Defendant-Appellant David W. Gibson (Gibson) was tried by jury and appeals his conviction of robbery while armed with a deadly weapon, a Class B felony. Ind. Code §35- 42-5-1(2).
Gibson raises the following restated issue: whether he received ineffective assistance of trial counsel because his counsel failed to object to certain identification testimony and failed to object to references to Gibson's prior criminal record.
The facts most favorable to the verdict reveal that on March 31, 1997, Benjamin Williams of the Marion Police Department was working security at the Marion Public Library when he saw Gibson, a black male, heading south through the library parking lot at 9:00 p.m. Williams was walking outside with members of the library staff at closing time when he observed Gibson, who was wearing a red jacket, pass within five feet of Williams.
the man was wearing his sweatshirt hood, Hargrave could not see the man's hair or ears. However, Hargrave could see that the man had a mustache and a patch of hair on his chin. After some difficulty, Hargrave opened the register and gave the man some money from the register. The man left the convenience mart and Hargrave made a 911 call to report the robbery.
John Shepard and his girlfriend, Kathy Brooks, were in their car in the parking lot of the Handy Andy at the time of the robbery. Shepard, who had served time in jail with Gibson, saw Gibson leave the store. Shepard went into the store and was told by Hargrave that Hargrave had just been robbed.
The Handy Andy convenience mart had a surveillance camera in the store. Chester Lee Johnson, an investigator with the Marion Police Department, along with several other detectives, watched the videotape of the robbery. Johnson, who was a friend of Gibson's older brother, knew Gibson since they were in middle school and had seen Gibson a few times since then. Johnson was positive that the individual on the videotape was Gibson. He based that opinion on his familiarity with Gibson's build, style of speech, voice and bow- legged manner of walking.
Hargrave viewed both a photo array and lineup. Hargrave selected Gibson as the person who looked like the man who robbed the store. Hargrave indicated that he could not be absolutely certain of the identification because he had not seen the robber's ears or hair. However, Hargrave indicated that nothing about Gibson's appearance ruled him out as the robber.
At trial Gibson presented the testimony of Anthony Dewayne Smith to support his alibi defense. Smith testified that Gibson was at Smith's apartment watching the final game of the NCAA basketball tournament at the time of the robbery.
Claims involving an allegation of the denial of the Sixth Amendment right to effective assistance of counsel are evaluated by using the two-part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Rouster v. State, 705 N.E.2d 999, 1003 (Ind. 1999). An appellant must show both deficient performance and resulting prejudice in order to prevail on an ineffective assistance of counsel claim. Id. A deficient performance is a performance that falls below an objective standard of reasonableness. Id. Prejudice exists when a defendant shows there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.
Even if the defendant succeeds in showing a reasonable probability the results would have been different, he also must show that his conviction was fundamentally unfair or unreliable. See Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999). A fair trial has been denied a defendant when his conviction or sentence has resulted from a breakdown in the adversarial process which rendered the result unreliable. Id.
on the appellant to overcome that presumption. Sada v. State, 706 N.E.2d 192, 198 (Ind. Ct. App. 1999). Isolated poor strategy, bad tactics, a mistake, carelessness or inexperience do not necessarily amount to ineffective counsel unless, taken as a whole, the defense was inadequate. Id. at 199.
Gibson contends that his trial counsel was ineffective because he did not object to the identification testimony of Investigator Johnson. Prior to trial Gibson's attorney filed a motion in limine seeking to prevent the testimony of police officers who had viewed the videotape of the suspect and who believed that Gibson was the person who robbed Handy Andy's.
Gibson's attorney had argued in his motion that once the videotape was admitted, it became substantive evidence, a silent witness, and that a police officer's testimony concerning what was depicted in the videotape would be inappropriate. He cited to Groves v. State, 456 N.E.2d 720 (Ind. 1983) in support of that argument.See footnote 1 Gibson argued that the jury should decide if the person depicted in the videotape and Gibson were the same person. The State argued that under Ind.Evidence Rule 701 the officer's testimony was permissible as opinion testimony by a lay witness. The trial court denied Gibson's motion in limine.
Gibson's attorney did not object at trial when the police officer's identification testimony was presented.
On appeal, Gibson argues that had his attorney objected to the identification testimony of Investigator Johnson, the testimony would have been suppressed. Gibson argues that under the silent witness theory it was inappropriate to allow Johnson's testimony, and that his attorney's failure to object to that testimony amounts to the ineffective assistance of trial counsel.
If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness's testimony or the determination of a fact in issue.
Our supreme court addressed the admissibility of opinion testimony of lay witnesses in Weaver v. State, 643 N.E.2d 342, 345 (Ind. 1994). The underlying events which took place in Weaver occurred prior to the adoption of the Indiana Rules of Evidence in 1994. However, the supreme court discussed Evid. R. 701, since their review of the case occurred after the adoption of the rules, and concluded that the same result would obtain under the new rules of evidence. Id.
about whether the defendant intended to kill her. The trial court excluded that opinion testimony, but allowed the victim to testify about what happened and let the jury draw its own conclusions. The supreme court agreed with the trial court's decision. Weaver, 643 N.E.2d at 345. The court held that the testimony was not objectionable merely because intent was an ultimate issue to be decided by the trier of fact, but because opinion testimony concerning intent or legal conclusions is not admissible. See Evid. R. 704(a) & (b).
In Kent v. State, 675 N.E.2d 332 (Ind. 1996), the defendant was convicted of the murder of a child. The child's mother, who had left the child in the care of the defendant, called for help when she discovered after returning home that her child was not breathing. An officer who arrived at the scene in response to the call for help observed the defendant roughly thrusting on the child's abdomen. The defense attempted to elicit testimony from the officer that the defendant's actions were efforts to revive the child. The prosecution elicited opinion testimony from the officer that the defendant's actions were consistent with inflicting harm to the child. The officer further testified that in his opinion the child's injuries were not sustained as the result of an accident as the defense had proposed.
The supreme court, in affirming the conviction, held that the trial court properly allowed the officer's testimony under Evid. R. 701. Id. at 339. The officer could testify about his opinion based on his own observations. Id. The conclusions he reached, though not expert, helped to explain his own testimony. Id.
reasonable person normally could form from the perceived facts. An opinion is helpful, for purposes of the rule, if the testimony gives substance to facts which were difficult to articulate. Id.
In Mariscal, an eyewitness to a stabbing was allowed to testify under Evid. R. 701 about injuries he believed the defendant inflicted upon himself during an altercation. The eyewitness was a security guard, reserve police officer, part-owner of a martial arts business, and teacher of combative arts. He also had refereed several combat tournaments. The eyewitness was allowed, based upon his own observations, to explain his testimony that some of the stabbing motions missed their mark, and to give his opinion that the motions must have resulted in injuries to the defendant.
While these cases have addressed the admissibility of opinion testimony of lay witnesses under Evid. R. 701, who also were eyewitnesses to the crimes charged, none of those cases addressed the issue of allowing lay opinion testimony by a person who is not an eyewitness to the crimes charged concerning the identity of a person who is depicted in a surveillance videotape. In other cases we have looked to the Seventh Circuit for guidance when the text of the state rule of evidence is identical to its federal counterpart. See Pirnat v. State, 612 N.E.2d 153, 155 (Ind. Ct. App. 1993). The Seventh Circuit has interpreted Fed. R. Evid. 701 to permit a witness to offer an opinion on the identity of an individual in a surveillance video or a photograph, as long as there is a basis for finding that the witness has superior ability to identify the defendant than the jury. U.S. v. Stormer, 938 F.2d 759, 762 (7th Cir. 1990).
In Stormer, the Seventh Circuit upheld a district court's decision to allow police officers to testify under Fed. R. Evid. 701 regarding their opinion of the identity of a person depicted in a surveillance videotape. The Seventh Circuit stated that the decision about whether to admit testimony under Fed. R. Evid. 701 is left to the sound discretion of the district court, whose decision will not be reversed except upon a showing of an abuse of that discretion. 938 F.2d at 761. The Seventh Circuit noted that a lay witness may testify regarding his or her opinion of the identity of a person depicted in a surveillance photograph if there is some basis for concluding that the witness is more likely to identify the defendant correctly from the photograph than the jury. Id. The identification testimony was admissible because it was helpful to a clear understanding of the determination of a fact at issue. Id. Because the officers, in Stormer, were familiar with the defendant and his appearance, they were in a better position to identify the person on the surveillance videotape than the jury, especially since the quality of the photographs was poor and the defendant had attempted to alter his appearance. Id. at 762.
In United States v. Jackson, 688 F.2d 1121, 1125 (1982), the Seventh Circuit upheld a district court's decision to allow a lay witness to testify about her opinion of the identity of a robber depicted in bank surveillance photographs. That witness had seen the defendant, whom she identified as the person in the photographs, only once at an office Christmas party. The Seventh Circuit stated that the lay witness's testimony helped the jury because she could compare the identity of the person in the photographs with everyone she had met, whereas the jury was limited to comparing the person in the photographs with the defendant. Id.
In the present case, identification of the robber was at issue. Moreover, the robbery victim was able to identify Gibson as looking like the robber, even though he was unable to do so with absolute certainty because of the way the robber pulled the hood of a sweatshirt over his head. The trial court was correct in determining that the lay opinion testimony of Investigator Johnson would be helpful to the jury. The trial court did not abuse its discretion.
Ironically, Gibson argues that we should view the surveillance videotape ourselves because it would be apparent that identification of the robber from that videotape is not possible. While we decline the invitation to view the videotape, we note that Gibson's argument supports the trial court's determination that testimony which would aid the jury in reaching a decision about identification, which was at issue, was correct.
Because we find that the trial court did not abuse its discretion in allowing the identification testimony under Evid.R. 701, we also find that Gibson's trial counsel was not ineffective by failing to object to the identification testimony at trial.
line-up which included a photograph of Gibson at the jail wearing jail clothes.See footnote 2 Gibson claims that he was prejudiced by his attorney's failure to object to this evidence.
Gibson's attorney decided to call Gibson as a witness at trial. The State contends that Gibson's attorney was not ineffective for failing to object to prior criminal history evidence because under Ind. Evidence Rule 609, Gibson's two theft convictions were available for impeachment purposes as crimes involving dishonesty or false statement. See Fassoth v. State, 525 N.E.2d 318, 322 (Ind. 1988).
Officer Williams' testimony was that he had booked Gibson before. Officer Williams made no reference to the crime committed which led to Gibson being booked by Williams. The State elicited the same information from Gibson during cross-examination of Gibson.
Gibson's counsel also attempted to present a mistaken identity defense. Part of that defense depended upon referring to Gibson's prior criminal record. Kathy Brooks testified for the defense that John Shepard told her that the person she saw coming out of Handy Andy's was the same person she had spoken with at a Christmas holiday food handout at the local coliseum. She testified that the people handing out the food were inmates.
while Gibson was a member of the work crew, he did not work as part of the crew giving away food at the coliseum on that occasion.
The supreme court has held that on appeal we may not second-guess strategic decisions requiring reasonable professional judgment even if the strategy or tactic, in hindsight, did not best serve the defendant's interests. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). In the present case, counsel decided to call Gibson, who did have a prior criminal record, as a witness in his own defense. Brooks, another defense witness testified that she thought the robber was a former inmate she had spoken to at a food giveaway. The theory of the defense was that Gibson was somewhere else at the time of the robbery, and that he was identified by Shepard mistakenly.
In light of the fact that Gibson's attorney attempted to use his criminal history to Gibson's advantage, we cannot say that Gibson's attorney's failure to object to other references made to Gibson's prior criminal history constituted ineffective assistance of counsel.
Gibson has failed to show that his trial counsel's performance fell below an objective standard of reasonableness. Moreover, Gibson has failed to show that there is a reasonable probability that, but for his counsel's alleged unprofessional errors the result of the proceeding would have been different. Further, Gibson has failed to show that his conviction was fundamentally unfair or unreliable.
MATTINGLY, J., and NAJAM, J., concur.
Footnote: 1In Groves, a case decided prior to the adoption of the Indiana Rules of Evidence, the issue was whether a sufficient chain of custody was presented prior to admitting a photograph of a criminal transaction. The supreme court decided that the chain of custody establishing the authenticity of the photograph was not sufficient. The court further stated that an officer who was familiar with the defendant in that case erroneously was permitted to testify that it was the defendant who was depicted in the photograph because the chain of custody was inadequate. This case is not applicable to the case at bar.
Footnote: 2All of the pictures included in the array were photographs taken at the jail of black males who were wearing jail clothes.


Where, owing to a mutual mistake, a written contract fails to express the intention of the parties, it may be reformed to express their true intention, although the mistake was one of law respecting its interpretation and construction.
Reformation will be granted only where the evidence of mistake is clear and satisfactory.
Relief in such cases may be obtained by a defendant under Philippine Code of Civil Procedure, § 285, upon appropriate pleadings, without resort to an independent suit for reformation of the contract.
In this case, it is established by proof of the clearest and most satisfactory character that certain rails and sugar-mill machinery were intended not to go with a sale and conveyance of land to the Philippine government, and that the failure of the written contract and deed to except them was due to a mutual mistake of law.
The Court cannot accept a construction placed upon a Philippine statute by the Supreme Court of the Islands when it is clearly erroneous.
law, this Court, to dispose finally of the case, may decide the facts when all evidence proffered was admitted and is in the record and when the appellant in the court below sought to renew the trial court's finding, under § 497, par. 2, of the Philippine Code of Civil Procedure.
Where, in an action at law on a contract, the answer set up was, in effect, a bill in equity, seeking reformation and incidentally to enjoin the action at law, the proceeding was converted into an equitable one, and hence ca be reviewed only by appeal, and not by writ of error.
Province of Laguna, said to contain 16,424 hectares and 14 acres. Owing to delays incident to resurveys and perfecting of titles, the deed of the Calamba Estate was not delivered until October, 1905, when the purchase price, 1,385,443.29 pesos, was paid and possession taken by the grantee. [Footnote 1] Later, the Philippine government learned that the grantor had removed certain sugar mill machinery and the rails of a light railroad which had formerly been upon the estate. The contract made no mention of sugar mills, machinery, or railroad, but it contained, after the description of the estates and specified properties to be conveyed, the words, "and all other improvements," and these words were also in the deed. The government, claiming that the machinery and railroad were covered by this and other clauses and passed as part of the realty, brought suit, in 1906, against the company [Footnote 2] in the Court of First Instance of Manila for their value, alleged to be 50,000 pesos.
"evidence of the terms of agreement other than the contents of the writing, . . . where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties is put in issue by the pleadings. [Footnote 3]"
pleadings, on the ground, among others, that the contracting parties understood that the sugar mills or machinery and the railroad were not to be included as a part of the real estate and that they did not come under any of the terms used in the contract or the deed, and that, for this reason, the instrument did not express the intention and actual agreement of the parties. The trial court held this defense good in law and sustained by the evidence, and entered judgment for the defendant. The Supreme Court of the Philippine Islands reversed the judgment of the trial court solely on the ground that, where parties to a written contract have deliberately adopted the language therein used, a court of equity will not reform the instrument because the parties were "mistaken as to its legal interpretation and effect, nor will such a mistake be recognized as any defense to a suit upon the contract or instrument," and that relief against such a mistake cannot be afforded under § 285 of the Code. Upon the evidence which had been introduced below, the Supreme Court also entered a judgment of 50,000 pesos for the government. 30 Phil.Rep. 27. The case comes here under § 248 of the Judicial Code.
action at law. Compare Bradbury v. Higginson, 167 Cal. 553. The proceeding became thus an equitable one. See Surgett v. Lapice, 8 How. 48, 49 U. S. 64-65; Clark v. Mosher, 107 N.Y. 118; Turner v. Johnson, 29 Ky.Law Rep. 543. The proper method of review by this Court is therefore by appeal, and the writ of error is dismissed. Gsell v. Insular Collector of Customs, 239 U. S. 93; Montelibanoy Ramos v. La Compania General de Tabacos de Filipinas, 241 U. S. 455, 241 U. S. 461.
borrowed from § 1856 of the Code of Civil Procedure of California, and that the courts of that state deny relief under circumstances like those here under consideration. No case sustaining this assertion was cited by counsel, and none has been found by us. Furthermore, the provisions of the two sections differ materially; the significant clause of § 285, namely, "or its failure to express the true intent and agreement of the parties," is not contained in § 1856 of the California Code. It is also urged that, since the construction of § 285 is a matter of purely local concern, we should not disturb the decision of the Supreme Court of the Philippine Islands. This Court is always disposed to accept the construction which the highest court of a territory or possession has placed upon a local statute. Phoenix Railway Co. v. Landis, 231 U. S. 578. But that disposition may not be yielded to, where the lower court has clearly erred. Carrington v. Unites States, 208 U. S. 1. Here, the construction adopted was rested upon a clearly erroneous assumption as to an established rule of equity. The Supreme Court erred in refusing to consider the evidence of mutual mistake, and its judgment must be reversed.
"upon the ground that the evidence was insufficient to justify the decision, and the judge overruled said motion, and due exception was taken to his overruling the same, the Supreme Court may review the evidence and make such findings upon the facts by a preponderance of the evidence, and render such final judgment as justice and equity may require."
We might require that the review of the evidence to which the government is entitled should be made by that court. But, as the case is here on appeal and all proffered evidence was admitted below and is in the record before us, we may now finally dispose of the case.
The burden of proof resting upon the appellant cannot be satisfied by mere preponderance of the evidence. It is settled that relief by way of reformation will not be granted unless the proof of mutual mistake be "of the clearest and most satisfactory character." Snell v. Insurance Co., 98 U. S. 85, 98 U. S. 89, 90; Baltzer v. Raleigh & Augusta Railroad, 115 U. S. 634, 115 U. S. 645; Maxwell Land Grant Case, 121 U. S. 325, 121 U. S. 381; Simmons Creek Coal Co. v. Doran, 142 U. S. 417, 142 U. S. 435; Campbell v. Northwest Eckington Co., 229 U. S. 561, 229 U. S. 584. The evidence introduced by appellant meets this stringent requirement.
"This sale and conveyance shall include all the dwelling houses, farm houses, warehouses, camarines and other buildings, irrigation works, dams, tunnels, ditches, and all other improvements, together with all water and other rights and all hereditaments belonging to the company on every part of the estates hereby agreed to be conveyed."
The words "sugar mills" were also included in the draft of the final deed of conveyance, but they were stricken out after a conference between the company's representative and the Civil Governor, so that the words do not appear in the final deed of conveyance.
"shows without the slightest doubt that the parties, on striking out said words [the sugar mills] from the document, agreed not to include them in the sale, as demanded by the representative of the vendor, because they were not legally part of the hacienda for the reason that they had already been sold to Enrique Rueda prior to the preliminary agreement."
The judgment entered in the Supreme Court of the Philippine Islands is reversed, and that entered by the Court of First Instance of Manila is affirmed.
U.S. Philippine Commission Reports (1901) vol. 2, Part 1, p. 24; (1902) Part 1, p. 24; (1903) Part 1, pp. 38-44; (1904) Part 1, p. 16; Part 2, p. 477; (1905) Part 1, p. 65; (1906) Part 1, p. 58. A hectare equals 2.471 acres; two pesos equal one dollar, gold.
The Dominican Order of Friars was joined in the complaint as a Party defendant, but it was not mentioned in the judgments entered in either of the lower courts, and it did not become a party to the proceedings in this Court.
"Written Agreement Presumed to Contain All the Terms of the Agreement. When the terms of an agreement have been reduced to writing by the parties, it is to be considered as containing all those terms, and therefore there can be, between the parties and their representatives or successors in interest, no evidence of the terms of agreement other than the contents of the writing, except in the following cases:"
"(1) Where a mistake or imperfection of the writing, or its failure to express the true intent and agreement of the parties, is put in issue by the pleadings;"
"(2) Where the validity of the agreement is the fact in dispute. But this section does not exclude other evidence of the circumstances under which the agreement was made, or to which it relates, or to explain an intrinsic ambiguity, or to establish its illegality or fraud. The term 'agreement' includes deeds and instruments conveying real estate, and wills as well as contracts between parties."
See also Stockbridge Iron Co. v. Hudson Iron Co., 107 Mass. 290, 319-320; Maher v. Hibernia Insurance Co., 67 N.Y. 283, 291; Wisconsin Marine & Fire Ins. Co. Bank v. Mann, 100 Wis. 596, 617-620.
Pastor v. Gaspar, 2 Phil.Rep. 592; Icaza v. Ortega, 5 Phil.Rep. 166; Sanz v. Lavin & Brothers, 6 Phil.Rep. 299; Testagorda v. Commanding General, 6 Phil.Rep. 573; Muguruza v. International Banking Corp., 10 Phil.Rep. 346; De Guzman v. Balarag, 11 Phil.Rep. 503; United States v. Macaspac, 12 Phil.Rep. 26; Jose v. Damian, 14 Phil.Rep. 104; Sy Joc Lieng v. Sy Quia, 16 Phil.Rep. 137; Lozano v. Tan Suico, 23 Phil.Rep. 16.


text:
February 13, 1991. Rehearing Overruled March 13, 1991. Discretionary Review Granted July 3, 1991.
Appeal from the 34th District Court, El Paso County, Jose Baca, J.
Marcos A. Lizarraga, El Paso, for appellant.
Steve W. Simmons, Dist. Atty. of El Paso County, El Paso, for appellee.
Before FULLER, WOODARD and KOEHLER, JJ.
This is an appeal from a denial of habeas corpus relief in the 346th District Court. Appellant seeks a double jeopardy bar to further prosecution for injury to a child in cause number 55866, pending on the docket of another El Paso court, the 34th Judicial District Court of El Paso County, Texas. A prior trial of that cause commenced on October 2, 1989. A jury was selected and sworn the following day, October 3, jeopardy thereby attaching. On October 5, the court granted prior defense Motions for Mistrial. These motions concerned prejeopardy errors by the court and prosecution. The motions were initially overruled prior to the attachment of jeopardy, but were reconsidered and granted after jeopardy. The court inquired of the defense as to their posture on the motions. The defense responded that they were neither re-urged nor withdrawn and could not be reconsidered by the court. The court, therefore, considered the motions still subject to further ruling and granted them on the basis of individual and cumulative deprivation of a fair trial.
The ruling on these prejeopardy mistrial motions arose during untimely proceedings under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). On the basis of the State's use of eight peremptory challenges against hispanic members of the jury panel, Appellant lodged a Batson complaint and sought the appropriate evidentiary hearing after jury selection but before administration of the oath and discharge of the remainder of the panel. Over objection, the court dismissed the panel and conducted the evidentiary hearing after the petit jury was sworn.
(5) Pejorative, prejudicial comment by the prosecutor concerning defense counsel in the hallway, outside the courtroom, at a time when panel members were arriving for the morning session.
Appellant presents three points of error. The first asserts that it was error to grant a mistrial purportedly on the basis of Appellant's prejeopardy motions which had already been ruled upon and were no longer being actively urged after jeopardy attached. The second point, assuming the first point to be correct, asserts that the court's, in effect, sua sponte mistrial order was not supported by manifest necessity. Finally, Appellant asserts that the Motions for Mistrial were intentionally provoked by the court and prosecution to lead to a mistrial and a possible loss of rights under the double jeopardy clause.
At the outset, we disregard the purely semantic differences which may exist prior to jeopardy with regard to Motions to Quash the Array as opposed to Motions for Mistrial. As noted by Appellant, various authorities treat the two as synonymous. See e.g., 3 Teague and Helft, Texas Criminal Practice Guide, Sec. 72.03 (1990). Appellant himself employed both phrasings during the voir dire segment.
With regard to Appellant's first point of error, we reject a flat rule that once an objection or motion is ruled upon the court may not reconsider the point and alter his ruling. We understand the backup comfort which defense counsel may experience in obtaining what would appear to be assured reversible error and the consternation attending a reversal of the offensive ruling, removing the defense's ultimate safety net. The constitution and rules of procedure, however, are primarily intended to insure the right to a fair trial and are not intended to create a vested right in reversible error. The various rules of procedure are replete with examples of situations in which a court may alter an initial ruling. See e.g., Tex. Code Crim.Pro.Ann. art. 38.22, Sec. 6 (Vernon 1979); Tex.R.App.P. 30(b); Tex.R.Crim.Evid. 104(b). Williams v. State, 94 Tex.Crim. 60, 249 S.W. 852 (1923); Lott v. State, 60 Tex.Crim. 162, 131 S.W. 553 (1910).
Appellant suggests without persuasive authority that the court's inherent power to reverse its rulings does not traverse the point at which jeopardy attaches. Herein lies the peculiar nature of the case before us. The prejeopardy motions were overruled at that time, but the court reversed its position after jeopardy attached. Obviously, the only significance, and that invoked by the Appellant, concerns the applicability of the basic rules of double jeopardy and certain corollaries concerning prosecutorial misconduct and provocation.
A mistrial granted prior to attachment of jeopardy poses no double jeopardy bar. After jeopardy attaches, a mistrial granted upon defense request also avoids the double jeopardy bar, United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971), unless the defense request was intentionally provoked by prosecutorial misconduct. Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982). A mistrial granted by the trial judge sua sponte can only be upheld if based upon manifest necessity. Oregon v. Kennedy, 456 U.S. at 683-684, 102 S.Ct. at 2093-2094, 72 L.Ed.2d at 429-30; Arizona v. Washington, 434 U.S. 497, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978).
As noted, in the case before us, the defense complaints were lodged and overruled prior to jeopardy attaching; the change in ruling to grant the mistrial occurred after jeopardy attached. Two United States Supreme Court decisions offer some guidance in the proper resolution of the present appeal. United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978); Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 53 L.Ed.2d 80 (1977). In Lee, after the prosecutor's opening statement, but before attachment of jeopardy in the bench trial, the defense moved to dismiss the prosecution due to a defective charging instrument. The court preliminarily denied the motion but indicated he would review the matter at the first opportunity. Jeopardy attached, and a two hour evidentiary segment took place (the State's case-in-chief). The judge took a fifteen minute recess, reviewed authority on the charging instrument complaint and concluded that the defense was correct. He, therefore, granted the Motion to Dismiss, carefully delineating that his ruling reflected no assessment of guilt or innocence.
In Scott, the defendant had moved unsuccessfully prior to trial that two counts of his indictment be dismissed due to pretrial delay. He renewed his motions during trial, and at the close of all the evidence, the trial court granted such motions. In both of these cases, the Supreme Court determined that reprosecution was not barred by the double jeopardy doctrine.
Admittedly, there are factual distinctions between these cases and the record before us. In Lee, the defense was somewhat tardy in presenting its motion after the prosecution's opening statement and thereby posing a disruption of the trial proceeding. Voicing a minority concurrence, Justice Brennan suggested that a different result should obtain had the trial judge received greater forewarning, a minority position harmonious with the defense posture in the present case. In a lone dissent, Justice Marshall pointed out that the question before the judge was easily resolved during a fifteen minute recess and could have been accomplished prior to jeopardy with minimal disruption of what was in fact only a two-hour bench trial. In addition, although the defendant did not renew his motion after jeopardy, the court's prejeopardy ruling was expressly tentative and still pending final resolution — a fact not present before us other than through the court's inherent power to correct its rulings.
The primary distinction in Scott is that the defendant renewed his motions after jeopardy, unlike Appellant's counsel who neither withdrew nor re-urged his Motions for Mistrial.
We find two additional concepts in Lee and Scott which override this factual distinction. As pointed out by Justice Rehnquist's concurrence in Lee, 432 U.S. at 36, 97 S.Ct. at 2148, 53 L.Ed.2d at 91, these controversies are no longer to be determined upon the basis of a "bright line" temporal consideration of the motions and rulings measured against the attachment of jeopardy. It is the underlying constitutional rights and principles which should dictate the outcome. Secondly, in Scott, the majority noted that prior decisions had placed an undue emphasis on the concept of the "defendant's valued right to have his trial completed by a particular tribunal." Scott, 437 U.S. at 100-101, 98 S.Ct. at 2198-2199, 57 L.Ed.2d at 80, citing Wade v. Hunter, 336 U.S. 684, 689, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).
depicted prejeopardy error not shown inherently or by the habeas corpus record to have been intended to provoke a mistrial at that stage. Point of Error No. One is overruled.
Now, in this particular case, the wife of the defendant is going to be called to the witness stand by the State. And she has already pled guilty in this case to an act of omission in regards to injury to a child. And she has been given, in this case, there has been an agreement in exchange for her testimony. In other words, she will testify. And the State made a recommendation to this court regarding her potential punishment, which I followed. Her potential punishment and her punishment in that case was ten years probation.
Our Court of Criminal Appeals has repeatedly held that a juror's knowledge of the conviction of an accused's codefendant would not disqualify him, even though he may have heard the evidence on the trial which resulted in the conviction, unless he formed an opinion which would influence his verdict.
(5) That her plea, conviction and probated punishment met with the approval of this trial judge.
The court could have more carefully broached the subject of credibility of convicted codefendant testimony, under plea bargain arrangements, by the use of hypotheticals. This would have avoided untimely exposure of facts to be brought forth in the pending trial and would have avoided a suggestion of the court's position on her relative culpability vis-a-vis the Appellant and her appropriate relative punishment. This comment by the court violated not only the principles governing voir dire examination but also the Tex. Code Crim.Pro.Ann. art. 38.05 (Vernon 1979) prohibition of judicial comment on the evidence and exposure to the jury of the judge's opinion of the case. The tenor and detail of the comment rendered it not susceptible to any curative instruction. Based upon this error alone, there existed a manifest necessity to abort the trial. Point of Error No. Two is overruled.
Apart from the Batson issues which were never resolved, there existed a prejeopardy manifest necessity for mistrial, based on judicial error. The other prosecutorial errors which occurred prior to jeopardy do not appear to have been calculated to provoke a mistrial. The testimony of the prosecutors at the habeas corpus hearing provided a sufficient basis for the trial judge's denial of relief. No abuse of discretion is shown. Point of Error No. Three is overruled.
The order of the trial court denying habeas corpus relief is hereby affirmed, and Appellant is susceptible to retrial under the indictment.
I reluctantly concur with Justice Woodard's opinion in which he would affirm the 346th District Court's denial of habeas corpus relief. Although it is obvious from the record that almost from the time the participants announced "ready" until the conclusion of the Batson hearing, the trial judge of the 34th District Court where the case is pending, had shed his cloak of judicial impartiality and donned the role of an advocate, he appears to have come to the sense of realizing that because of his and the prosecutor's conduct at a point in the trial where jeopardy normally would have attached, he had to find a way to obviate an almost certain appellate reversal and an unfavorable jeopardy ruling. He accomplished this by reconsidering, on his own motion, Appellant's previously denied Motions for Mistrial.
In the interest of justice, the right of a defendant not to be retried for the same offense must be balanced against the right of the public to a fair and properly conducted trial. The trial of this case had not gone so far that the trial judge would be precluded from reconsidering his previous incorrect rulings.
I respectfully dissent. As is discussed in the majority opinion, there existed a prejeopardy manifest necessity for mistrial based on judicial error by Judge William E. Moody. This error was not minor in nature and, as is evident from the record, occurred prior to the swearing in of the jury and attachment of jeopardy. It was plain error for the court to proceed to trial. However, the court chose to do so.
The jury was sworn in but, before any evidence was heard, the court conducted a Batson hearing. Evidence before the court showed the State struck eight Hispanic women jurors. The prosecutor's notes on some of those jurors contained disparaging remarks which could be considered as not racially neutral reasons for striking the potential jurors. The court would not or at least did not rule on the Batson motion but inquired of the Appellant if he wished to re-urge his prior overruled Motions for Mistrial. The Appellant declined as did the State. However, the State did not affirmatively urge the court to proceed to trial.
The question then arises . . . why did the court deny the Appellant's Motion for Mistrial prior to swearing in the jury panel and yet after the Batson hearing (after the jury was sworn) he granted the pretrial Motions for Mistrial without ruling on the Batson motion?
In Lee v. United States, 432 U.S. 23, 35, 97 S.Ct. 2141, 2148, 53 L.Ed.2d 80, 90 (1977), Justice Brennan, in his concurring opinion, states that where a petitioner affords "the trial judge ample opportunity to rule on his motion prior to trial, and the court, in failing to take advantage of this opportunity, permitted the attachment of jeopardy before ordering the dismissal of the information." Justice Brennan continues on to state that "[i]n such a circumstance, the court's action or inaction would effectively deprive petitioner of his 'valued right' to receive a factual determination from the first empaneled factfinder. . . ." This is a case that clearly delineates the situation that Justice Brennan sought to protect a defendant from, that of indiscriminate rulings directed at protecting the Court, not the defendant.
The trial court simply would not rule on the Batson motion. Instead, on his own, without any urging by the State or Appellant, he decided to reverse his rulings on the prejeopardy Motions for Mistrial. This may have been intended to avoid jeopardy attaching but such action violated Appellant's right to due process and a fair trial by his already selected peers.
It would serve no useful purpose to restate in detail the improper conduct of the prosecutor and the forcing of the Appellant to commence his voir dire of the jury panel at 5:25 p.m. after an hour and five minute voir dire by the court. I would grant the writ holding that double jeopardy barred retrial of the Appellant.

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On the words of the Gospel, Matt. xi. 25, “I thank thee, O Father, Lord of Heaven and Earth, that thou didst hide these things from the wise and understanding,” etc.
1. When the Holy Gospel was being read, we heard that the Lord Jesus exulted in Spirit, and said, “I confess to Thee, O Father, Lord of heaven and earth, for that Thou hast hid these things from the wise and prudent, and hast revealed them unto babes.”22522252 Matt. xi. 25. Thus much to begin22532253 Interim. with, we find before we pass on further, if we consider the words of the Lord with due attention, with diligence, and above all with piety, that we ought not invariably to understand when we read of “confession” in the Scriptures, the confession22542254 Vocem. of a sinner. Now especial need there was of saying this, and of reminding you, Beloved, of this, because as soon as this word was uttered by the reader’s voice, there followed upon it the sound of the beating of your breasts, when ye had heard, I mean, what the Lord said, “I confess to Thee, O Father.” At the uttering of these words, “I confess,” ye beat your breasts. Now what means this beating of the breast, but to show that which lies hid within the breast, and to chastise by the visible beating the secret sin? And why did ye this, but because ye heard, “I confess to Thee, O Father.” Ye heard the words “I confess,” but ye did not consider, who it is that confesses. But consider now. If Christ, from whom all sin is far removed, said, “I confess:” confession does not belong to the sinner only, but sometimes to him also that praiseth God. We confess then, whether 311in praising God, or accusing ourselves. In either case it is a godly confession, either when thou blamest thyself, who art not without sin, or when thou praisest Him who can have no sin.
2. But if we consider it well: thine own blame is His praise. For why is it that thou dost now confess in accusing thyself for thy sin? in accusing thyself why dost thou confess? but because thou art become alive from the dead? for the Scripture saith, “Confession perisheth from the dead, as from one that is not.”22552255 Ecclus. xvii. 28, Sept. If confession perisheth from the dead, he who confesseth must be alive; and if he confesseth sin he hath undoubtedly risen again from death. Now if he that confesseth sin hath risen again from the dead, who hath raised him? No dead man can raise himself. He only was able to raise Himself, who though His Body was dead, was not dead. For He raised up that which was dead. He raised up Himself, who in Himself was alive, but in His Body that was to be raised was dead. For not the Father only, of whom it was said by the Apostle, “Wherefore God also hath exalted Him,”22562256 Phil. ii. 9. raised the Son, but the Lord also raised Himself, that is, His Body. Whence He said, “Destroy this temple, and in three days I will raise it again.”22572257 John ii. 19. But the sinner is dead, especially he whom the load of sinful habit presseth down, who is buried as it were like Lazarus. For he was not merely dead, he was buried also.22582258 John xi. 17. Whosoever then is oppressed by the load of evil habit, of a wicked life, of earthly lusts, I mean, so that that in his case is true which is piteously described in a certain Psalm, “The fool hath said in his heart, There is no God,”22592259 Ps. xiv. 1. he is such an one, of whom it is said, “Confession perisheth from the dead, as from one that is not.” And who shall raise him up, but He who when the stone was removed, cried out, and said, “Lazarus, Come forth?”22602260 John xi. 43. Now what is to “come forth,” but to bring forth what was hidden? He then who confesseth “cometh forth.” “Come forth” he could not were he not alive; he could not be alive, had he not been raised again. And therefore in confession the accusing of one’s self, is the praise of God.
3. Now one may say, what profit then is the Church, if he that confesseth comes forth, at once raised to life again by the voice of the Lord? What profit to Him that confesseth, is the Church, to which the Lord said, “Whatsoever ye shall bind on earth, shall be bound in heaven.”22612261 Matt. xvi. 19 and xviii. 18. Consider this very case of Lazarus: he comes forth, but with his bands. He was alive already through confession, but he did not yet walk free, entangled as he was in his bands. What then doth the Church to which it was said, “Whatsoever ye shall loose, shall be loosed;” but what22622262 Vid. Serm. 48 (98, Bened.) 6. the Lord said forthwith to His disciples, “Loose him, and let him go”?22632263 John xi. 44.
4. Whether then we accuse ourselves, or directly praise God, in both ways do we praise God. If with a pious intention we accuse ourselves, by so doing we praise God. When we praise God directly, we do as it were celebrate His Holiness, who is without sin: but when we accuse ourselves, we give Him glory, by whom we have risen again. This if thou shalt do, the enemy will find none occasion whereby to22642264 Circumveniat. overreach thee before the judge. For when thou shall be thine own accuser, and the Lord thy Deliverer, what shall he be but a mere calumniator? With good reason hath the Christian hereby provided protection for himself against his enemies, not those that may be seen, flesh and blood, to be pitied, rather than to be feared, but against those against whom the Apostle exhorts us to arm ourselves: “We wrestle not against flesh and blood;”22652265 Eph. vi. 12. that is, against men whom ye see raging against you. They are but vessels, which another uses, they are but instruments which another handles. “The devil,” saith the Scripture, “entered into the heart of Judas, that he should betray the Lord.”22662266 John xiii. 2. One may say then, what have I done? Hear the Apostle, “Give not place to the devil.”22672267 Eph. iv. 27. Thou hast given him place by an evil will: he entered, and possessed, and now uses thee. He had not possessed thee, hadst thou not given him place.
5. Therefore doth he warn and say, “We wrestle not against flesh and blood, but against principalities and powers.” Any one might suppose this meant against the kings of the earth, against the powers of this world. How so? are they not flesh and blood? And once for all it is said, “not against flesh and blood.” Turn thy attention from all men. What enemies then remain? “Against principalities and powers of spiritual wickedness, the rulers of the world.” 22682268 Vulgate. It might seem as though he gave the devil and his angels more than they have. It is so, he has called them the “rulers of the world.” But to prevent misunderstanding, he explains what this world is, of which they are the rulers. “The rulers of the world, of this darkness.” What is, “of the world, of this darkness?” The world is full of those who love it, and of unbelievers, over whom he is ruler. This the Apostle calls darkness. This darkness the devil and his angels are the rulers of. This is not the natural, and unchangeable darkness: this darkness changes, and becomes light; it believes, and by believing is enlightened. When this takes place in it, it will hear the words, “For ye were sometimes 312darkness, but now are ye light in the Lord.”22692269 Eph. v. 8. For when ye were darkness, ye were not in the Lord: again, when ye are light, ye are light not in yourselves, but in the Lord. “For what hast thou which thou hast not received?”22702270 1 Cor. iv. 7. Inasmuch then as they are invisible enemies, by invisible means must they be subdued. A visible enemy indeed thou mayest overcome by blows; thy invisible enemy thou conquerest by belief. A man is a visible enemy; to strike a blow is visible also. The devil is an invisible enemy; to believe is invisible also. Against invisible enemies then there is an invisible fight.
6. From these enemies how can any man say that he is safe? For this I had begun to speak of, but I thought it necessary to treat of these enemies at some little length. But now that we know our enemies, let us see to our defence against them. “In praising I will call upon the Lord, so shall I be safe from mine enemies.”22712271 Ps. xvii. 4, Sept. (xviii. 3, English version). Thou seest what thou hast to do. “In praising call;” that is, “in praising the Lord, call.” For thou wilt not be safe from thine enemies, if thou praise thyself. “In praising call upon the Lord, and thou shalt be safe from thine enemies.” For what doth the Lord Himself say? “The sacrifice of praise shall glorify Me, and there is the way, in which I will show him My salvation.”22722272 Ps. xlix. 23, Sept. (l. English version). Where is the way? In the sacrifice of praise. Let not your foot then wander out of this way. Keep in the way; depart not from it; from the praise of the Lord depart not a foot, nay, not a nail’s breadth. For if thou wilt deviate from this way, and praise thyself instead of the Lord, thou wilt not be safe from thine enemies; for it is said of them, “They have laid stumbling-blocks for me by the way.”22732273 Ps. cxxxix. 6, Sept. (cxl. 5, English version). Therefore in whatever measure thou thinkest that thou hast good of thine own self, thou hast deviated from the praise of God. Why dost thou marvel then, if thine enemy seduce thee, when thou art thine own seducer? Hear the Apostle, “For if a man think himself to be something when he is nothing, he seduceth himself.”22742274 Gal. vi. 3, Vulg.
7. Give heed then to the Lord confessing; “I confess to Thee, O Father, Lord of heaven and earth.” I confess to Thee, that is, I praise Thee. I praise Thee, not I accuse myself. Now as far as the taking of very22752275 Ipsius. man is concerned, all is grace, singular and perfect grace. What merit had that man22762276 It was the doctrine of Paul of Samosata, that the man Christ was exalted to be the Son of God (προκοπῄ, from Luke ii. 52), as if by merit. Origen seems to hold the same, at least as regards the (supposed) pre-existent soul of Christ (vid. Huet. Origen, ii. 3, § 6; vid. however De la Rue’s note); and the Arians, at least implicitly (Socr. Hist. i. 6, Athan. Orat. contr. Arian, i. 35, iii. 51; and Leporius, Cassian. Incarn. i. 3, 4). The same heresy was imputed to the Nestorians (but falsely according to Garner, in Mar. Merc. pt. i. p. 431), and thereby connected them with the Pelagians, as if unassisted human nature could merit grace. The Church on the other hand, proceeding from Rom. i. 4, taught that the human nature which became the manhood of the Word was predestined to be such by grace before its creation, and became such in the moment of creation. St. Athanasius touches on this subject against the Arians (Orat. i. 46); St. Augustin enlarges on it against the Pelagians (De Prædest. Sanct. 23, 30; De Corrept. et Grat. 30); St. Cyril, against the Nestorians (Contra Nest. iii. p. 83); Vigilius, against the Monophysites (Contra Eutych. v. B. P. t. 4, p. 528, ed. 1624). When St. Augustin says “that man,” he is speaking of our Lord’s human nature as abstracted from that Divine Person in whom it actually existed, and not as if it ever existed as a separate hypostasis. This use of “homo” and ἄνθρωπος is very frequent with the Fathers; what is more startling is the expression “homo ille,” yet vid. also Augustin, De Præd. Sanct. 30; Alcuin, De Trin. iii. 1; Agobard, Cont. Felic. B. P. t. 9, p. 1194. However, this point is a subject of debate among theologians (vid. Petav. De Incarn. xi. fin.). who is Christ, if thou take away the grace, even that so pre-eminent grace, whereby it behoved that there should be One Christ, and that He whom we acknowledge should be He? Take away this grace, and what is Christ but a mere man? what but the same as thou art thyself? He took a Soul, He took a Body, He took a perfect Man; He uniteth him to Himself, the Lord maketh one Person with the servant. What pre-eminent grace is this! Christ in heaven, Christ on earth; Christ at once both in heaven and earth; not two Christs, but the same Christ, both in heaven and earth. Christ with the Father, Christ in the Virgin’s womb; Christ on the Cross, Christ succouring some souls in hell; and on the self-same day Christ in paradise with the robber who confessed. And how did the robber attain22772277 Meruit. to this blessedness, but because he held on that way, in which “He showeth His salvation”? That way, from which let not thy foot wander. For in that he accused himself, he praised God, and made his own life blessed. He looked in hope22782278 Præsumpsit. for this from the Lord, and said to Him, “Lord, remember me when Thou comest into Thy kingdom.”22792279 Luke xxiii. 42. For he considered his own wicked deeds, and thought it much, if mercy should be shown him even at the last. But the Lord immediately after He had said, “Remember me”—when? “when Thou comest into Thy kingdom,” saith, “Verily I say unto thee, Today shall thou be with Me in paradise.” Mercy offered at once, what misery deferred.
8. Hear then the Lord confessing; “I confess to Thee, O Father, Lord of heaven and earth.”22802280 Matt. xi. 25. What do I confess? Wherein do I praise thee? For this confession, as I have said before, signifieth praise. “Because Thou hast hid these things from the wise and prudent, and hast revealed them unto babes.” What is this, Brethren? Understand by that which is opposed to them. “Thou hast hid these things,” saith he, “from the wise and prudent;” and he did not say, thou hast revealed them to the foolish and imprudent, but “Thou hast hid these things” indeed “from the wise and prudent, and hast revealed them unto babes.” To these wise and 313prudent, who are really objects of derision, to the arrogant who in false pretence are great, yet in truth are only swollen up, he opposed not the foolish, nor the imprudent, but babes. Who are babes? The humble. Therefore “Thou hast hidden these things from the wise and prudent.” Under the name of the wise and prudent, He hath Himself explained that the proud are understood, when He said, “Thou hast revealed them unto babes.” Therefore from those who are not babes Thou hast hidden them. What is from those who are not babes? From those who are not humble. And who are they but the proud? O way of the Lord! Either there was none, or it lay hid, that it might be revealed to us. Why did the Lord exult? “Because it was revealed unto babes.” We must be little babes; for if we would wish to be great, “wise and prudent” as it were, it is not revealed unto us. Who are these great ones? The wise and prudent. “Professing themselves to be wise, they became fools.”22812281 Rom. i. 22. Here then thou hast a remedy suggested from its opposite. For if by “professing thyself wise, thou art become a fool; profess thyself a fool, and thou wilt be wise.” But profess it in truth, profess it from the heart, for it is really so as thou professest. If thou profess it, do not profess it before men, and forbear to profess it before God. As to thyself, and all that is thine, thou art altogether dark. For what else is it to be a fool, but to be dark in heart? He saith of them at last, “Professing themselves to be wise, they became fools.” Before they professed this, what do we find? “And their foolish heart was darkened.”22822282 Rom. i. 21. Acknowledge then that thou art not to thyself a light. At best thou art but an eye, thou art not the light. And what good is even an open and a sound eye, if the light be wanting? Acknowledge therefore that of thine own self thou art no light to thyself; and cry out as it is written, “Thou, Lord, wilt light my candle: Thou wilt enlighten, O Lord, my darkness with Thy Light.”22832283 Ps. xviii. 28. For myself I was all darkness; but Thou art the Light that scattereth the darkness, and enlighteneth me; of myself I am no light to myself, yea I have no portion of light but in Thee.
9. So John also, the friend of the Bridegroom, was thought to be the Christ, was thought to be the Light. “He was not that Light, but that he might bear witness of the Light.”22842284 John i. 8. But what was the Light? It was the true Light. What is the true Light? “That which lighteneth every man.” If that be the true Light which lighteneth every man, then it lightened John also, who professed and confessed rightly, “Of His fulness have all we received.”22852285 John i. 16. See if he said ought else, but “Thou, O Lord, shalt lighten my candle.” Finally, being now enlightened, He gave His testimony. For the benefit of the blind the lamp gave witness to the Day. See how that He is a lamp; “Ye sent,” He said, “unto John, and ye were willing for a season to rejoice in his light; he was a burning and a shining lamp.”22862286 John v. 33, etc. He, the lamp, that is, a thing enlightened, was lighted that it might shine. That which can be lighted can be extinguished also. Now that it may not be extinguished, let it not expose itself to the wind of pride. Therefore, “I confess to Thee, O Father, Lord of heaven and earth, because Thou hast hid these things from the wise and prudent,” from those who thought themselves to be light, and were darkness; and who because they were darkness, and thought themselves to be light, could not even be enlightened. But they who were darkness, and confessed that they were darkness, were little babes, not great; were humble, not proud. Rightly therefore did they say, “O Lord, Thou wilt lighten my candle.” They knew themselves, they praised the Lord. They did not stray from the way of salvation; “They in praise called upon the Lord, and they were saved from their enemies.”22872287 Ps. xviii. 3.
10. Turning then to the Lord our God, the Father Almighty, in purity of heart, let us render unto Him, as our frailty best can, our highest and abundant thanks, with our whole mind praying His singular goodness, that in His good pleasure He would vouchsafe to hear our prayers, that by His Power He would drive out the enemy from our deeds and thoughts, would enlarge our faith, direct our minds, grant us spiritual thoughts, and bring us safe to His endless blessedness, through His Son Jesus Christ. Amen.
2255 Ecclus. xvii. 28, Sept.
2261 Matt. xvi. 19 and xviii. 18.
2262 Vid. Serm. 48 (98, Bened.) 6.
2270 1 Cor. iv. 7.
2271 Ps. xvii. 4, Sept. (xviii. 3, English version).
2272 Ps. xlix. 23, Sept. (l. English version).
2273 Ps. cxxxix. 6, Sept. (cxl. 5, English version).
2274 Gal. vi. 3, Vulg.
2276 It was the doctrine of Paul of Samosata, that the man Christ was exalted to be the Son of God (προκοπῄ, from Luke ii. 52), as if by merit. Origen seems to hold the same, at least as regards the (supposed) pre-existent soul of Christ (vid. Huet. Origen, ii. 3, § 6; vid. however De la Rue’s note); and the Arians, at least implicitly (Socr. Hist. i. 6, Athan. Orat. contr. Arian, i. 35, iii. 51; and Leporius, Cassian. Incarn. i. 3, 4). The same heresy was imputed to the Nestorians (but falsely according to Garner, in Mar. Merc. pt. i. p. 431), and thereby connected them with the Pelagians, as if unassisted human nature could merit grace. The Church on the other hand, proceeding from Rom. i. 4, taught that the human nature which became the manhood of the Word was predestined to be such by grace before its creation, and became such in the moment of creation. St. Athanasius touches on this subject against the Arians (Orat. i. 46); St. Augustin enlarges on it against the Pelagians (De Prædest. Sanct. 23, 30; De Corrept. et Grat. 30); St. Cyril, against the Nestorians (Contra Nest. iii. p. 83); Vigilius, against the Monophysites (Contra Eutych. v. B. P. t. 4, p. 528, ed. 1624). When St. Augustin says “that man,” he is speaking of our Lord’s human nature as abstracted from that Divine Person in whom it actually existed, and not as if it ever existed as a separate hypostasis. This use of “homo” and ἄνθρωπος is very frequent with the Fathers; what is more startling is the expression “homo ille,” yet vid. also Augustin, De Præd. Sanct. 30; Alcuin, De Trin. iii. 1; Agobard, Cont. Felic. B. P. t. 9, p. 1194. However, this point is a subject of debate among theologians (vid. Petav. De Incarn. xi. fin.).
2286 John v. 33, etc.

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Authors: S. Aleksandrov, G. Kanevsky.
Authors: L. Lavrischeva, N. Ovchinnikov, M. Lobachev.
Crash-stop calculation method for a ship with several different propulsors.
Authors: A. Yakovlev, Yu. Vasilyev.
Changes in propulsion of the propeller with geometric parameters beyond acceptable limits.
Authors: V. Ilyin, A. Chalov, Yu. Yakovleva.
Importance of considering laminary-turbulent transition in hydrodynamic calculations of propeller models.
Authors: A. Taranov, M. Lobachev.
Mesh convergence in calculations of flow around ice breaker propeller model.
Applying Star-CCM+ to determine hydrodynamic parameters of propeller model and analyse the effect of various blade tip designs.
Authors: A. Rudnichenko, N. Marinich.
Model studies of an ACV climbing the sloping shore.
Authors: T. Dyakova, S. Rozhdestvensky, A. Rashev.
Extrapolation of model test data for displacement ship with single air cavity at the bottom.
Authors: A. Sverchkov, Yu. Gorbachev.
Model test results for a pod propulsor at different turning angles.
Authors: P. Poltavets, S. Kaprantsev, I. Chicherin, V. Andreev.
Self-propulsion model tests in ice basins to determine ice resistance.
Authors: A. Dobrodeev, A. Klubnichkin, K. Sazonov.
Applying bulbous bows to large Arctic ships.
Authors: A. Aleksandrov, V. Nikitin, A. Gaina, V. Platonov.
Failure of layered «aluminiu-msteel» composite with asymmetric arrangement of layers under static and cyclic loads.
Authors: A. Bulgakov, S. Knoring, D. Zaitsev, V. Pavlova.
Operability assessment of steel hull structures after fire.
Authors: A. Bulgakov, M. Kudrin, V. Nikitin.
Determination method for approximate relationship describing the limit load on the stiffened plate.
Authors: I. Kazakova, O. Surov, S. Kalenchuk.
Parameteric representation of unsteady slamming loads in numerical calculation procedures for strength of hull members.
Authors: A. Taubin, A. Komendantov.
Stability assessment for a tube bundle of a heat exchanger by means of a numerical experiment.
Authors: S. Kaplunov, N. Valyes, O. Marchevskaya, Ye. Dronova, A. Samolysov.
Aeroelastic response of anisotropic composite wing.
Authors: Ya. Lyubomirov, B. Yartsev.
Improving the method for determination of ship weight and CG coordinates by means of inflatable shells.
Authors: Yu. Sharapov, A. Anosov.

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The Southern Pacific Railroad Company is not entitled under the Branch Line Land Grant Act of March 3, 1871, c. 122, § 23, 16 Stat. 573, 579, to select as lieu lands within the indemnity limits specified in that act any lands within the granted or indemnity limits of the grant made to Atlantic & Pacific Railroad Company by the Act of July 27, 1866, 14 Stat. 292, c. 278, and forfeited by that road under the Act of July 6, 1886, 24 Stat. 123, c. 637. Southern Pacific Railroad Co. v. United States, 168 U. S. 1, followed, and Ryan v. Railroad Co., 99 U. S. 382, distinguished.
152 F. 314 and 167 F. 574 affirmed.
The facts, which involve rights of the Southern Pacific Railroad Company under its branch line grant to lands within the overlap of the Atlantic and Pacific Railroad Company grant, are stated in the opinion.
patents for lands lying within the indemnity limits of the grant made to the Southern Pacific Railroad Company by the Act of March 3, 1871, c. 122, § 23, 16 Stat. 573, 579, known as the branch-line grant, and within the grant made to the Atlantic & Pacific Railroad Company by the Act of July 27, 1866, c. 278, 14 Stat. 292. The Atlantic & Pacific road forfeited its grant (Act of July 6, 1886, c. 637, 24 Stat. 123), and thereafter the Southern Pacific selected the two parcels in question, as indemnity under its branch-line grant, one of them lying within the granted, and the other within the indemnity, limits of the Atlantic & Pacific. It relies on the general principle that whether lands are subject to selection as indemnity depends upon the state of the lands at the time the selection is made. Ryan v. Railroad Co., 99 U. S. 382. The circuit court, however, held that the right in this particular case had been decided not to exist (152 F. 314), and the circuit court of appeals affirmed the decree (167 F. 514).
"lands within the Southern Pacific indemnity limits and the Atlantic & Pacific granted limits; [and] lands within the common indemnity limits of both grants."
made on petition for rehearing that the decision could not be extended to indemnity lands, but the petition was denied. In Southern Pacific Railroad Co. v. United States, 183 U. S. 519, the dismissal of the bill without prejudice to claims that by interpretation are said to include indemnity claims imports no limitation of the previously established law, and, on the other hand, in Southern Pacific Railroad Co. v. United States, 189 U. S. 447, 189 U. S. 451-452, the case in 168 U. S. 168 U.S. 1 was followed, and the practice of the Land Department in accordance with that decision was mentioned as a further ground. There may be distinctions between the latest decision and this, but, in view of the rightly established understanding, it is too late to set them up now.


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UNITED STATES v. ARIAS ESPINOSA November 30, 2012 No. 11–10663.
UNITED STATES v. I.E.V., Juvenile Male, Defendant—Appellant. November 28, 2012 No. 11–10337.
ALASKA SURVIVAL v. SURFACE TRANSPORTATION BOARD November 28, 2012 No. 12–70218.
UNITED STATES v. MUNGUIA November 27, 2012 No. 10–50253.
UNITED STATES v. WAHCHUMWAH November 27, 2012 No. 11–30101.
UNITED STATES v. SCOTT November 26, 2012 No. 11–10529.
MOUNT HOPE CHURCH v. BASH BACK DKWATT RISEUP NET RISEUP NETWORKS November 26, 2012 No. 11–35632.
STOKLEY v. RYAN November 21, 2012 No. 09–99004.
POUNCIL v. TILTON CDC CDC MCSP November 21, 2012 No. 10–16881.
Karen SLATER, individually and on behalf of the Estate of Beverly Jean Mauck, a deceased person; Allen Mauck, individually; Pamela Mauck, individually; Ryan Rehberg, Personal Representative on behalf of the Estate of Brian Mauck, a deceased person, Plai.. November 19, 2012 No. 11–35699.
UNITED STATES v. OSEGUERA MADRIGAL November 19, 2012 No. 11–30360.
WAGNER v. COUNTY OF MARICOPA November 16, 2012 No. 10–15501.
BARABIN v. ASTENJOHNSON INC November 16, 2012 Nos. 10–36142, 11–35020.
IN RE: Robert Lynn SCHOLZ; Carolyn Gail Scholz November 15, 2012 No. 11–60023.
MILLER v. WRIGHT November 13, 2012 No. 11–35850.
PARRISH v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION November 5, 2012 No. 11–35332.
AKHTAR v. MESA November 5, 2012 No. 11–16629.

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A. SPANOU: Let’s welcome the Minister of Foreign Affairs, Mr Giorgos Katrougalos. Good morning.
G. KATROUGALOS: Good morning to you too, and to our listeners.
A. SPANOU: You have just returned from Antalya, and what did you come face-to-face with? An attack on the Russian Consulate in Chalandri. What’s your take, Minister?
G. KATROUGALOS: We are a safe country but, unfortunately, isolated events such as this can happen in every country, and it is not possible to fully avert them. Obviously, I do not have to state that we condemn it as an unacceptable act. We have spoken to the Russian Embassy, and we will do everything in our power to arrest those who committed this utterly insane act; and we have obviously reconfirmed our excellent relations with the Russian Federation.
V. SKOURIS: Do you have any information from the Ministry of Citizen Protection, the Counter-terrorism Unit?
G. KATROUGALOS: Even if I did, I wouldn’t tell you.
V. SKOURIS: According to the information we broadcast just before, the evidence points towards the "Revolutionary Self-Defence Organisation."
G. KATROUGALOS: When the need arises for a public statement, one will be released by the competent Ministry.
A. SPANOU: However, in the last year, there have been many attacks, in one way or another, against foreign diplomatic missions, each on a different scale. They are becoming somewhat of an epidemic in this country. Isn’t that right?
G. KATROUGALOS: Let’s not confuse tossing flyers with tossing grenades.
V. SKOURIS: Right, but going to a foreign Embassy and tossing flyers is a problem in itself.
G. KATROUGALOS: To avoid giving rise to doubts and misunderstandings: obviously, we condemn anything that violates the space occupied by each Embassy, which is sovereign territory. It has occurred even in milder ways, as I have already mentioned. Undoubtedly, since antiquity, foreign embassies have held everyone’s respect, and we do not tolerate anyone disrupting our good relations.
V. SKOURIS: You fully condemn it verbally, Minister. In practice, however, when this keeps happening, this shows that there’s a problem.
G. KATROUGALOS: Let’s get something straight. Grenade attacks do not keep happening.
V. SKOURIS: No, we did not mean grenades, for God’s sake.
G. KATROUGALOS: This is precisely the reason we should not group the two events together. Not because we do not condemn them, but because they are truly different in terms of quality. Being in a country where grenades are tossed at embassies is different to being in a country where flyers are tossed.
V. SKOURIS: Should patrolling outside embassies perhaps increase?
G. KATROUGALOS: We have already taken measures to this end, and we shall take more. But let me reiterate, and we see this from the incidents that unfortunately fill up our newspapers, it is not possible to fully avert such incidents in the world we live in.
A. SPANOU: Let’s move on to the other topics. Today, the turkish Press is praising the statements you made yesterday on the rights that Turkey also enjoys in the eastern Mediterranean, based on International Law. Were you expecting to make such an impression? Because New Democracy’s condemnation is on its way.
G. KATROUGALOS: Why should New Democracy’s condemnation be on its way - a condemnation of the International Law? It seems ludicrous to me.
Listen, what is Turkey’s fixed policy when it comes to issues that concern us? Turkey traditionally comes across as a revisionist power that needs to exhibit strength to get around obligations arising from International Law. We, along with the Republic of Cyprus, have handled Turkey’s practice quite effectively in the context of the diplomatic alliances we have forged.
It is in our interest to make Turkey talk in terms of International Law, and not in terms of strength. Therefore, when we make moves that have not been fully accepted by the other side -with the other side having other things at mind- obviously it is in the interest of our country to always talk in terms of International Law, as well as to acknowledge the rights of the other side, always in terms of the Law of the Sea, International Law.
When we refer to International Law, this does not mean that we want to claim single ownership where we believe our interests lie. We want the rules that stem from International Law to be followed to the letter.
V. SKOURIS: Mr Koumoutsakos, for example, criticised you with regard to the issue of Turkey having rights in the Mediterranean.
G. KATROUGALOS: There is no doubt that there have been narrow party interests in the announcements issued by New Democracy, which, as I pointed out, echo similar announcements of the Union of Centrists in this case.
But let’s hold on a minute, what do you mean? Doesn’t Turkey have a coastline? Doesn’t it, therefore, have rights according the Law of the Sea? Isn’t it in the interest of our country to talk on this level, based on the Law of the Sea? I don’t understand how there can be any doubt about something that is a fixed national policy line. There is no inconsistency between what I am saying and what we have always said.
A. SPANOU: Is any type of cooperation with Turkey in the Eastern Mediterranean possible? In terms of energy interests, for example.
G. KATROUGALOS: Hold on a minute. When Turkey decides that it will respect International Law, that it will not challenge it, and that it will not attempt to exceed the provisions of International Law, through shows of force, that prospect may indeed exist. However, the prospect does not exist at the moment.
What’s the issue at the moment? Will International Law be fully respected or not? If we start by accepting this framework of rules and discussion, we can move on.
V. SKOURIS: Mr Koumoutsakos accused you of opening up loopholes and connecting Greek-Turkish relations with the Prespa Agreement.
G. KATROUGALOS: What does that have to do with this? Nothing was said. What does Mr Koumoutsakos – whom I respect and who obviously is getting carried away by the general populist climate within his party – mean? If he means that we do not want the problems to drag on, but rather to resolve them, because that is the message from the Prespa Agreement, then that’s true. We want to resolve problems; we don’t want to keep kicking the can further down the road.
At the moment, though, the situation in the relations with Turkey has not matured enough for a breakthrough similar to the Prespa Agreement. The effort we are making is completely incomparable.
What we are doing with Turkey is to take many small steps, generally accepted steps, as they relate to soft politics and bilateral issues, mainly in the field of economy or the field of confidence-building measures, so as to advance the positive agenda a bit further, just a tad, each month. To de-escalate tensions and to create conditions for dialogue.
At the moment, there’s no chance of reaching a major solution for all our issues with Turkey. It would be unrealistic for someone to hope for this. However, we have to come up with the rules and a framework for dialogue, and I reiterate yet again that we have always wanted the dialogue to be determined by International Law and not by force.
V. SKOURIS: Let me ask you something else, on a political level. Due to your statement and due to the statement by Mr Nikos Pappas about "Famous Macedonia," which New Democracy also used to make a video, if I’m right, in principle, you are being accused of having diminished patriotic consciousness by a sector of the political world. I think you’ve seen the statements, you’ve seen the headlines.
G. KATROUGALOS: I have said before that foreign policy is not ideal ground for exploiting narrow party interests. Whoever goes further even than Rouvikonas and doubts the patriotism of their political opponent, they do not just undermine the exercise of foreign policy, they undermine democracy.
I want discussion to take place on the terms of political controversy, but a political controversy within the context of democracy and the rule of law. And never will I contribute to a further degeneration of the level of political dialogue.
Those doubting the patriotism of others must be very careful, because, in reality, they will not gain the electoral benefits they are expecting. They will be led to anti-democratic, semi-fascist forces that have fathered, have the copyright on roughnecks, on traitorous politicians, who are the only ones to benefit from this discussion.
V. SKOURIS: Yes, but we witness you granting them use of the hall at the Zappeion Megaron to present their European Parliament ballot paper, and I am referring to Golden Dawn on 25 March, on Greek Independence Day.
G. KATROUGALOS: We cannot forbid -I don’t know about the Zappeion Megaron- any party from running for elections, even if it is outside the context of the democratic spectrum.
G. KATROUGALOS: What did you mean then? How could we have done this?
V. SKOURIS: I talked about granting use of the hall at the Zappeion Megaron on that specific date.
G. KATROUGALOS: I know nothing about this, but in any case, the main issue is not forbidding Golden Dawn from running for elections, using policing measures. The issue is to convince the Greek people that this party does indeed have neo-fascist traits, which do not have room, cannot fit within the room afforded by our Constitution and the democratic context of political dialogue.
This -I repeat- does not mean that we must be led to banning any party. The policy should be condemnation and isolation.
A. SPANOU: The counter argument to what we were discussing before is that today, Mr Akar, the Turkish Minister of National Defence, has again made statements saying “the Aegean and Cyprus belong to us” or something to that effect, while you are talking about recognising Turkey’s rights in the eastern Mediterranean. Therefore, each side’s rhetoric is on an entirely different level.
Let me repeat, it is in the interest of our country for the controversy not to be based on verbalism and rhetoric, but on International Law. Because in that case, everything is clear and the winner is not the one who screams the loudest; the winner is the one who can prove one’s case, based not only on legal arguments, but mainly through diplomatic cooperation, based on International Law and also on the acceptance of multilateralism, as the foundation of diplomacy.
It’s what we do. To state it clearly: we must have a strong foreign policy, which can be secured through our diplomatic initiatives. We must rebuff the other side’s display of strength. We have achieved this through our trilateral cooperation schemes. There is no better proof than the success of this aspect of our policy, of the recent 3+1 Summit, where in reality, the USA confirmed our role as an exporter of stability in the region.
G. KATROUGALOS: Hold on a minute. I referred to two things. The second is to avert and curb the other side’s policy, when it seeks a show of strength.
The positive flipside of this policy is making Turkey talk in our terms, not in our national terms, but in the terms of International Law. If we can achieve this, we will be creating the conditions for truly resolving the issues. If we cannot achieve it, the only thing we will end up doing every time we receive a verbal assault from the other side is to counter it with another verbal assault. But differences between countries are not won or resolved with verbal assaults.
V. SKOURIS: Minister, I was reading yesterday in the announcement by the Turkish Ministry of Foreign Affairs that in your meeting with Mr Çavuşoğlu you discussed issues concerning bilateral relations, especially the issue of the Turkish Muslim minority in Greece, in a frank and honest manner. As a matter of fact, he is bringing up the issue of the Turkish minority with you yet again.
G. KATROUGALOS: This is a fixed policy line by Turkey, which is always met with our own fixed national policy. This is a religious minority in Thrace, not only because it is recognised as such by the Treaty of Lausanne, but because, in reality, President Erdoğan himself admitted so during his visit to Athens, when he talked about ethnic differences, the well-known ethnic differences existing in the minority between groups of Turkish origin, Pomaks and Roma. All three components of this religious minority are Greek citizens. And we have an obligation, according to our Constitution, to treat them in terms of equality before the State and the Law, and I pointed this out during our joint interview with Mr Çavuşoğlu.
And actually, what I said in response to his opposing allegations, was that I was glad to hear them, because the problems are real, they go back decades, and we must not sweep them under the rug. We must we resolve them. I reiterate this, yet again, because it must become our mantra and we must keep repeating it: “based on the provisions of International Law”.
V. SKOURIS: On the same topic, you told Mr Çavuşoğlu yesterday that talks on confidence-building measures would begin on 12 April. Would you like to give us an idea about what is being discussed?
G. KATROUGALOS: It is not just about the confidence-building measures; there’s also the so-called positive agenda we have initiated.
V. SKOURIS: And this positive agenda? I was going to ask you that next.
V. SKOURIS: Let’s take the issues one by one, Mr Minister, starting from the confidence-building measures.
G. KATROUGALOS: In the confidence-building measures, the first thing we will do is a recap of where we find ourselves. Because we have had important confidence measures that had been decided in the past, chiefly the Papoulias-Yilmaz Memorandum, which imposes an abstention from military exercises in the Aegean Sea during summer, but also during religious holidays, which is not clear whether it is understood by both sides in the same manner.
The same applies for other confidence-building measures. So, an effort is being made to see what’s there, so that it can be enforced. Discussions are being held between the Ministries of National Defence, in which one of our own teams is participating, to see whether we can complement these measures with others. The objective is again obvious: to de-escalate tensions and to avoid a heated incident.
It is an agenda of measures that do not resolve the situation, but prevent it from deteriorating.
V. SKOURIS: And the positive agenda? Is the Izmir-Thessaloniki line opening this summer?
G. KATROUGALOS: We have already secured the first connection between Lavrio-Izmir as of 2 June, and we are truly trying to push this positive agenda, so as to have even more connections, by air and by sea.
We have agreed for a business forum to take place in Istanbul, before the big one that has already been decided in the context of the Erdogan-Tsipras meeting, which will accompany the High-Level Cooperation Council, when that takes place.
V. SKOURIS: By the way, when is it being scheduled for? You had mentioned Thessaloniki.
G. KATROUGALOS: The discussion must continue to see whether our neighbours will respond in practice to what we have agreed on, in other words to slowly start building a cooperation framework.
V. SKOURIS: Can it take place this year, for example?
G. KATROUGALOS: It can take place this year, but I don’t think there’s a chance it will take place before autumn. And there are also other symbolic measures: for example, one could say that the Mass at Panagia Soumela Monastery, which will take place on 15 August is not a major political event, but it does carry a certain symbolism.
A. SPANOU: In terms of the Cyprus issue, should we expect an initiative soon?
G. KATROUGALOS: We are not talking about initiatives. What do we want to do? To prepare for restarting negotiations in a very systematic manner. How can this be achieved? By having cleared up the technical aspects in advance, and mainly by knowing what the other side is saying.
Let me remind you that our responsibility – because this must be our country’s only role during the negotiations – concerns the international dimension of the Cyprus issue. It pertains to the in depth discussion on the issue of withdrawal of the occupation forces, where, obviously there’s no agreement. We have not yet heard other side’s ideas with regard to the new mechanism for implementing the agreement, which will follow the abolishment of the colonial nature of the guarantees.
V. SKOURIS: Did you mention an international conference?
A. SPANOU: The impact of the Prespa Agreement seems to be quite strong in Northern Greece. In reality, government officials cannot go anywhere without being met with disapproval.
G. KATROUGALOS: Hold on. Before moving to the political part of your question, I have to challenge the factual part. In the last few instances, there has indeed been a small group of people -under no circumstances more than ten- who gather and jeer in an organised manner. It is not some type of spontaneous reaction. On the contrary, I think that the small number and premeditated planning of such cheap provocations – obviously – demonstrate that there is no general opposition on the same level.
I do accept, because this is the reality, that a large portion of our fellow citizens have an emotional reaction against the agreement. But to equate an emotional reaction with the bullying, the anti-democratic, semi-fascist way these few choose to show their disapproval towards our officials is a major leap we should not take. It is like saying that whoever opposes the Prespa Agreement is a bully and I do not wish to use harsher terms to describe them.
A. SPANOU: Despite all this, isn’t the emotional reaction you are referring to, which is healthy as you said, more marked in Northern Greece?
G. KATROUGALOS: There is an explanation for this. Where is it stemming from? It is stemming from the fact that due to our bruised national pride from the years of the memoranda, it is easy to view a positive agreement through a lens that distorts it.
It is my personal view that, as time goes by, Northern Greece will be the first to reap the financial benefits from the Agreement. It will actually become the heart, the economic hub of a single Balkan economic area of 50 million. Then they will be able to calmly review the significant gains for Greece that resulted from the Prespa Agreement.
In my opinion, that’s where the integrity of the Prime Minister as a person became evident, who placed the country’s interests before any expectations for ephemeral political gain. I believe this will be appreciated. It is an investment in Greece’s national interest, but I believe, also in the integrity of the Prime Minister as a politician of a European calibre.
V. SKOURIS: Has Mr Tsipras’ trip to Skopje on 2 April been finalised?
G. KATROUGALOS: It seems so. He will be visiting there on the first week in April.
A. SPANOU: What will happen with the statues? With the exchange?
V. SKOURIS: Will we be making new ones, to quote Angeliki?
G. KATROUGALOS: What will we give them? In exchange, I mean, after the fiasco with The Runner.
G. KATROUGALOS: There was no fiasco with The Runner. There have been indeed attempts to spin negatively our attempts to build good relations, which you, being a fine journalist, should not serve.
V. SKOURIS: Of course not, Minister. Angeliki serving such things?
A. SPANOU: So, are you going to tell us? Will we be sending them a statue?
G. KATROUGALOS: She’s a friend. I said the exact opposite. Let me reiterate, we are trying to find ways, with people to whom we had never even exchanged a word previously, to jointly schedule the promotion of our common interests and to stabilise the region.
We are also thinking of moves that will show our people that the climate has indeed improved. These moves must be carefully carried out.
A. SPANOU: Since you are not answering this, give us some answers on the European Parliament elections. How high is the bar for SYRIZA?
G. KATROUGALOS: A very good result, similar to the one we had in the previous elections.
V. SKOURIS: First question, and a key one for the issue. Yesterday, through Pratto, Mr Kotzias accused you of settling with Turkey on the issue with the Muslim minority of Thrace. I would like an answer to this and to whether your collaboration with Pratto is actually in jeopardy.
G. KATROUGALOS: Nikos Kotzias would never correlate our government with serving Turkish interests. That’s not what Pratto’s announcement is saying. I think it should be read carefully.
I made an announcement about the issues I thought I ought to have addressed, and which concerned the resignation of Pratto members from the Ministry of Foreign Affairs. I made the clarifications I think should have been made.
My relationship with Nikos Kotzias goes back 30 years. I speak with him in private about things I believe should not be said publicly.
A. SPANOU: Therefore, do you believe there is no issue of the relationship between Pratto and SYRIZA breaking down?
G. KATROUGALOS: In my statement, I too referred to Pratto as an allied party working with SYRIZA, and if you had read Pratto’s announcement carefully, you would have noticed that in its last paragraph it is stated that Pratto will remain within the larger group of democratic political partiew.
V. SKOURIS: The issue is whether it will continue to work with SYRIZA as a party. That’s what we are asking.
G. KATROUGALOS: At the moment, SYRIZA is at the core of this group of democratic political parties in Greece. There can be such group in Greece, without the key political body that embodies it.
A. SPANOU: Will the Greek stance against Turkey's accession course be reviewed?
G. KATROUGALOS: No. It is one of the firm positions in Greece’s policies and all the parties essentially agree on it. It is telling that during a recent voting session in the European Parliament concerning a possible freeze on accession talks, the majority of Greek MEPs, including members from both New Democracy and SYRIZA, voted against it.
V. SKOURIS: Mr Georgiadis or Mr Syrigos – who is a candidate with New Democracy and, therefore, a political figure – essentially told us that the accession prospects of Turkey are over, and they are partially correct. None of the countries will accept Turkey.
G. KATROUGALOS: It is one thing for one to predict that the environment is radically different, and something else to change the national policy line. That is again something hugely irresponsible.
How is the national policy line determined? Based on our interests. It is not left to chance. Otherwise, the national policy line would change every time the state of affairs changed. That is extremely frivolous. I hope Mr Syrigos, and I don’t recall who else you mentioned, didn’t say that.
V. SKOURIS: Mr Georgiadis, and they did.
G. KATROUGALOS: If they did, it is a sign of frivolity. I hope they didn’t say it.
V. SKOURIS: Angeliki, you said something about the bar. Should we insist? I mean about the bar in the European Parliament elections.
A. SPANOU: Let’s insist, because he is talking about the best possible result, but what loss would you consider manageable? Three points? Four? Five?
A. SPANOU: I am talking about a hypothetical scenario. You are going for a win. We know this. Is being the first party the bar?
G. KATROUGALOS: Should I give an answer to a scenario that considers that our goal is to lose, and for you to ask me what we would consider a dignified loss?
At every election you go for the win. Isn’t it obvious?
A. SPANOU: And if you don’t win?
G. KATROUGALOS: That’s democracy. If you don’t win, you lose. But you go for the win. And in any case, we believe that, both in these elections and the crucial ones in October, we will carry the vote, for the simple reason that we believe the Greek people will find themselves facing a dilemma that is similar to the corresponding major dilemma in Europe: to move forward or to regress? Open societies or nationalism? In Greece, our memories are still vivid in terms of what a New Democracy government means for rights, job security and the way in which a party – which does not have the interests of many but the interests of a few in mind – addresses our day-to-day issues.
Faced with such a dilemma, I don’t think the Greek people will demonstrate again that they have the memory of a goldfish, or suicidal tendencies.
V. SKOURIS: Thank you very much.
G. KATROUGALOS: You're welcome. Have a good day.
V. SKOURIS: All the best.

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The Act (also called CFAA, for “Computer Fraud and Abuse Act”) was broadened in 1996 to apply to all computers used in interstate commerce, foreign commerce, and foreign communication. Essentially, then, every computer in America connected to the internet can fall under the Act. The Act also allows civil actions for compensatory damages and equitable relief in some situations. 18 U.S.C.A. §1030(g).
In 2002, Congress passed the Cyber Security Enhancement Act, which amended the CFAA to increase the statutory penalties associated with the Act. The scope and reach of enforcement in this area is, to say the least, extensive. It seems clear that many citizens are not fully aware of either the power of the current computer statutes, or the case law holdings in this area. This is an area of the law that deserves wider scrutiny and awareness.
18 U.S.C.A. §1030(a)(1) has been referred to as the “computer espionage statute.” It was intended to prevent knowing access of government computers to obtain classified information. It is a felony to knowingly access a computer without authorization, or to exceed the scope of such authorization if it existed, “with reason to believe that such information could be used to the injury of the United States, or to the advantage of any foreign nation.” A person must (a) have reason to believe that the information so obtained would harm the U.S. or be of advantage to a foreign nation, and (b) either willfully send such information to an unauthorized person or willfully retain such information and fail to deliver it to the U.S. Significantly, the Second and Ninth Circuits have held that the government is not required to prove that the defendant intentionally caused damage, but only that a defendant intentionally accessed the computer. U.S. v. Morris, 928 F.2d 504 (2nd Cir. 1991); U.S. v. Sablan, 92 F.3d 865 (9th Cir. 1996).
18 U.S.C.A. §1030(a)(2) was intended to protect the confidentiality of computer data. In an age where hackers can expose peoples’ personal information, there was held to be a need for such a subsection in the CFAA. Under this subsection, it is a crime to (a) obtain information contained in financial institutions or reporting companies; (b) obtain information from any department or agency of the government; or (c) obtain information from any protected computer if the conduct involves interstate or foreign commerce. A person must first deliberately (as opposed to accidentally or inadvertently) access a computer and then obtain the information.
18 U.S.C.A. §1030(a)(3) prohibits unauthorized access of government computers. Any unauthorized access of a government computer can theoretically trigger a violation of this subsection. If the government does not exclusively use a computer (i.e., if it is a shared computer), then the access is wrong only if the access “adversely affects the use of the government’s operation of such computer.” 18 U.S.C.A. §1030(a)(4) is the “computer fraud” statute. It is a crime to access and fraudulently use a protected computer to obtain something valued at more than $5000 in any one year period. The intention here was to protect computers from hackers who break into computers and use them to commit multiple frauds. There is a requirement of showing an intent to defraud under this subsection.
18 U.S.C.A. §1030(a)(6) governs the trafficking in computer passwords. It is unlawful to traffic (i.e., exchange, sell, distribute, or market) in passwords or similar information through which a government computer may be accessed without authorization. Finally, subsection (a)(7) of the same statute prohibits computer extortion. It prohibits any attempt to extort money or other things of value using a computer. It also covers interstate or international sending of threats against computers or networks.
Defenses to these statutes have been developed by case law. It is apparently a defense to a charge of accessing a protected computer that a person did not obtain anything of value. U.S. v. Czubinski, 106 F.3d 1069, 1079 (1st Cir. 1997). Mere browsing of protected data was not enough, in this case, to sustain a conviction. The government must show, rather, that the information obtained was valuable as part of the defendant’s alleged fraudulent scheme. In addition, the damage from the unauthorized access must cause some injury, in the amount of at least $5000 over a one-year period, or lead to potential injury or a threat to public health or safety.
There are a variety of other statutes (at the federal level, at least forty) that govern computer crimes. This area of criminal law is, without doubt, one of the fastest growing (and fastest changing) and most “cutting edge.” The problems associated with the keeping of vast amounts of electronic data, emails, backup files, and other records ensure that this area of law will continue to be directly relevant to most people in a way that other types of criminal statutes are not.
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Justia US Law US Codes and Statutes Oklahoma Statutes 2014 Oklahoma Statutes Title 21. Crimes and Punishments §21-1290.22. Business owner's rights.
21 OK Stat § 21-1290.22 (2014) What's This?
A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, place of worship or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.
E. A person, corporation, place of worship or any other business entity that does or does not prohibit any individual except a convicted felon from carrying a loaded or unloaded, concealed or unconcealed weapon on property that the person, corporation, place of worship or other business entity owns, or has legal control of, is immune from any liability arising from that decision. Except for acts of gross negligence or willful or wanton misconduct, an employer who does or does not prohibit their employees from carrying a concealed or unconcealed weapon is immune from any liability arising from that decision. The provisions of this subsection shall not apply to claims pursuant to the Workers' Compensation Code.
Added by Laws 1995, c. 272, § 22, eff. Sept. 1, 1995. Amended by Laws 1996, c. 191, § 19, emerg. eff. May 16, 1996; Laws 2004, c. 39, § 2, eff. Nov. 1, 2004; Laws 2013, c. 366, § 7, eff. Nov. 1, 2013.