author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Darnell IVERY, Defendant-Appellant.
    No. 36,731.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Feb. 17, 1976.

      Charles E. Kirksey, Jr., St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City; Brendan Ryan, Circuit Atty., Gary W. Brandt, Asst. Circuit Atty., St. Louis, for respondent.
   GUNN, Judge.

Defendant was convicted of stealing a motor vehicle and sentenced to six years imprisonment. Defendant appeals his conviction on the basis that the trial court erred in failing to sustain his motion for judgment of acquittal and in failing to instruct on certain lesser included offenses. We find no error and affirm the judgment. At approximately 8 a. m. on May 15, 1973, Erwin Teich left his 1970 Cadillac tudor at its regular parking place at the Shell service station at 12th Street and Delmar Boulevard in St. Louis. He locked his car and gave the keys to the service station attendant with instructions to perform a motor vehicle license inspection while he was at work. When he returned to the station from work at approximately 4:45 p. m., the Cadillac was missing. St. Louis police were notified and responded to Mr. Teich’s report of his stolen automobile. Coincidentally with Mr. Teich’s call, St. Louis police were investigating a report that there were three suspicious males in an automobile parked in a housing project area a short distance from the service station from which Mr. Teich’s automobile had been taken. The automobile was similar in description to Mr. Teich’s. The police officer taking the report from Mr. Teich about his automobile was aware of the report on the automobile at the housing project, having heard a call on it over his police radio. Mr. Teich was escorted to the housing project where he identified the 1970 Cadillac tudor found there as belonging to him. The car was parked under a breezeway off the street next to an apartment building. When Mr. Teich first observed the auto, there was blood on the passenger door, the doors were open, and there were substantial quantities of blood on the front and back seats of the car and on the floor. The contents of the glove compartment had been strewn in and about the car, and the jack had been taken from the trunk. The blood in the interior was visible from outside the car.

The police officer who had investigated the report that there had been three suspicious males in an automobile — as it turned out, Mr. Teich’s automobile — testified that shortly after 4:38 p. m. on May 15, while on a cruising patrol, he had received the report of the automobile in the apartment project area. The police officer specifically recalled that approximately 10 minutes before he received the report on the auto he had viewed the breezeway area where the Cadillac was ultimately found and observed no automobile there at that time. He further testified that he was only about a block from the breezeway area when he received the call relating to the automobile and immediately responded. The police officer and his partner observed that when they arrived at the scene of Mr. Teich’s Cadillac, the doors were open, there was a substantial quantity of blood throughout the interi- or of the car, and the contents of the glove compartment, including papers bearing Mr. Teich’s name, were scattered in and about the car.

The evidence technician unit was summoned. Fingerprints were lifted from the right backside of the interior rearview mirror, and palmprints were taken from the steering wheel of Mr. Teich’s Cadillac. The prints were described as “exceptionally good prints” which “came out real clear, and what we would consider a fresh latent fingerprint.” The fingerprints taken from the auto’s interior rearview mirror and the palmprints from the steering wheel were positively identified as defendant’s. There was a total of seven prints of defendant’s right index, middle, ring and little fingers taken from the back of the inside rearview mirror. The palmprint was made in gripping the steering wheel.

The next day the defendant was arrested at his residence in the apartment project area in which Mr. Teich’s automobile had been recovered.

Defendant first contends that there was insufficient evidence of his guilt, and, hence, his motion for judgment of acquittal should have been sustained. In ruling on this case, we are guided by certain basic tenets on the issue of whether a submissible case has been made in a criminal proceeding. We are to consider the facts in evidence and the inferences reasonably to be drawn therefrom in the light most favorable to the State. State v. Thomas, 529 S.W.2d 379 (Mo.1975); State v. Colton, 529 S.W.2d 919 (Mo.App.1975). Such evidence may be circumstantial. State v. Johnson, 510 S.W.2d 485 (Mo.App.1974). However, the facts and circumstances of a conviction based on circumstantial evidence must be consistent with each other, consistent with the hypothesis of the defendant’s guilt and inconsistent with innocence and point satisfactorily to guilt so as to exclude every other reasonable hypothesis of innocence. State v. Cox, 508 S.W.2d 716 (Mo.App.1974); State v. Cain, 507 S.W.2d 437 (Mo.App. 1974). But “[i]n a case involving circumstantial evidence the circumstances need not be absolutely conclusive of guilty, and they need not demonstrate impossibility of innocence.” State v. Maxie, 513 S.W.2d 338, 343 (Mo.1974).

While here defendant’s fingerprints amounted to the only evidence associating him with the theft of Mr. Teich’s automobile, we believe such evidence was sufficient to submit to the jury whether defendant had participated in the auto theft and was sufficient to support his conviction. Since neither Mr. Teich nor the service station attendants with whom Mr. Teich had left his automobile had given defendant permission to take the automobile, it is reasonable to infer that defendant impressed his fingerprints and palmprints in the auto during, the course of its theft, thus in an action inconsistent with any theory of defendant’s innocence.

It was conceded by defendant’s counsel at trial that the defendant had been inside the car the day of its theft. Giving effect to the evidence most favorable to the State and reasonable inferences to be drawn therefrom, Mr. Teich’s automobile was driven into the housing project breezeway area where it was found in the ten minute span of time between which the police officer cruising through specifically observed that there was no car in the breezeway at 4:38 p. m., the time the report of suspicious activity was received by him. Any suggestion that defendant, an adult, would have within that ten minute period of time climbed into a car soaked with blood and with papers scattered about on a whim or for foolish fancy merely to imprint' his palmprints on the steering wheel and his fingerprints on the backside of the interior rearview mirror, without more, is fatuous. Rather, the impression of the fingerprints and palmprints inside a blood soaked car and in the location and circumstances found would be inconsistent with any theory of defendant’s innocence in the taking of Mr. Teich’s Cadillac. As stated in State v. Thomas, 452 S.W.2d 160 at 162 (Mo.1970) — a case upholding a conviction of burglary solely on fingerprint evidence found on glass outside a building:

“[T]his Court has made it plain that the mere existence of other possible hypothesis is not enough to remove the case from the jury. If the judge were to direct acquittal whenever in his opinion the evidence failed to exclude every hypothesis than that of guilt, he would preempt the functions of the jury. Under such a rule the judge would have to be convinced of guilt beyond peradventure of doubt before the jury would be permitted to consider the case. That is not the place of the jury in criminal procedure. They are the judges of the facts and of guilt or innocence, not merely a device for checking upon the conclusions of the judge.”

We believe that the circumstances here created a jury question as to defendant’s guilt and that there was substantial evidence to support the finding of the jury. We do not, therefore, disturb that finding on appeal. State v. Gamache, 519 S.W.2d 34 (Mo.App. 1975).

For some decisions upholding convictions based solely on fingerprint evidence and proof of guilt similar to that before this court, see: State v. Maxie, supra; State v. Thomas, supra; State v. Schleicher, 442 S.W.2d 19 (Mo.1969); State v. Allen, 420 State v. Maxie, supra; State v. Thomas, supra; State v. Schleicher, 442 S.W.2d 19 (Mo.1969); State v. Allen, 420 S.W.2d 330 (Mo.1967); State v. Simmons, 528 S.W.2d 8 (Mo.App.1975); State v. Mussman, 526 S.W.2d 62 (Mo.App.1975); State v. Gales, 507 S.W.2d 35 (Mo.App.1974); State v. Gray, 504 S.W.2d 825 (Mo.App.1974); State v. Lane, 497 S.W.2d 207 (Mo.App. 1973).

We note particularly that in State v. Thomas, supra, State v. Allen, supra, State v. Mussman, supra, and State v. Lane, supra, the fingerprint evidence was gathered from items (principally broken glass) found outside a building in which a burglary had been committed. How much more so, then, is any theory of defendant’s innocence in this case thoroughly enervated by the placement -of defendant’s prints inside Mr. Teich’s bloodsoaked automobile on the backside of the interior rearview mirror and steering wheel and within an extremely short time span involved.

Defendant’s second point on appeal charges that the trial court erred in failing to instruct (although there was no request made) on the lesser included offenses of tampering with a motor vehicle, operating a motor vehicle without owner’s consent, and climbing in and upon a motor vehicle. Defendant argues that the trial court thereby failed to present the jury with the theory of defendant’s case. We observe that at no time was any theory of defendant’s case suggested by defendant. But, in any event, Judge Clemens nicely answers defendant’s second point in the recent decision of State v. Sturgell, 530 S.W.2d 737 (Mo.App.1975). In State v. Sturgell, the defendant, who was convicted of stealing a motor vehicle, appealed on the basis that the trial court (although not requested to do so) had failed to instruct on the lesser offense of tampering. It was first noted that where the evidence supports an asserted defense or a lesser included offense, failure to instruct thereon would be error under Rule 27.20(c). But it was also stated:

“The test of whether an instruction on a lesser, included offense is required is whether ‘the evidence shows that a defendant may not be guilty of the offense charged (stealing), but may be guilty of an offense (tampering) necessarily embraced in the charge.’ State v. Leigh, 466 S.W.2d 685[2] (Mo.1971). ‘Before instructions on the lesser or included offenses are compelled, however, there must be evidentiary support for such offenses.’ State v. Washington, 357 S.W.2d 92[6—8] (Mo.1962). See also State v. Walker, 505 S.W.2d 119[5—8] (Mo.App.1973). We note the only defense evidence concerned an alibi, and there was no evidence in the State’s case that defendant merely tampered with but did not steal the car. Had the evidence warranted a finding that defendant was guilty only of tampering he would be entitled to a separate instruction thereon. But here the tampering and theft were continuous inseparable acts: Hence, the court did not err in failing to instruct on tampering as a lesser, included defense.”

In this case, the circumstances are the same as in Sturgell; there was no evidence to support defendant’s appellate hypothesis of the lesser offenses. Thus, no error was committed in failing to instruct on a lesser offense.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . The police officer’s partner did not specifically view the breezeway area when cruising the housing project area 10 minutes pri- or to receiving the call to investigate the scene. In fact, he stated that he could not see the breezeway area.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Eugene FORD, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36781.
    Missouri Court of Appeals, St. Louis District, Division One.
    Feb. 17, 1976.
    Huck, Kasten & LaBeaume, James W. Huck, St. Louis, for movant-appellant.

      • John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.
   PER CURIAM.

Appellant appeals from the trial court’s denial, without an evidentiary hearing, of his motion to vacate judgment and sentence. Rule 27.26, V.A.M.R. He argues that because neither the motion, the files nor the records conclusively showed that he is entitled to no relief, the court should have held a hearing in order to determine whether the proceedings before the juvenile court conformed to prescribed standards. The question for our decision is whether, where no motion to dismiss was filed at trial challenging the waiver hearing conducted by the juvenile court pursuant to § 211.071, RSMo 1969, it is mandatory for the court on a Rule 27.26 motion for post-conviction relief to hold an evidentiary hearing on that issue. We think not and thus affirm the judgment of the trial court.

In December 1969, the juvenile court, after a hearing pursuant to § 211.071 relinquished its jurisdiction over appellant and dismissed the petition therein filed, which permitted the state to proceed against the appellant as an adult. Subsequently, a circuit court petit jury found appellant guilty of the offense charged, and the court sentenced him to life imprisonment. On appeal to the Missouri Supreme Court appellant did not question the propriety of the juvenile’s court proceedings, and the court affirmed his conviction. State v. Ford, 487 S.W.2d 1 (Mo.1973), cert. den., 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959 (1973).

In the trial court’s memorandum, it alluded to Rule 27.26(e), which provides that a hearing on such motion shall be held unless the motion, the files, and the records of the case conclusively show that the prisoner is not entitled to any relief. The trial court held that the motion presented no question of law or fact which required a hearing because appellant failed to file a motion to dismiss pursuant to Rule 25.06, V.A.M.R., citing in support of its ruling In re T. J. H., 479 S.W.2d 433 (Mo. banc 1972).

In re T. J. H. held that an order of the juvenile court dismissing a petition relinquishing jurisdiction to deal with a child under the juvenile code was not a final order from which an appeal could be taken and that the proper method to review the juvenile court’s waiver order was by filing a motion to dismiss the indictment in the circuit court. Therefore, since this method of review was available to the movant in Missouri by Rule 25.06, V.A.M.R., the appeal was dismissed. Implicity in the holding in T. J. H. is that appellate review is deferred until the primary issue of guilt has been determined by the criminal law. State ex rel. T. J. H. v. Bills, 495 S.W.2d 722 (Mo.App.1973), affirmed in State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo. Banc 1974).

To support the court’s summary dismissal of appellant’s 27.26 motion, the state relies upon Jefferson v. State, 442 S.W.2d 6 (Mo. 1969). In Jefferson, a juvenile, as is the case herein, contended that his constitutional rights had been violated at a § 211.071 proceedings because the court failed to grant a hearing prior to dismissal of the petition. The court held:

“He waived any objections he might otherwise have had to the proceedings in the juvenile court when, after the appointment of two competent lawyers and the benefit of their advice and counsel, he failed to file a motion in the general criminal division requesting dismissal of the information, or remand to the juvenile division for the conduct of a proper hearing with counsel present and the entry of an order complying with constitutional standards. . . . ” (Emphasis added.)

In the Jefferson case, however, unlike the instant case, an evidentiary hearing was held.

In McCrary v. State, 529 S.W.2d 467 (Mo. App.1975), the defendant appealed an order of the trial court dismissing his Rule 27.26 motion without a hearing. His contention for vacation of judgment was that his conviction for possession of heroin was obtained by a violation of his constitutional rights, namely, his Miranda warning rights. We held that, where a defendant made no pretrial, trial or post-trial objection on constitutional grounds to admission of an inculpa-tory statement, he had made a deliberate bypass of orderly state procedure which precluded him from raising the Miranda issue on his 27.26 motion.

In Fields v. State, 468 S.W.2d 31 (Mo. 1971), although not factually the same as the instant case, the court held that a defendant on a 27.26 motion, could not raise a constitutional claim where he had deliberately bypassed state procedure by failing to file a motion to suppress or to object on constitutional grounds during the trial or to preserve the issue in his motion for a new trial. Moreover, the Fields court approved the ruling set forth in Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965). In essence, Henry held that a litigant’s procedural defaults in state proceedings do not prevent vindication of his federal rights unless the state’s insistence on compliance with its procedural rule serves a legitimate state interest.

Valid state interests are served by any rule reasonably calculated to increase efficiency, conserve resources, protect rights or advance any other rational end. Here, Rule 25.06, promulgated by our Supreme Court, not only promotes efficiency but also provides an orderly procedure to review the juvenile court’s waiver order. Additionally, observation of our Rule 25.06 conserves the court’s limited resources as well as the taxpayers’ money, and the time of jurors and witnesses. Furthermore, our Rule 25.06 protects the right of a juvenile to a speedy determination of the validity of the waiver hearing so that if he prevails, he will forthwith be returned to the juvenile court to receive the treatment he may need. To permit movant, after conviction, to assert an alleged constitutional claim for the first time in a collateral attack upon the judgment of conviction does violence to the efficient administration of justice.

In the instant case, the record shows that movant had counsel who was qualified to practice before our courts, and we may presume that counsel was competent, Hall v. State, 496 S.W.2d 300 (Mo.App.1973), and was aware of all of our elementary rules of practice. Neither the briefs nor our research discloses any authority which places counsel under an obligation to inform his client of our rules. In fact, counsel seldom does so. Moreover, we assume that mov-ant was aware of his rights from the fact that he was represented by competent counsel. Indeed, if competent counsel is present, it is irrelevant whether movant knew of our forfeiture rule posited in In re T. J. H., supra, since counsel is expected to know of such rules and has the duty to comply with them.

In conclusion, we find that the procedural rules promulgated by our Supreme Court unquestionably serve a legitimate state interest and promote the efficient administration of justice. Consequently, we hold that, under the circumstances herein, movant is bound by the actions of his counsel, who, by failing to file a motion to dismiss pursuant to Rule 25.06, has deliberately bypassed our state procedure; therefore, movant’s alleged constitutional claim is not cognizable by a Rule 27.26 motion.

All judges concur.

      . All statutory references are to RSMo 1969 unless otherwise stated.

      . Although the court in the T. J. H. case held that a motion to dismiss the indictment to be the exclusive remedy, the Missouri Supreme Court in the State ex rel. T. J. H. v. Bills, 504 S.W.2d 76 (Mo. Banc 1974) case held prohibition also to be an appropriate remedy to test the propriety of the juvenile court’s order if the petition and presumptive proofs showed that the order of the juvenile court waiving jurisdiction was void on its face as a matter of law. As we noted above, however, appellant filed neither a writ of prohibition nor a motion to dismiss the indictment. Nor did appellant raise on appeal the issue of the validity of the proceeding before the juvenile court.

      . 75 Yale Law Journal 895, 963 (1965-66).

      . Ibid., p. 969.

      . Ibid., p. 969.


author: HENRY, Justice.

text:
    CITY OF ELIZABETHTON, Tennessee, and Elizabethton Electric System, Petitioners, v. Richard SLUDER and wife, Dianne Sluder, Respondents.
    Supreme Court of Tennessee.
    March 1, 1976.
    Roy C. Nelson, Allen & Nelson, Murrell Snell, John K. Banks, Walter A. Curtis, City Atty., Elizabethton, for petitioners.
    Rondal B. Cole, Dugger & Cole, Eliza-bethton, for respondents.
   OPINION

HENRY, Justice.

This is a tort action based upon electrical injuries wherein the controlling question is the sufficiency of the evidence to support the verdict of the jury and the judgment of the court therein. The jury awarded respondents verdicts totalling $75,000.00, and they were upheld by the Court of Appeals, with one judge dissenting.

We affirm.

I.

Respondent sustained serious and disabling injuries as a result of an electrical shock received while working on top of a railroad car located generally under high tension lines of the Elizabethton Electric System. He was engaged in unloading a cement car into an adjacent cement silo. This car was approximately fourteen feet in height. The primary electric lines were 7200 volts to the ground or 12470 volts between phases and were approximately thirty-three feet from the ground. Secondary lines were 120 volts phase to neutral and 208 volts phase to phase. They were located at a lower level. If a perpendicular were dropped from the lines to the ground it would be approximately seven feet from the railroad car, or phrasing it another way, the top of the car was about eighteen feet below and seven feet over from the perpendicular of the lines. The hypotenuse of the right angle triangle thus made would be approximately twenty feet.

Plaintiff was using a twenty foot metal pole, with a shovel affixed to one end, for the purpose of pushing or scraping the cement onto a conveyor that carried it to the silo. While thus engaged, the metal pole in some manner came in contact with one or more of these lines causing the injuries forming the basis of this action.

It is undisputed in this record that the top lines had never been insulated; however, it is clear from the testimony that the requirements of the National Electrical Safety Code are met by uninsulated wiring twenty-eight feet in height. It is also undisputed that the lower lines had once been insulated; however, the insulation had rotted or worn away and these lines were naked and exposed. Either of these lines, under appropriate conditions, could have caused the injuries complained of. There were no notices or signs warning the general public of the dangerous character of these lines.

As found by the Court of Appeals, the record shows that petitioners knew of this operation and “knew that railroad cars of cement were unloaded into the silo as well as that there would be in the area heavy trucks and equipment.”

II.

It is the theory of the respondents that petitioners were negligent in (1) failing to insulate these wires; (2) locating, them at an insufficient height; and (3) failing to give notice or warning, all in view of the totality of the circumstances and particularly in view of their knowledge of the operations being carried on in the locality.

The petitioners insist, in substance, that the respondent was grossly negligent in using a metal pole of this length in proximity to these lines; that he assumed the risk of injury; that he was negligent in permitting the pole to come in contact with the wires; and that they had fully complied with the controlling criteria of the National Electrical Safety Code.

This controversy is extremely close on the facts. It was ably and energetically tried, exceptionally well briefed and forcefully argued at the bar of this Court — all in the finest tradition of the trial bar. We are frank to state that the record would have provided ample basis for a defendant’s verdict and we would not have disturbed it on appeal. At the same time it supports the verdict in favor of the plaintiffs and, irrespective of our personal view as an initial proposition, we cannot justify vitiating the verdict of the jury.

It will be borne in mind that in a case involving a jury verdict, approved by the trial judge and affirmed by the Court of Appeals, our review is limited to a determination of whether there is material evidence to support the verdict. Wilenzick v. Austin, 180 Tenn. 591, 177 S.W.2d 548 (1944). Such factual concurrences are virtually binding upon' this Court. This does not mean, however, that we are bound by the legal conclusions drawn from the facts so established. Therefore, we enter into the ensuing discussion only for the purpose of determining whether the trial judge and the Court of Appeals properly applied the correct rules of law to the applicable facts and arrived at a correct conclusion.

III.

We dispose first of the question of foreseeability. The dissenting member of the Court of Appeals argues that it was not foreseeable that a workman would stand atop a fourteen foot boxcar using a twenty foot pole and strike these high voltage lines. We cannot say, as a matter of law, that this unusual combination of circumstances necessarily mandates a finding of foreseeability. The fact that an accident may be freakish does not per se make it unpredictable or unforeseen. The use of this particular pole in this particular area and in this particular operation was not unusual. The jury was aware of this defense and rejected it. Foreseeability is a question of fact for the determination of the jury. Phelps v. Magnavox Company of Tennessee, 62 Tenn. App. 578, 466 S.W.2d 226 (1970).

IV.

Petitioners insist that this installation is in compliance with the appropriate provisions of the National Electrical Safety Code. The proof so shows. However, compliance with this Code is not conclusive on the question of petitioners’ negligence. Odum v. Haynes, 494 S.W.2d 795 (Tenn. App.1972). There is material evidence in this record from which the jury might find that the minimum standards of this Code were insufficient under the facts and circumstances of this case.

The trial judge charged the jury:

I charge you that compliance with the National Electrical Safety Code does not relieve one of tort liability for failure to exercise the highest degree of care . a compliance (with the Code) does not in and of itself mean that there can be no liability. Compliance with (the Code) is not conclusive on the question of the degree of care owed by the defendant, but is to be considered by you, together with other circumstances in arriving at the question of whether or not a distributor of electric service provided that highest degree of care which I have already defined for you.

We approve this a correct statement of the law.

V.

All other issues in this controversy are questions of fact. We point out that certio-rari cases do not come to this Court on broad appeal, nor is the hearing in this Court de novo.

In City of Chattanooga v. Rogers, 201 Tenn. 403, 299 S.W.2d 660 (1956), this Court declared:

It was never contemplated by the Legislature that we should consider these appeals on a broad appeal. It was held in Bray v. Blue Ridge Lumber Co., 154 Tenn. 342, 289 S.W. 504, 505, that:
By Chapter 100, Acts of 1925, the Court of Appeals is a court of review and final determination, except upon petition for certiorari presenting (1) errors of law; (2) errors of fact where there is a non-concurrence between the Court of Appeals and the trial court; or (3) concurrence without any evidence to support the conclusion.
In these jury cases in the Circuit Court the province of the Court of Appeals is merely to determine whether there is any material evidence to take the ease to the jury or to support the verdict. Melody v. Hamblin, 21 Tenn.App. 687, 115 S.W.2d 237. In such cases if there is any evidence to support these concurrent findings and holdings of the two courts we have no jurisdiction. (Emphasis supplied). 201 Tenn. at 406, 299 S.W.2d at 661.

In certiorari cases we are not concerned with the preponderance or the greater weight of the evidence, nor do we sit in judgment upon its credibility. The evidence may, in our view, preponderate against the finding of the trial court and the Court of Appeals, but, again, we do not weigh the evidence. If there is any evidence to support the verdict, it will not be disturbed on certiorari in this Court.

We conclude and hold that the verdicts in this case find evidentiary support in the record.

Affirmed.

FONES, C. J., and COOPER, HARBI-SON and BROCK, JJ., concur.


author: SHRIVER, Judge.

text:
    Illard J. HUNTER, Plaintiff-Appellant, v. SEQUATCHIE COUNTY, Tennessee, et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 29, 1975.
    Certiorari Denied by Supreme Court Dec. 30, 1975.
    J. Harvey Cameron, Kelly & Cameron, South Pittsburg, for plaintiff-appellant.
    Stephen T. Greer, Dunlap, Upchurch, Turner & Sapp, Pikeville, for defendants-appellees.
   OPINION

SHRIVER, Judge.

The Case

This is a suit for damages for breach of contract entered into by and between the plaintiff and the Sequatchie Valley School Board of Administration, as representative of the other defendants to this cause.

The Chancellor partially sustained the motion of defendants for a summary judgment and, thereafter, on stipulation of the parties that the plaintiff had been paid his compensation for the period of time that he served under the contract of employment, the Court concluded that he was not entitled to any additional compensation or damages and dismissed his cause of action and allowed an appeal to this Court which has been perfected and an Assignment of Error filed, as follows:

“The Trial Court erred in sustaining the defendants, Sequatchie County and Sequatchie County Board of Education’s motion for summary judgment and entering a final order dismissing plaintiff’s action.”

The Pleadings and Proceedings Below

The original bill of complaint, filed in the Chancery Court of Sequatchie County on December 12, 1972, alleges that plaintiff was, until recently, the Director of the Se-quatchie Valley School operated under the Sequatchie Valley School Board of Administration, having entered into a four year contract of employment with said Board of Administration on July 1, 1970; that Se-quatchie and Bledsoe Counties, in cooperation with the Sequatchie Valley Planning and Development Agency, the State Department of Education, T.V.A., and the Boards of Education of the two Counties, entered into a cooperative project to improve the educational opportunities afforded in said Counties; that the project was to result in a consolidation of the High Schools in said Counties with additions to the faculty and improvement of teacher qualifications -and salaries; that resolutions were adopted by the Quarterly Courts of Bledsoe and Sequatchie Counties ratifying a contract between those Counties, and that there was the issuance of $142,000.00 in short term capital outlay notes for the construction and operation of the Multi-County School; that a contract between the Boards of Education of the two above mentioned Counties, approved by the Commissioner of Education and the Attorney General of Tennessee, was entered into; that plaintiff terminated his employment .in Overton County as a teacher to accept the position of Director of the Sequatchie Valley School and entered into a contract of employment for four years; after the contract of employment was executed, plaintiff entered into the active performance of his duties as Director in accordance with the terms of his contract and performed such functions until his unwarranted dismissal by the Sequat-chie Valley School Board of Administration on February 29, 1972.

The bill recites the events leading up to the breach of the contract of employment between the Board of Administration and the plaintiff. It is alleged that as a result of the unwarranted dismissal of the plaintiff and the breach of his contract of employment, he has sustained irreparable harm and damage, for which damages he brings this suit.

The prayers of his bill are:

(1) For process
“(2) That on the hearing of this action, the Court award the plaintiff damages for breach of his contract of employment, under date of July 1, 1970, which breach was brought about by the act or acts of one or more of the defendants.”
(3) For géneral relief.

Answers were filed raising certain material issues. Thereafter, defendants filed their Alternative Motion to Dismiss Or For Summary Judgment, under Rule 12.02(6), Tennessee Rules of Civil Procedure, to dismiss for failure to state a claim upon which relief can be granted, or, in the alternative, to enter a summary judgment for defendants on the ground that there is no genuine issue as to any material fact.

Defendants so moved also on the ground that the Sequatchie Valley School Board of Administration was without authority to enter into a contract of employment beyond the term of the annual budget; that the Board of Administration never submitted a proposed budget to the Sequatchie Quarterly Court.

In support of this motion, the defendants submitted the affidavit of Roy D. Greeson, which is as follows:

Thereafter, plaintiff filed his affidavit summary judgment, which affidavit is as in opposition to defendants’ motion for follows:

"AFFIDAVIT IN SUPPORT OF PLAINTIFF’S MOTION IN REPLY TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

STATE OF TENNESSEE )

MARION COUNTY )

Illard J. Hunter, being duly sworn, deposes as follows;

1. That under contract of July 1, 1970 between Se'quatchie Valley School Board of Administration and himself, he was employed as Director of the Sequatchie Valley School and has personal knowledge of the information stated in this affidavit.

2. That the affidavit of Roy D. Greeson submitted on behalf of defendants is misleading in that same does not reflect the true financial arrangements made between T.V.A., Sequatchie Valley Planning and Development Agency and the respective Boards of Education and County Courts of Sequatchie and Bledsoe Counties.

3. That both Counties did appropriate monies for the operation of said schools during fiscal year 1970-71 and that an appropriation in the amount of $142,000.00 was made by Sequatchie County.

4. In addition thereto, the 1970-71 budget reflects a contribution in the amount of $5,000.00 made by Sequatchie County to Sequatchie Valley Planning and Development Agency for the Sequatchie Valley School.

5. The Sequatchie Valley School Board of Administration prepared annual budgets which were submitted to the Boards of Education for Sequatchie and for Bledsoe Counties in accordance with the contract between the Boards of Education of the aforementioned Counties relating to the Sequatchie Valley School and which annual budgets were prepared in conjunction with and were materially participated in the formation thereof by the respective Boards of Education.

And further deponent sayeth not.

Is/ Illard J. Hunter

Sworn to and subscribed before me this 5th day of May, 1973.

/s/ J. J. Pittman_Notary Public

My Commission expires: April 20, 1975."

In response to said motion and briefs of counsel, the Chancellor filed his Memorandum Opinion on September 21, 1973 wherein he recites that the cause is before the Court on a motion for summary judgment and states that the facts, basically, are that the Counties of Sequatchie and Bledsoe joined in a contract with T.V.A. and the Sequatchie Valley Planning and Development Agency to form and found the Se-quatchie Valley School Board of Administration for the purpose of building a joint County School funded partly by Federal funds, and that this Board of Administration contracted with the plaintiff to become the Director of that School, and that, due to certain litigation, the School was never funded by the Counties and the Federal Government and the plaintiff was forced to leave the area and seek other employment.

The Opinion of the Chancellor continues:

“That the two defendant counties have incurred some obligation, along with the other authorities so contracting, is apparent.
That amount of this obligation must however rest upon the proposition of what work has been done by the plaintiff. That is to say, his recovery must be based upon a quantum merit basis.
To this extent let the motion be denied and the cause proceed to proof of the work done.”

A decree in accordance therewith was entered and the appeal prayed for was “for the time being denied.”

Thereafter, the following stipulation was entered into:

“It is hereby stipulated and agreed between the respective parties, that the plaintiff, Illard J. Hunter, was paid in accordance with the provisions of the contract entered into between the plaintiff and the Sequatchie Valley School Board of Administration under date of July 1, 1970 from date of employment through and including the date of February 29, 1972, the date of his discharge.

By order entered on October 4, 1974, the contract between the Board of Education of Bledsoe County and that of Sequatchie County relating to the Sequatchie Valley School under date of April 4, 1970, was made a part of the record in this action; however, no such contract is in the record on appeal.

The final decree in the cause is as follows:

"This cause came to be heard before the Honorable L.F. Stewart, Chancellor, upon the entire record in this action and especially upon stipulation submitted by counsel for the respective parties wherein it was made to appear to the Court that the plaintiff, Illard J. Hunter, had been fully paid for work performed under his contract with the Sequatchie Valley School Board of Administration to date of his discharge and that in accordance with the Memorandum Opinion heretofore entered by the Court that the plaintiff was entitled to a recovery only upon a quantum merit basis and order entered pursuant thereto, and the Court being of the opinion that a further hearing in this matter was unnecessary and that final order could be entered dismissing plaintiff's action.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the plaintiff, Illard J. Hunter, have and recover of the defendants and each of them, under the provisions of his contract with the defendants, Sequatchie Valley School Board of Administration, all monies due and owing to him for work performed through and including February 29, 1974, at which time plaintiff's employment was terminated.

IT IS FURTHER ORDERED, ADJUDGED AND DEGREED that the plaintiff having received full compensation under the provisions of said contract through and including the date of February 29, 1972, at which time his contract was terminated, that he be disallowed a recovery of damages for breach of his employment contract is hereby and his action dismissed.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the cross-complaint filed by Bledsoe County and Bledsoe County Board of Education be and the same is hereby in all things dismissed.

To the action of the Court in denying the plaintiff's right to recover damages for breach of contract and in partially sustaining the defendants, Sequatchie County and Sequatchie County Board of Education, motion for summary judgment heretofore entered, the plaintiff excepts and prays an appeal to the next term of the Court of Appeals, sitting at Nashville, Tennessee, and which appeal is hereby granted; plaintiff is allowed thirty days after date of filing this order to file appeal bond, and ninety days within which time to otherwise perfect his appeal.

ENTER:

/s/ L. F„ Stewart

CHANCELLOR"

Our Conclusions

From all of the above it appears that the Chancellor, in the final analysis, granted a summary judgment on the record before him wherein he found that the plaintiff was not entitled to recover anything and his cause was dismissed.

The affidavit of Roy D. Greeson, hereinabove quoted, asserts the existence of certain facts with respect to the budget for the Sequatchie Valley School and the failure to submit same to either the Sequatchie County or Bledsoe County Quarterly Courts, and, further, that no formal request was ever made to the Quarterly Courts for appropriation of funds to cover the alleged employment contract between the School Board and the plaintiff. This is squarely contradicted by the affidavit of Illard J. Hunter. Thus, if the Chancellor relied on said affidavits, as he apparently did, for his decision to grant a summary judgment, he was in error. See Rule 56, Tennessee Rules of Civil Procedure, which provides for summary judgment where there are no material issues of fact to be determined. See Thearp v. Travelers Indemnity Co., Tenn. App., 504 S.W.2d 763, and Allstate Ins. Co. v. Hartford Accident & Indemnity Co., Tenn., 483 S.W.2d 719.

Even if, under the bill and the answers thereto, the Court should conclude that the statements made in the two said affidavits were not sufficient to make a material issue of fact in the case, nevertheless, we are impressed that the record before the Trial Judge as it is reflected in the record before us, was not sufficient upon which to conclude the rights of these parties on a summary judgment without a chance to develop all the facts relevant to the issues in this case and that for that additional reason, in the discretion of this Court, this cause should be remanded to the Trial Court for a trial on a more complete record. § 27-329, T.C.A., Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313.

For guidance of the Trial Court on remand, we think the following observations are in order.

Counsel for the defendants rely on State ex rel. Brown v. Polk County et al., 165 Tenn. 196, 54 S.W.2d 714, as supporting their position that the School Board could not enter into a valid and binding contract of employment or other contract for the expenditure of money beyond the limits of the County School budget.

In Brown v. Polk County, supra, construing Chapter 115, Tenn. Pub. Acts of 1925, among other things, the Court said that the authority of the County Superintendent, under the supervision of the Board of Education to make a school budget, does not convey the power arbitrarily to fix the amount that the Quarterly County Court must raise in revenue to meet the exaction of these officials.

In the case at bar it should be pointed out that Chapter 4 of T.C.A., entitled “Transfer of Schools — Joint Operation,” and, specifically, the following Code Sections reflecting the Acts of the General Assembly of 1957 and 1963, are General Acts, thus, the question arises, “Do these Acts supersede the Acts of 1925 which were construed and applied in Brown v. Polk County, supra?”

For example, Section 49-410, entitled “Joint Operation of Schools — Contracts Binding,” provides that the Board of Education of any two or more school systems, Counties, Cities or Special School Districts, are authorized and empowered to establish, maintain and operate a public school, or schools, jointly by entering into contracts for that purpose and that upon the execution of these contracts by the respective Boards of Education, “the same shall be binding upon said Boards of Education and upon the Counties, Cities and Special School Districts involved.”

Section 49-411, entitled “Powers in establishing and operating joint schools,” provides that the Counties, Cities, and Special School Districts are authorized and empowered to levy taxes, issue bonds, appropriate and expend funds, acquire property through purchase or exercise of eminent domain, employ teachers, and do any and all other acts necessary or expedient for entering into and consummating such contracts for the establishing, maintaining and operating such joint schools.

Section 49 — 412, T.C.A. provides that the Boards of Education of these County or Special School Districts shall have the same powers with respect to the assignment, placement, expulsion, etc., of pupils and with respect to the employment and assignment of teachers for such schools as they may possess with respect to other schools under their supervision.

And, finally, Section 49-421, T.C.A., being Chapter 246 of the Acts of 1963, provides for a Director of Consolidated Schools, his term and compensation. The Act also recites:

“Any plan of consolidation shall provide that the Consolidated Board of Education is authorized to designate a person experienced in public school management and supervision and possessing a certificate of qualification issued by the State Board of Education pursuant to [Section] 49-220 as the chief administrative employee of the Board, and to enter into an employment contract with such person for a period not to exceed five (5) years, and for a compensation to be determined therein.”

Is a contract made pursuant to the foregoing statutes valid and enforceable against the Boards and the County or Counties involved?

These matters should be adjudicated below before we are called on to pass on them.

There appears to be no reasonable basis upon which it can be held that plaintiff’s claim in the instant case must be on a basis of quantum meruit rather than damages for breach of contract.

From all of the above it results that the judgment of the Chancellor is reversed and the cause remanded to the Chancery Court of Sequatchie County for a trial on the merits.

REVERSED AND REMANDED.

TODD and DROWOTA, JJ., concur.


author: NEARN, Judge.

text:
    May Hill ANDERSON et al., Appellees, v. MEMPHIS HOUSING AUTHORITY and City of Memphis, Appellants.
    Court of Appeals of Tennessee, Western Section.
    Oct. 14, 1975.
    Certiorari Denied by Supreme Court Feb. 23, 1976.

      Melvin Fleischer and Bernie Mullikin, Jr., Memphis, for appellant Memphis Housing Authority.
    Arthur J. Shea, Memphis, for appellant City of Memphis.
    Newton P. Allen, Memphis, for appellees.
   NEARN, Judge.

This appeal is by the Memphis Housing Authority and the City of Memphis, hereinafter Authority, from the order of the Trial Judge in an inverse condemnation matter. The appeal is somewhat unusual because neither side to the controversy makes any complaint about the amount of compensation awarded to the plaintiff-owners by the jury. The complaint to this Court is made up of two Assignments of Error which are directed to the application of T.C.A. § 23-1423 as amended in 1972 to the case.

On appeal, the facts are not in dispute and a stipulation has been filed with the Court.

The landowners are owners of certain real property located on Madison Avenue in the City of Memphis. In 1970 the Authority completed the construction of an overpass at the intersection of what is now known as Madison Avenue and Danny Thomas Boulevard. The construction of the overpass required the construction of a partial “new” Madison Avenue to traverse the overpass. The owners charged that such construction necessarily changed the grade of Madison Avenue in order to go over Danny Thomas Boulevard. Without going into further detail, it is sufficient to say that the jury found the changes brought about by construction adversely affected and partially destroyed ingress and egress and obstructed and impaired the easement of light, air, and view of the owners. No land of the owners was taken by the Authority and no condemnation proceedings were instituted by it.

The construction work was completed about April, 1970, and the owners, pursuant to T.C.A. § 23-1423 as it then existed, filed their inverse condemnation suit on June 4, 1970. The cause came on to be heard in June, 1974, and at the conclusion of the owners’ proof a verdict was directed for defendant. A motion for a new trial was granted and the matter came on for another hearing which second hearing resulted in a jury verdict of $12,000 for the value of the rights taken or damaged. After the jury made its award, on request of the owners and upon the authority of T.C.A. § 23-1423 as amended by Chapter 463, Section 3 of the Public Acts of the State of Tennessee of 1972, the Trial Judge awarded the owners an additional sum of $7,014.58; of which sum the amount of $5,003.33 represented attorney fees incurred by the owners in the prosecution of their claim and the balance of $2,011.25 represented actual expenses incurred by the owner including $1,410 expert witness fees and $601.25 as court reporter fees for depositions, attendance at both trials and miscellaneous items. The Court also awarded the appointed guardian ad litem for services rendered a fee in the amount of $1,500 to be charged one-half against the Authority and one-half against the owners.

The Assignments of Error may be stated as follows:

I.

The trial Judge erred in applying T.C.A. § 23-1423 as amended by the 1972 Legislature as the application of the 1972 Amendment to this case would be a retrospective application of the statute and therefore unconstitutional.

II.

The Trial Judge erred in charging any portion of the guardian ad litem fee to the Authority as the appointment of a guardian ad litem was unnecessary and not required by law.

The fact that a statute is retrospective in application does not automatically render it unconstitutional and void. It is when a statute creates a new right or takes away a vested right or impairs contractual obligations that its retrospective application is constitutionally forbidden. Tenn.Const. Art. 1, § 20; Wynne’s Lessee v. Wynne (1852) 32 Tenn. 405. If the statute does none of the foregoing, but is only procedurally remedial in nature, retrospective application is constitutionally permissible. Wynne’s Lessee; Cavender v. Hewitt (1921) 145 Tenn. 471, 239 S.W. 767, 22 A.L.R. 755; Dowlen v. Fitch (1954) 196 Tenn. 206, 264 S.W.2d 824; Sherrill v. Thomason (1921) 145 Tenn. 499, 238 S.W. 876. In point of fact, the retrospective application of remedial statutes is not only constitutionally permissible, but such statutes are generally to be construed in favor of. retrospective application when possible. Dowlen v. Fitch.

Since the Amendment in question did not come into being until after suit was filed, there can be no doubt that it has been retrospectively applied.

Therefore, whether or not the Trial Judge was correct in his retrospective application of the 1972 Amendment depends upon whether or not the statute is remedial in nature. We hold that it is not remedial in nature and therefore, not permissibly retrospective in its application.

The damage to the owners for the “taking” occurred in 1970. At that time the owners filed their suit. At that time the Authority was answerable in damages and the owners were entitled to recover in damages the value of the land or right taken, no more and no less. All the citizens of this State were entitled to the same compensation, that is, the value of their land or right taken or damaged, no matter whether' the action was commenced by a condemning, authority or by the land owner. The 1972 Amendment clearly allows the owner in an inverse condemnation matter recovery for greater and a new and different measure of damages than was previously allowed, viz., attorney fees etc.

In both the Dowlen and Wynne’s Lessee cases, supra, the Court held that statutes which create new or take away vested rights and obligations cannot be retrospectively applied.

In the case of School Commissioners v. State (1846) 26 Tenn. 113, the statute under consideration by the Court directed a different rule of damages than permissible when the liability arose. The Supreme Court held that the statute could not retrospectively be applied. We believe the case to be in point.

We hold the Amendment in question is one that does not merely enlarge or affect a procedure for the enforcement of an existing right, but on the contrary, creates a new right of recovery theretofore nonexistent.

Therefore, we hold the Trial Judge retrospectively applied a non-remedial statute and thereby erred.

The first Assignment of Error is sustained.

A guardian ad litem was appointed by Court order on April 25, 1974, which order bears the approving signature of all counsel as well as the Judge. On May 28, 1974, the guardian ad litem filed a complete report and brief of law. On June 10, 1974, immediately prior to the commencement of the first trial, counsel for the Authority moved the Coürt to discharge the guardian ad li-tem arguing that there was no legal basis for his appointment since the suit had been filed by the “next friend” of those under disability. The Court denied the motion and the guardian ad litem remained in the courtroom during the first trial.

On November 15, 1974, when the case again came on to be heard, counsel for the Authority again moved for the discharge of the guardian and the motion was overruled. The guardian remained in the courtroom for three and one-half days of the second trial.

By his second Assignment of Error counsel for the Authority objects to being required to pay one-half of the guardian ad litem fee.

Much of the brief on this point is dedicated to the proposition that the appointment of the guardian ad litem was legally unnecessary. This is countered in appellee’s brief with arguments why the appointment was legally necessary. The fact is that the exact legal status of all owners is somewhat difficult to ascertain without painstaking analysis. The interests of minors, non compos mentis, and those not in esse are involved. One of the plaintiffs'is a non-resident under disability with a foreign appointed guardian not authorized to bring suit.

The owners of the various interests in the property in question are numerous. The guardian ad litem was appointed for certain of the plaintiffs who were under disability. The suit was brought by the “next friends” of certain of those under disability. It is argued to this Court that the Trial Judge improvidently appointed the guardian ad litem, as such is completely unnecessary when the suit is brought by a “next friend” as the “next friend” acts in the capacity of a guardian ad litem. It is further argued that it is only when a defendant is found to be under a disability and without a proper guardian that a guardian ad litem is appointed.

In those instances not specifically required by law, the Courts shall appoint a guardian ad litem “whenever justice requires”. Rule 17.03 Tennessee Rules of Civil Procedure. “Whenever justice requires” is a phrase denoting some judicial discretion. It should be noted that the “next friends” of those for whom the guardian ad litem was appointed were also party plaintiffs in their own right and who also claimed a share of the same proceeds due from the Authority which are to be divided. with their “wards”.

We do not hold that the appointment of a guardian ad litem in this case was necessary for a valid decree, but we do hold that under all the circumstances the Trial Judge did not err in appointing the guardian ad litem nor in refusing to discharge him on motion of appellant. He acted within his discretion. A Judge should not be reversed for the appointment of a fiduciary to protect what might be the unprotected rights of those under disability unless there is shown a clear abuse of discretion. Even if later events prove the appointment unnecessary, absent discretionary abuse, there is no reversible error.

No complaint is made as to the amount of the guardian’s fee. The complaint is that the Trial Judge erred in requiring the Authority to pay half of it.

We hold that the Trial Judge did not err in his division of the guardian ad litem costs. Again, such matters are in the wide discretion of the Trial Judge and we find no abuse thereof.

The second Assignment of Error is overruled.

The result is that the judgment below is modified and reduced by the sum of $7,014.58 and the cause remanded for enforcement of the judgment.

Costs of appeal are adjudged against the Authority.

CARNEY, P. J., and MATHERNE, J, concur.

      . Prior to the 1972 Amendment the statute was as follows: “23-1423. Action initiated by owner. — If, however, such person or company has actually take [sic] possession of such land, occupying it for the purposes of internal improvement, the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way, in which case the jury shall lay off the land by metes and bounds and assess the damages, as upon the trial of an appeal from the return of a jury of inquest.”

      . The 1972 Amendment was the addition of the following paragraph: “Additionally, the court rendering a judgment for the plaintiff in a proceeding brought under paragraph one of this section, arising out of a cause of action identical to a cause of action that can be brought against the United States under section 1346(a)(2) or 1491 of Title 28, United States Code, or the attorney general or chief legal officer of a political subdivision of the state effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement such sum as will in the opinion of the court, or the attorney general or chief legal officer of a political subdivision of the state reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.”

      . We make no holding regarding the constitutionality of the Amendment per se, as no direct attack is made on the constitutionality of the Amendment.


author: DUNCAN, Judge.

text:
    Howard SADLER, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 13, 1975.

      H. T. Etheridge, Jr., Jackson, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, George W. Hymers, Jr., Dist. Atty. Gen., James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for defendant in error.
   OPINION

DUNCAN, Judge.

The defendant, Howard Sadler, waived his right to a jury trial and was tried and convicted of arson before the Honorable Andrew T. Taylor, Judge of the Madison County Criminal Court. The defendant received a penitentiary sentence of not less than three (8) years nor more than three (3) years. A jointly indicted co-defendant, Rubin C. Reams, III, was tried at the same time and was also found guilty. We have the defendant Sadler’s appeal before this Court.

The defendant’s assignments of error all attack the sufficiency of the evidence.

The evidence in this case showed that a two-room cabin, owned by David Carter, was destroyed by fire in July, 1974. Carter had previously engaged the services of Alton Weatherford to do some repair work on the house. Weatherford, in turn, had hired the defendant Sadler and the co-defendant Reams to assist him in the repair work. After the work was completed, a dispute arose over the amount of money owed by Carter to Weatherford. Carter testified that he and Weatherford had a heated discussion about the transaction and that Weatherford said, “Well, just forget about it. I will see to it that the cabin costs you ten times more than this amount.” This conversation occurred about 2:30 p. m. on the day of the fire, and at 9:00 p. m. that night Carter learned that his cabin had been burned.

William R. Frost, an arson investigator with the Department of Insurance and Fire Protection Section, testified that he investigated the fire and in the course of his investigation had interrogated Reams. Reams made a statement, which was reduced to writing, in which he implicated the defendant Sadler. In his statement Reams said that at Sadler’s suggestion, he got a can of gas; that both of them went to the cabin; and that Sadler “took the gas can and poured the gas on the house and set a match to it.”

Frost further testified that afterwards, when Sadler and Reams were together, he read Reams’ statement and that Sadler made no statement, except that “he just wanted a lawyer; that he didn’t know anything about what Mr. Reams had said.” Later in his testimony, the record reflects the following question and answer:

“Q. All right. Now, when you read this statement in the presence of Mr. Sadler and in the presence of Mr. Reams, did Mr. Sadler make any statements at all?
A. He said he didn’t know what Rubin was talking about.”

We have carefully searched this record and we find no other evidence that would implicate the defendant Sadler in this crime other than the comments contained in Reams’ statement.

Neither of the defendants testified at the trial, and it is elementary that the statement of Reams could not be used to implicate Sadler. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Bruton rule generally proscribes the use of one co-defendant’s confession to implicate the other as being viola-tive of the nonconfessing co-defendant’s Sixth Amendment right of confrontation.

Actually in this case, the trial judge recognized that Reams’ statement could not be considered against Sadler. When the statement was offered, the trial judge, in ruling on Sadler’s objection to the statement, said:

“Any statement made outside the presence of Sadler by Reams cannot be considered as it pertains to Sadler.”

The State in its brief seems to take the position that Reams’ statement should be considered as evidence against Sadler, since Sadler, when confronted with it, did not dispute it. The State cites Williams v. State, Tenn.Cr.App., 491 S.W.2d 862 (1972) as authority for its position. We have reviewed that case and find it can serve as no authority for the position advanced. The facts there are completely dissimilar from those in the present case. In the Williams case all of the defendants confessed to the crime and one of the defendants testified.

The position which the State takes in this case is erroneous for two (2) reasons. First, Sadler did dispute Reams’ statement by saying he wanted a lawyer and that he didn’t know what Reams was talking about. Second, even if Sadler had remained silent at that time, the statement could not be used as evidence against him. After an accused is warned of his constitutional rights — including the right to remain silent, then if he chooses to exercise his right of silence, such cannot be used against him. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602,16 L.Ed.2d 694 (1966); State v. Flanagan, 223 Tenn. 134, 443 S.W.2d 25 (1969); Mays v. State, Tenn.Cr.App., 495 S.W.2d 833 (1972).

We note that the record reflects that the able trial judge was concerned about the sufficiency of the evidence to convict the defendant Sadler. After he found Sadler guilty and set his punishment, he stated he wanted to “review the Sadler matter further . . .,” and when Sadler’s counsel reminded the court that Sadler had disputed Reams’ statement when confronted with it, the court said, “all right, I’ll consider that on your motion and review it further.”

Thus, after considering the entire record, we find that it contains no competent evidence to support the defendant Sadler’s conviction. We sustain his assignments of error. We hereby reverse and remand this case to the trial court for a new trial.

WALKER, P. J., and RUSSELL, J., concur.


text:
    Darrell Lamont McKELDIN, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Dec. 12, 1975.
    Certiorari Denied by Supreme Court Jan. 26, 1976.
    Certiorari Denied March 29,1976.
    See 96 S.Ct. 1490.

      Jerry H. Summers, Chattanooga, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Bart C. Durham, III, Asst. Atty. Gen., Nashville, Gary D. Gerbitz, Dist. Atty. Gen., Stanley Lanzo, Asst. Dist. Atty. Gen.; David Haines Rotroff, Asst. Dist. Atty. Gen., Chattanooga, for defendant in error.
   DUNCAN, Judge.

OPINION

This case was previously before this Court on the defendant’s direct appeal of his conviction for armed robbery, for which offense he received a penitentiary sentence of twenty years. In an opinion dated March 8, 1974, the defendant’s conviction was affirmed by this Court. Subsequently, the Supreme Court granted certiorari, vacated the defendant’s conviction, and remanded the cause to the Criminal Court of Hamilton County for further proceedings. McKeldin v. State, 516 S.W.2d 82, 83, 87 (Tenn.1974). The Supreme Court found merit to the defendant’s complaint that he had been represented at his preliminary hearing in the Sessions Court by an individual who was “neither qualified by training nor licensed in the State of Tennessee to practice law”.

In its opinion the Supreme Court, in part, said:

“This Court, on the basis of the record before it, cannot declare that petitioner’s denial of the constitutional right to the effective assistance of counsel was harmless error. “There was no transcript of the testimony or proceedings at the preliminary hearing.
“The record contains only the bare assertion of prejudice and the contention that petitioner’s conviction cannot stand because he was not represented by counsel at the preliminary hearing.
“The record is replete, however, with efforts made by petitioner to prove and rely upon his denial of counsel.
“Except to the extent herein indicated, we affirm the Court of Criminal Appeals. That the petitioner was guilty as charged in the indictment, the record permits no reasonable doubt.
“It is equally clear that his constitutional rights have been violated.
“We are faced, then with the resolution of the question of the relief to which petitioner is entitled, under a record which does not provide the answers.
“We vacate the petitioner’s conviction and remand this case to the Criminal Court of Hamilton County for a determination of whether the denial of counsel at the preliminary hearing was harmless error under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1968).”

On remand, the trial judge held an evi-dentiary hearing, at the conclusion of which he found and ruled that the fact the defendant was represented by a non-lawyer at his preliminary hearing was harmless error beyond a reasonable doubt. The trial judge reinstated the defendant’s original conviction. The defendant has appealed the ruling of the trial judge, and the only issue before us is whether the trial judge was correct in his ruling.

The trial judge held a full and complete hearing on the issue to be decided, at the conclusion of which he entered a written “Memorandum and Order” encompassing his findings and rulings. We have reviewed this “Memorandum and Order” and find that it accurately and fully answers the question posed herein.

In the defendant’s first assignment of error, he contends the trial court erred in finding that his representation by a non-lawyer at the preliminary hearing was harmless error beyond a reasonable doubt.

From the trial judge’s “Memorandum and Order,” we specifically note that he compared the facts brought out in the remand hearing with the transcript of the trial. He stated that the “record nowhere indicates or suggests that the trial result would have been any different had the defendant had competent counsel at the preliminary hearing.” Among other things, he found there were no “fatal weaknesses in the State’s case, and none which could have been exposed at the preliminary hearing”; that “there was probable cause for the defendant to be bound over to the grand jury”; that “the magistrate’s determination of bond did not prejudice the defendant at his subsequent trial”; that “the defendant waived no rights at the preliminary hearing”; that the defendant “did not testify, and gave no in-court confessions or admissions against interest which were subsequently used against him”; that “there were no rights which he might have asserted (i. e., early psychiatric examination, con-troversion of search warrant, etc.) which were relevant to his case and/or which he was deemed to have waived by failure to assert them at the preliminary hearing”; that “there was no witness at the preliminary hearing who did not appear, or was not available, at the trial.”

The trial judge concluded that “the defendant was not prejudiced by the denial of counsel at the preliminary hearing.” The court further found that such denial was harmless error beyond a reasonable doubt.

We are of the opinion that the record fully supports the findings and rulings of the trial judge.

Under this first assignment of error, the defendant argues that since a non-lawyer represented the defendant at his preliminary hearing, such representation constituted prejudice per se. The fact that the Supreme Court remanded this case for an evidentiary hearing on the question of whether or not harmless error was present amply refutes this contention. If such denial of counsel constituted prejudice per se; that is, if the issue was merely one of law, then the Supreme Court would not have remanded this cause for a factual determination.

The defendant’s first assignment of error is overruled.

In his second assignment of error, the defendant alleges that the evidence preponderates against the verdict and in favor of the innocence of the defendant.

If by this assignment the defendant is seeking to attack the sufficiency of the convicting evidence, we would merely note that this issue was previously decided adverse to his contentions by this Court and by the Supreme Court in the original appeal.

If by this assignment, however, the defendant is challenging the sufficiency of the evidence to support the trial judge’s ruling on the question involved in this last hearing, then we merely reiterate that the facts in this record fully support the trial judge’s findings and rulings. The assignment is overruled.

Thus, after an evidentiary hearing, the trial judge found that even though the defendant was represented by a non-lawyer at his preliminary hearing in Sessions Court, such representation was harmless error beyond a reasonable doubt. The evidence in this record does not preponderate against this finding by the trial judge. State v. Meadows, 215 Tenn. 668, 389 S.W.2d 256 (1965); Tooley v. State, 477 S.W.2d 250 (Tenn.Cr.App.1971). We must recognize and give effect to the firmly established principle of law that the findings of a trial judge at an oral hearing are entitled to the same weight as a jury verdict. Tooley v. State, supra; Bratton v. State, 477 S.W.2d 754 (Tenn.Cr.App.1971).

Affirmed.

WALKER, P. J., and GALBREATH, J., concur.


author: GREEN, Commissioner.

text:
    Billy Don CATO, Appellant, v. The STATE of Texas, Appellee.
    No. 51183.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    Rehearing Denied March 31, 1976.

      Vern F. Martin, Midland (Court-appointed), for appellant.
    James A. Mashburn, Dist. Atty., Jack K. Rusty Wall, Asst. Dist. Atty., Midland, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury, appellant was convicted of murder. Punishment was assessed at life imprisonment.

The indictment alleged the cause of death as being “by strangling her with his hands, and by strangling her with a cord, and by strangling her with a wire, and by strangling her with a belt, and by strangling her in a manner to the Grand Jurors unknown.”

Considering the evidence in the light most favorable to the verdict and judgment, the record reflects that on May 27, 1974 at about 12:50 p. m., appellant stopped his car in front of the Midland Memorial Hospital. He entered the hospital and said to Tresa Calwell, a registered nurse, and Kenneth Truelove, an orderly: “My wife is out in the car. She is dead, and I killed her.” They went to the car and found the body of Shirley Cato “lying kind of over in the front seat — slumped over.” They checked her for vital signs, “pulse, respiration, anything of this type, and did not find any.” They found a “sort of blue, purplish markings around the middle of the neck.” Calwell testified that in her opinion Shirley Cato was dead when she saw her. During this investigation at the car, appellant stated: “She has been asking for this for ten years.” When Truelove found a red-handled paint scraper under the seat, appellant stated: “That is not what I used.”

Lieutenant Luckey of the Midland Police Department and Mickey Clark, criminal investigator for the sheriff’s office, went to the hospital in response to a call from Cal-well, Luckey read to appellant his Miranda and Art. 38.22, V.A.C.C.P., rights, during which appellant stated that he understood “but I don’t know why we are going through all this. I have already told you that I killed her.” After receiving the statement of his rights, appellant agreed to show the officers where the killing occurred, and went with Officer Clark, directing him to a site in Midland County where, he stated, the trouble occurred. Car tracks were found there which matched the tires of appellant’s car. A man’s belt, a three foot length of radio antenna wire, and some white nylon cord were found in appellant’s car.

Evidence of a mortician and of an autopsy report showing the cause of death as strangulation was introduced.

Appellant testified to a long-lasting series of troubles, quarrels, violence, etc. between himself and his wife, the deceased, dating back approximately ten years. They had been divorced for about two years, and subsequently remarried. They were separated at the time of the offense, and she had filed divorce proceedings. Their children were with her.

He went to the house in Midland where she and the children were staying with friends to discuss some of their marital problems. While they drove and talked, an argument began. He stopped the car, and the argument continued. As to what happened next, he testified:

“. . . And I said, ‘All right, woman. I’m going to go get my kids, go back home, and you can stay here, until your divorce, whore around all you want to.’ She got — the last thing she hollered was, ‘You P. and S.O.B.’, and the last thing I remember — and from that I seen a hand coming toward me. My head exploded. I remember hearing my glasses hit the dash. I don’t know how long I was there. I don’t know what happened. But when I came to, she w;as sitting over there on her side. She had her hands on her throat like this. And she was looking at me. And I jumped over there — I was talking to her, but I don’t know exactly what I asked her. But I took her hands off of her throat, and there was a knot. And I screamed, started asking God to not let her die. And then I realized I had to get her to the hospital. I found my glasses on the floorboard, and turned the car around. I went back around the curve. And then there was just a bubbling or surging down inside, started rushing all over me, and from there I don’t know where I went. The next thing I remember, there was a white uniform, a nurse. I remember being in a bathroom washing my face.”

He testified that he later found out that he had a blow on the nerve centers of his neck, from which he had suffered pain ever since. He said that his wife had studied karate, and had on previous occasions struck him and he had seen her use karate blows on others. He did not remember being struck by deceased on this occasion, nor did he know whether he choked her or not.

Appellant initially complains of the refusal of the court to charge on aggravated assault. He contends that his testimony that he did not intend to kill deceased raised a fact issue of the lesser offense.

Appellant was indicted for murder under V.T.C.A. Penal Code Sec. 19.02(a)(1), and not (a)(2). Compare Fazzino v. State, Tex.Cr.App., 531 S.W.2d 818 (1976), in which the indictment was under Sec. 19.-02(a)(2), which does not contain the element of intent to kill. Sec. 19.02(a)(1) does contain the element of intentionally or knowingly causing death, and aggravated assault is a lesser included offense. See V.T.C.A. Penal Code, Sec. 22.01, Sec. 22.02. Where the prosecution is under Sec. 19.02(a)(1), supra, and the injuries causing death are inflicted without the use of a weapon deadly per se, the court should charge on aggravated assault provided the evidence raises the fact issue of a lack of intent to kill. Matheson v. State, Tex.Cr.App., 508 S.W.2d 77; Hargrove v. State, Tex.Cr.App., 501 S.W.2d 878. In each of those two cases, the evidence reflected acts of the accused indicating a lack of intention to kill.

The court instructed the jury that before it could find appellant guilty of murder it must find from the evidence beyond a reasonable doubt that he did “intentionally and knowingly cause the death” of Shirley Cato by strangling her (in one of the ways alleged in the indictment), and that unless it so found beyond a reasonable doubt, or if it had a reasonable doubt thereof, it should acquit him of murder. It next charged on voluntary manslaughter, requiring the same findings as to intent and knowledge. See V.T.C.A. Penal Code, Sec. 19.04. The charge also included instructions on the law of self-defense. Appellant’s request for a charge on aggravated assault was denied.

The evidence relied on by appellant as requiring submission of aggravated assault is his testimony as follows:

“Q Did you fabricate a plan, Bill, to go and do away with your wife?
“A The answer to that is absolutely not, no. In no way did I want her dead.
“Q Did you intend — do you recall any intent on your part to kill her at any time out there?
“A No, sir. It never entered my mind once.
“Q Do you this minute really know whether or not you did it?
“A This very minute, I don’t know. I
don’t know if I did or not
“Q . When you left Odessa, did
you intend to commit suicide?
“A If I couldn’t get them back together again, that was my intentions.
“Q But certainly not to harm your wife?
“A Certainly not.”

Prior testimony of appellant, quoted supra, was to the effect that while he and his wife were sitting in the car quarreling with each other, he saw a hand coming toward him, his head exploded, his glasses hit the dash, and he passed out and remembered nothing further until he came to and saw her sitting with her hands around her throat. He gave no testimony of the assault upon her or of any conscious actions reflecting an absence of an intention to kill.

Prom a review of appellant’s testimony, including all that is quoted herein, we conclude that the record does not reflect that a fact issue requiring the submission of aggravated assault was raised. Smith v. State, Tex.Cr.App., 411 S.W.2d 548; Dickson v. State, Tex.Cr.App., 463 S.W.2d 20; Preble v. State, Tex.Cr.App., 374 S.W.2d 444, cert. den. 379 U.S. 882, 85 S.Ct. 151, 13 L.Ed.2d 88.

Appellant next contends that the court erred in refusing his request that the charge include instructions on insanity as a defense. He argues that testimony given by him of his having visions concerning his wife a few days prior to the offense and of his alleged traumatic amnesia about the facts surrounding the offense raised such issue.

We have thoroughly reviewed the entire record and find nothing which indicates that, at the time of the conduct with which he is charged, appellant, as a result of mental disease or defect, either did not know that his conduct was wrong or was incapable of conforming his conduct to the requirements of the law he allegedly violated. See V.T.C.A. Penal Code, Sec. 8.01. See and compare Cowles v. State, Tex.Cr.App., 510 S.W.2d 608; Valdez v. State, Tex.Cr. App., 475 S.W.2d 786.

He also contends that the court erred in refusing to halt the trial and conduct a separate hearing on his present competency to stand trial, when defense counsel so requested. This request was made on the fourth day of the trial, following the presentation of the State’s prima facie case, appellant’s evidence, and the State’s rebuttal witnesses. The trial court filed extensive findings in explanation of its denial of the request.

As the court stated in its findings, it had “numerous opportunities to observe the defendant’s demeanor and ability to assist his counsel in the preparation of his defense,” both during this trial and at pre-trial. These findings detail the actions of appellant in the court’s presence. The court concluded that, based upon these observations, “the defendant was competent to stand trial, to assist his attorney in the presentation of his case, and to understand the substance of the charges pending against him.”

We find that the record fully supports the findings and conclusions of the trial court. The contentions of appellant as to the failure of the court to charge on the defensive issue of insanity, and also to hold a separate hearing on appellant’s competency to stand trial, are without merit. Wages v. State, Tex.Cr.App., 501 S.W.2d 105; Ainsworth v. State, Tex.Cr.App., 493 S.W.2d 517.

Appellant contends further that the court should have granted a mistrial when the foreman of the grand jury testified that deceased died from strangulation.

For proof of the allegation in the indictment that the strangling of deceased was “in a manner to the Grand Jurors unknown,” the State used the foreman of the grand jury. See Gentry v. State, 172 Tex. Cr.R. 345, 356 S.W.2d 793; Brown v. State, Tex.Cr.App., 475 S.W.2d 938, 946. During this witness’ testimony, the following occurred:

“Q (By Mr. Wall): Mr. Bedford, after a diligent inquiry by the Grand Jury, was the Grand Jury able to determine the means by which the death was caused of Shirley Cato?
“A It was our opinion that it was by strangulation—
“MR. MARTIN: Excuse me, Your Honor. “MR. WALL: That wasn’t my question. “MR. MARTIN: We object again to that. “THE COURT: Sustained.
“MR. MARTIN: And I want the Jury instructed to disregard it.
“THE COURT: So instructed.
“MR. MARTIN: And because of the sensitivity of this particular witness, I want to again urge a motion for mistrial on the grounds it can’t be withdrawn—
“THE COURT: Overruled.
“MR. MARTIN: Note our exception.”

The prompt action of the court in sustaining appellant’s objection and instructing the jury to disregard cured any error in the non-responsive answer of the witness. Vig-es v. State, Tex.Cr.App., 508 S.W.2d 76; Hartman v. State, Tex.Cr.App., 507 S.W.2d 553.

Thereafter, the witness testified that the grand jury, after diligent inquiry, was unable to ascertain the manner and means in which appellant was killed.

Appellant’s fourth ground of error reads: “The trial court erred in allowing States witness, ‘a pathologist,’ to testify as to cause of death without a showing that diligence was exercised by the state to produce the witness who actually performed the autopsy.”

On the afternoon that deceased’s body was brought to the hospital, Justice of the Peace John Biggs held an inquest, and, after determining that she was dead, ordered an autopsy and named Dr. Martha Masden, a pathologist, to make it. She performed the autopsy that day, and filed her “autopsy protocol” or findings with Judge Biggs. He produced this report at the trial, where it was placed in evidence before the court, but not to the jury. The record reflects that on the Thursday before the Monday on which the trial commenced Dr. Masden left the State and went to New Jersey, and she was not available as a witness. In her absence, her partner Dr. Campbell testified to the cause of death, using for reference the official autopsy report prepared by Dr. Masden. This method was approved by this Court in Whitfield v. State, Tex.Cr.App., 492 S.W.2d 502. See also Mahaffey v. State, Tex.Cr.App., 471 S.W.2d 801; Art. 3731a, See. 1, V.A.Tex. Civ.Stats.

Appellant’s .complaint is that there was no showing of diligence by the State to produce Dr. Masden at the trial. The contention is without merit, and is overruled.

Lastly, appellant contends that the court erred in overruling his motion for a new trial, due to newly discovered evidence affecting appellant’s claim of insanity and incompetency to stand trial.

A psychiatrist testified at the hearing on the motion that he had examined appellant prior to the trial, but had found nothing to indicate that appellant did not know the nature and consequences of his actions, or that he could not conform his actions to the requirements of the law. He had discussed his findings with counsel for appellant, who did not ask him to testify. If called upon to testify, his opinion would be the same as his report which was furnished the State and the appellant before the trial.

Appellant also relies upon testimony given by him in the absence of the prosecuting attorney and included in sheets of the statement of facts stapled together and opened by this Court. These show that appellant stated to the court that since the trial he had remembered things about the offense that he could not remember during the trial. We have examined his record, and find that the trial court did not abuse its discretion in overruling the motion for a new trial.

The judgment is affirmed.

Opinion approved by the Court.

      . An indictment in a murder case may, in a single count, allege jointly different means of killing without rendering the indictment duplicitous. See Gentry v. State, 172 Tex. Cr.R. 345, 356 S.W.2d 793, 797.

      . It was in this manner that venue was established in Midland County.

      . Sec. 19.02 Murder “(a) A person commits an offense if he:
      “(1) intentionally or knowingly causes the death of an individual;
      “(2) intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual, or .


author: DALLY, Commissioner.

text:
    Ex parte Jackson Timothy SULLIVAN.
    No. 51481.
    Court of Criminal Appeals of Texas.
    March 3, 1976.
    John A. Brady (On appeal only), Fort Worth, for appellant.
    Tim C. Curry, Dist. Atty. and Howard M. Fender, Asst. Dist. Atty., Fort Worth, Jim D. Vollers, State’s Atty. and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DALLY, Commissioner.

This is an appeal from an order entered by the Judge of County Criminal Court No. 1 of Tarrant County denying relief in a habeas corpus proceeding and remanding the appellant to custody of the sheriff for extradition to the demanding State of Arizona.

The Executive Warrant issued by the Honorable Dolph Briscoe, Governor of Texas, recites that the appellant stands charged by indictment in the demanding state with the felony criminal offenses of grand theft, the sale of unregistered securities, and securities transactions as an unregistered dealer.

The jurisdiction of a County Court or judge thereof to issue a writ of habeas corpus is limited by the Constitution of Texas to cases where the offense charged is within the jurisdiction of the County Court or any court or tribunal inferior to said County Court. Article V, Sec. 16, Constitution of Texas. See Ex parte Manzella, 443 S.W.2d 260 (Tex.Cr.App.1969); Ex parte Bennett, 442 S.W.2d 373 (Tex.Cr.App.1969).

Under the provisions of Art. 51.13, Secs. 10 and 25a, V.A.C.C.P., a fugitive may be advised of his rights concerning extradition and he may waive extradition in a county court, since it is a court of record, but, the provisions of Art. 51.13, Sec. 10, V.A.C.C.P. notwithstanding, the county court does not have jurisdiction to hold a habeas corpus hearing on extradition in a felony case. See Ex parte Bennett, supra.

Since the appellant was charged in the demanding state with felony offenses, the Judge of the County Criminal Court No. 1 of Tarrant County was without authority to enter an order in this habeas corpus proceeding. Under the provisions of Article 11.42, V.A.C.C.P., the Judge of the County Court had authority only to remand the appellant to the custody of the Sheriff of Tarrant County from whose custody he was taken by virtue of the issuance of the writ of habeas corpus.

In appeals from the judgment rendered on the hearing of an application under habeas corpus the Court of Criminal Appeals “shall enter such judgment, and make such orders as the law and the nature of the case may require, . . . ” Article 44.37, V.A.C.C.P.

The order which we deem appropriate is that which should have been made by the County Judge. See Article 11.42, V.A.C. C.P.

Appellant is remanded to the Sheriff of Tarrant County, Texas, from whose custody he was taken by the issuance of the writ of habeas corpus.

Opinion approved by the Court.


author: ONION, Presiding Judge.

text:
    Raynold Arthur TONEY, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 51446.
    Court of Criminal Appeals of Texas.
    March 17, 1976.

      Timothy E. Telge, Houston (On appeal only), for appellant.
    Carol S. Vance, Dist. Atty., Clyde F. DeWitt, III, Asst. Dist. Atty., Houston, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION ON APPELLANT’S AFFIDAVIT AND MOTION TO DISMISS APPEAL

ONION, Presiding Judge.

Appellant was convicted in a bench trial for driving a motor vehicle upon a public highway while intoxicated. Punishment was assessed at six (6) months in the county jail and a fine of $50.00. The judgment was affirmed by this court in a per curiam and unpublished opinion on February 25, 1976. Six days prior to this court’s opinion, the appellant filed in the trial court an affidavit and motion to dismiss the appeal. The motion was addressed to this court, but was filed in the trial court, which no longer had jurisdiction of the case. The motion to dismiss was not received by this court until eight days after our opinion had been handed down and some fourteen days after the filing in the trial court.

The question presented is whether to dismiss the appeal as requested or refuse to do so since the opinion had been handed down prior to the receipt of the affidavit and motion to dismiss the appeal.

The cases do not seem consistent.

In De Leon v. State, 466 S.W.2d 573 (Tex.Cr.App. 1971), this court noted that “ordinarily” it will not entertain a motion to dismiss an appeal filed in this court after an opinion had been written, and the appeal was not dismissed. In Hail v. State, 105 Tex.Cr.R. 497, 288 S.W. 1072 (1926), the court stated, “The appeal cannot be dismissed, because we have written and filed an opinion herein.”

There appears to be a number of cases to the contrary where this court has dismissed an appeal where the motion and affidavit to dismiss were filed after an opinion was written and filed. See, e. g., Sims v. State, 123 S.W.2d 890 (Tex.Cr.App.1938); Smart v. State, 294 S.W.2d 103 (Tex.Cr.App.1956); Bell v. State, 141 Tex.Cr.R. 405, 148 S.W.2d 1097 (1941); Donley v. State, 165 Tex.Cr.R. 650, 310 S.W.2d 567 (1957); Logan v. State, 296 S.W.2d 255 (Tex.Cr.App.1956); Walkou-iak v. State, 385 S.W.2d 400 (Tex.Cr.App. 1965). In most of these cases the opinion written was withdrawn as well as the judgment of affirmance. Cf. however Ex parte LeClair, 451 S.W.2d 918 (Tex.Cr.App.1970).

While there is authority indicating that the appellant retains the authority to dismiss the appeal at any time, Ermis v. State, 289 S.W. 405 (Tex.Cr.App.1927); 5 Tex.Jur.2d, Appeal and Error — Criminal, Sec. 336, p. 539, we conclude this court has the power to deny a motion to dismiss an appeal filed in this court after an opinion has been, written and filed. And, as a policy, we will not in the future dismiss appeals where the motion to dismiss is not timely filed in this court unless there are presented unusual circumstances calling for a different result. All cases in conflict herewith are overruled to the extent of such conflict.

The motion to dismiss is overruled.