author: DIXON, Presiding Judge.

text:
    KANSAS CITY MEDICAL CENTER, INC., Plaintiff-Respondent, v. Henry TAGER, Defendant-Appellant.

      No. KCD 28683.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    John P. Haley, Jr., Kansas City, for defendant-appellant.
    Arthur J. Ease, Kansas City, for plaintiff-respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   DIXON, Presiding Judge.

Defendant appeals a judgment for plaintiff for $1,466.50 in a court-tried case. The only issue is the sufficiency of the evidence to support the judgment. The judgment is affirmed.

The plaintiff’s suit was for money due from defendant who had acted as an attorney in settling claims and who had been authorized to and did deduct from the settlements amounts due the plaintiffs. The defendant, while still licensed as a lawyer, answered interrogatories admitting he represented the persons named in plaintiff’s petition and that he had records showing the disbursement of settlements. A medical doctor, a member of the plaintiff group, testified that defendant had admitted withholding charges due the plaintiff from settlements made for the purpose of payment to plaintiff. The defendant, in his testimony, admitted he had made settlements in specified cases. "The amounts claimed by plaintiff as due in those cases total $1,466.80. The judgment as noted was for $1,466.50. A court-tried case will not be reversed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law or erroneously applied the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). On defendant’s sole ground that there is insufficient evidence to support the judgment, the evidence favorable to the verdict and the reasonable inferences from that evidence plainly provide substantial evidentiary support for the verdict. No error of law appears, and an extended opinion would have no precedential value. Rule 84.16(b). The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: SWOFFORD, Presiding Judge.

license: Public Domain

text:
    Henry Stanley SMITH, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28739.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Albert A. Riederer, Kansas City, for appellant.
    John Ashcroft, Atty. Gen., Bruce E. Anderson, Paul R. Otto, Asst. Attys. Gen.,' Jefferson City, for respondent.
    Before SWOFFORD, P. J., and PRITCH-ARD, C. J., and DIXON, J.
   SWOFFORD, Presiding Judge.

Upon a plea of guilty, the appellant was sentenced to a term of seven years on April 21,1975 for the crime of sodomy. On October 23, 1975, appellant filed a motion to vacate his sentence pursuant to Rule 27.26; an evidentiary hearing was held; and, the motion was denied. This appeal followed.

The appellant asserts two points relied on or assignments of error; first, that his motion to vacate the sentence should have been granted because at the time of his guilty plea he was unable to understand the nature of the proceedings against him, in that he suffered from a mental disease or defect; and, second, that the court should have sustained his motion because it had no jurisdiction to accept the guilty plea since at the time he was under the jurisdiction of the State Mental Hospital at Fulton, Missouri, pursuant to Section 552.040 RSMo 1969.

It is immediately apparent that both of these points call into issue the mental condition of appellant before and at the time of his guilty plea to the sodomy charge.

Appellant’s challenge to the jurisdiction of the court below, as contained in his second point, will be first considered and will require a review of the record pertinent to this point.

In Appellant’s Motion to Vacate the sentence under Rule 27.26, subscribed and sworn to by him on October 2, 1975, he states, in part:

“The Court lacked jurisdiction to sentence movant for the reason that he had previously (been) declared a ‘sexual psychopath’ according to Missouri State Law, on January 14, 1971, and was committed to the State Mental Hospital at Fulton, Missouri. At the time of the alleged offense he was on conditional release from the institution but hf i not been declared cured. * * * ” (Word in parenthesis supplied)

Throughout the proceedings below this allegation was not challenged. His attorney at the time of his guilty plea testified that the appellant had been confined at Fulton and that he had filed two applications on the appellant’s behalf for a conditional release, the second of which resulted in appellant’s conditional release by virtue of an order of a division of the court below (other than the division where the guilty plea here involved was accepted.)

The court below in the case at bar made specific findings of fact as to the 1971 commitment as a sexual psychopath. Such commitment therefore was clearly accomplished under the terms and provisions of the Criminal Sexual Psychopath Act (hereafter CSPA), Sections 202.700 to 202.770, inclusive, RSMo 1969, a part of Chapter 202, Title 12, of the Missouri Statutes dealing with Public Health and Welfare, and not under Section 552.040 RSMo 1969, a part of the statutes dealing with Criminal Procedure, as here asserted by the appellant. The two statutory enactments are vastly different in both purpose and effect.

This opinion need not be unduly lengthened by any extended analysis of the CSPA. It should be noted, however, that these statutes have been declared to provide procedures which are civil and not criminal in nature and are curative and remedial and not punitive. State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 900[1, 2] (banc 1950). The CSPA declares the public policy of the state to detain, treat and care for a person found to be a criminal sexual psychopath and to protect society from the dangers of significant anti-social acts, State v. James, 534 S.W.2d 41, 43-44[l, 4] (Mo. 1976).

Further, the CSPA contains a specific provision legislatively divorcing its provisions from any criminal proceedings which might be involved by reason of the mental health of the person committed. Section 202.750 RSMo 1969, provides:

“Nothing in sections 202.700 to 202.770 shall be construed as changing in meaning any portion of the criminal code, nor shall a finding of criminal sexual psychopathy under the provisions of said sections constitute a defense in any criminal action.”

In accordance with this statutory limitation, the courts have held that a person brought under the provisions of the CSPA and adjudicated a criminal sexual psychopath may, nevertheless, be tried for the underlying criminal charge. Section 202.-730 RSMo 1969; State v. Tartenaar, 371 S.W.2d 192, 195[5] (Mo. 1963); State v. McDaniels, 307 S.W.2d 42, 46[7] (Mo.App.1957). In the case at bar, the sodomy charge was not the underlying charge which brought the appellant under the CSPA proceedings in 1971 but upon an offense which occurred in 1974 following his conditional release from Fulton in 1973. The appellant cannot escape the consequences of the present charge by reason of his prior commitment as a criminal sexual psychopath and the court below had jurisdiction to proceed in the sodomy prosecution. The appellant’s second point is ruled against him.

Before accepting the appellant’s plea of guilty to the sodomy charge, he was examined at the Western Missouri Mental Health Center by Dr. Gupta and Dr. Laskey of that institution’s Forensic Psychiatry Department, and by a Psychiatric Social Worker, and their report was filed with the court below. Based upon this report, the court made a specific finding that the appellant understood the nature of the proceedings, was not suffering from any mental disease or defect, was able to assist his counsel, and was competent to stand trial. These are the standards set by Section 552.-020 RSMo 1969. Appellant offered no evidence in support of this claim other than the admitted fact that he had been committed in 1971 under the CSPA.

The real thrust of the appellant’s argument on his first point, however, is that he understood that if he entered a plea of guilty to the sodomy charge, he would not be sent to the penitentiary but would be recommitted to Fulton. The record discloses that his counsel made strenuous and repeated efforts to reach such a plea bargain with the court who had granted him conditional release and with the prosecutor, but without success. Thereafter, his counsel did succeed in reaching an agreement with the prosecutor that the State would recommend a sentence of 7 years. His counsel testified that appellant was kept fully advised of these facts and that after some vacillation and after reading the victim’s deposition decided to enter the plea. While appellant testified at the hearing on his Rule 27.26 motion that he expected to be returned to Fulton, the following appears in the record on cross-examination:

“Q. Now during the plea didn’t they inform you that the judge could sentence you to the penitentiary?
A. They did.”

Under questioning by the court below, the following appears:

“Q. Right. So you knew that unless I changed my mind I was going to give you seven years in the custody of the Missouri Department of Corrections? The penitentiary and not Fulton. You knew that, didn’t you?
A. Right.”

Further, the appellant had his counsel hand the court below a letter which contained a statement that “the seven years you offered to give me I think is enough time for this crime.”

The record is conclusive that the plea was knowingly and voluntarily entered; that appellant fully understood the proceedings, was competent to stand trial and assist his counsel, and therefore, to enter the plea; that the court below and counsel carefully informed him of his rights and meticulously protected those rights; that the court below gave him a full evidentiary hearing on his Rule 27.26 motion; and the judgment of the court below denying such motion was based upr i convincing and solid evidence and was no. clearly erroneous. Rule 27.26(j).

Further extension of this opinion would be devoid of precedential value. Rule 84.-16(b)(5).

The judgment is affirmed.

All concur.

      . The nature of the underlying charge is not shown by the record.


author: PER CURIAM:

text:
    PEABODY COAL COMPANY, Respondent, v. Lee Roy ARTMAN, Appellant.
    No. KCD 28794.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.
    Charles C. Shafer, Jr., Herman M. Shaffer, Kansas City, for appellant.
    Howard C. Gosnell, Jr., Nevada, for respondent.
    Before DIXON, P. J., and WASSER-STROM and TURNAGE, JJ.
   PER CURIAM:

Plaintiff sued for conversion of certain steel piling allegedly taken from its Spra-gue Hopper. Defendant counter-claimed for defamation. The trial court, after hearing the case without a jury, entered judgment for plaintiff on its principal claim in the sum of $4,000 and against defendant on its counterclaim. Defendant appeals that portion of the judgment assessing damages against him. His single Point on Appeal relates to the sufficiency of the evidence. We affirm.

The Sprague Hopper was built in the early 1950s and consisted of an elevated structure of dirt fill with a top over which trucks could drive. Railroad tracks ran through the middle of the area, and trucks would drive up the elevated structure and unload their coal into the Hopper for loading into the railroad cars. The dirt fill was held in place by a wall of steel siding, also referred to as pilings, standing vertically. These pilings made up approximately 100 tons of steel.

By 1974 the Sprague Hopper was no longer being used and the Kansas City Southern Railroad, owner of the ties, rails and switches running through the Hopper, employed Terry Aikens to remove that equipment from the site. Some of the pilings and dirt had collapsed onto the rails. Aikens employed defendant to remove that dirt and pilings so as to permit access to the rails and ties. Permission was given to defendant to move the dirt and pilings for that purpose by John Bagby, plaintiff’s land agent and supervisor of this area.

Plaintiff introduced further testimony as follows. Wehar, who lived within a quarter of a mile of the Hopper, testified that he had visited the site during the period of the salvage operation in question and had witnessed defendant cutting the pilings into sections. He had also seen defendant driving away two and perhaps as many as three loads of steel on defendant’s tractor and low boy trailer. Wehar estimated the amount of steel to be 25 to 30 tons in each load. In his conversations with defendant at the site of the work, defendant had told him that his taking the steel away from the site “was for part of his salary.” Another witness, Johnson, testified that he had seen defendant driving his tractor fully loaded with steel; that defendant’s tractor trailer could carry the legal limit of 20 tons; and that defendant had on that occasion inquired of Johnson where he could sell a load of steel. Another witness, Ward, testified that he had seen defendant driving a tractor trailer carrying steel with the legal load limit of 20 tons, and that the steel was like that which he had seen at the Sprague Hopper. (Defendant in the course of his own testimony also stated that his tractor trailer carries a load of 20 tons.)

The witness Ward had been working with steel in the form of railroad tracks for 35 years. He was more familiar with the price of what railroad steel was selling for than he was with the type of steel represented in the pilings used in the Sprague Hopper, but he estimated that the steel of the type in these pilings had a value at that time of approximately $100 a ton. Bagby, the plaintiff’s agent having supervision over this property, testified to a valuation of $100 to $125 per ton.

The trial court found from all of the evidence that defendant had converted two loads of steel from the Sprague Hopper, that each of those loads consisted of 20 tons of steel, and that the steel had a value of $100 a ton.

In the review of a court tried case, the judgment is to be affirmed unless there is no substantial evidence to support the judgment; unless it is against the weight of the evidence; unless it erroneously declares the law; or unless it erroneously applies the law. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). A study of the record in this case and the cases cited by defendant discloses no error of law and (giving the deference due to the trial court’s judgment as to the credibility of witnesses) the factual determinations are supported by substantial evidence and are not against the weight of the evidence. An extended opinion would have no precedential value, and the judgment is therefore affirmed under the provisions of Rule 84.16(b).


author: DIXON, Judge.

text:
    James Edward MOLAND, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28905.
    Missouri Court of Appeals, Kansas City District.
    Aug. 8, 1977.

      Timothy C. Harlan, Boonville, for mov-ant-appellant.
    John Ashcroft, Atty.Gen., Robert L. Pres-son, Asst.Atty.Gen., Jefferson City, for respondent.
    Before SWOFFORD, P. J., and PRITCH-ARD, C. J., and DIXON, J.
   DIXON, Judge.

James Edward Moland, movant-appel-lant, a 42-year-old man with one and one-half years of college education, pled guilty to the separate charges of tampering with a motor vehicle and felonious escape and was sentenced to two consecutive two-year terms in the Department of Corrections. No direct appeal from the above judgment and sentence was taken by movant. Subsequently, he filed a Rule 27.26 motion to vacate the sentences. The trial court denied the motion without an evidentiary hearing. Affirmed.

The only portion of the pro se motion necessary to a determination of the issue raised reads as follows:

“. . . [Cjounsel in this case had mov-ant falsely tell the court that no deal was made when in fact the same counsel assured movant, that the movant;
i. would get no more than two, two year sentences running concurrently, (together).
ii. but he would have to tell the court that no deals had been made for his two guilty pleas.”

Movant contends that this allegation required the trial court to grant an evidentia-ry hearing and to appoint counsel.

The transcript made at the time of the entry of the plea and the sentencing has been filed as an exhibit. The trial judge, at the time of the offer of the guilty pleas, advised the movant of his rights and asked if there were any plea bargains. The Prosecuting Attorney then stated he was going to recommend concurrent two-year sentences. The defense lawyer indicated that was his understanding of the negotiations. The trial judge unequivocally asserted that he was not bound by the recommendation. The plea was entered, applications for probation were filed, and the court ordered a presentence investigation. Less than a month later, the defendant appeared for sentencing. The presentence report disclosed prior convictions. The court reminded the defendant he was not bound by the recommendation. The court then said:

“THE COURT: I am not going to follow that recommendation. Do you want to withdraw your pleas of guilty to these cases?
THE DEFENDANT: No sir, your Honor.
THE COURT: I feel like I ought to tell you that when I am not going to follow his recommendation.
THE DEFENDANT: Yes sir.”

The court then sentenced defendant to consecutive two-year sentences.

An opinion was handed down in this case ordering an evidentiary hearing on the authority of Burgin v. State, 522 S.W.2d 159 (Mo.App.1975), and Giggar v. State, 547 S.W.2d 870 (Mo.App.1977). On motion for rehearing, the Attorney General called attention to the fact that the trial judge had specifically refused to follow the recommendation of the prosecuting attorney and offered the movant the opportunity to withdraw his pleas of guilty, which movant declined. The original opinion has been withdrawn since it did not consider those facts.

On the basis of the trial court’s action in affording the defendant an opportunity to withdraw his pleas, this case is controlled by Smith v. State, 513 S.W.2d 407 (Mo.banc 1974). In Smith, a three-prong test for the granting of an evidentia-ry hearing was established: (1) the movant must plead facts; (2) the facts must not be refuted by the record; (3) those facts, if true, must entitle movant to relief. The Attorney General concedes on this record the first two requirements. The third test is not met. Even if movant’s claim that he had been “promised a deal” was true, for it to afford him relief, it must have affected the voluntariness of the plea. Even if that were so at the time he entered the plea, after movant had been advised the court would not honor the plea bargain and rejected an opportunity to withdraw his plea, any taint to the voluntariness of his plea was removed. Whatever the situation at the time of the first hearing, at the second hearing, movant was given a chance to withdraw his pleas. If the original plea was made upon a belief that the court would, in fact, follow the recommendation despite the trial court’s assertion to the contrary, that belief could not continue in the face of the court’s unequivocal statement that the court would not follow the recommendation. The movant then was given the opportunity to vacate his pleas, which he rejected. Thus, the movant cannot rely on Giggar and Burgin, for he could not have believed that any “promise” would be fulfilled. The essence of Giggar and Burgin is that the “promise” was withheld from the court. The “promise” here was explicit, and the court rejected it at the same time offering to vacate the plea if it had been premised upon a belief the “promise” would be kept.

Judgment affirmed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. John JACKSON, Defendant-Appellant.
    No. 10509.
    Missouri Court of Appeals, Springfield District.
    Aug. 11, 1977.
    John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

      Gene A. Hilton, Camdenton, for defendant-appellant.
   PER CURIAM:

Defendant was jury-convicted (Count I) of attempted second degree burglary and (Count II) possession of a burglary tool. On October 8,1976, defendant was afforded allocution and the court rendered judgment and pronounced sentence in accordance with the verdict. Defendant appealed.

Rule 27.11, V.A.M.R., mandates that “Whenever a judgment upon a conviction shall be rendered . . ., the clerk . shall enter such judgment and sentence thereon fully on the minutes, stating briefly the offense for which such conviction shall have been had, and the court shall inspect such entries and conform them to the facts; but the omission of this duty, either by the clerk or judge, shall in nowise affect or impair the validity of the judgment or sentence.”

The transcript filed herein does not contain a judgment entry required by Rule 27.11. As it is essential for the purpose of appellate review that the judgment entry upon conviction be preserved and shown by the transcript, we shall not dismiss the appeal but hereby do order that the appeal be held in abeyance, that the cause be remanded to the trial court for entry of a judgment required by Rule 27.11, and that the appeal be reinstated upon receipt of a supplemental transcript containing said judgment. State v. Skaggs, 248 S.W.2d 635, 638[9-14] (Mo. 1952); State v. Vinson, 337 Mo. 1023, 1027-1028, 87 S.W.2d 637, 640[8] (1935); State v. Pogue, 552 S.W.2d 75 (Mo.App. 1977); State v. Asberry, 553 S.W.2d 902 (Mo.App. 1977).

It is so ordered.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Ronnie Dale CARROLL, Defendant-Appellant.
    No. 10565.
    Missouri Court of Appeals, Springfield District.
    Aug. 12, 1977.
    John Ashcroft, Atty. Gen., Jeffrey M. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Lawrence J. Permuter, Clayton, for defendant-appellant.
   BILLINGS, Chief Judge.

Appellant prosecutes this appeal from a determination by the trial court of his competency to stand trial. We affirm.

Appellant was convicted of forcible rape and in his first appeal we reversed the judgment and remanded the case for a competency hearing under § 552.020, RSMo 1973 Supp. State v. Carroll, 543 S.W.2d 48 (Mo.App.1976).

The trial court conducted a hearing and found appellant had no mental disease or defect and he had the capacity to understand the proceedings against him and assist in his defense. Appellant was then resentenced.

In this appeal the appellant avers the trial court’s finding as to his competency is not supported by substantial evidence because the state’s psychiatrist testified he would have given appellant an electroencephalogram had he known of appellant’s alleged prior skull injury.

We have reviewed the testimony of the psychiatrist, Dr. Bratkowski of Fulton State Hospital, and conclude there is no merit in appellant’s point. Appellant had been examined at the state facility and Dr. Bratkowski, inter alia, opined as follows: there was no evidence at all of mental disease or defect in appellant; at the time of the offense appellant understood the nature and consequences of his actions and could conform his conduct to the requirements of the law; and, appellant was competent to stand trial and assist his counsel.

The judgment is affirmed.

All concur.


author: WM. M. LEECH, Special Justice.

text:
    TENNESSEE LIBERTARIAN PARTY et al., Appellants, v. DEMOCRATIC PARTY of Tennessee et al., Appellees.
    Supreme Court of Tennessee.
    July 25, 1977.
    Rehearing Denied Sept. 12, 1977.
    Philip M. Carden, Nashville, for appellants.
    Brooks McLemore, Jr., Atty. Gen., Robert B. Littleton, Asst. Atty. Gen., Nashville, for appellees.
   OPINION

WM. M. LEECH, Special Justice.

The Tennessee Libertarian Party, by James E. Forrester, Chairman, and other officers and members of said political party, filed a complaint, in the Chancery Court for Davidson County, Tennessee, against the Tennessee Republican Party, the Tennessee Democratic Party, the Election Coordinator and the Attorney General for the State of Tennessee, for a declaratory judgment seeking to have the Tennessee Election Code declared to be unconstitutional.

The Chancellor, Honorable Ben H. Cantrell, held the statutes to be constitutional and dismissed the suit. The plaintiffs prayed and were granted an appeal to this Court.

We agree with the reasoning and conclusions of the Chancellor as set out in his opinion which reads as follows:

MEMORANDUM

This action challenges the constitutionality of the Tennessee Election Code. T.C.A. § 2-1301 sets out the requirements for getting on the ballot for any office voted on by the voters of more than one country. Said section provides:
“Party nominations — Requirements.
—(a) No person’s name may be shown on a ballot as the nominee of a political party for the offices named in § 2-1314 or for any office voted on by the voters of more than one county unless the political party
(1) is a statewide political party and
(2) has nominated him substantially in compliance with this chapter.”
A statewide political party is defined in T.C.A. § 2-104(27), as follows:
(27) “Statewide political party” means either
(a) A political party at least one of whose candidates for an office to be elected by voters of the entire state in the past four (4) calendar years has received a number of votes equal to at least five per cent (5%) of the total number of votes cast for gubernatorial candidates in the most recent election of governor, or
(b) For one (1) year after petitioning successfully, a political party which has a membership equal to at least two and one half per cent of the total number of votes cast for gubernatorial candidates in the most recent election of governor as shown by petitions to establish a political party filed with the coordinator of elections and signed by registered voters as members of the party and certified as to registration of the signers by the county election commissions of the counties where the signers are residents.

All the facts were stipulated and the Court will not reproduce those facts herein.

It is contended that the quoted provisions of the Election Code grant a monopoly to the two parties which currently enjoy statewide status, and also virtually prevent the attainment of status as a statewide political party by the plaintiff and other minority parties all in violation of the United States Constitution and the Constitution of the State of Tennessee.

In the cases dealing with this problem, the Supreme Court of the United States has held that a state has a legitimate interest in regulating the number of candidates on the ballot. American Party of Texas, et a1. v. White, 415 U.S. 767, 783, 94 S.Ct. 1296, 1307, 39 L.Ed.2d 744 (1974). The Court in that same case went on to say, “Of course, what is demanded may not be so excessive or impractical as to be in reality a mere device to always, or almost always, exclude parties with significant support from the ballot. The Constitution requires that access to the electorate be real, not ‘merely theoretical.’ [Jenness v. Fortson, 403 U. S. 431, 439, 91 S.Ct. 1970, 1974, 29 L.Ed.2d 554 (1970)].”

In the 1974 case of American Party of Texas, et a1. v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) the Court dealt with the problem of requiring minority parties to demonstrate support from electors equal to a percentage of the vote for governor in the last general election.

The Court said:

“Appellants apparently question whether they must file any list of supporters where the major parties are required to file none. But we think that the State’s admittedly vital interests are sufficiently implicated to insist that political parties appearing on the general ballot demonstrate a significant, measurable quantum of community support. So long as the larger parties must demonstrate major support among the electorate at the last election, whereas the smaller parties need not, the latter, without being invidiously treated, may be required to establish their position in some other manner.”
The Supreme Court has found the following to be reasonable requirements to obtain ballot positions: (1) Petitions taken within a fifty-five (55) day period having a number of signatures equal to one (1) percent of persons who voted for governor. American Party of Texas v. White, supra. (2) Petitions by five (5) percent of registered voters. Jenness v. Fortson, supra. (3) One (1) percent of votes in a race for Secretary of State. Communist Party, et a1. v. Austin, D.C., 362 F.Supp. 27 (1973).
In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the Court struck down the Ohio requirements which required petitions with fifteen (15) percent of the vote in the gubernatorial election and in addition the party was required to establish extensive organization on a precinct by precinct basis to establish a central committee of persons who voted in no other party primary for the four (4) previous years, and that the central committeemen be nominated by up to one thousand (1,000) persons who had failed to vote in a party primary for four (4) years. The Court noted in that case that in order to break through and be listed on the ballot the party must garner its support from those who had proved unwilling and unable to vote in previous years.
It is the opinion of the Court in this case that the requirements written into the Tennessee Election Code to obtain a position on the ballot for statewide offices are reasonable and do not invidiously discriminate against minority parties.

The appellants insist before this Court that the Chancellor did not consider the alleged violations of provisions of the Constitution of the State of Tennessee and that no Tennessee cases were cited. Those sections of the Constitution of the State cited and relied upon do not apply to the method of listing candidates for office, but go to the prohibition of requiring a political test to hold office, and the denial of the right to vote in elections because of political, racial, or religious views.

Counsel for the appellants cites the 1910 case of Ledgerwood v. Pitts, 122 Tenn. 570, 125 S.W. 1036 (1910), which involved the constitutionality of the “Primary Election Law of 1909.” For all practical purposes the complaint in that case relied upon the same provisions of the constitution of the State of Tennessee in alleging that the act violated “the inhibitions of the constitution against special and partial laws, in that its classifications are unreasonable, arbitrary, and capricious.”

In Ledgerwood the Court quoted with approval from State, ex rel. v. Jensen, 86 Minn. 19, 89 N.W. 1126 (1902), to the effect, “that the legislature may classify political parties with reference to difference in party conditions and numerical strength and prescribe how each class shall select its candidates.”

Quoting from Cyc Vol. 15, p. 332, the Court also said: “The legislature may recognize the existence of political parties and within reasonable limits regulate the means by which partisan efforts shall be protected in exercising individual preferences for party candidates . . .”

And the court quoted with approval the language from State v. Felton, 77 Ohio St. 554, 572, 84 N.E. 85, 88 (1908), dealing with the very question presented by appellants in this case, as follows:

“One man cannot constitute a political party, and the abuses the law was intended to prevent depend largely upon the number of those who constitute the party, and this makes it perfectly proper for the legislature to limit the application of the law according to number.”

The appellants allege that because the tenets of the Tennessee Libertarian Party are such that they appeal primarily to nonvoters and independents who are unwilling to commit themselves on a party qualification petition, as required by T.C.A. § 2-104(27)(b), for that reason they cannot qualify as a statewide political party, and are therefore denied access to a place on the ballot.

A candidate may acquire ballot status as an independent if the political party with which he is affiliated has not, or cannot, qualify as a “statewide political party.”

So long as party affiliation is not a requirement for ballot status, the State has an interest in setting forth requirements for candidates to qualify, or as stated in Jenness v. Fortson, quoted by the Chancellor in his memorandum supra, “if no other reason, in avoiding confusion, deception, and even frustration of the democratic process at the general election.”

We agree with the Chancellor that the provisions of the Tennessee statutes are reasonable and do not violate the constitutional provisions cited by either the Constitution of the United States or the Constitution of the State of Tennessee.

The decree of the Chancery Court for Davidson County is affirmed. The appellants will pay the costs of this cause.

COOPER, C. J., and FONES, HENRY and BROCK, JJ., concur.

OPINION ON PETITION TO REHEAR

The appellants, Tennessee Libertarian Party, et al., have filed a petition to rehear, and the basis of the argument presented is that the Court in its footnote relative to the Ledgerwood case overlooked that one of the reasons given in Ledgerwood for invalidating the act in question was the specific exclusion therein of certain judicial offices while including others. This reason was not applicable to the present case and was not overlooked.

All questions raised by the petition to rehear were considered by the Court in its original opinion, and were rejected therein.

The petition is therefore denied.

COOPER, C. J., and FONES, HENRY and BROCK, JJ., concur.

      . The 1909 Act was declared unconstitutional because-the body of the act was broader than the caption, and because the payment of a fee was required as a condition to becoming a candidate.

      . In the 1976 presidential election there were eight (8) independent candidates listed in alphabetical order, including appellants MacBride and Bergland, with the electors pledged to them listed in the same manner as statewide political party nominees.


author: BROCK, Justice.

text:
    Oleta Christian RICHMOND and Helen Christian Terry, Petitioners, v. Ralph CHRISTIAN, Respondent.
    Supreme Court of Tennessee.
    Aug. 22, 1977.

      Tom H. Rogan, Rogersville, M. Lacy West, Kingsport, for petitioners.
    Charles E. Fraley, Jr., Church Hill, Phillip L. Boyd, Rogersville, David L. Brand, Mount Carmel, for respondent.
   OPINION

BROCK, Justice.

Mrs. Sally Christian died at the age of 83 leaving as her survivors two daughters, Ole-ta Christian Richmond and Helen Christian Terry, and one son, Ralph Christian. Twenty days prior to her death Mrs. Christian executed and delivered to her son a deed conveying to him in fee simple the only land she owned, a tract of 29.2 acres. The two daughters brought this action against their brother seeking to have the deed set aside upon the grounds that their mother did not have mental capacity to execute the deed and that its execution was the result of undue influence exercised by their brother who occupied a confidential relationship to his mother who, they allege, acted without the benefit of independent advice.

The Chancellor found that the grantor did possess mental capacity to execute the deed, a finding of fact which was affirmed by the Court of Appeals and is binding in this Court. The Chancellor further found that, although the grantee son did occupy a fiduciary relationship with his mother, the grantor, undue influence was not proven because Mrs. Christian had received the benefit of independent advice from an attorney, Henry Price, who had been employed by the grantee to prepare the deed and assisted the grantor in its execution. Accordingly, the Chancellor dismissed the complaint.

The Court of Appeals affirmed the decree of the Chancellor, finding that, although a confidential relationship existed between the grantor and grantee which raised a presumption that the deed was invalid, the presumption had been overcome by evidence that the deed had been executed in accordance with Mrs. Christian’s intent and that she understood both the import and the consequences of her act. The Court of Appeals, therefore, held that, under the circumstances shown in this case, it was not necessary for the grantee to prove that the grantor had received the benefit of independent advice. Therefore, the court pre-termitted the question whether or not the advice given to the grantor by attorney Price met the requirements of the rule of independent advice.

We find the following facts to be material to the issues raised. During the last year of her life, the health of the grantor steadily worsened, requiring that she be hospitalized on several occasions. In late 1970 she had instructed her son, the grantee, to contact an attorney and have a survey made and three deeds drafted dividing her 29.2 acres of land into three parcels, one for each of her three children. These deeds were drafted by attorney Henry Price and were signed by Mrs. Christian but were not delivered to the respective grantees. Soon thereafter the decedent became bedridden and from April, 1971, until her death in July of that year her son, the defendant, lived with her in her home and took care of her. She was totally dependent upon the defendant for conduct of business transactions as well as attending to her personal needs. Sometime after her last hospitalization, the decedent apparently changed her mind about the equal division of her property and instructed her son to again contact an attorney and have a single deed drafted, transferring the entire tract to him, without reserving to herself a life estate. Her son, the defendant, again contacted attorney Price on June 11, 1971, and Mr. Price drafted the deed and delivered it to the decedent on the same day. On this occasion, attorney Price had a brief conversation with Mrs. Christian and read the deed to her, reminded her that the deed transferred all of her real estate to her son and asked her if that was what she desired to do. Her reply was in the affirmative. The defendant andVtwo of his friends were present during this conversation. The two friends, James Patterson and Billy Gray, testified at the hearing in this case that they were present to witness Mrs. Christian’s will which was read to Mrs. Christian by attorney Price who explained to her that it bequeathed only her personal property to her son, to which she replied “that’s all that’s left.” Attorney Price testified that he was not requested to and did not attempt to privately counsel with Mrs. Christian respecting the advisability of the disposition of all her property to her son to the exclusion of her two daughters.

It is well established that when two parties enter into a confidential or fiduciary relationship and the dominant party receives a gift or other benefit from the other party a presumption arises that some improper advantage was taken “ . . . either of the confidential relation existing . or of the weakness and frailty of the party from whom the benefit was received, . . . ” thus rendering the transaction invalid. Graves v. White, 63 Tenn. 38, 4 Baxt. 38 (1874); Turner v. Leathers, 191 Tenn. 292, 232 S.W.2d 269 (1950); Roberts v. Chase, et al., 25 Tenn.App. 636, 166 S.W.2d 641 (1942); Hollis v. Thomas, 42 Tenn.App. 407, 303 S.W.2d 751 (1957).

The presumption of invalidity, however, is rebuttable and the rule in this State is that clear and convincing evidence of fairness will suffice. Proof that the donor received independent advice respecting the consequences and advisability of the gift is one example, but not the only one, of such proof of fairness. Roberts v. Chase, supra; Peoples Bank v. Baxter, et al., 41 Tenn.App. 710, 298 S.W.2d 732 (1956); See also Hester v. Hester, 81 Tenn. 189, 13 Lea. 189 (1884).

Independent advice is ordinarily required where it is a reasonable requirement and where the circumstances are such that it would be difficult to show the fairness of the transaction without proof of independent advice, particularly, where the donor is impoverished by the gift in question or the gift seems to be unnatural under the circumstances of the case. Miller v. Proctor, 24 Tenn.App. 439, 145 S.W.2d 807 (1940); Roberts v. Chase, supra; Hollis v. Thomas, supra.

In Roberts v. Chase, supra, Mr. Justice Pelts explained that the strength of the presumption of invalidity varies with the circumstances of each case and, therefore, that the strength of the rebutting evidence must vary proportionally:

“The circumstances of some transactions are such that the only way in which the fiduciary can rebut the presumption of invalidity is by showing that his principal had the benefit of independent advice (citations omitted). Mr. Pomeroy says:
‘The question as to whether such independent advice is essential is ordinarily determined with respect to the nature of the confidence reposed, the nature of the transaction and the circumstances in each particular case. In other words, a rule requiring proof of independent advice is ordinarily applied where it is a necessary requirement and where the circumstances are such that it would be difficult to show the fairness of the transaction without proof of independent advice. The rule is peculiarly applicable in gift cases, particularly where the effect of the gift is to impoverish the donor. .
In such cases proof of independent advice is frequently the only way in which the presumption of undue influence or unfairness can be rebutted, and in which it can be shown that the donor was acting independently and with full appreciation of what he was doing.’ ”
(Quoting 3 POMEROY’S EQUITY JURISPRUDENCE, § 956b at 797-798 [5th ed. 1941].) (Emphasis added.) 166 S.W.2d 641, 651.

In Turner v. Leathers, supra, this Court considered a case quite similar to the one at bar. The donor there was 90 years of age at the time the gift was made and was afflicted with Bright’s disease and arteriosclerosis. He was very feeble, physically and mentally, and was utterly dependent upon the donee. The Court held that:

“ . . . Under the circumstances presented in this case, on account of the age, physical and mental deterioration of the donor, and where he is under the unquestioned ‘dominion and control’ of the donee, it is necessary that he have competent, independent advice . . .”

232 S.W.2d at 271-272.

We reaffirm the rule that proof of independent advice is not essential in every case to rebut the presumption of invalidity which arises when the dominated party in a fiduciary or confidential relation makes a gift or confers a benefit to the dominant party, but we are of the opinion that the Court of Appeals erred in holding that proof of independent advice was not necessary in the case at bar.

We conclude that the facts shown in the record are analogous to those in Turner v. Leathers, supra, and that in this particular case proof of independent advice is essential to rebut the presumption. Here, the dominated donor made a gift which denuded her of all her realty, thus impoverishing her. Furthermore, she was very old and physically debilitated, and was feeble to the point of needing help with virtually every personal need. Her son was living with her every day in her house and she appears to have entrusted to him her life and all of her belongings. Likewise significant is the fact that, without apparent reason, Mrs. Christian suddenly changed her plan to make an equal division of her real estate among her three children and, instead, decided to make a wholesale transfer to her son. Considering these facts and circumstances as a whole, we conclude that without proof of independent advice the presumption of invalidity has not been rebutted. We cannot agree with the Court of Appeals that other proof in the record rebuts the presumption.

Thus, the question arises whether or not proof of independent advice is shown in this case. This Court in Turner v. Leathers, supra, defined adequate proof of independent advice as follows:

“ ‘Proper independent advice in this connection means that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect but who was furthermore so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently as to the consequences to himself of his proposed benefactions.’ ” (Emphasis added.) 232 S.W.2d at 271.

Measured by this test, we conclude that the conversation between attorney Price and Mrs. Christian did not amount to proof of independent advice. The conversation was not private. The defendant donee was seated across the room facing the donor during the conversation and James Patterson and Billy Gray were likewise present and listening to the conversation. This Court held in Lanius v. Donnell, 222 Tenn. 58, 432 S.W.2d 659 (1968) that the presence of the donee rendered a conference with the donor ineffective as proof of independent advice since the rule of privacy was violated.

Furthermore, we are unable to conclude that attorney Price, who was employed by the donee, was “ . . .so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidently . . .,” as required in the rule above-stated from Turner v. Leathers. We think it obvious that advice to Mrs. Christian from attorney Price could not be “independent.” His duties as an attorney were to his client, the donee.

Moreover, the decedent apparently did not seek and, certainly, did not receive advice from an independent source concerning the advisability of the transfer to her son. Attorney Price admitted this in his testimony; his discussion of the transaction with Mrs. Christian was cursory at best. He merely determined that she knew that the deed transferred the entire tract to her son and that such a transfer was what she intended. This falls short of the requirement of the rule stated in Turner v. Leathers, supra, that the independent advice be complete as well as private. In that case, the donor met with an alleged independent advisor and told him that he knew what he was doing and intended to do it; but, the court observed:

“It is not a question of whether he knew what he intended to do, but how this intention was produced, whether it was by abuse of a confidential and fiduciary relation.” (Emphasis added.) 232 S.W.2d at 271.

Courts should exercise the utmost care and caution before concluding that the solemn act of a decedent, such as execution of a deed or will, should be invalidated; but, it is equally important that they be vigilant to prevent imposition upon those who are weak, frail, and vulnerable to the influence and importunities of others who exercise a dominant position over them. In this case, we find nothing in the record to show that Mrs. Christian had a sudden, dramatic change in feeling toward her daughters after the deeds were drafted making an equal division of her property between her daughters and her son. The daughters visited their mother regularly during her illness after the December, 1970, hospitalization and at least one of them, Mrs. Richmond, visited her every day. Mrs. Terry testified that her mother had always told her the estate would be equally divided among the children. The daughters were not informed of the new deed conveying the entire tract to the defendant until after the death of their mother. Unfortunately, the record also discloses that the defendant harbored animosity toward his sisters, so much so, that he refused to let them enter their mother’s home following her death.

In conclusion, we hold that the facts and circumstances of this case are such that the presumption of invalidity of the deed from Mrs. Christian to her son, the defendant, is so strong that proof of independent advice to the donor would be required to rebut it and that such independent advise is not shown by the proof in this case. Accordingly, the decrees of the Court of Appeals and of the Chancery Court for Hawkins County are reversed and the deed described in the pleadings from Mrs. Sally Christian to the defendant Ralph Christian is invalidated. Costs of appeal are taxed against the respondent.

COOPER, C. J., and FONES, HENRY and HARBISON, JJ., concur.


text:
    Alfred CAMPBELL and wife Minnie Frances Campbell, Petitioners, v. Robert ARCHER and wife, Pauline Archer, Respondents. Alfred CAMPBELL and wife, Minnie Frances Campbell, Petitioners, v. George SPARKS and wife, Luella Sparks, Respondents.
    Supreme Court of Tennessee.
    Sept. 6, 1977.

      Jerry S. Jones, Johnson City, Douglas J. Carter, Milligan College, for petitioners.
    Robert E. Banks and Lewis Merryman, Street, Banks, Merryman, Bautista & Banks, Elizabethton, for respondents.
   OPINION

BROCK, Justice.

These consolidated causes are actions for alleged damages to the plaintiffs’ property caused by the wrongful diversion of surface waters by the defendants. The trial court awarded damages of $6,000.00 in one case and $4,000.00 in the other in favor of the plaintiffs and against the defendants who appealed. The issues presented are (1) whether or not the trial court erred in refusing to grant the motions filed by defendants to set aside the judgments pursuant to the provisions of Rule 60.02 of the Tennessee Rules of Civil Procedure and (2) whether or not the judgments were “default” judgments within the meaning of Rule 55.01, Tennessee Rules of Civil Procedure, and were invalidly entered because of failure to give five days notice to the defendant as provided in that Rule.

The defendants employed attorney Alfred Taylor of Milligan College, Tennessee, to represent them in these actions, and, answers were filed to the complaints of the plaintiffs. Thereafter, the cases were set for trial in October, 1974, but the trial was continued because of the illness of petitioners’ counsel. The cases were then reset for hearing on January 28, 1975, but again were continued because of the illness of the circuit judge. Thereafter, in mid-February, 1975, the trial court reset the cases for trial on March 11,1975, and the clerk prepared a notice of this trial date which was forwarded to attorney Taylor in mid-February, 1975. Although attorney Taylor does not deny that this notice was sent and received by his office, he does deny that he was aware of the trial date until after the trial had actually begun on March 11,1975, when he received a telephone call from another attorney, Mr. Nelson, that the case was actually being tried. The defendants, Mr. and Mrs. Campbell, had no actual notice or knowledge that the case was to be tried on March 11, 1975, until mid-morning on that date when the trial had already begun.

Four days prior to the trial date of March 11,1975, the defendants and their attorney, Mr. Taylor, decided that Mr. Taylor would no longer represent defendants in these actions but would formally withdraw as counsel. Defendants, Mr. and Mrs. Campbell, promptly employed new counsel, Mr. Jerry S. Jones, Johnson City, Tennessee, to represent them in these eases. Mr. Jones promptly obtained the files from Mr. Taylor but was not advised by Mr. Taylor or anyone else that the cases were set for trial four days later on March 11, 1975.

The plaintiffs and their counsel appeared ready for trial at the appointed hour on March 11,1975, but the defendants, Mr. and Mrs. Campbell, and their counsel did not appear. The circuit judge directed other attorneys in the courtroom to telephone Mr. Taylor and inquire of his intention respecting the trial of these cases, whereupon, Mr. Taylor advised the court through the telephoning attorney that he had withdrawn as counsel in the cases and would not appear for trial on behalf of the defendants. Upon receiving this information, the trial judge determined to proceed with the trial and it began at approximately 9:00 a. m. on March 11, 1975, as scheduled. In the midst of the trial, the clerk of the court brought to the attention of the circuit judge a draft of an order permitting Mr. Taylor to withdraw as counsel in the cases but the trial judge refused to sign the same.

Upon receiving a telephone call from attorney Nelson on the morning of the trial and being informed by Mr. Nelson that the trial was proceeding, attorney Taylor promptly telephoned attorney Jerry Jones, defendants’ new counsel, and informed him that the cases were being tried at that time. Mr. Jones immediately telephoned his clients, Mr. and Mrs. Campbell, and arranged to meet Mr. Campbell immediately and proceeded with him to the courtroom. When attorney Jones and Mr. Campbell arrived in the courtroom, the case was being tried and witnesses were being examined. Mr. Jones requested permission of the court to approach the bench but permission was denied by the trial judge. After the presentation of the plaintiffs’ evidence was completed, the jury had been instructed and had retired, Mr. Jones and Mr. Campbell conversed with the circuit judge in chambers and explained the situation to him. As stated the jury returned verdicts of $6,000.00 in one case and $4,000.00 in the other and judgments were entered upon the verdicts.

The defendants filed motions for a new trial alleging that they had a meritorious defense to the claims of the plaintiffs, that they had no notice or actual knowledge of the fact that the eases were to be tried on March 11, 1975, that their failure to appear was, at most, excusable neglect; and, that the judgments were “default” judgments within the meaning of Rule 55.01 of the Tennessee Rules of Civil Procedure and were invalid because five days notice of application for the entry of judgment had not been served upon the defendants. In due course, these motions for new trial were heard by the circuit judge and were overruled and the defendants appealed to the Court of Appeals which affirmed the judgments of the trial court. Certiorari was granted by this Court.

We elect to pretermit the question whether or not the judgments entered in these cases were, under the circumstances, “default” judgments which, under the provisions of Rule 55.01 of the Tennessee Rules of Civil Procedure, would require that the plaintiffs give five days notice to the defendants of application for entry of judgment.

We have determined that petitioners are entitled to relief under Rule 59, Tennessee Rules of Civil Procedure, and that resort need not be had to Rule 60.02, upon which they rely. Rule 60.02, in pertinent part, provides:

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:
“(1) mistake, inadvertence, surprise or excusable neglect.
* * * * * *
“(5) any other reason justifying relief from the operation of the judgment.”

The function of this Rule is to give relief from final judgments; Rule 59, providing for motion for new trial, is the appropriate remedy for asserting alleged errors affecting a judgment which has not yet become final.

It has been recognized that a party may be relieved from a judgment or order because of the mistake, inadvertence, surprise or excusable neglect of his attorney. In Panesi v. Boswell, 59 Tenn. 323 (1873), the plaintiff in a replevin action was “called out” for failure to file a declaration. A writ of inquiry was awarded and several days afterwards was executed and judgment rendered against the plaintiff for the property in question together with the damages for its detention under the writ. Two days thereafter, the plaintiff appeared and moved to set aside the judgment upon an affidavit that he had employed an attorney to attend to the case, but when he asked the attorney why this had not been done the attorney stated that he was not aware that he had been employed although his name appeared on the docket as the attorney for the plaintiff. The affidavit further stated that the plaintiff was entitled to the property in question. The trial court overruled the motion for a new trial but, upon appeal, this Court held that the trial court had abused its discretion in failing to award relief to the plaintiff. See also Reinshagan v. Larezzo, 2 Tenn.Cas. (Shannon) 139 (1876).

In the instant case, it is clear that Mr. and Mrs. Campbell, personally, are not at fault. They had no actual notice that the case was set for trial on March 11, 1975. The fault in these cases rests primarily with attorney Taylor or his office staff in not taking note of the notice of the trial date which was forwarded to him by the clerk. The facts make out a case of mistake, inadvertence, or excusable neglect, rather than one of willful failure to appear. Nor is there any evidence in the record that defendants, Mr. and Mrs. Campbell, were negligent in their choice of counsel.

On the other hand, there is no showing that the plaintiffs will suffer any particular prejudice if the judgments are set aside and a new trial awarded. There is no doubt, however, that plaintiffs will incur additional expense if required to employ counsel for a second trial and procure the attendance of their witnesses. Such expenses should be borne by the defendants rather than by the plaintiffs under the circumstances here shown.

We hold that the trial judge abused his discretion and erred in failing and refusing to set aside the judgments entered against the defendants and in failing to grant them a new trial. Accordingly, the judgments of the Court of Appeals and of the trial court in these causes are reversed and the cases are remanded to the trial court for a new trial; provided, the defendants first tender into the registry of the court all court costs accrued to date plus such reasonable attorneys fees for plaintiffs’ representation at the trial on March 11, 1975, as shall be ascertained by the trial judge upon remand. Costs of this appeal are adjudged against the petitioners.

COOPER, C. J., and FONES, HENRY, and HARBISON, JJ., concur.


text:
    A. F. CHASTAIN, Petitioner, v. TENNESSEE WATER QUALITY CONTROL BOARD, Respondent.
    Supreme Court of Tennessee.
    Sept. 6, 1977.

      Robert L. McMurray, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for petitioner.
    William B. Hubbard, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

BROCK, Justice.

The petitioner, A. F. Chastain, seeks review of an assessment of damages in the sum of $2,676.13 against him by the Commissioner of the Tennessee Department of Public Health for an alleged fish kill which occurred in the Little Wolftever Creek in Hamilton County. The assessment was made by the Commissioner pursuant to T.C.A. § 70-338, which directs the Commissioner to assess damages against one who kills fish in a public stream in violation of the Water Quality Control Act of 1971, T.C.A., § 70-324, et seq. Petitioner appealed the assessment to the Tennessee Water Quality Control Board which affirmed the assessment after a full hearing. Petitioner then appealed the award of the Board to the Chancery Court, Davidson County, which, upon full review of the record made before the Board, found no error and affirmed the award. Now he asks this Court to review the decree of the Chancery Court.

Petitioner contends that the record contains no substantial evidence of the amount of damages assessed by the Commissioner and affirmed by the Board and the Chancery Court. He makes the rather novel argument that the evidence adduced before the Board should be disregarded because it was the result of a “rule” of the Board which had not been previously approved by the Attorney General and filed with the Secretary of State, as required by T.C.A., § 4-502, which provides:

“Before any rule or regulation of any executive state officer, board, department, bureau, authority or commission promulgated after July 1, 1941, shall become effective (except such as relate to the organization of or internal management of such agency), such rule or regulation shall be approved as to legality by the Attorney General, printed by said agency and filed with the Secretary of State.”

We hold that this argument of the petitioner is without merit and affirm the decree of the Chancery Court.

I

The fish kill was investigated by field personnel of the Water Quality Control Division of the Department of Public Health and the Game and Pish Commission. The kill area covered a distance of 1.52 miles along the stream. The dead fish throughout the kill area were not counted. Instead, the investigators selected four areas of 100 yards each, which were considered to be typical, counted the dead fish in these areas and extrapolated these totals into an estimate of the total number of fish killed throughout the kill area. By this means the total number of fish killed was estimated to be 15,932, having a value of $2,099.51. Costs of investigation amounting to $576.62 were added making a total assessment of damages in the sum of $2,676.13.

At the hearing before the Board it was disclosed that this procedure for estimating the total number and value of fish killed had been recommended by the American Fisheries Society, Southern Division, and, by a resolution, had been approved by the Board; and, that the Board had instructed its investigators to estimate fish kills by using this recommended procedure. It also appears that the Board had evaluated this procedure and concluded that it produced trustworthy results which should and would be admissible in evidence at hearings before the Board.

Petitioner objected to testimony of a Game and Fish Commission biologist wherein he described this fish counting procedure and testified that he had used it in investigating this fish kill and in estimating the total number of fish killed at 15,932. Petitioner objected upon the ground that the estimate thus obtained was the result of a “rule” which was invalid because not approved by the Attorney General and filed with the Secretary of State as required by T.C.A., § 4-502.

This objection was overruled by the Chairman of the Board who explained that the Board had previously adopted a resolution endorsing the American Fisheries Society procedure and had directed the Division of Water Quality Control to use this method in investigating fish kills. A booklet describing the counting procedure, published by the American Fisheries Society, Southern Division, was introduced into evidence by the Commissioner.

The petitioner offered no evidence to contradict that of the Commissioner respecting the number of fish killed or their value; nor did he demonstrate, in our opinion, that the procedure used was arbitrary, unscientific or otherwise faulty or untrustworthy, despite extensive cross examination of the Commissioner’s witnesses.

The record does not contain the mentioned resolution of the Board. However, Dr. Thackston, member of the Board, made this explanation:

“. . . We had quite a few of these fish kills and the Board has adopted a Resolution endorsing this method which was derived by the American Fisheries Society, Southern Division, and by Resolution directed the personnel to use this method and these values of fish counting. So far as the Board is concerned we have already evaluated the method itself and since that time the only question before the Board is whether or not they — the personnel in the field in this instance actually did follow the method established for them. . . .”

II

The problem is one of statutory construction. The statute itself does not define “rule or regulation,” although another section of the same Act, T.C.A., § 4-501, affords some light by describing such “rules and regulations” as those “concerning the administration, enforcement and interpretation of any law of this state, except such as relate to the organization or internal management of such agency. . . Very little help is to be obtained from a consideration of the decisions of other courts construing similar provisions, e. g. People v. Cull, 10 N.Y.2d 123, 218 N.Y.S.2d 38, 178 N.E.2d 495 (1961); People v. Widelitz, 39 Misc.2d 51, 239 N.Y.S.2d 707 (1963); California Association of Nursing Homes, Etc. v. Williams, 4 Cal.App.3d 800, 85 Cal.Rptr. 735 (1970); Wis. Tel. Co. v. Dept. of Ind. L. & H. Rel., 68 Wis.2d 345, 228 N.W.2d 649 (1975); Mogis v. Lyman-Richey Sand & Gravel Corp., 189 F.2d 130 (8th Cir. 1951); 73 C.J.S. Pub. Adm. Bodies and Procedure § 102, p. 420. The obvious purpose of the statute was to bring together in one place the rules and regulations of all state administrative agencies to facilitate their convenient inspection by interested citizens.

It is our opinion that, as here used, “rule or regulation” refers to a statement, of general applicability, of a state administrative officer or agency that (1) is legislative in nature and implements or prescribes law or policy, within the scope of the authority of such officer or agency, or (2) prescribes the rules of procedure or practice governing proceedings before such officer or agency; excepting, however, those rules and regulations relating to the organization or internal management of the agency.

As thus construed, T.C.A., § 4-501-2, does not encompass the resolution of the Tennessee Water Quality Control Board (1) instructing its field personnel to employ the procedure recommended by the American Fisheries Society, Southern Division, for estimating the number of fish killed in a stream, and their value, and (2) determining that such procedure is sufficiently scientific, fair and reasonable to render admissible into evidence the estimates thus obtained.

Clearly, the instruction to the Board’s employees is not a “rule or regulation.” It does not implement or prescribe law or policy, it does not prescribe a rule of procedure or practice to be followed in proceedings before the board, and it is not intended to have general applicability. Moreover, it relates to the organization or internal management of the Board. The same is true of the prior determination of the Board that the procedure for estimating fish kills recommended by the American Fisheries Society produces results sufficiently reliable to be admissible as evidence. In so doing the Board merely reached a legal conclusion respecting the admissibility of opinion evidence; and the conclusion was tentative, at best, since it was subject to change in the event petitioner could demonstrate that the procedure was unreliable or unfair.

Ill

Finally, if the resolution of the Board were considered to be a “rule or regulation” which was invalid because of noncompliance with T.C.A., §§ 4r-501—4r-506, the appellant would be in no better position because the evidence adduced at the hearing would still be in the record to support the findings of the Board. The fact that such evidence had been assembled and admitted at the hearing as the result of an invalid rule or regulation would not affect its value, competence or admissibility. Cf. Claflin v. Dept. of Natural Resources, 58 Wis.2d 182, 206 N.W.2d 392 (1973); Wisconsin Tel. Co. v. Dept. of Ind., Labor & Human Relations, 68 Wis.2d 345, 228 N.W.2d 649, 660 (1975).

The decree of the Chancery Court is affirmed. Costs in this Court are taxed to petitioner, A. F. Chastain.

COOPER, C. J., and FONES, HENRY, and HARBISON, JJ., concur.

      . The recently enacted Uniform Administrative Procedures Act, T.C.A., §§ 4 — 507—4—527, has no application to this case. It did not become effective until after the relevant facts of this case had transpired.


author: FRANK F. DROWOTA, III, Judge,

text:
    Robert L. GARTON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 26, 1976.
    Certiorari Denied by Supreme Court Feb. 14, 1977.
    David Rizor, Thomas N. Phillips, Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Robert E. Kendrick, Deputy Atty. Gen., John E. Rodgers, Asst. Dist. Atty. Gen., Nashville, for appellee.
   OPINION

FRANK F. DROWOTA, III, Judge,

Sitting by Designation.

This is an appeal from dismissal of a post-conviction relief petition in which petitioner alleged that he was denied effective assistance of counsel both at his trial and on appeal of his conviction for two counts of murder.

Petitioner Robert L. Garton was convicted of murder in the first degree in two consolidated cases on February 8, 1973, in the Criminal Court of Davidson County, with the Honorable John L. Draper presiding. He was sentenced to two terms of ninety-nine years each, to run consecutively. After his conviction had been affirmed by the Court of Criminal Appeals and cer-tiorari had been denied by the Supreme Court, petitioner filed a pro se motion for post-conviction relief under Tennessee Code Annotated §§ 40-3801 et seq. on April 26, 1974, in the Criminal Court of Davidson County. This motion was denied without a hearing, and no appeal was taken. Petitioner then filed a pro se petition for a writ of habeas corpus in the same court on January 23, 1975. Under T.C.A. § 40-3808, this was treated as a petition for post-conviction relief. Counsel were appointed for petitioner, and an evidentiary hearing was held. On April 30, 1976, the court rendered an opinion finding no merit in the petition and dismissing it. Petitioner appeals this dismissal, asserting that he is entitled to post-conviction relief because he was deprived of effective assistance of counsel both at trial and on appeal of his criminal conviction.

The record shows that petitioner was represented throughout his trial and appeal by Robert T. McGowan, an attorney with the Public Defender’s office. Petitioner’s claim of ineffective assistance of counsel is based on his allegations that McGowan failed to object to improper testimony of another assault by petitioner, that he failed to investigate the case properly and to present the insanity defense, and that he filed an appellate brief in which no authority was cited and in which he stated that petitioner was “probably guilty.” Petitioner testified at the hearing that he remembered having only two brief talks with McGowan prior to trial, in addition to another with “some guy” at the jail, and that McGowan advised petitioner to accept the State’s plea bargaining offer of two fifty-year sentences. He admitted that he had never voiced an objection to McGowan, the judge, or anyone else during the course of his trial about the quality of representation he was receiving. Petitioner, who had been admitted to Central State Hospital on McGowan’s motion and found competent to stand trial, also introduced evidence of three previous admissions to Central State in 1965 and 1966, at which time he was diagnosed as a “passive-aggressive personality” with a history of alcoholism and aggressive behavior.

Robert McGowan testified at the hearing that he had investigated the case and that he and two investigators from his office had talked to petitioner on several occasions before trial, but that petitioner was not able to give him much assistance in preparing a defense. He also spoke to petitioner’s mother and obtained the name of a potential witness, but petitioner discouraged him from using the witness. After testimony at trial about another alleged assault by petitioner had been “blurted out,” McGowan moved for a mistrial but was overruled. McGowan, who called no witnesses for the defense, said he had often been more successful when he employed this tactic, and that he did not call petitioner because he had already been convicted of one killing. He admitted that he had not seen the records of petitioner’s three previous admissions to Central State. He further testified that he might have recommended that petitioner accept the State’s plea bargaining offer, which he remembered as totaling eighty years. He also admitted that his appellate brief for petitioner contained no citation of authority, but said that it did raise and argue several assignments of error, which this Court carefully considered.

In Baxter v. Rose, 523 S.W.2d 930 (Tenn. 1975) our Supreme Court stated that the test for determining whether a defendant received effective assistance of counsel as required by the sixth amendment was “whether the advice given, or the services rendered by the attorney, are within the range of competence demanded of attorneys in criminal cases.” 523 S.W.2d at 936. For guidance in measuring this range, the Court referred to the standards of Beasley v. United States, 491 F.2d 687 (6th Cir. 1974) and United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (D.C.Cir. 1973). In DeCoster, the court found ineffective assistance of counsel because the defendant’s attorney had, among other things, gone to trial without securing the testimony of existing alibi witnesses, waived jury trial without knowing that the judge had already heard much of the evidence at the trials of defendant’s accomplices, and called as witnesses defendant and a person whose testimony contradicted that of defendant. The court held, that, to be competent under the sixth amendment, counsel must confer with his client, advise his client of his rights and protect them (as by making pre-trial motions), and investigate and develop all substantial defenses. In Beasley, the defendant’s attorney was held to have failed to provide effective assistance of counsel by calling as the only defense witness a person who was “out to get” defendant, successfully encouraging defendant to waive jury trial without telling him that the judge had read a damaging article about him that could not be put into evidence, and failing to interview witnesses, one of whom died without his testimony having been obtained. The court set out competence standards of conferring with the client, safeguarding his rights, and investigating defenses, all of which were similar to the ones approved in DeCoster.

Having applied these standards to the instant case, we find that the trial court was correct in rejecting petitioner’s allegations of ineffective assistance of counsel.

With respect to his trial, petitioner’s primary allegation of ineffective assistance is that McGowan deprived him of an insanity defense by failing to investigate the records of petitioner’s prior admissions to Central State and by lacking knowledge that the defense requires a showing of the defendant’s insanity at the time the crime was committed. The evidence as a whole shows a reasonable investigation of the case by McGowan, and the evidence of petitioner’s Central State records, which were seven years old at the time of trial, in particular fails to show that McGowan’s failure to consult them deprived petitioner of a substantial defense in violation of the Baxter standards. The record also demonstrates that McGowan was aware that the insanity defense is concerned with a defendant’s mental state at the time of the crime’s commission, and that the letter from Central State certifying petitioner competent to stand trial was only a factor, albeit perhaps the major one, in McGowan’s decision not to raise the defense at trial. Further, the testimony showed that petitioner never requested that McGowan raise the defense, and petitioner has introduced no other evidence to show that McGowan’s decision not to do so was anything other than a reasonable decision.

Petitioner’s contention that he received ineffective assistance of counsel on appeal is based on McGowan’s brief, which cited no authority in support of its arguments and noted at one point that petitioner was “probably guilty.” While this Court strongly disapproves of failure to cite authority in support of argument in a brief, as Rule 15 of the Tennessee Supreme Court Rules makes clear, we are unwilling to say that such failure constitutes ineffective assistance of counsel per se. In the instant case, the brief raised and strongly argued several assignments of error, all of which were carefully considered by this Court. A reading of the record and of Judge Mitchell’s opinion (Garton v. State, Tenn.Crim.App., filed October 29,1973) clearly demonstrates that the evidence against petitioner was absolutely overwhelming, that the assignments of error raised were wholly without merit under Tennessee law, and thus that citation of authority would not have availed petitioner in the least. Under these circumstances, we cannot hold that the trial court was incorrect in finding that failure to cite authority constituted ineffective assistance of counsel.

Petitioner’s argument that the statement in McGowan’s brief that he was “probably guilty” rendered his appeal useless because of the harmless error rule is also without merit. That rule, codified at T.C.A. § 27— 117, provides that a case shall not be reversed for a procedural error unless “the error complained of has affected the results of the trial.” (Emphasis added.) This means that the “harmlessness” of the error is tested by its effect or lack of effect at trial, not by this Court’s subjective view of whether or not the defendant is guilty. Consequently, a conclusory statement in an appellate brief cannot affect the application of the harmless error rule one way or the other. Further, petitioner’s conviction was supported by overwhelming evidence that was adduced at trial, wholly independent of the statement in counsel’s appellate brief, and more than sufficient to support a proper application of the harmless error rule. Finally, we note that mention of harmless error in Judge Mitchell’s opinion on petitioner’s appeal was really dictum in any case, for this Court there expressly rejected petitioner’s assignments of error on the merits. Thus, while inclusion of a statement that the defendant is probably guilty is highly unusual in a criminal appellate brief, in the context of this case it was no more than a frank admission of the obvious which was part of an attempt to raise a sincere but unavoidably weak argument on petitioner’s behalf. Since it had no adverse effect on the consideration of petitioner’s appeal in the case, it cannot be held to constitute ineffective assistance of counsel.

Two other points are worthy of note. First, on petitioner’s direct appeal of his conviction, which was carefully considered by this Court, Judge Mitchell noted the “able” and “faithful” service rendered by petitioner’s counsel. Also, the opinion dismissing the petition below, which referred to McGowan’s competence as a defense attorney, was written by Judge Draper, who presided over petitioner’s trial and necessarily observed how counsel conducted it. Having considered these factors, as well as the ones discussed above, we conclude that the record amply supports the trial court’s rejection of petitioner’s argument that he was deprived of effective assistance of counsel.

Finding no error, we affirm the judgment of the trial court in dismissing the petition for post-conviction relief.

RUSSELL and GALBREATH, JJ., concur.


author: GREEN, Commissioner.

text:
    Larry Corbin LEE, Appellant, v. The STATE of Texas, Appellee.
    No. 53397.
    Court of Criminal Appeals of Texas.
    July 13, 1977.
    Rehearing Denied Sept. 14, 1977.
    Thomas P. Roebuck, Jr., Port Arthur, for appellant.
    Tom Hanna, Dist. Atty. and John R. DeWitt, Asst. Dist. Atty., Beaumont, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

In a trial before a jury appellant was convicted of attempted burglary. See Art. 1402, V.A.P.C. Punishment, enhanced under the provisions of Art. 63, V.A.P.C., was assessed at life.

Although not raised by any ground of error in appellant’s brief, we find that the record presents a serious question of whether the judge who presided over this trial was disqualified by reason of having previously been counsel for the State in the case. The issue of his disqualification was raised in the trial court by motion of the appellant requesting that the judge disqualify by reason of his earlier activities concerning this case while he was Chief of the Trial Division of the Jefferson County District Attorney’s Office in 1973. The issue of disqualification of the judge involves the jurisdiction of the court to act and should be considered by us as unassigned error in the interest of justice. Art. 40.09, Sec. 13, Y.A.C.C.P.; Ex parte McDonald, Tex.Cr.App., 469 S.W.2d 173; Hathorne v. State, Tex.Cr.App., 459 S.W.2d 826; Ex parte Washington, Tex.Cr.App., 442 S.W.2d 391.

Art. 5, Sec. 11, Texas State Constitution, in its pertinent parts provides as follows:

“Sec. 11. No judge shall sit in any case . when he shall have been counsel in the case, or . . .”

Art. 30.01, V.A.C.C.P., as applicable here reads:

“No judge or justice of the peace shall sit in any case . . . where he has been of counsel for the State or the accused, or

The record reflects that the indictment was presented by the grand jury September 6,1973, and was filed as Cause No. 30,989 in the Criminal District Court of Jefferson County. Hon. Larry Gist, who presided as the judge of that court over the instant trial of this case in March, 1975, was in the fall of 1973 Chief of the Trial Division of the Office of the District Attorney of Jefferson County. At a pre-trial hearing conducted March 17,1975, before Judge Gist on appellant’s motion requesting him to disqualify in this case, appellant placed in evidence a letter written by Gist on November 15, 1973 in his official capacity as Chief, Trial Division, Jefferson County District ■Attorney’s Office, to appellant’s then attorney, reading as follows:

The oath being waived, prosecuting attorney Thomas Moses testified as follows:

“MR. MOSES: Thank you, Your Honor. I have reviewed the file, relating to Larry Corbin Lee in the above mentioned Cause Number 30989. And in reviewing that, the only thing that I have found that the Court, now presiding, had anything to do with this case is the letter that is attached to the defendant’s motion, styled Exhibit A. There is nothing else that I can find that the Court had had any other notations or any other business relating to this file. And it appears as though the letter was written as a result of a communication from Mr. Danny Clayton, who was the attorney for the defendant at that time. And the file reflects that the Judge was not in charge of the file at that time. However, it was being taken care of primarily by another prosecuting attorney, Mr. Doyle; and that as Chief of the Trial Division, Judge Gist _ _ _ at that time, Chief of the Trial Division _ _ _ just borrowed the file and wrote that note, after making some review. But that is the appearance of the file as it is reflected in our office.”

Judge Gist then dictated the following statement into the record:

“THE COURT: So that the record will be perfectly clear, I asked Mr. Horka, one of the prosecutors, to bring me the State’s file this morning, to review, for the purposes of ascertaining to what extent I may have had any connection with it, when I was in the District Attorney’s Office.
“The perusal of the file, which was some three inches thick, indicated that it was assigned to Mr. Doyle; and subsequently assigned to Mr. Horka, who is now the attorney representing the State in the matter.
“At the time this file was indicted, I was in charge of the trial division of the District Attorney’s Office. And there was a note in the file from Mr. Clayton which, in substance, said that I would appreciate it if you would let me know what the State’s position is in connection with this case. Although, I have no independent recollection of what did occur, it was common, in my position of being in charge as the supervisor of all the trial lawyers in the District Attorney’s Office, when an attorney contacted me personally, to take the initiative to find out the attitude of whatever prosecutor had been assigned the file. And I do feel reasonably sure that I did that at the time by asking Mr. Doyle his position in the matter. And as an accommodation to Mr. Clayton, I wrote the letter which is attached as Defendant’s Exhibit A, attached to the motion.
“The log sheet of the District Attorney’s Office in that file, which is a record of all the transactions occurring on behalf of the State, is there in its entirety, and no entry made by me is reflected at all in the course of that.
“There are a number of various hearings, settings, trial, and other things that have occurred, none of which the file reflects I ever had anything to do with. And I have no independent recollection of this case, the letter to'Mr. Clayton, the defendant, or anything connected with it. That is the extent to which I have reviewed the matter. I will be glad to answer any questions you may have about it, Mr. Roebuck, if you care to ask anything.
“MR. ROEBUCK (Defense Attorney): Your Honor, I feel the Court has adequately presented the evidence showing that he is not disqualified.”

The court overruled appellant’s motion to disqualify and conducted the instant trial as the judge presiding. The State’s file referred to in Judge Gist’s statement was forwarded to this Court in a sealed envelope as a part of the record.

Disqualification of a judge arising from a constitutional or statutory provision to preside over the trial of a case affects jurisdiction, and cannot be waived, and the judgment rendered is a nullity and void and subject even to collateral attack. Ex parte McDonald, Tex.Cr.App., 469 S.W.2d 673; Ex parte Washington, Tex.Cr.App., 442 S.W.2d 391; Woodland v. State, 147 Tex.Cr.R. 84, 178 S.W.2d 528; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88. Also see Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W.2d 482 (1943); Indemnity Insurance Co. of North America v. McGee, 163 Tex. 412, 356 S.W.2d 666 (1962).

We have reviewed the State’s file forwarded to this Court as aforesaid and find nothing therein except the above letter which associates Judge Gist, as former Chief of the Trial Division of the District Attorney’s Office, with the investigation or prosecution of this case. Much of the file relates to matters occurring after November 15,1973, the date of Gist’s letter, which were not shown to have been brought to his attention when he was Assistant District Attorney. However, the file as the letter states he reviewed it contains a summary of complainant’s statements to the investigating officers, detailed reports of the arresting and investigating officers, appellant’s criminal record, and the request of the District Attorney’s Office for Texas Department of Correction penitentiary packets to give information for the indictment of appellant as a habitual criminal. It was on the basis of this information that Gist, as Chief of the Trial Division, “reviewed” this case and found it to be a “very serious offense in and of itself, and in addition, the defendant’s record is deplorable.” Further, as stated by Chief Gist, “In view of all these circumstances, I cannot make a recommendation less than life,” and he offered to make available to defense counsel “all the information in our file that is subject to discovery without the necessity of your having to file a motion.”

The mere fact that one was the district or county attorney when a criminal case is pending in a court in that county does not ipso facto disqualify him as a judge to preside over the trial of that case. As we said in Rodriguez v. State, Tex.Cr.App., 489 S.W.2d 121, at p. 123:

“It is not shown that the trial judge, even though he was the First Assistant to the Criminal District Attorney and in charge of capital prosecutions, actually investigated, advised or participated in this case in any way; it is therefore not shown that he ‘acted as counsel in the case’ as contemplated by the constitutional and statutory provisions relied upon. See Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412 (1893); Muro v. State, 387 S.W.2d 674 (Tex.Cr.App.1965) and cf. Ex parte McDonald, 469 S.W.2d 173 (Tex.Cr.App.1971) and Hathorne v. State, 459 S.W.2d 826 (Tex.Cr.App.1970).”

In Prince v. State, 158 Tex.Cr.R. 65, 252 S.W.2d 945, in reversing and remanding the judgment because of the disqualification of the trial judge, we stated:

“. . . . The fact, merely, that the trial judge here was the Assistant County Attorney at the time the alleged' offenses arose or were filed does not constitute him as counsel for the State in this case. Wilks v. State, 27 Tex.App. 381, 11 S.W. 415; Utzman v. State, 32 Tex.Cr.R. 426, 24 S.W. 412. If, on the other hand, he participated in any manner in the preparation or investigation of the case when he was Assistant County Attorney, he would be counsel for the State. Terry v. State, Tex.Cr.App., 24 S.W. 510; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88; and Koll v. State, 143 Tex.Cr.R. 104, 157 S.W.2d 377.”

See also Carter v. State, Tex.Cr.App., 496 S.W.2d 603; Morgan v. State, Tex.Cr.App., 503 S.W.2d 770.

The letter written by the judge when he was, according to his statement dictated in the record, supra, “in charge of the trial division of the District Attorney’s Office,” shows that he did actually investigate the State’s file and advise and participate in decisions made in that office relative to this case. In response to “a note on file from Mr. Clayton,” defense counsel, he asked for and secured the State’s file, reviewed it in his official capacity, found it to reflect “a very serious offense” and that “the defendant’s record is deplorable.” As the Chief of the Trial Division in charge of that division, knowing from the file that appellant was charged as a habitual criminal, he advised defense counsel “I cannot make a recommendation less than life.” His investigation and review of the State’s file in this case No. 30,989, and his official findings and advice as Chief of the Trial Division as reflected in his letter of November 15,1973, supra, and in his statement made during the pre-trial hearing, supra, involved the very same case against appellant in which he subsequently sat as trial judge, and in which the present conviction now on appeal was obtained. Cf. Holifield v. State, Tex. Cr.App., 538 S.W.2d 123.

We conclude that the record reflects that Judge Gist had been of counsel for the State and had participated as such in the case while serving in his official capacity on the District Attorney’s staff, and that he was disqualified from presiding as judge in the instant trial. Art. 5, Sec. 11, Texas State Constitution; Art. 31.01, V.A.C.C.P.; Prince v. State, 158 Tex.Cr.R. 65, 252 S.W.2d 945; Woodland v. State, 147 Tex.Cr.R. 84, 178 S.W.2d 528; Patterson v. State, 83 Tex.Cr.R. 169, 202 S.W. 88; Terry v. State, Tex.Cr.App., 24 S.W. 510.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.

      . The record reflects that a trial of appellant in this case before another judge in June, 1974, resulted in a “hung jury” and hence a mistrial. Judge Gist was not a member of the Jefferson County District Attorney’s staff at that time.

      . In so concluding, we copy with particular reference to this case the following from the opinion of our State Supreme Court in Indemnity Insurance Company of North America v. McGee, 163 Tex. 412, 356 S.W.2d 666, p. 668, as follows:
      “By this holding we do not intend to cast a shadow upon the trial judge. We have no doubt that the trial judge’s integrity is of the highest. However, as Chief Justice Willie stated in the case of Hodde v. Susan, 58 Tex. 389, 395, ‘It was the object of the Constitution to place judicial officers beyond the temptation which such circumstances would throw in their way.’
      “The judiciary must not only attempt to give all parties a fair trial, but it must also try to maintain the trust and confidence of the public at a high level. Article 15 (in our case Art. 5, Sec. 11, Tex.Const. and Art. 30.01, V.A.C.C.P.) is one aid in accomplishing these aims. . . . ”


author: GUITTARD, Chief Justice.

text:
    Mary Carol Thompson McKEAN, Appellant, v. John P. THOMPSON, Appellee.
    No. 19230.
    Court of Civil Appeals of Texas, Dallas.
    June 22, 1977.
    Rehearing Denied Aug. 22, 1977.
    Duncan L. Clore, Strasburger & Price, Dallas, for appellant.
    Mike M. Tabor, Dallas, for appellee.
   GUITTARD, Chief Justice.

In previous litigation the one-third interest of John P. Thompson in two apartment-house joint ventures was adjudged to be community property of Thompson and his former wife, now Mary Carol McKean. See Thompson v. Thompson, 500 S.W.2d 203 (Tex.Civ.App.-Dallas 1973, no writ). After termination of that litigation, John brought this suit against Mary Carol for one-half of the contributions he had made to each of the ventures since the divorce for mortgage payments, taxes, salaries, maintenance, and the like. She answered, alleging that no demands had been made on her for any of these contributions at the time they were made and that the payments were not made at her request, but as a volunteer. After trial the jury found that the amount John had advanced to provide one-third of the reasonable and necessary expenses of the ventures at the time John and Mary Carol had each owned an undivided one-sixth interest in them was $53,897.47. The trial court rendered judgment against her personally for one-half of this amount, and she appeals.

Appellant contends that she is not liable for these payments because she is in the position of an assignee of an interest in a partnership who has not agreed to continuation of the partnership. Appellee contends that the parties are cotenants and that appellant is liable under the rule that a coten-ant who pays more than his share of a debt secured by the common property or makes a necessary or proper outlay for its preservation is entitled to reimbursement from his cotenants to the extent that he paid their share, citing Stephenson v. Luttrell, 107 Tex. 320, 179 S.W. 260 (1915), and Shaw & Estes v. Texas Consolidated Oils, 299 S.W.2d 307 (Tex.Civ.App.-Galveston 1957, writ ref’d n.r.e.).

We conclude that appellant’s position is correct. She cannot be regarded simply as a cotenant who had the benefit of his payments. Although the parties were equal owners of a one-third interest in each of the ventures, the projects were subject to joint-venture agreements which she had not signed. She was in legal effect an assignee and purchaser of one-half of his interests. Tex.Rev.Civ.Stat.Ann., art. 6132b, § 28— B(1)(A) (Vernon 1970). However, since she was not a party to the agreements, she had no right to participate in management. Tex.Rev.Civ.Stat.Ann., art. 6132b, § 27(1) (Vernon 1970). Neither did she have any obligation to make contributions to ventures to which she was not a party. She had the right to withdraw her interest at any time and thus to avoid any further risk of her funds, and the evidence shows that she did so withdraw as soon as she learned that appellee was claiming reimbursement for funds advanced. Under these circumstances, we hold that appellee had no power, without her consent, to put her funds at risk by making contributions to the ventures and demanding reimbursement from her. Presumably, he is entitled to credit on the books of the ventures for his contributions and would be entitled to an allowance for such contributions in any distribution of the assets. If such assets be insufficient, the risk is his rather than hers. Consequently, the personal judgment against her is reversed, and judgment is here rendered that appellee take nothing.

Reversed and rendered.

      . The text of this statute is as follows:
      On the divorce of a partner, the partner’s spouse shall, to the extent of such spouse’s interest in the partnership, be regarded for purposes of this Act as an assignee and purchaser of such interest from such partner.