed. Defendant's motion for a new trial on both pleas was denied. The appeal is automatic (Pen. Code,  1239, subd. b).
 The theory of the prosecution, in essence, was that Henry Simpson counseled, advised, and encouraged (Pen. Code,  31) his 13- year-old son, Clarence Simpson, to kill Vivian Simpson, the wife of Henry and mother of Clarence; that such crime was the result of premeditation and planning over a period of time on the part of Henry, Clarence, and a 14-year- old school friend of Clarence, one Jimmie Jones. Defendant and Clarence both deny the planning and premeditation, although Clarence admits aiming the gun at his mother and killing her with one shot through the chest. It is the main contention of the defendant that the testimony of Jimmie Jones, being an accomplice, is uncorroborated. Defendant denied that there was a plan made with Clarence and Jimmie to kill Vivian and claimed that Jimmie told him the gun went off when Clarence stumbled over a stake.
 Background
 Henry Simpson and Vivian Dodge met in 1937, or 1938, in Porterville, California, and shortly thereafter commenced living together. Both parties had been previously married and Vivian had an infant son. Donald Dodge, living with her. In 1939, Clarence was born and in 1942, the couple were married. Two other sons, Billy and Gary, were subsequently born to them. The Simpsons moved several times selling, at different times, grocery stores, an auto court, and a poultry ranch until 1952 when Henry traded a ranch near Escalon for a home at 1117 Herndon Road, in Stanislaus County. *557 The Simpsons lived in this home until March 10, 1953, the date of the murder of Vivian. During this period, defendant bought a lot north of the family home and remodeled and rebuilt a house there. He traded that house for another on Holm Avenue which he was engaged in repairing and remodeling. During the period of time the couple lived together, Vivian worked at different occupations--in an olive plant, canneries, grocery stores, and as a domestic helper for two different women after the couple moved to the Herndon Road property. The relationship between the couple was not harmonious and the evidence shows numerous quarrels and abuse on the part of both. Defendant testified that Vivian was "No good" and a "whore"; that she had sexual relations with other men; that she beat and threatened the children. At one time Vivian had defendant arrested for threatening her with a deadly weapon at which time she left him for several weeks; at another time, defendant commenced a divorce action against Vivian but subsequently dismissed it. At still another time, defendant had a warrant issued for Vivian's arrest because she had been beating the children; a witness testified, however, that the action was taken to "get even with her" for having had him arrested. About this time, defendant commenced another divorce action and the children were placed in the custody of the juvenile court. Both the criminal action and the divorce suit against Vivian were dismissed and the children were returned to the couple who started living together again.
 Such was the background to the events which culminated in the shooting of Vivian on March 10, 1953.
 Testimony of Jimmie Jones
 Jimmie Jones testified that on Friday afternoon, March 6, 1953, he, defendant, and Clarence were at the Holm Avenue house which defendant was engaged in remodeling. Jimmie testified that defendant told him he wanted him, Jimmie, to be a witness for him and Clarence--that they were going to kill Vivian. According to Jimmie's story, it was first suggested that Clarence use a baseball bat to kill his mother and then put a knife in her hand to make it look like self-defense. This plan was rejected by the boys. It was then suggested that a fishing trip be planned for a week from the following Saturday; that the boys bring a rifle into the house, pretend to be cleaning it, and that Clarence would "accidentally" shoot his mother. Jimmie testified that he spent most *558 of the following day, Saturday, with Clarence and defendant, and that defendant again brought up and discussed the plan for killing Vivian. On Monday, March 9, Jimmie again spent most of the day at the Simpson home and defendant again reiterated the plan to kill Mrs. Simpson. The witness also testified that defendant told them repeatedly that they would have to kill Vivian, or she would put them in jail, or "get them." (The jail threat was based on an accusation allegedly made by Mrs. Simpson that he and Clarence had stolen a watch and some money from the Curtis home where she worked when they had been there waiting to take her home in the car driven by defendant.) Jimmie testified that defendant had told them that if they committed the killing nothing would happen to them, but "to leave him out of it so he could get us a lawyer and after it was over he would get us a car and a gun and we would go on a trip that summer and have a lot of fun and everything"; for them to stick to their story (of an accidental shooting) and that "after it was over and we stuck to our story and everything came out all right, he would get us a car, a gun, and going to take us on a trip that summer, back to Arizona and Nevada, or some place back there. ... We were going to have a lot of fun fishing and stuff, and catch horses. ... Yes, wild horses, and bring them out here." He also testified "... he told us when we went on a fishing trip, to bring the gun in the living room and kind of wrastle around over it and we would accidentally shoot Mrs. Simpson. That was to be done on the following Saturday."
 Jimmie testified that on Monday, March 9, he and Clarence, at defendant's bidding, took the gun out of the house and across the alley and put it in between the rafters and wall of a house which was being built by a man by the name of "Bill" (later identified as one Bill Christian) to hide it; that later that night he and Clarence got the gun from its hiding place and put it in defendant's truck.
 Concerning the day of the murder, Jimmie testified that after school, about 4 o'clock, he and Clarence went to the Simpson home and did the chores; that they went to the Holm Avenue house where defendant was working and that defendant again repeated the plan to them. After supper, the boys rode their bicycles to Roy Lutz' house to see if Mrs. Simpson was there; that after returning from there they "went in the house and went in and laid down on the boys' bed and were reading books of some sort when the smallest boy, Gary, came *559 in and told Clarence and I that Mrs. Simpson had a box of important papers that belonged to Mr. Simpson, or something, and Clarence walked over to her bedroom and pulled the curtains back and asked her what she was doing with it. She said that she was just looking them over, that they belonged to both her and Mr. Simpson, that both of them had a right to look at them; that Clarence wasn't the boss of her."
 "Then she went out of the living room and Clarence--or Gary went in and got the box and brought it in to me where there was a broken window in the bedroom. I gave it to Clarence outside of the window and he put it under an old screen or something outside the house. Then we went back to the house, sat down on the lounge." Jimmie testified then that Mr. and Mrs. Simpson began arguing about their property, or deeds, and finally when defendant went outside and the small boy, Gary started to follow him, that Mrs. Simpson followed the defendant and Gary outside; that Clarence and he also went out to the carport. He stated that "Just before Mr. Simpson started to go out he called Clarence and I out and told us we would have to do it that night. He didn't give us any reason except she was going to get us if we didn't get her, we would have to do it that night. Then he took the two boys and went down to the neighbors. ..."
 "He went to the neighbor's. They were neighbors by the name of Bill--Bill Parker, I think, something like that ... Clarence and I followed him down. When we got there Clarence said something about, 'Do we have to do it now,' or something. Mr. Simpson was talking to Bill, we couldn't hear the conversation. ... I don't remember the exact words he said. All I heard was 'do it now.' And Mr. Simpson, when he was through talking to Bill--well, went back up to the house, then he went in. We followed him in. Then they started--then the quarrel started over Gary. ... Then after they were out on the porch, Clarence and I followed them out. ... Mr. Simpson started to go outside; Gary went to follow him. Mrs. Simpson picked him, said he could stay with her, and Mr. Simpson said if he wanted to go with him, if Gary wanted to go with him, to let him come. Then Mrs. Simpson said 'No, he could stay with me.' Then Gary got away from Mrs. Simpson, was crying to go with Mr. Simpson, so I took him out in the kitchen to get a drink. Mr. Simpson went outside, Gary followed him out. Mrs. Simpson went out to get Gary and she took ahold of one arm of Gary and Mr. Simpson had the other; they were having a tug of war over Gary. I looked *560 at Clarence, he started running towards the truck so I turned and followed him. He opened the door and started to get the gun out. It was ... just the hand[le] of it was sticking out, and he said he couldn't get it. I took ahold of it, it came right out, so I took ahold of the cloth and he took the gun and run up the pathway. ... There was a cloth wrapped around the gun. Then he run by the pathway there right alongside the clothesline and I went over by the ashcans. Mrs. Simpson turned, walked over to the west edge of the carport ... looked around. I looked over at Clarence just in time to see him raise the gun and fire. ... Well, I seen him raise it to his shoulder and aim and he fired. Mrs. Simpson turned a little bit and hollered, 'Hank, I'm hit, I'm going to die.' Went over to the east edge of the carport and fell down. Clarence and I run up there. Clarence tossed the gun up against the house and Mr. Simpson came over and bent down over Mrs. Simpson to feel of her face or something. When he stood up, Clarence said, 'Is she dead? Did it work?' He said, 'I'm afraid so, son, I'm afraid so.' ... Then Mr. Simpson says, 'You tripped over that stake there, didn't you Clarence?' He said, 'Yes.' He said, 'Well, stick to that,' he said. 'Did you eject the cartridge?' Clarence said, 'Yes.' He said, 'What did you do that for?' He said, 'I don't know.' Mr. Simpson said, 'Oh, well, it's all right now,' he said, 'you stick to the story. They can't do anything to you. Be sure to put on a good sob story, and leave me out of it.' Then he went over to the neighbor's. While he was gone Clarence and I went out, walked around looking for the shell. We couldn't find it, so we went over and told ... I told Clarence if we were going to stick to that story, he had to put his foot up against the horseshoe peg. After we got through doing that we came back. The neighbor came back with Mr. Simpson. ..." He also testified that after the officers had questioned them, Mr. Simpson told them that they were to stick to their story, that they were all in it together, "that if one of us said anything, we were just wringing our own neck. So he said stick to that story, they couldn't prove anything." On vigorous cross-examination, he testified to substantially the same conversations having taken place.
 Clarence's Testimony
 Clarence Simpson, defendant's son, testified in substantially the same vein as Jimmie Jones up until the point where he is supposed to have asked if he was "to do it now." His testimony at the trial was that Jimmie said to him "We better *561 go get the gun"; that he couldn't get it out of the truck, but Jimmie did and handed it to him saying "Go ahead and use it"; that he then walked a ways and shot his mother because "she was going to get rid of my little brother and Jimmie told me to; I lost my head." Clarence then testified that Jimmie told him that "you better say you stumbled over the stake." Clarence, while admitting association with Jimmie and his father at the times testified to by Jimmie, denied that there had been any plan of any kind made to kill his mother. He admitted taking the gun and hiding it in the half finished house belonging to a neighbor. He testified that he told Jimmie that he didn't think the officers would believe the story they had told and that Jimmie said, "Well, we better tell that your Dad put us up to it, we had this all planned up, that we was going to go fishing on Sunday and on Saturday we was going to hold the gun and fool around with the gun in the house and make it look like an accident, then we could say that my Dad just put it off and told us to do it that night."
 A statement made by Clarence on March 12, 1953, in the district attorney's office was admitted for the purpose of impeaching testimony given by him at the trial. In that statement, Clarence said that he and his father had been planning the "accident" for two weeks; that his dad had wanted the boys to do it and that he, defendant, did not want to be around when it was done. He also stated that on Tuesday night, the defendant had said that maybe they ought to "do it tonight, get it over with." In his statement, Clarence said that his mother was going to kill him and that he shot her in self-defense and also that he had shot her accidentally because he had stumbled; that it was not self-defense and that he had not stumbled. He also stated that for over a month his father had been telling him that his mother would have to be killed before she killed Clarence; that the plans were all made, but that he wasn't going to go through with it.
 Defendant's Testimony
 Defendant denied having made any plans with either his son or Jimmie Jones. Concerning the occurrences on the night of the killing, he testified that his wife was having an argument with Jimmie when he came home and that the argument then turned into abuse of him, the defendant; that he went to Mr. Parker's home and tried to get him to go home with him; that Clarence and Jimmie came running after him; that Jimmie said Mrs. Simpson was after him with a gun. He then testified that he and the two boys went back to the *562 Simpson home where an argument started over Gary; that it was dark; that he heard a shot and his wife say "O, my God, I'm dying"; that he couldn't see; that he didn't know of his own knowledge who fired the shot; that Jimmie Jones told him that "the gun went off accidental, Clarence stumbled over that horseshoe peg"; that he then ran over to the neighbors (Bishop) and told them to get a doctor for his wife. He testified that after the officers whom Bishop had called left, he went to Mr. Johnson's (brother- in-law of defendant) home.
 Other Testimony
 Officer McDaniels testified that on the night of March 10, 1953, he went to the Simpson home where he found the lifeless body of Vivian Simpson. He testified that Clarence told him that he had tripped over a peg and discharged the rifle; that defendant had told him either that the boy tripped over the stake or that the boy had told him (Simpson) that he had tripped.
 Johnson, brother of the deceased Vivian Simpson, testified that on the night of the killing, defendant came to his home and said he had some "sad news"; that "Sonny shot Vivian while he was cleaning the gun to go fishing"; that she was "pretty bad hurt" but professed not to know what hospital she was in; that the man with defendant (identified later as Mr. Bishop) told him she was in a funeral parlor.
 On the morning after the murder, a Mrs. Myrtle Coldwell called at the Simpson home to offer to take care of the children. She testified that the defendant told her that he didn't know why the boys had to go out and get the gun when he wasn't there; that his wife had been standing at the sink while the boys were in the room cleaning the gun behind her when it went off.
 Corroboration of Jimmie Jones' Testimony
 Defendant contends that the testimony given by Jimmie Jones is inherently improbable and that it was not corroborated by other evidence tending to connect the defendant with the crime. (Pen. Code,  1111.)
 [1, 2] In answer to defendant's contention that Jimmie Jones' testimony was inherently improbable, the rule is well settled that to warrant the rejection of the statements given by a witness who has been believed by a jury, or trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions (People v. Huston, 21 Cal.2d 690, 693 [134 P.2d 758]), and it is the exclusive province of the *563 trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends (Hicks v. Ocean Shore Railroad, Inc., 18 Cal.2d 773, 781 [117 P.2d 850]). [3] Although the facts disclosed by the testimony given by Jimmie certainly disclose "unusual circumstances" (Kidroski v. Anderson, 39 Cal.App.2d 602, 605 [103 P.2d 1000]), it cannot be said that it was a physical impossibility for such facts to be true.
 [4] Section 1111 of the Penal Code does not require that an accomplice be corroborated as to every fact to which he testified but only that the corroborative evidence tend to connect defendant with the commission of the crime in such a way as reasonably may satisfy a jury that the accomplice is telling the truth (People v. Barclay, 40 Cal.2d 146, 156 [252 P.2d 321]; People v. Santo, ante, pp. 319, 327 [273 P.2d 249]; People v. Wayne, 41 Cal.2d 814, 822 [264 P.2d 547]). [5] Proof of the elements of the crime, as contrasted with proof of the connection of defendant with the commission thereof, may rest upon the uncorroborated testimony of an accomplice (People v. Harper, 25 Cal.2d 862, 876, 877 [156 P.2d 249]; People v. Barclay, supra).
 Mrs. Mary Christian, a neighbor of the Simpson family, testified that about a year prior to the murder, she, her husband, and Mr. Simpson had taken a trip to Atwater in the Christian car; that on that trip, defendant showed her a gun he was carrying and said that he would have to get rid of his wife and that "It's going to be an accident." Mrs. Christian testified that on Monday evening, March 9, the defendant told her that "Clarence would have to kill her [Vivian] because she was not supposed to live any more, he couldn't get along with her"; and that he told her if "you hear 'Pop,' you don't know nothing about it."
 Bill Christian, husband of Mary, confirmed his wife's testimony concerning the Atwater trip and testified that defendant said then that his wife had to be killed and that Clarence would kill her. He also testified concerning the hiding of the gun in the house he was rebuilding and stated that when Clarence, Jimmie, and the defendant came back to where the gun was hidden, defendant said to him "Bill, we're going to have to kill that woman," and "Clarence is going to have to kill her."
 Donald Dodge, the 16-year-old son of the deceased woman, testified concerning the quarrels between defendant and his wife and also concerning various threats made by defendant *564 to deceased. He stated that defendant had told Vivian, sometime prior to the killing, that he was going to drop the tailgate off the cattle truck on her and make it look like an accident; that defendant said to Vivian "I'm going to kill you and make it look like an accident. I'll have Clarence do it."
 [6] False and contradictory statements of a defendant in relation to the charge are themselves corroborative evidence (People v. Taylor, 70 Cal.App. 239, 244 [232 P. 998]; People v. Santo, ante, pp. 319, 327 [273 P.2d 249]). Defendant made various contradictory statements: that Clarence had stumbled over a stake and accidentally shot his mother; that he didn't know which one of the boys shot the gun; that Clarence shot his mother accidentally while cleaning the gun preparatory to going on a fishing trip. Mrs. Coldwell testified that defendant told her that Mrs. Simpson had been standing at the sink, with her back to the boys, and that the gun went off accidentally while it was being cleaned.
 [7] The evidence just set forth is sufficient to connect the defendant with the crime in such a way as reasonably may satisfy a jury that the accomplice is telling the truth. It is not necessary that the accomplice be corroborated as to every fact to which he testified. (People v. Barclay, supra.) [8] Briefly summarized, the corroborative evidence considered together with the facts heretofore set forth, shows that during the marital life of the parties, defendant had abused his wife, had threatened to kill her, and, for more than a year prior to the killing, had planned to have Clarence commit the crime and make it look like an accident. For this reason, the cases of People v. Petree, 109 Cal.App.2d 184 [240 P.2d 327], (see People v. Jordan, 115 Cal.App.2d 452 [252 P.2d 328]) and People v. Lima, 25 Cal.2d 573 [154 P.2d 698], relied upon by defendant, are not in point. Defendant relies upon the rule set forth in those cases that if the corroborative evidence raises only a suspicion of guilt it is not sufficient under section 1111 of the Penal Code. The rule as stated by defendant is correct, but the corroborative evidence heretofore set forth does more than raise a suspicion of guilt on the part of defendant and is ample to connect him with the crime and satisfy the jury that the accomplice told the truth.
 Instruction on Reasonable Doubt
 It is contended by defendant that the following instruction, given at the request of the People, had the effect of placing upon defendant the burden of proving his innocence and removing *565 from the People the burden of proving his guilt, and that he has been prejudiced thereby.
 "In a criminal case, the jury should not find the defendant guilty of any offense unless his guilt is established by the evidence to a moral certainty and beyond all reasonable doubt, and the burden is on the prosecution to establish such guilt."
 "The law presumes every man innocent until his guilt is established to a moral certainty and beyond all reasonable doubt, and this presumption attaches at every stage of the case, and to every fact essential to a conviction."
 "Reasonable doubt is defined as follows: 'It is not a mere possible doubt; because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt.' It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge."
 "While presumptions of law, independent of evidence, are in favor of innocence, and every man is presumed to be innocent until proven guilty, yet if the evidence establishes the truth of the charge to a reasonable moral certainty, a certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are to act conscientiously upon it, it is your duty to find the defendant guilty. The law does not require demonstration or that degree of proof which excludes all possibility of error and produces absolute certainty. Such proof is rarely available. Moral certainty only is required or that degree of proof which produces conviction in an unprejudiced mind."
 "The term 'reasonable doubt,' as used in these instructions, means a doubt which has some good reason  [fn. *] for its existence arising out of evidence in the case  [fn. *]; such doubt as you are able to find a reason for in the evidence.  [fn. *] As applied to the evidence in criminal cases, it means an actual and substantial doubt growing out of the unsatisfactory nature of the evidence  [fn. *] in the case. It does not mean a doubt which arises from some mere whim or vagary or from any groundless surmise, suspicion or guess."
 [9] While the court was not restricted to the reading of section 1096 of the Penal Code defining reasonable doubt (see People v. Derenzo, 46 Cal.App.2d 411, 416 [115 P.2d 858]; *566 People v. Eggers, 30 Cal.2d 676, 688 [185 P.2d 1]; People v. Castro, 68 Cal.App.2d 491, 496-500 [157 P.2d 25]), it would perhaps have been better practice to have done so. [10] The last paragraph of the instruction here complained of was not necessary to the definition of reasonable doubt, and, in the absence of the previous portion of the instruction, could have been confusing to the jury. The reasonable doubt prescribed by statute may well grow out of the lack of evidence in the case as well as the evidence adduced. We do not feel, however, that under the circumstances here prevailing the jury could have been confused, or the defendant prejudiced, by the emphasized portions of the instruction.
 Prejudicial Misconduct of District Attorney
 It appears from the record that defendant consulted Mr. Pierson, the deputy district attorney who prosecuted the case for the People, on June 14, 1952, relative to a divorce from his wife, Vivian. The divorce action was never tried since the couple were reconciled in October. Prior to the reconciliation, in August, defendant secured another attorney to represent him.
 It is contended by defendant that from the prior representation, Mr. Pierson gained superior knowledge of his affairs with his wife, Vivian, and that the prejudice resulting to him from this superior knowledge was demonstrated during Mr. Pierson's cross-examination. Defendant cites several examples of this cross-examination but does not show how it could have resulted to his prejudice. [11] An illustration concerns certain letters defendant introduced in evidence. These letters were four of apparently a number of letters written to him by Vivian at one time when she had left him and were introduced to show that she was reconciled with him and that they could live together harmonously. Mr. Pierson asked defendant why he had kept only four of the letters and defendant contends that the question implied that Mr. Pierson knew of other letters of a different tenor. In answer to Pierson's question, the defendant replied that Pierson had advised him that the four were all that would be needed for evidence. It is contended that this answer "reinforced" the unfavorable inference. In support of his position that the district attorney occupied inconsistent positions, defendant relies upon Valentine v. Stewart, 15 Cal. 387, Wutchumna Water Co. v. Bailey, 216 Cal. 564 [15 P.2d 505], and Pennix v. Winton, 61 Cal.App.2d 761 [143 P.2d 940, 145 P.2d 561]. In the Valentine case, the attorney had represented the government in a land claim *567 contest. The court held that he could not, afterward, render any assistance to those seeking to maintain the land claim. In the Wutchumna Water case, (page 574) the attorney had for a great many years represented one party in a controversy and subsequently appeared as counsel for the other party in civil litigation. The court enjoined him from so acting, holding that he would be appearing practically on the opposite side of a controversy in which he formerly represented the appellant and also that he could not but use confidential knowledge and information gained by virtue of that former relationship. In the Pennix case, an action for personal injuries was involved. The defendant's attorney showed that he had formed an intent to act solely in the interest of defendant's insurance carrier even to the extent of accusing defendant (his client) and plaintiff of being in collusion with the intent to defraud the insurance company. It was held that prejudicial error had occurred and the case was reversed. In People v. Spencer, 61 Cal. 128, the attorney who drew the indictment for the criminal charge, represented the defendant at the trial. The court held that there could not be such an assumption of inconsistent positions.
 It would appear that the cases cited by defendant are not similar to the situation under consideration. Here, Mr. Pierson had represented defendant briefly in a divorce action which did not come to trial but was dismissed, and defendant had procured other counsel for another divorce action prior to the time at hand; that action, too, was dismissed. It should also be noted that no objection was made by defense counsel at the time the matter was made known in the trial of the case at bar. Neither was objection made at that time that it was Mr. Pierson's "superior knowledge" that prompted him to question defendant concerning the other letters which had not been introduced in evidence by the defendant.
 [12] It is also argued that on another occasion, Mr. Pierson challenged the veracity of the defendant and stated that "If he [defendant] keeps it up, I'm going to have to take the stand." The transcript shows that during Mr. Pierson's cross-examination of defendant concerning the size of a book with which defendant stated his wife had struck Clarence, defendant would only gesture and would refuse to give an answer stating that "You [Mr. Pierson] have seen it." Mr. Pierson, during a heated exchange between himself, defense counsel, and the court, stated: "In these answers Mr. Simpson is giving, I don't know whether he wants me to take the stand and answer these statements he is making about me or not. *568 If he keeps it up, I'm going to have to take the stand." It does not appear that the deputy district attorney was questioning the veracity of the witness, but that he was endeavoring to make a point for the record; that defendant did not understand what was expected of him; that Mr. Pierson meant that he would have to take the stand to testify as to the size of the book.
 [13] Another alleged prejudice suffered by defendant occurred when Pierson attempted to recall to defendant's son Billy's mind whether he had ever heard his father say anything "bad" about his mother. During the recross-examination, Mr. Pierson asked Billy if he remembered being around when his father talked to him (Pierson) and Billy replied that he did not--that he only remembered going to Mr. Pierson's office once.
 Defendant's argument that the deputy district attorney stated to the jury that he had "checked" on defendant's story and that he, Mr. Pierson, had not been "mesmerized" by defendant, is not borne out by the record. It is apparent that it was defendant who had done the "checking" and that the statement concerning "mesmerized" was a quotation from defense counsel's argument to the jury: " 'Do you think,' says Mr. Friedman, 'that he mesmerized Mr. Pierson?' " There was no assignment of prejudicial misconduct by defense counsel and, furthermore, it is difficult to see how such remarks could have prejudiced the defendant.
 [14] Still another contention that the district attorney was guilty of prejudicial misconduct is the allegation that "two pages of the transcript" were used in arguing to the jury facts not in evidence. In particular, complaint is made concerning the statement "She's going to kill your little brothers" in that there was no such testimony concerning the child Gary. Jimmie Jones testified that defendant told him and Clarence, on several occasions, that "if we didn't get her she was going to get us"; defendant himself told one Eldon Marxmiller, a witness for the People, that "I am going to get rid of her or she is going to get rid of me and the boys"; Clarence testified that one of the reasons why he shot his mother was because "she was going to get rid of my little brother." It would appear that the evidence justifiably permitted the inference that the use of the word "boys" meant all of them, including Gary.
 [15] Another allegation of prejudicial misconduct on the part of the district attorney was the following portion of his *569 argument to the jury: (Mr. Pierson allegedly quoting a conversation by Mr. Simpson to Clarence.) "Now, Clarence, you watch those papers, you see she doesn't get away with any of those papers. She's trying to get this house. She'll get those papers away, then we'll be put out, we won't have any house to go to and won't have any place to go to. We'll be out in the cold. She's trying to get you away too, in this divorce action. If we don't be careful about this, she's going to get you boys away. She'll take you away and you won't have any father any more, you won't have any house, because she's going to take it away. Not only that, she just wants to take it away. She really just wants Gary because she wants to use him for the alimony she's going to get; don't really want him. She's going to do away with you boys as soon as she gets this divorce action." [Assignment of prejudicial misconduct by Mr. Friedman, defense counsel.]
 "The Court: I think, Mr. Pierson, you were perhaps putting in an inference there. I'm quite sure that everything you said, Mr. Simpson didn't say to the little boys, it isn't in evidence."
 "Mr. Pierson: I'll withdraw my statement then, Your Honor, if there is any question about that, I'll withdraw it and ask that the jury disregard my remarks, because I certainly don't want to put anything into evidence that isn't there."
 The court thereupon admonished the jury to disregard the statement made by Mr. Pierson, and a general instruction to the same effect was also given.
 There is no direct testimony in the record concerning the statement attributed to Mr. Simpson by the prosecution. There is, however, testimony by Clarence that he asked his mother what she was doing with the box of family papers; that later he and Jimmie Jones smuggled the box out of the house; that he later told his father his mother had been going through the papers and had taken a deed, or paper, out of the box; that he was afraid his mother would take some of the papers and that his father had previously told him that she had taken some and hidden them. Donald Dodge testified that defendant and Vivian often quarreled about the custody of the children upon separation; that Vivian wanted Gary but that defendant did not agree; that the couple argued over the home property. Other evidence previously recited shows that defendant, on several occasions, pointed out to Clarence that if he didn't get his mother she would get him. We said *570 in People v. Eggers, 30 Cal.2d 676, 693 [185 P.2d 1], that "In the argument before the jury, any reasonable inference may be drawn from the evidence, and it is a matter within the discretion of the trial court to determine whether counsel stays within the permissible range of discussion. (People v. Hoyt, 20 Cal.2d 306, 318 [125 P.2d 29].)" The trial court here did not consider that "everything" Mr. Pierson said was permissible discussion and the jury was admonished, promptly, to disregard it. Under these circumstances it does not amount to misconduct which has prejudiced defendant's rights.
 [16] It is also argued that the deputy district attorney, in his argument, referred to statements admitted solely for impeachment purposes as affirmative evidence in the case. This contention is not supported by the record which shows that the impeachment evidence was contrasted to the testimony given by the witnesses when on the stand. Furthermore, there was no assignment of prejudicial misconduct at the time. References to the "malevolent power" of Mr. Simpson over Clarence which forced Clarence to "parrot the fanciful stories that Mr. Simpson had planted in his mind" were not objected to at the time they were made and no showing is now made that defendant could have been prejudiced thereby.
 [17] It is contended that a statement by the deputy district attorney that when Mr. Walters first heard about the death of Mrs. Simpson, he went to the sheriff's office to inform them, was a misstatement of the evidence. Mr. Friedman stated that Mr. Walters' testimony was that he had been sent for by the sheriff. Mr. Pierson replied that he did not recall the exact testimony and upon the court's question "Did he want to argue about it?" Mr. Pierson replied "I know the facts on it but I don't recall what the testimony was." The court then asked if he wished to concede the point and let it go, to which Pierson replied that he would not make an issue of the question. There was no assignment of prejudicial misconduct and no showing of prejudice since this particular matter was quite immaterial concerning the guilt or innocence of the defendant. The cases cited by defendant (People v. Kirkes, 39 Cal.2d 719, 724 [249 P.2d 1]; People v. Evans, 39 Cal.2d 242 [246 P.2d 636]; People v. Brophy, 122 Cal.App.2d 638, 651 [265 P.2d 593]; People v. Ford, 89 Cal.App.2d 467, 470 [200 P.2d 867]; People v. Cook, 148 Cal. 334 [83 P. 34]) are not in point. In the Kirkes case, the district attorney stated that he knew the defendant was guilty; in the Evans case, reference was made to a knife carried by the child's attacker *571 as being the same type of knife as that found in the defendant's possession. The child had been unable to describe the knife in her attacker's possession and that found in the defendant's possession was never introduced in evidence; in the Brophy case, reference was made to a bullet which was not in evidence and it was argued that a bullet which was then shown to the jury was the missing bullet and that the defendant knew that it was. In People v. Ford, supra, 89 Cal.App.2d 467, the prosecution's argument informed the jury that the defendant's coworker and acquaintance, had been convicted of the crime of theft of jewelry which had been found in his hotel room. The facts had shown that defendant and three coworkers had been employed by a furniture moving company to move household furniture from the home of the complaining witness. The jewelry in question had been kept in a dresser in that home. Upon the statement by the prosecution, the court admonished the district attorney that these facts concerning the coworker were not in evidence, but the attorney persisted and disputed the correctness of the court's ruling. In addition, an erroneous instruction was considered ground for reversal.
 In People v. Cook, supra, 148 Cal. 334, the prosecution argued to the jury that the defendant had sent one man to prison because he was engaged to his daughter and the defendant was therefore jealous and capable of killing upon the same incitement. There was no evidence of any kind pertaining to the alleged statement; the court refused to so instruct the jury and the appellate court reversed.
 In all of the cases relied upon by defendant, the damaging nature of the arguments is at once apparent.
 [18] Defendant's last contention is that the evidence does not justify the verdict. It is defendant's argument that since he did not fire the fatal, or any, shot and yet received the death penalty, the record should be scrutinized by this court with even greater care. Viewing the evidence most favorably in support of the judgment as we are bound to do, we feel that there is no merit to defendant's contention.
 The judgment and order denying a new trial are, and each of them is, affirmed.
 Gibson, C.J., Shenk, J., Edmonds, J., Traynor, J., Schauer, J., and Spence, J., concurred.
NOTES
[fn. *]  *. The emphasized portions are those concerning which complaint is made.
[fn. *]  *. The emphasized portions are those concerning which complaint is made.
[fn. *]  *. The emphasized portions are those concerning which complaint is made.
[fn. *]  *. The emphasized portions are those concerning which complaint is made.


697 S.E.2d 334 (2010)
STATE of North Carolina
v.
Charles Ralph HINSON.
No. 176A10.
Supreme Court of North Carolina.
April 23, 2010.
Anne Bleyman, for Charles Ralph Hinson.
John P. Scherer, II, Assistant Attorney General, for State of North Carolina.
Prior report: ___ N.C.App. ___, 691 S.E.2d 63.

ORDER
Upon consideration of the petition filed by State of NC on the 22nd of April 2010 for Writ of Supersedeas of the judgment of the Court of Appeals, the following order was entered and is hereby certified to the North Carolina Court of Appeals:
"Allowed by order of the Court in conference, this the 23rd of April 2010."


381 F.2d 383
Ethel COHEN, Executrix of the Estate of Harry L. Cohen, Deceased,v.The UNITED STATES.
No. 340-65.
United States Court of Claims.
July 20, 1967.

J. P. Janetatos, Washington, D. C., for plaintiff. Walter A. Slowinski and Baker & McKenzie, Washington, D. C., of counsel.
Edward B. Greensfelder, Jr., Washington, D. C., with whom was Asst. Atty. Gen. Mitchell Rogovin, for defendant. Philip R. Miller, Washington, D. C., of counsel.
Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON, and NICHOLS, Judges.
ON DEFENDANT'S MOTION AND PLAINTIFF'S CROSS MOTION FOR SUMMARY JUDGMENT
SKELTON, Judge.

1
Plaintiff, Harry L. Cohen, brought this suit to recover the sum of $10.50, plus interest, from the United States, claiming that such sum represents an overpayment by him of Federal excise tax to the Internal Revenue Service for the period from September 1, 1964 to November 30, 1964, in connection with his membership in the Woodmont Country Club (hereinafter called "Club"), at Rockville, Maryland. After this suit was filed, plaintiff, Harry L. Cohen, died and the Executrix of his estate, Ethel Cohen, was substituted as plaintiff.

2
The Club was a social, athletic, and sporting club whose facilities were available only to its members. Its facilities consisted of the clubhouse with various dining and grill rooms, lounges, locker rooms, card rooms, two eighteen hole golf courses, ten tennis courts, a swimming pool, and other facilities usually furnished to members by a country club. It served food and beverages in the various dining room and grills maintained by it.

3
The plaintiff was a Class A member of the Club and as such was required by the rules of the Club to pay monthly dues in the sum of $35.00, together with the excise tax of 20 per cent on such dues, amounting to the total sum of $42.00. These dues and taxes were paid during the period involved in this case and are not in any way involved in this controversy.

4
At the semi-annual meeting of the membership of the Club held June 27, 1962, an amendment to the Club-by-laws was adopted which provided as follows:

5
The Board of Governors shall have authority to impose a monthly charge on active members, determined by reference to their spending in the preceding month, exclusive of tips and sales tax, in the restaurant and/or bars of this Club, not in excess of the following schedule:

6
              Class A Members

    Restaurant-Bar
  monthly spending —        Monthly charge
      exclusive of         (plus government
  gratuity and sales tax          tax)
       0-0                      $20.00
  $0.01 to $5.00                 17.50
   5.01 to 10.00                 12.50
  10.01 to 15.00                  7.50
  15.01 to 19.99                  2.50
  20.00 and up                     .00

7
* * * * * *

8
It was agreed by stipulation of the parties that the purpose of this amendment to the by-laws was to encourage increased attendance at the Club and that the $17.51 minimum monthly payment was required as a condition to continuing membership in the Club.

9
As may be seen from the above schedule, if a member spent nothing for food or drink during a given month, he was assessed a charge of $20.00. If he spent any amount from 1 cent up to $5.00, he was assessed $17.50. If his spending was between $5.01 and $10.00, he was charged $12.50. If his spending was between $10.01 and $15.00, the charge was $7.50. If he spent between $15.01 and $19.99, the charge was $2.50 and if he spent more than $20.00, no monthly charge was made.

10
On first reading this schedule, it would appear that the minimum monthly payment was $20.00 and that if any excise tax was due, it should be levied on this amount. However, a closer examination of the schedule reveals that the very least amount of money that a member could spend and keep his membership in force was $17.51, which would be arrived at by his spending 1 cent for food or drink and $17.50 in cash. Accordingly, it was agreed between the parties that $17.51 was the minimum monthly payment which was required of a member as a condition to continuing his membership in the Club. This requirement was in force during the period of time involved in this case.

11
During the months of September, October, and November 1964, the plaintiff spent the amounts of $78.10, $34.05, and $25.35, respectively, for food and drink at the Club. On January 26, 1965, the Club paid excise taxes in the sum of $10.50 to the Internal Revenue Service representing the 20 per cent excise tax rate on club dues as applied to $17.51, the minimum monthly payment required of the plaintiff as a condition to his continuing membership in the Club, and the Club, in turn, collected the $10.50 from the plaintiff.

12
On March 17, 1965, the plaintiff filed a timely claim for refund of such alleged tax in the sum of $10.50. On September 30, 1965, the District Director not having acted on such claim, the plaintiff filed this suit in this court to recover the $10.50 plus interest.

13
In this case the plaintiff contends that since he spent more than $20.00 for food and drink during each of the three months involved, he was not required to pay any dues or assessments over and above the regular $35.00 dues and that the money that he spent for food and beverages was not dues or assessments and consequently he should not be required to pay any excise tax on any part of the money that he spent at the restaurant and bar of the Club during such months.

14
The plaintiff points out that on October 23, 1962, the Commissioner of Internal Revenue issued a private ruling to the Club to the effect that dues taxes do not apply to charges made for food and beverages at the Club.1 However, the defendant counters with the statement that this ruling was revoked by the Commissioner of Internal Revenue on August 19, 1964.2

15
The defendant contends that the $17.51 minimum monthly charge is includable within the broad statutory definition of dues, since such minimum charge was a regular and periodic obligatory payment imposed upon all the club members for the privilege of using the Club's social, athletic, and sporting facilities. In support of this position, the defendant invokes sections 4241 and 4242 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 4241, 4242 (1964) and Treasury Regulations on Facilities and Services Excise Tax § 49.4242-1, together with examples shown therein.

16
The tax in question is imposed by § 4241(a) (1) which provides:

17
(a) Rate.

18
There is hereby imposed —

19
(1) Dues or membership fees.

20
A tax equivalent to 20 percent of any amount paid as dues or membership fees to any social, athletic, or sporting club or organization, if the dues or fees of an active resident annual member are in excess of $10 per year.

21
The term "dues" is defined by § 4242 (a) as follows:

22
(a) Dues.

23
As used in this part the term "dues" includes any assessment, irrespective of the purpose for which made, and any charges for social privileges or facilities, or for golf, tennis, polo, swimming, or other athletic or sporting privileges or facilities, for any period of more than six days; * * *

24
The sole question for resolution, therefore, is whether the required minimum monthly payments of $17.51 made by the taxpayer to the Woodmont Country Club are "dues" within the meaning of § 4242(a) and thus subject to the tax imposed by § 4241(a) (1) of the Internal Revenue Code of 1954. We hold that such payments are dues and are taxable.

25
A proper starting point in determining whether certain payments made to a club are taxable is the oft-cited case of White v. Winchester Country Club, 315 U.S. 32, 41, 62 S.Ct. 425, 430, 86 L.Ed. 619 (1942), where the Supreme Court in holding payments subject to tax, uses the following language:

26
Consideration of the nature of club activity is a necessary preliminary to the formulation of a test of what constitutes a "due or membership fee." So far as finances go, the fundamental notion of club activity is that operating expenses are shared without insistence upon equivalence between the proportion of an individual's contributions and the proportion of the benefits he receives. Thus, on the one hand, payment of the price of an individual dinner at the club dining room or of a single round of golf lacks the element of making common cause inherent in the idea of club activity. But, on the other hand, payment for the right to repeated and general use of a common club facility for an appreciable period of time has that element and amounts to a "due or membership fee" if the payment is not fixed by each occasion of actual use. Such was the case here, and we therefore hold that the payments in question were subject to the tax.

27
While the definition of dues now found in § 4242(a) had its genesis in the Revenue Act of 1941, c. 412, § 543(b), 55 Stat. 687, and was not under scrutiny in the Winchester Country Club case, that amendment merely broadened the scope of the definition of "dues" to include certain fees and assessments not previously within the grasp of the tax. Boots and Saddles, Inc. v. United States, 66-2 USTC ¶ 15, 710 (E.D.Mich.1966); Boyden v. United States, 218 F.Supp. 220, 222 (D.C.Mass.1963); H.Rep. No. 1040, 77th Cong., 1st Sess., 54 (1941-2 Cum. Bull. 413, 455); S.Rep. No. 673, Part I, 77th Cong., 1st Sess., 48 (1941-2 Cum. Bull. 466, 502-03).

28
Subsequent to the decision in Winchester Country Club, supra, most courts that have had this issue posed to them have also made the distinction between obligatory payments and payments made by a club member where there was a necessary equivalence between the payment and the benefit received. Boots and Saddles, Inc. v. United States, supra; "The Benedicts" v. United States, 234 F.Supp. 1 (W.D. N.C.1964); Boyden v. United States, supra. In the former instance — where the payment had to be made whether or not the member ever availed himself of the club's facilities — tax liability was found. "The Benedicts" v. United States, supra; Boyden v. United States, supra.

29
That view is consistent with the generally accepted principle that the dues tax is an excise tax imposed not on the club, or organization itself, but on the privilege of membership, whether or not the right to use the club's facilities which flows therefrom is actually exercised. Boyden v. United States, supra, at 222 of 218 F.Supp.; United States v. Howe, 349 F.2d 483, 488 (9th Cir. 1965); McCaughn v. Williams, 23 F.2d 840, 841 (3d Cir. 1928), cert. denied, 276 U.S. 629, 48 S.Ct. 322, 72 L.Ed. 740. See also, Epstein v. United States, 357 F.2d 928, 934 n. 4, 174 Ct.Cl. 1158, 1169 n. 4 (1966).

30
In the latter instance — where the payments were of the isolated and casual character and dependent upon participation in a given event or activity — they have been held not to be dues subject to the tax. E. g., Porter v. United States, 303 F.2d 67 (5th Cir. 1962).

31
The main determinant, common to the cases referred to previously, which is used as a yardstick for measuring tax liability in like circumstances is the inquiry whether the payments made by a club member were mandatory and were required to be made without regard to the actual use of the club's social and athletic facilities.

32
In applying this test to the case at bar, we note that this is not a case of numerous club activities some of which may be participated in by a member and some not, with a consequent adjustment of dues and assessments to bring about a causal relation between the proportion of an individual's contributions and the value of other benefit he receives. The minimum monthly payment of $17.51 is a payment required as a condition of continued membership, "as a device for imposing on each member a minimum contribution as his share of the operating expense of maintaining a club activity." Boyden v. United States, supra, at 222 of 218 F.Supp. If a member did not pay this minimum sum, it is apparent that he would forfeit his privilege of engaging in social and athletic activities at the club.

33
It is evident that the right of a member to eat and drink at private facilities maintained by the club on its premises is a social privilege or facility offered by the club. Also, required minimum monthly payments not necessarily equated to the use of the facilities made by the member are clearly "any charges for social privileges or facilities * * * for any period of more than six days" within the meaning of the language present in § 4242(a). See Boyden v. United States, supra; "The Benedicts" v. United States, supra.

34
In addition to being "charges," however, the obligatory payments in question are also "assessments." Garden City Golf Club v. Corwin, 62 F.2d 246 (2d Cir. 1932).3

35
The taxpayer, however, relies heavily upon the cases of Albritton v. Phinney, 12 AFTR 2d 6338 (W.D.Tex.1963), and Buerger v. United States, 244 F.Supp. 1 (W.D.Pa.1965).

36
In Albritton, which is clearly distinguishable, a deposit of $10 was required of each club member to pay for his food and drink expenses in the club restaurant. No part of the deposit was forfeited if not used, as any unused portion was returned or credited to the member. The quantity of food or drink consumed was up to each individual member, and the payments could not be said to constitute payment to defray club expenses. They were, therefore, held not taxable.

37
In Buerger, the taxpayer was subject to a club resolution which established a $20 minimum on purchases for food and beverages. If, at the end of each month any member had not made purchases of $20 or more from the dining room and bar, a charge representing the difference between what he had spent and $20 was imposed upon such member. If, however, he had purchased food and drink worth $20 or more, no charge was imposed. The payment of this $20 monthly minimum was a condition of membership. As in the instant case, the plaintiff made purchases in excess of the monthly minimum charge and was never billed for any amount over and above his actual purchases. The court held, in effect, that to subject these payments to the dues tax would be to tax a mere threat of an assessment, and, accordingly, they were not taxable.4

38
This conclusion is in conflict with the regulations quoted in footnote 3, and especially with Example (1). The only difference between Example (1) and the Buerger case is that in the Example the member was required to spend $200 for food and drink, whereas in Buerger he was required to spend $20 for these items. In each case, if the member spent less than these respective amounts, he was billed for the difference. Example (1) states:

39
* * * This charge of $200 [$20 in Buerger] constitutes dues or membership fees, inasmuch as such charge must be paid for the privilege of being a member of the club. [Parenthetical reference to Buerger supplied.]

40
As the regulations are not an unreasonable interpretation of the statute, they must be sustained. See Boots and Saddles, Inc. v. United States, supra.5

41
The great weight of authority in this area and also, in our judgment, a result which is more in harmony with the statutory scheme and legislative history,6 is illustrated by the decision in Boyden v. United States, supra.

42
In that case in addition to annual dues, each active member was required to pay a restaurant deposit in the amount of $50 per year. (Later, it was to be paid semiannually.) If a member did not exhaust the $50 deposit, no part was returned to him and it was retained by the club as income.

43
The court held that the restaurant deposit was squarely within the concept of "dues and membership fees." As alluded to earlier, the court stressed the substantial nature of the payment rather than the name by which it was designated and the fact that it was a condition precedent to the retention of club membership. Its character was held not to be changed by the fact that the member may subsequently obtain his full money's worth by use of the club's facilities.

44
The basis for the tax here is also that the payment is one which is required for the retention of membership in the club, and must be paid whether or not the member ever used the club's dining and bar facilities. The fact that the Club decided to defray a particular kind of expense by the method of payment involved here cannot alter the fact that the minimum monthly charge of $17.51 is of the same nature as the more general monthly dues. This was not, we hold, a mere threat of an assessment. It was an assessment whether paid in cash or included in whatever amount was expended for food and drink in excess of $20. Only if the member spent an amount less than $20 would he be subject to being assessed separately and on a graduated scale. This does not change the controlling fact that a payment of the minimum sum of $17.51 was obligatory, and thus assessed.

45
In summary, the payments involved here were both "assessments" and "charges" and as such, the entire minimum monthly payment is dues subject to the 20 per cent tax imposed by § 4241(a) (1).

46
Accordingly, the defendant's motion for summary judgment is granted, the plaintiff's cross motion is denied, and the petition is dismissed.

Notes:

1
 The pertinent part of such ruling which is attached to the stipulation of the parties as Exhibit A, is as follows:
"We have consistently held that amounts paid for food and drink in a social, athletic, or sporting club or organization are not subject to the dues tax unless a mandatory minimum expenditure for such items has been previously set by such club or organization. It appears that the total amount paid by a member of the Woodmont Country Club for food and beverages is not a required minimum expenditure for such items, nor is it required as a condition to the continued enjoyment of the privileges and facilities of the club. The information indicates that the amounts spent by a member for food and beverages during the period of a month is the basis for determining whether the member will be required to pay an additional amount for that month. It is our conclusion that the dues tax imposed by section 4241(a) (1) of the Code does not apply to the charges for food and beverages made against the members of the club under the circumstances described. However, the tax does apply to any additional amounts required to be paid where the member's purchases of food and beverages are less than certain designated amounts. The fact that a member may be relieved of the assessment for a period of one to four months during the year would be immaterial."

2
 This revocation is attached to the stipulation of the parties as Exhibit B and is as follows:
"This is in reference to that part of our letter dated October 23, 1962, in which we held that the dues tax imposed by section 4241(a) (1) of the Code did not apply to the charges for food and beverages made against the members of the Woodmont Country Club, Rockville, Maryland.
We have given extensive study to the question of the applicability of the dues tax to monthly assessments levied on a graduated scale by a social, athletic, or sporting club against its members whose expenditures for food and beverages fall within designated amounts set forth in a schedule of expenditures and assessments. It is now our conclusion that the proper basis on which to compute the tax should be the mandatory minimum payment required by any member under the schedule. This conforms to the position taken in Revenue Ruling 64-204, which appears in Internal Revenue Bulletin 1964-28, at page 26. A copy of this bulletin is enclosed for your information.
Accordingly, that part of our ruling of October 23, 1962, dealing with charges for food and beverages by the Woodmont Country Club is hereby revoked."

3
 This analysis is also in accord with the Treasury Regulations applicable to the instant case. Treas.Reg. § 49.4242-1 (1961) is as follows:
§ 49.4242-1 Definition; dues or membership fees
(a) In general. The term "dues or membership fees", as used in the regulations in this part, means all charges made by a social, athletic, or sporting club or organization which are commonly understood to constitute dues or membership fees, as well as all other charges required to be paid to such a club or organization for the privilege of being a member of the club or organization or a member of a particular membership class. The term also includes —
(1) Any assessment made by a social, athletic, or sporting club or organization, irrespective of the purpose for which made, and
(2) All charges made by a social, athletic, or sporting club or organization for (i) social privileges or facilities for any period of more than 6 days (whether or not consecutive), or (ii) golf, tennis, polo, swimming, or other athletic or sporting privileges or facilities for any period of more than 6 days (whether or not consecutive).
In determining whether a charge by such a club or organization constitutes dues or membership fees within the meaning of subparagraph (2) of this paragraph, the test is whether payment of the charge confers the right to use a social, athletic, or sporting privilege or facility of the club or organization for the prescribed period. It is immaterial whether the privilege or facility is one for which a charge is mandatory, even though the member chooses not to avail himself of the privilege or facility, or whether the privilege or facility is one for which a charge is made only if the member, at his own election, chooses to have the privilege or facility made available to him. Any privilege or facility offered by a social, athletic, or sporting club or organization which is so directly related to a social, athletic, or sporting activity in which the club is engaged, or for which it was created, as to partake of the nature of the activity itself is considered to be a social, athletic, or sporting privilege or facility. This is true even though such privilege or facility, if considered entirely apart from any social, athletic, or sporting activity, would not in and of itself constitute a social, athletic, or sporting privilege or facility. (However, see § 49.4243-2 for the exemption provided in respect of amounts paid for certain capital improvements.)
(b) Initiation fees, fines, etc. The term "dues or membership fees" does not include initiation fees. Neither does the term include fines imposed for misconduct or violation of rules. However, the term does include a penalty incurred for failure to make prompt payment of dues or membership fees since such a penalty is considered to be an increase in the amount of the dues or membership fees required to be paid by the member.
(c) Examples. The application of this section may be illustrated by the following examples:
Example (1). A social club operates a restaurant and bar for the use of its members. The club requires of each member a minimum expenditure during the year of $200 for food or drink. If a member does not make actual expenditures totaling $200, he is billed for an additional amount equal to the difference between his actual expenditures and $200. This charge of $200 constitutes dues or membership fees, inasmuch as such charge must be paid for the privilege of being a member of the club.

4
 It is pertinent to note at this juncture that no case citation or other authority is mentioned by the court inBuerger, supra, in support of its decision.

5
 Some decisions have given even a broader interpretation to the concept of "dues" than that espoused in theWinchester Country Club case. See Johnston v. United States, 337 F.2d 708 (1st Cir. 1964), wherein the court said:
"Whether the fee paid for participation in the Maugus Club mixed bowling league fits the Court's definition of `dues' in the Winchester Country Club case need not concern us, for it fits squarely within the statutory definition in § 4242(a), supra, of the Revenue Code of 1954 with which we are here concerned." Id. at 710.

6
 In Malat v. Riddell, 383 U.S. 569, 571-572, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966), the Court said:
"As we have often said, `the words of statutes — including revenue acts — should be interpreted where possible in their ordinary, everyday senses.' * * * Departure from a literal reading of statutory language may, on occasion, be indicated by relevant internal evidence of the statute itself and necessary in order to effect the legislative purpose. * * * But this is not such an occasion."
Neither does the instant case present such an occasion as the statute was enacted to clarify and broaden its predecessor and is to be given its intended sphere of operation.


718 F.2d 1099
Meierv.Koehler
82-1321
UNITED STATES COURT OF APPEALS Sixth Circuit
8/15/83

1
W.D.Mich.

AFFIRMED


                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                NOV 8 2002
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                Clerk

 MARISSA ANNE MUEHLBERGER
 (VARGASON), administrator of the
 estate of Becky Joan Ricci Muehlberger,

           Appellant / Cross-Appellee,
                                                       Nos. 01-4095 & 01-4110
           v.
                                                       D.C. No. 2:00-CV-59-ST
                                                              (D. Utah)
 LELAND A. MARTINEAU;
 MARTINEAU & COMPANY;
 SUNRISE FINANCIAL, INC.,

           Appellees / Cross-Appellants.

                               ORDER AND JUDGMENT*

Before HARTZ, ALDISERT,** and PORFILIO, Circuit Judges.

      In these cross-appeals, Becky Joan Ricci Muehlberger challenges the dismissal of

her adversary proceeding in bankruptcy for lack of standing under 11 U.S.C. § 1109(b);

and Leland A. Martineau, Sunrise Financial Inc., and Martineau and Company contest the

       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
          Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third
Circuit, sitting by designation.
denial of their motion for attorney fees and costs. Finding no error in either appeal, we

affirm the district court’s judgment.

       The parties are well acquainted with the facts of this case; therefore, we need not

repeat them here. It is sufficient to state that Becky Joan Ricci Muehlberger (Joan)

commenced this case in an adversary proceeding in bankruptcy seeking disgorgement of

funds paid to the Appellees, (Martineau, collectively) in connection with the

administration of a Chapter 11 reorganization. Finding Joan lacked standing, the

bankruptcy court dismissed her complaint. An appeal to the district court resulted in an

affirmance of the bankruptcy court’s holding. This appeal followed.

       The issues Joan presents to us are whether she is required to have standing to

litigate in the Chapter 11 proceeding, and, if so, whether she had standing. After

thoroughly and carefully considering these issues, two separate courts held standing was a

jurisdictional requisite which Joan did not have. We have considered Joan’s arguments,

reviewed the record, and now conclude both the bankruptcy and district courts properly

resolved the issues.

       We note specifically, Joan is neither a creditor of the Chapter 11 debtor nor a party

in interest in the bankruptcy proceeding. Moreover, she fails to demonstrate the acts of

which she complains have resulted in an injury to her. While she may have had grounds

for derivative claims against the entities in which she held minority interests, she has no

recognizable claim in the bankruptcy proceeding. For these reasons and for the reasons set

                                             -2-
forth by the bankruptcy and district courts, we affirm the judgment of the district court in

case number 01-4095.

       The district court found that the appeal taken by Joan to the district court was not

frivolous under Fed. R. Bankr. P. 8020. Martineau has made no showing that conclusion

was erroneous; therefore, we see no error in the district court’s refusal to award damages

under Fed. R. Bankr. P. 8020. The judgment in 01-4110 is affirmed.

                                           ENTERED FOR THE COURT

                                           John C. Porfilio
                                           Senior Circuit Judge

                                             -3-


                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 29, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT

 ALBERT CRAMER,

              Petitioner - Appellant,

 v.                                                      No. 11-4036
                                               (D.C. No. 2:07-CV-00681-DAK)
 STATE OF UTAH,                                           (D. Utah)

              Respondent - Appellee.

          ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY, HARTZ, and HOLMES, Circuit Judges.

      Albert Cramer, appearing pro se, requests a certificate of appealability

(COA) to appeal the district court’s denial of his application for relief under

28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal

denial of § 2254 application). The court denied the application on the ground that

the claims were procedurally defaulted because Mr. Cramer had failed to exhaust

his state remedies and his claims would now be procedurally barred if pursued in

state court. No reasonable jurist could debate the correctness of the district

court’s decision. Therefore, we deny Mr. Cramer’s request for a COA and

dismiss this appeal.
I.    BACKGROUND

      Mr. Cramer was convicted on September 22, 1999, on two counts of

aggravated sexual abuse of a child. On January 25, 2002, the Utah Supreme

Court affirmed his conviction on appeal. See State v. Cramer, 44 P.3d 690, 692

(Utah 2002) (Cramer I). That August he filed a petition for postconviction relief

in Utah state district court; it was denied in July 2005. The Utah Court of

Appeals affirmed the denial in December 2006, see Cramer v. State, 153 P.3d

782, 784 (Utah Ct. App. 2006) (Cramer II); and the Utah Supreme Court denied

his petition for certiorari in April 2007, see Cramer v. State, 168 P.3d 339 (Utah

2007) (unpublished table decision) (Cramer III).

      On October 19, 2007, Mr. Cramer’s § 2254 application was filed in the

United State District Court for the District of Utah. The application claimed that

(1) he received ineffective assistance of counsel because his trial counsel failed to

call witnesses requested by Mr. Cramer, did not inform him of his right to testify

on his own behalf, and failed to impeach the alleged victim’s testimony; (2) he

was denied access to the alleged victim’s records; and (3) the Utah State Division

of Child and Family Services denied him due process by delaying its hearing on

child abuse. The district court ruled that Mr. Cramer had not exhausted any of

these claims by properly pursuing them, on direct appeal or in postconviction

proceedings, all the way to the Utah Supreme Court. The court noted that

Mr. Cramer had raised two similar claims in the Utah Supreme Court—(1) denial

                                         -2-
of his purported right to review (without prior vetting by the trial court in camera)

the alleged victim’s medical records, see Cramer I, 44 P.3d at 694–95, and (2)

denial of the right to be informed that he could testify on his own behalf, see

Cramer III, 168 P.3d at 339—but both claims were expressly based solely on the

Utah Constitution. And it pointed out that the one federal constitutional issue

raised in the § 2254 application that had been presented to the Utah Supreme

Court—the trial court’s alleged error in not disclosing to Mr. Cramer the material

medical records reviewed by the trial court in camera—was disposed of by the

state court on the procedural ground that Mr. Cramer had not included the

documents in the appellate record. See Cramer I, 44 P.3d at 696–97.

      The district court then determined that the issues raised by Mr. Cramer in

his § 2254 application could no longer be reviewed in state court because they

could have been raised in his prior state-court proceedings. See Utah Code Ann.

§ 78B-9-106(1)(c), (d) (West 2010) (“A person is not eligible for relief under [the

Utah Post-Conviction Remedies Act] upon any ground that . . . could have been

but was not raised at trial or on appeal . . . or could have been, but was not, raised

in a previous request for post-conviction relief.”) And because Mr. Cramer had

established neither cause for the default nor a fundamental miscarriage of justice

based on actual innocense, it held that his claims were barred from review under

§ 2254. See McCraken v. Gibson, 268 F.3d 970, 976 (10th Cir. 2001) (claims

defaulted in state court on “an independent and adequate state procedural ground”

                                          -3-
are procedurally barred for purposes of federal habeas review unless the petitioner

“can demonstrate cause and prejudice or a fundamental miscarriage of justice.”

(internal quotation marks omitted)).

II.   DISCUSSION

      “A certificate of appealability may issue . . . only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2); see Sellers v. Ward, 135 F.3d 1333, 1339 (the right allegedly

violated must be a federal, not a state, right). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, an applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id. Where the application was denied on procedural grounds, the

applicant faces a double hurdle. Not only must the applicant make a substantial

showing of the denial of a constitutional right, but he must also show “that jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.” Id. “Where a plain procedural bar is present and the district

court is correct to invoke it to dispose of the case, a reasonable jurist could not

                                          -4-
conclude either that the district court erred in dismissing the petition or that the

petitioner should be allowed to proceed further.” Id.

      In order to obtain federal habeas relief, a state prisoner must “exhaust[] the

remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(A). “The

exhaustion requirement is satisfied if the issues have been properly presented to

the highest state court, either by direct review of the conviction or in a

postconviction attack.” Brown v. Shanks, 185 F.3d 1122, 1124 (10th Cir. 1999)

(internal quotation marks omitted); see Olson v. McKune, 9 F.3d 95, 95 (10th Cir.

1993) (“A state prisoner bringing a federal habeas corpus action bears the burden

of showing that he has exhausted available state remedies.” (brackets and internal

quotation marks omitted)). If an applicant fails to exhaust state remedies and

state courts “would now find the claims procedurally barred[,] the claims are

considered exhausted and procedurally defaulted for purposes of federal habeas

relief.” Thomas v. Gibson, 218 F.3d 1213, 1221 (10th Cir. 2000) (internal

quotation marks omitted).

      Because Mr. Cramer has proceeded pro se, we construe his pleadings

liberally. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1210 n.1 (10th Cir.

2009). Mr. Cramer’s brief in this court recites four issues: (1) that the district

court erred by failing to address any of his constitutional claims on the merits; (2)

that his trial attorneys violated his right to have witnesses, including himself,

testify on his behalf; (3) that he received ineffective assistance of counsel when

                                          -5-
his trial attorneys failed to obtain and use records to impeach the alleged victim’s

testimony; and (4) that workers in the Utah Division of Child and Family Services

violated the law and his due-process rights. Nowhere, however, does he

challenge the grounds of the district court’s rulings on exhaustion and procedural

bar. Nor do we discern any error in these rulings. Even if we treat Mr. Cramer’s

assertions of innocence in his brief to us as a claim that his procedural default

should be excused because of his actual innocence, we could not grant him a

COA. Although actual innocence can overcome a procedural default, see Schlup

v. Delo, 513 U.S. 298, 321 (1995), the district court correctly observed that actual

innocence must be shown by newly available evidence and that Mr. Cramer’s

showing is wholly inadequate. See id. at 324 (petitioner must “support his

allegations of constitutional error with new reliable evidence—whether it be

exculpatory scientific evidence, trustworthy eyewitness accounts, or critical

physical evidence—that was not presented at trial”); id. at 327 (petitioner must

“show that it is more likely than not that no reasonable juror would have

convicted him in the light of the new evidence.”).

      In short, no reasonable jurist could find it debatable whether the district

court was correct in its procedural ruling.

                                          -6-
III.   CONCLUSION

       We DENY Mr. Cramer’s application for a COA and DISMISS the appeal.

We GRANT Mr. Cramer’s motion to proceed in forma pauperis.

                                   ENTERED FOR THE COURT

                                   Harris L Hartz
                                   Circuit Judge

                                     -7-


310 F.2d 687
William Clyde WRIGHT, Appellant,v.B. J. RHAY, Superintendent of the Washington State Penitentiary at Walla Walla, Washington, et al., Appellees.
No. 18135.
United States Court of Appeals Ninth Circuit.
November 21, 1962.

William Clyde Wright, in pro. per.
John J. O'Connell, Atty. Gen. of State of Washington, Olympia, Wash., for appellees.
Before JERTBERG, MERRILL and BROWNING, Circuit Judges.
PER CURIAM.

1
Appellant sought leave to file a complaint in forma pauperis purporting to allege a cause of action under the Civil Rights Act (42 U.S.C.A. §§ 1981, 1983, 1985 and 1986), and naming as defendants the Chief Justice of the Washington State Supreme Court, the Attorney General and Assistant Attorney General of the State, and the Superintendent of the Washington State Penitentiary. The complaint alleged that the Supreme Court of Washington denied appellant's request for the appointment of counsel to present his petition for habeas corpus, although permitting counsel for respondent to appear and argue; and that the Supreme Court of Washington sustained a "demurrer" to appellant's petition although Rule 7(c) of the Washington Rules of Civil Procedure had abolished "demurrers." The District Court directed the Clerk to file the complaint without payment of fees but denied appellant's motion to proceed in forma pauperis on the ground that the action was frivolous. We interpret the District Court's order as a denial of the motion for leave to commence the action in forma pauperis, and its order permitting the complaint to be "filed" as intended simply to provide a complete record of the action taken.

2
The District Court "may" authorize the commencement of a civil action in forma pauperis, and thereafter "may dismiss the case * * * if satisfied that the action is frivolous." 28 U.S. C.A. § 1915(a), (d). It follows that the District Court was authorized to deny leave to proceed in forma pauperis at the outset if it appeared from the face of the proposed complaint that the action was frivolous. Cf. Loum v. Underwood, 262 F.2d 866 (6th Cir. 1959); Taylor v. Steele, 191 F.2d 852 (8th Cir. 1951); Huffman v. Smith, 172 F.2d 129 (9th Cir. 1949). This authority is to be exercised with great restraint, and generally only where it would be proper to dismiss the complaint sua sponte before service of process if it were filed by one tendering the required fees. See Harmon v. Superior Court, 307 F.2d 796 (9th Cir. 1962). This was such a case.

3
Appellant's motion in this Court for "default judgment" is denied. The judgment of the District Court is affirmed.


255 Ga. 694 (1986)
341 S.E.2d 432
DOGWOOD SQUARE NURSING CENTER, INC.
v.
STATE HEALTH PLANNING AGENCY.
42870.
Supreme Court of Georgia.
Decided February 18, 1986.
Reconsideration Denied April 24, 1986.
Glen A. Reed, Richard L. Shackelford, Mark A. Hall, for appellant.
Michael J. Bowers, Attorney General, Jeffrey C. Baxter, Assistant Attorney General, for appellee.
Arnall, Golden & Gregory, Theodore H. Lackland, Halsey G. Knapp, Jr., amicus curiae.
WELTNER, Justice.
The State Health Planning Agency denied a certificate of need to Dogwood Square Nursing Home for construction of a nursing home in Alpharetta, Georgia. The nursing home appealed the agency's decision to the State Health Planning Review Board, which reversed the agency and directed issuance of the certificate. The agency appealed to the superior court, which reversed the review board and reinstated the decision of the agency denying the certificate. The nursing home sought and obtained leave to appeal. OCGA § 5-6-35 (a) (1).
1. A determination of the statutory relationship between the agency and the review board will resolve several issues presented in this appeal. Former OCGA § 31-6-47 (b), which provided, in part, that "The decision of the five-member panel of the State Health Planning Review Board shall be the final agency decision for purposes *695 of Chapter 13 of Title 50, the `Georgia Administrative Procedure Act,'" was repealed by Ga. L. 1983, pp. 1566, 1585. OCGA § 31-6-44 (g) currently provides that "The decision of the panel shall be the final administrative decision for purposes of judicial appeal of any certificate of need decision under Chapter 13 of Title 50, the `Georgia Administrative Procedure Act.'" The agency and the review board now are separate state agencies. OCGA § 31-6-44 (a). Currently, OCGA § 31-6-44 (i) states, in part, that "Any party to the appeal hearing, including the planning agency, may seek judicial review of the panel's decision in accordance with the method set forth in Chapter 13 of Title 50, the `Georgia Administrative Procedure Act ....'" Accordingly: (1) The planning agency has express statutory authority to appeal to the superior court from the decision of the review board. OCGA § 31-6-44 (i). (2) The review board "is an appellate body whose function is solely adjudicatory ... [and as] a quasi-judicial entity ... [is] `an inappropriate party to an appeal of its ruling in the superior court.'" Loyd v. Ga. State Health Planning &c. Agency, 168 Ga. App. 850, 852 (310 SE2d 738) (1983).
Because the review board was not a necessary party to the proceedings below, the superior court was not called upon to resolve a controversy between two agencies of the Executive Department of the state, in contravention of the separation of powers provision of the Constitution of Georgia of 1983, Art. I, Sec. II, Par. III. Obviously, then, the Attorney General was not placed in a conflict-of-interest position by being called upon to represent in court two agencies of the state in a controversy with each other. See Diversified Health Management Services v. Visiting Nurses Assn., 254 Ga. 500, 502 (3) (330 SE2d 885) (1985).[1]
2. The planning agency denied Dogwood's application for establishment of a new nursing home in Alpharetta by application of the "County Deficit Rule," which provides, in part, that such a new facility "will not be approved unless the county in which the facility is to be located has a projected deficit of at least 50 beds; this will be true even though there may be a projected deficit of beds in the service area." (Emphasis supplied.) Rule 272-2-.09 (9) (a). The term "service area" is defined as "the land area enclosed by a circle whose radius extends 40 miles from the site of a proposed or existing facility." Rule 272-2-.09 (9) (a). The Review Board adopted the position advocated by Dogwood that because Fulton County extends approximately 55 miles from the proposed sit, nursing home populations in the extreme south end of the county which are outside the 40-mile service *696 area should not be counted in determining whether or not the deficit exists or, stated differently, the fact that there were empty beds in the south of the county should be excluded from consideration in determining whether or not to allow new beds in the north of the county. The effect of the review board's decision was to treat north Fulton County and south Fulton County as separate counties (which once they were). Ga. L. 1929, p. 551; Ga. L. 1931, p. 527. The superior court held that the review board lacked statutory authority either to deem the County Deficit Rule inapplicable or to subdivide Fulton County under the "peculiar facts of this case," which result from the unusual length and shape of Fulton County and the location of the empty beds within the county. OCGA § 31-6-44 (i).
Insofar as is material to the present controversy, "The issue for decision by the panel [of the review board] shall be whether, and the panel shall order the issuance of a certificate of need if, in the panel's judgment the application is consistent with the considerations as set forth in Code Section 31-6-42 and the planning agency's rules, as the panel deems such considerations and rules applicable to review of the project." (Emphasis supplied.) OCGA § 31-6-44 (d).
Dogwood contends that if the panel may deem agency rules applicable, to a review of a project it may deem them inapplicable, as well. The planning agency responds that the review board may not decline to apply an applicable written rule.
We resolve the controversy by returning to the same considerations which governed our disposition of the issues in Division 1. The decision of the review board no longer is the "final agency decision," but proceedings before the review board are "the administrative remedy," OCGA § 31-6-44 (b), and the panel's decision is "the final administrative decision for purposes of judicial appeal. ... [under] the `Georgia Administrative Procedure Act.'" OCGA § 31-6-44 (g). Thus, the decision of the planning agency itself now is the final agency decision to which deference must be made during judicial review. DeKalb County v. Metro Ambulance Services, Inc., 253 Ga. 561, 562 (1) (a) (322 SE2d 881) (1984); Strickland v. Douglas County, 246 Ga. 640, 642 (272 SE2d 340) (1980); Bentley v. Chastain, 242 Ga. 348, 349 (1) (249 SE2d 38) (1978).
The review board acted beyond its powers of administrative review of contested cases under OCGA § 31-6-44 (d) by deeming the "County Deficit Rule" of the planning agency inapplicable in a controversy to which it applied by its express terms, or by applying the rule to part of the county instead of to the entire county. OCGA § 31-6-44 (i). The superior court properly reversed the decision of the review board and reinstated the decision of the planning agency.
The problem in this case is that the County Deficit Rule was not fashioned with these facts in mind. The entire county is obviously an *697 inappropriate geographical area for consideration here. Nonetheless, the rule is the rule. Hopefully it will be modified in light of this case.
3. The remaining enumerations of error present no ground for reversal.
Judgment affirmed. All the Justices concur.
NOTES
[1]  As pointed out on motion for reconsideration, the applicable statute has been amended by Senate Bill No. 56 (Act No. 1460), 1986 Session of the General Assembly, approved by the Governor on April 2, 1986.


                               COURT OF APPEALS
                               SECOND DISTRICT OF TEXAS
                                    FORT WORTH

                                  NO. 02-14-00425-CR

Michael Roy Short                          §    From the 297th District Court

                                           §    of Tarrant County (1343102D)

v.                                         §    July 30, 2015

                                           §    Opinion by Chief Justice Livingston

The State of Texas                         §    (nfp)

                                     JUDGMENT

       This court has considered the record on appeal in this case and holds that

there was no error in the trial court’s judgment. It is ordered that the judgment of

the trial court is affirmed.

                                       SECOND DISTRICT COURT OF APPEALS

                                       By /s/ Terrie Livingston
                                          Chief Justice Terrie Livingston