author: CLAYTON, Justice. PALMORE, Chief Justice, JONES, Justice, STEPHENSON, Justice,

text:
    Lanorma Wooster PACE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1978.
    Rehearing Denied March 14, 1978.

      Jack Emory Farley, Public Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James S. Goldberg, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

The appellant, Lanorma Wooster Pace, was indicted for murder in the Harlan Circuit Court in connection with the March 1976 shooting death of her husband, Charles Pace. A jury of her peers found Lanorma guilty of the lesser included offense of first-degree manslaughter and sentenced her to 20 years’ imprisonment, the maximum penalty for that crime. See KRS 507.030, 532.-060(2)(b).

Lanorma contends here, among other things, that the trial court erred by failing to instruct the jury on the law of self-defense. We agree, and for that reason reverse her conviction for a new trial.

The circumstances surrounding the shooting are not in dispute. On March 12, 1976, Charles Pace was pronounced dead on arrival at the Appalachian Regional Hospital in Harlan County. He had been shot in the bathroom of his home in nearby Mary Alice, Kentucky. An examination of the body revealed that death resulted from a .25-cal-iber bullet which entered the left upper chest and penetrated the heart.

Lanorma admitted shooting her husband. The only contention at trial was whether the shooting was intentional and without justification, as the Commonwealth argued, or whether the gun discharged accidentally during an altercation, as contended by La-norma.

In its attempt to prove that Lanorma deliberately killed Charles, the prosecution relied primarily on the following evidence. The Commonwealth proved by Willard Pace, Charles’ father, that Lanorma had threatened Charles prior to the shooting. According to Mr. Pace, upon visiting his son’s house on the day before the homicide, he found Lanorma cleaning up a broken glass. When asked how the glass had broken, Lanorma stated that she had thrown it at Charles during an argument and that “If he keeps on, I’m going to kill him.”

In addition, the Commonwealth proved by Kentucky State Police Detective Danny Castle and Harlan County Coroner Dr. Phillip Begley that Lanorma had changed her story about the shooting when interviewed at the hospital on the day in question. Detective Castle and Dr. Begley both testified that Lanorma initially told them Charles had shot himself. When Detective Castle told Lanorma he did not believe her, however, Lanorma admitted it was she who had shot her husband, but insisted the shooting was accidental. According to both Detective Castle and Dr. Begley, Lanorma’s second version of the incident was that she and Charles had engaged in another argument on the morning of March 12; that upon Charles’ early return from work, he lay down on the couch and told Lanorma to get him the pistol which was lying on the end table; that Lanorma grabbed the gun and ran to the bathroom, but before she could lock the door Charles pushed it open, slapped her, and tried to wrest the weapon from her; and that the gun accidentally fired when Lanorma’s hand hit the wall during the ensuing struggle.

Finally, the Commonwealth proved by Detective Castle that when he visited La-norma in the county jail on the day following the incident she told him, “I killed him, why don’t they go ahead and try me. I don’t give a goddamn what they do to me.”

Lanorma took the stand in her own defense. She admitted threatening Charles previous to the day of the shooting, and also admitted shooting him. However, she denied that the killing was intentional, relating instead the same story about an accidental shooting she had finally told Detective Castle and Dr. Begley at the hospital. When asked to explain why she had given two different accounts of the shooting while at the hospital, Lanorma stated she had originally lied about Charles’ having shot himself because she was upset and afraid her five-year old daughter might be taken from her if she told the truth.

At the close of all the evidence, the trial court instructed the jury on murder, manslaughter, and reckless homicide. Defense counsel requested that the jury be instructed on self-protection as well, and tendered an instruction setting forth the controlling law on that subject; but the trial court refused to give the requested instruction, making instead only a fleeting reference to self-protection in its general instructions. From the general instruction on first-degree manslaughter:

FIRST DEGREE MANSLAUGHTER; INSTRUCTION NO. II
If you do not find the defendant guilty under Instruction No. I, you will find her guilty under this instruction if, and only if, you believe beyond a reasonable doubt all of the following:
(a) That in this county on or about the 12th day of March, 1976, and before the finding of the indictment herein, she killed Charles Harrison Pace by shooting him with a pistol;
AND
(b)(i) She intended to cause Charles Harrison Pace’s death;
OR
(ii) She was acting with the intention of causing serious physical injury to Charles Harrison Pace;
AND
(c) That in so doing she was not privileged to act in self protection.
. (emphasis added).

It is true, as the Commonwealth argues, that the defenses of accident and self-protection are inherently contradictory: an accidental shooting results from an involuntary act, while a shooting accomplished in self-defense results from a voluntary act. The mere fact that these defenses are inconsistent, however, should not preclude a jury from considering both theories under appropriate circumstances.

In Gatliff v. Commonwealth, 32 Ky.L. Rep. 1063, 107 S.W. 739 (1908), one Gilreath was shot and killed by the defendant, a county marshal, who had been sent to arrest him. The evidence for the prosecution reflected that the defendant killed Gilreath deliberately and without justification. According to the defendant, however, Gilreath had resisted arrest and assaulted the defendant, making it necessary for him to draw his pistol and strike Gilreath with it in an attempt to beat him off. During the struggle which followed, the gun unaccountably went off and Gilreath was killed.

In considering these facts, this court stated:

. the court, under the evidence in this case, should have awarded an instruction as to the right of self-defense. It is true the defendant in his testimony rested his defense wholly upon the accidental discharge of the pistol; but his testimony shows, in addition, that while he did not rely upon self-defense in bar of the indictment, if what he said was true, the deceased was making a violent assault upon him at the time of the killing — that he had the marshal by the throat, and was choking him, and refused to release his grasp upon the officer’s throat upon demand to do so. Now, it may have been that the defendant made a false statement as to the accidental discharge of the pistol, being moved thereto by fear of the result of the trial, and believing that his chances of acquittal were more favorable by saying that the pistol was accidentally discharged than by testifying that he killed the deceased in self-defense. The mere fact that the accused rested his defense on false or mistaken testimony did not deprive him of any defense which he might have truthfully made. It was the duty of the court to give an instruction upon every phase of the homicide which had a substantial basis in the evidence, leaving to the jury to say, if conflicting theories were presented, which was true. Id. 107 S.W. at 740.

Although Gatliff was decided some years ago, the principle for which it stands is just as sound today as it ever was. No matter what technical defense is asserted by an accused at trial, the jury is always free to disbelieve such evidence as relates to this defense and to believe instead any remaining evidence from which an exoneration of the crime might be inferred. Cf. Glover v. Commonwealth, 260 Ky. 48, 88 S.W .2d 881 (1935); Wireman v. Commonwealth, 211 Ky. 495, 277 S.W. 822 (1925).

Unlike our brother Jones, we do not find Maiden v. Commonwealth, 203 Ky. 446, 262 S.W. 588 (1924), and similar cases cited in his dissenting opinion to be incompatible with this position. As we view the problem, the real question which must be answered in cases of this type is not whether the theory asserted by the accused at trial is logically consistent with the defense of self-protection, but is rather whether there was sufficient evidence of an attack on the accused to justify submission of an instruction on self-protection. In the cited cases, a close examination of the facts reveals absolutely no evidence in any of them of a struggle or other circumstance from which a jury might have inferred that the defendant was under attack at the time of the shooting; consequently, the determination by this court in each case that an instruction on self-defense was unjustified, was entirely proper.

There was such evidence in the case at bar. Although Lanorma did testify that the pistol discharged accidentally, she also stated that it did so as she and Charles were scuffling over the gun, and that the reason she ran to the bathroom in the first place was her fear that Charles was going to kill her and her daughter:

Before he went to work we were in a big fight and when he came home he wanted me to go to the store and get some stuff and I wouldn’t do it so he wanted me to — I was sitting on the couch and he put his head in my lap and said to give him the gun off the end table and I asked him why. He said he wanted to kill me and my little girl and I took off running so nobody wouldn’t get hurt or anything.
Q Where did you run to?
A I run to the bathroom. I was trying to shut the door when he come in.
Q Did you succeed in closing him off in the door?
A No. He pushed it open before I got it shut.
Q And what happened to you?
A We were fighting over the gun. He was trying to take it from me. I hit my hand on the wall. Well, I was trying to throw the gun in another room to keep him from getting it hoping me and my little girl could get out the back way, and when I did, I hit the wall and that’s when I turned by hand to look at it, that’s when the gun went off.

This testimony, together with the testimony of Detective Castle and Dr. Begley, sufficiently injected the issue of self-defense into the case. Even though the jury did not believe that the shooting was accidental, but believed instead that Lanorma shot Charles intentionally, it might nevertheless have concluded that such action was justified had it been given the opportunity to do so.

The insertion by the trial court of the phrase “and that in so doing she was not privileged to act in self-protection” in the general instructions was not adequate in this regard. In fact, the inclusion of this clause as a means of straddling the fence on this issue was error in and of itself. If, on the one hand, the trial court believed that Lanorma was not entitled to an instruction on self-protection, it should not have mentioned self-protection at all. By doing so, the trial court added nothing to the general instructions: a killing which is intentional and unlawful could not be in self-defense; the two qualities are mutually exclusive. If, on the other hand, the trial court was of the opinion that Lanorma was entitled to an instruction on self-protection, it should have submitted a separate instruction completely defining the law on the subject. By failing to do so, the trial court improperly left it up to the jury to determine the law. Commonwealth v. Cook, 86 Ky. 663, 7 S.W. 155 (1888); see also 1 Palmore, Kentucky Instructions to Juries § 1.07; for examples see §§ 10.01 et seq. (1975).

The judgment is reversed and the cause is remanded for a new trial consistent with this opinion.

PALMORE, C. J., and LUKOWSKY and STERNBERG, JJ., concur.

JONES, REED and STEPHENSON, JJ., dissent.

Separate opinions by PALMORE, C. J., concurring, and JONES and STEPHENSON, JJ., dissenting.

PALMORE, Chief Justice,

concurring.

Since Gatliff v. Commonwealth, 32 K.L.R. 1063, 107 S.W. 739 (1908), was decided there have been a number of opinions expressing as a general principle that when the defendant in a homicide prosecution admits the killing but claims it was an accident he is not entitled to a self-defense instruction. In those that I have read, however, the evidence would not have justified such an instruction anyway. None of them overrules Gatliff. And all of them were decided when the defendant had the burden of proof on the issue of self-defense, whereas under the recently-enacted Penal Code the Commonwealth has it. KRS 500.070(1), 503.050. Under the law that now applies the issue is raised, and an instruction is required, when there is evidence sufficient to create a reasonable doubt on the part of the jury. Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977). But aside from this technical shift in procedural balance, Gatliff simply makes good sense and therefore is good law today as it was in 1908. It seems to me that it would not be unreasonable for a jury to discount Mrs. Pace’s testimony that the shooting was unintentional and at the same time deduce that she may very well have shot her husband out of fear.

I think that the necessity for an instruction on self-protection in this kind of case depends on what the evidence would require in the absence of the defendant’s own testimony with reference to his state of mind at the time of the killing, the same as if some other witness had described the incident and the defendant had not testified at all. Under that approach, the subjective testimony of the defendant need not be given the arbitrary effect of cancelling the jury’s freedom to draw its inferences from the objective evidence alone.

LUKOWSKY, J., joins in this concurring opinion.

JONES, Justice,

dissenting.

At the close of all of the evidence, trial counsel for Lanorma tendered an instruction on the defense of self-protection. The trial court in my view properly refused to submit that instruction to the jury.

During direct examination Lanorma testified that she “was trying to throw the gun in another room to keep him from getting it . and when I did I hit the wall and that’s . . . when the gun went off.” She emphatically denied she intended to shoot her husband.

It is apparent from Lanorma’s testimony that her justification for the killing of her husband was not that she acted in self-protection, but that the killing was accidental. Her testimony clearly indicates the shooting was accidental; not in self-protection.

Since time immemorial, this court has repeatedly held where, in a case of homicide, the only defense interposed is that the killing was accidental, and the accused himself so testifies, an instruction on the law of self-defense should not be given. See Maiden v. Commonwealth, 203 Ky. 446, 262 S.W. 588 (1924); Pelfry v. Commonwealth, 247 Ky. 484, 57 S.W.2d 474 (1933); Howard v. Commonwealth, 260 Ky. 467, 86 S.W.2d 126 (1935); Howard v. Commonwealth, Ky., 240 S.W.2d 616 (1951); and Blaine v. Commonwealth, Ky., 459 S.W.2d 759 (1970).

The majority opinion is bottomed on a case decided by this court in 1908. Gatliff v. Commonwealth, Ky., 107 S.W. 739 (1908). In that case the deceased was making a violent assault upon the prosecuting witness. He had the officer by the throat and was choking him. That case is as different from the case at bar as night is from day, and in my view, is not applicable here. I am of the opinion that the trial court properly instructed the jury, who heard all the evidence and rendered its verdict based upon the law and the facts. I am unwilling to substitute my judgment for that of a properly instructed jury.

Therefore I dissent.

STEPHENSON, Justice,

dissenting.

I respectfully dissent from the majority opinion. It is my firm conviction that the majority opinion will impose an intolerable burden upon the trial bench in attempting to determine if the circumstances of cases such as this warrant a self-defense instruction. The practical solution to this problem will undoubtedly result in the various trial courts’ giving a self-defense instruction if requested in every case where death resulted during the course of a struggle or altercation. Absurdities will result as I will suggest later in this dissent.

This dissent is primarily confined to a situation, such as that presented here, where the defense is accident and there are no third-party witnesses.

A considerable body of law has built up in this jurisdiction on the problem of giving a self-defense instruction where defendant claims accidental killing. I have this feeling, reading Gatliff and the other cases, that somewhere along the way this court has equated self-defense with manslaughter in adhering to the principle of giving the whole law of the case; for instance, the majority opinion states, “no evidence . . . of a struggle, or other circumstances from which a jury could infer defendant was under attack.” In all of this, it is my opinion that the court has glossed over what I consider to be the essential element, that is the subjective test of self-defense: fear of serious bodily harm or death. Particularly as here in an unwitnessed killing, I do not believe there is a rational basis for a jury to infer self-defense where the defendant herself testified that the killing was accidental and did not testify that she intentionally killed the deceased in fear of serious bodily harm or death at his hands. Accident is involuntary; self-defense is intentional. It is recognized by all that these defenses are contradictory.

Prior to the adoption of the Penal Code, the defendant had the burden of proof on a plea of self-defense. It is true that the Penal Code now places on the Commonwealth the burden of proof once the issue is raised; however, according to the commentary to KRS 500.070, the defendant has “the responsibility of raising the issue” of self-defense. That the Commonwealth now has the burden of proof once the issue is raised as opposed to the prior rule that the defendant had the burden of proof is a principle interesting to lawyers, judges, and legal scholars; but in my view, it is a distinction without a real difference. From my observation of juries, it is unlikely that jurors will recognize this fine distinction and will exercise their judgment without regard to the subtle change in legal principles.

I cannot see where this appellant has fulfilled her responsibility of raising the issue of self-defense. There were no third-party witnesses. Her defense was accident. The struggle testified to justified a manslaughter instruction, nothing else! The only other story she told prior to trial was that her husband shot himself. In my view, it would be clearly unreasonable for a jury to draw an inference that she killed in self-defense.

In State v. Peal, Mo., 463 S.W.2d 840 (1971), Missouri takes the position that both accident and self-defense cannot be submitted to the jury on the defendant’s testimony alone:

“However, by the established law of this state, a defendant alone can not provide the basis for such inconsistent defenses. Either instruction relates to an explanation of the homicide, but they are totally inconsistent. If the shot was fired in self-defense, it required the voluntary act of defendant; conversely, if the shot was accidental it was involuntary. This is not to say, however, that both defenses may not be submitted to a jury under certain circumstances. For example, if a defendant by his own testimony provides the basis for an accident instruction, it must be given; but if to the contrary, testimony of others shows defendant acted in self-defense, he also is entitled to a self-defense instruction. ... In the instant case, defendant relies upon his own testimony as a basis for the inconsistent defenses. This cannot be permitted. His positive testimony that the shooting was accidental and unintentional would clearly negative any possible inference of self-defense based upon other facts appearing in his testimony.”

See also State v. Brown, Mo., 502 S.W.2d 295 (1973), to the same effect.

It appears California does not instruct on inconsistent defenses. In People v. Sedeno, 10 Cal.3d 703, 112 Cal.Rptr. 1, 518 P.2d 913 (1974), Sedeño was convicted of the murder of a police officer. He testified that two police officers were kicking and beating him and his pistol fired accidentally. He specifically denied self-defense. The California court said:

“Unlike the rule obliging the court to instruct on lesser included offenses and to give requested instructions whenever there is ‘any evidence deserving of any consideration whatsoever’ (People v. Carmen (1951), 36 Cal.2d 768, 773, 228 P.2d 281, 284), the duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case. Indeed, this limitation on the duty of the trial court is necessary not only because it would be unduly burdensome to require more of trial judges, but also because of the potential prejudice to defendants if instructions were given on defenses inconsistent with the theory relied upon. ‘Appellate insistence upon sua sponte instructions which are inconsistent with defense trial theory or are not clearly demanded by the evidence would hamper defense attorneys and put trial judges under pressure to glean legal theories and winnow the evidence for remotely tenable and sophistical instructions.’ ”

The opinion went on to say:

“There was no evidence, however, that defendant believed his life was endangered and he expressly denied any resistance to the assault and any intent to shoot Officer Klass. He testified that the assault had ended at the time of the shooting, that he shot into the air in order to startle the officers, and he twice specifically disclaimed firing the gun as a means of self-defense.
“It is not error to refuse a request for instructions on self-defense when there is no evidence from which it can be inferred that the defendant feared great bodily harm or death at the hands of the victim, or when the defendant has denied acting in self-defense and claimed the death was accidental.”

It is interesting to note the concern of the California court as to the potential prejudice to defendants. This is an area worth exploring and is not addressed in the Kentucky cases.

In this regard, we find that submitting inconsistent defenses is considered prejudicial in the state of New York.

People v. Wright, 17 A.D.2d 151, 232 N.Y.S.2d 767 (1962), states:

“The defendant’s defense was predicated solely upon the position taken by him that the stabbing had occurred accidentally when the deceased — a rather large woman — pushed him and fell to the floor with him while he had a knife in his hand. That being his defense it was the only one that should have been submitted to the jury for its consideration. However, the charge of the Court instructed the jury as to the elements of the defense of justifiable homicide as well as those of the defense of excusable homicide. Counsel for the defendant excepted to such charge and now urges it as a ground for reversal.
“By such instruction the Court erroneously gave the jurors an issue to consider which was not in the case (cf. People v. Leis, 13 A.D.2d 22, 27, 213 N.Y.S.2d 138, 143). The defenses of justifiable homicide and excusable homicide are mutually exclusive, the former contemplating an intentional act leading to death while the latter negatives such intention. If the jury gave any consideration to the charge of the Court with respect to justifiable homicide it must have found no merit to such defense because of the complete absence of any proof to support it. Such a finding by the jury could very well have had an effect prejudicial to the defendant in its consideration of the defense of excusable homicide.”

It occurs to me that the Commonwealth could extricate itself from the dilemma posed by the majority opinion by asking the defendant, as in the California ease, specifically if the killing was in self-defense. The answer is obvious, the defendant is committed to the theory of accident and is compelled to unequivocally deny self-defense. This would indeed create a peculiar situation if the trial court instructed on self-defense. The possibility of prejudice to the defendant should be considered. I can imagine several arguments that would place the defense in an absurd position before the jury. Essentially the same problem is created in the present case, the defense of accidental killing in itself denies self-defense. This illustrates the importance of the subjective test that the defendant believed he was in danger of death or serious bodily harm. Our cases have not addressed this problem, and it is my view that this proposition of giving instructions inconsistent with defendant’s theory of the case where a subjective test is so important should be re-examined. I wonder how the Gatliff court would have viewed the case had Gatliff unequivocally denied self-defense. At the very best, in the unwitnessed killing an instruction inconsistent with the defendant’s theory of the case should not be given.

REED, J., joins in this dissent.

      . In both Glover and Wireman it was held, under situations the converse of that in the instant case, that a defendant may be entitled to an affirmative instruction on accidental killing even though he testifies that he acted in self-defense. While we have since held that affirmative instructions on accidental killing are not necessary in homicide cases, Dolan v. Commonwealth, Ky., 468 S.W.2d 277 (1971); Dennis v. Commonwealth, Ky., 464 S.W.2d 253 (1971), the reasoning underlying these decisions is the same as that in Gatliff. See also Pennington v. Commonwealth, Ky., 344 S.W.2d 407 (1961) (alibi defense).

      . Whether there was sufficient evidence at trial to raise the affirmative defense of self-protection is, of course, a question of law to be decided by this court. Cf. Jewell v. Commonwealth, Ky., 549 S.W.2d 807 (1977).


source: Caselaw Access Project

author: JONES, Justice.

license: Public Domain

text:
    James Kenneth SEARS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 31, 1979.
    Rehearing Denied March 14, 1979.

      Terrence R. Fitzgerald, Deputy Public Defender, Frank W. Heft, Jr., Amelia F. Adams, Asst. Dist. Public Defenders, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., B. F. Radmacher, III, Asst. Atty. Gen., Frankfort, for appellee.
   JONES, Justice.

REMANDING WITH DIRECTIONS TO VACATE JUDGMENT AND TO COMPLY WITH PRESENTENCE REQUIREMENTS

On a jury trial, Sears was found guilty of three charges of first-degree robbery, and one charge of second-degree escape. On the three counts of first-degree robbery, the jury fixed Sears’ punishment at confinement in the penitentiary at 15 years, 18 years, and 18 years respectively. On the second-degree escape charge, it fixed his punishment at confinement in the penitentiary for a term of 5 years. In conformity with the jury’s verdict, the trial court sentenced Sears on each conviction. He directed the sentences to be served consecutively for a total term of 56 years. In his appeal, the principal issue presented by Sears is that the trial court erred in consolidating the three armed robbery charges and the escape charge for purposes of trial.

July 1976 was not a good month for Sears; nor for Hill Brothers Shoe Store, Carmen’s Restaurant and Steak and Shake Restaurant on Taylorsville Road.

The evidence reveals that on July 7,1976, Sears robbed Hill Brothers Shoe Store by threatening immediate use of physical force upon Joyce Shively, assistant manager, by pointing a pistol at her. In that robbery, he took four or five hundred dollars and a pair of brown boots.

On July 13, 1976, he robbed Carmen’s Restaurant by threatening the immediate use of physical force upon William R. Stewart, manager, by pointing a pistol at him. Sears took from Carmen’s the sum of $693.00.

On the night of July 14, 1976, Sears robbed Steak and Shake Restaurant by threatening the immediate use of physical force upon John Fair, assistant manager, by pointing a pistol at him. Sears’ net take from the Steak and Shake Restaurant was $294.00.

On January 13, 1977, Sears escaped while confined in the Jefferson County Jail on the three counts of armed robbery. He was subsequently apprehended.

The evidence of guilt as to each of the charges was overwhelming. Seven witnesses positively identified Sears as the robber. His method of operation in each of the robberies followed the same pattern. The testimony relating to the escape was uncon-tradicted.

Counsel for Sears contends that joinder of the indictments with that charging three armed robberies was error. He argues that joinder was prejudicial to Sears’ right to a fair and impartial trial. In support of his argument he relies on Brown v. Commonwealth, Ky., 458 S.W.2d 444 (1970), where this court held that joinder was proper. Brown, supra, delineated certain factors to be considered by the trial court in determining whether joinder of offenses should be made. Some of the factors include the similarity of the offenses and any close connection in time between their commission. Sears distinguishes the case at bar from Brown, supra, on the basis: the offenses weren’t closely related in time and the trial court made no finding that the offenses were connected. Sears asserts also that he made a specific assertion of prejudice arising from the joinder in that he desired to testify only as to the escape charge.

This court has held that joinder of offenses is within the sound discretion of the trial court. Rigsby v. Commonwealth, Ky., 495 S.W.2d 795 (1973). However, it has not held that the “sky is the limit.” See Cargill v. Commonwealth, Ky., 528 S.W.2d 735 (1975).

This court is of the view that the joinder of the charge of escape with the three charges of armed robbery was error. However, in light of the overwhelming evidence of guilt the error was non-prejudicial and therefore harmless.

The evidence was amply sufficient to sustain Sears’ conviction on the escape charge.

In closing argument, the Commonwealth’s Attorney directed the jury’s attention to the boots worn by Sears. The boots were similar to those stolen from Hill Brothers Shoe Store during one of the robberies, but were different in color. They were likewise similar to those worn by Sears at the time of his arrest. Sears claims that the comment of the prosecutor denied him the constitutional right of confrontation, the right to present a defense and the right to a fair trial.

This court is of the opinion that the comment of the Commonwealth’s Attorney was simply an expression of his opinion of Sears’ guilt and was based on the evidence of record, and was proper. Koonce v. Commonwealth, Ky., 452 S.W.2d 822 (1970). In view of the overwhelming evidence of Sears’ guilt as it related to each of the robbery charges, it is doubtful the result would have been different had Sears been “barefoot” or had worn expensive alligator shoes.

Finally, Sears contends that the trial court failed to follow mandatory presen-tencing procedures as prescribed by KRS 532.050, and Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977).

This court notes that in a reply brief, counsel for Sears was advised by the trial court that a presentence report was before the court at the time of sentencing. The court failed to comply with KRS 532.050, which provides in pertinent part:

“(1) No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a pre-sentence investigation after conviction and giving due consideration to a written report of such investigation.
“(4) Before imposing sentence, the court shall advise the defendant or his counsel of the factual contents and conclusion of any presentence investigation or psychiatric examination and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The sources of confidential information need not, however, be disclosed.”

It is mandatory that the trial judge comply with the provisions of KRS 532.050, unless the defendant waives the sentencing procedures. Alcorn v. Commonwealth, Ky., 557 S.W.2d 624 (1977). There is nothing to indicate any waiver on the part of Sears.

The judgment entered upon the jury verdict in this proceeding is directed to be vacated. The case is remanded to the Jefferson Circuit Court for resentencing after there has been compliance with the provisions of KRS 532.050.

All concur.


author: HOWERTON, Judge.

text:
    ARMCO STEEL CORPORATION, Appellant, v. Nora LYONS, Widow of Clarence L. Lyons, Deceased, and Next Friend of Catherine Lyons, Age 17; James R. Yocom, Commissioner of Labor and Custodial of the Special Fund, and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Feb. 17, 1978.
    William H. Jones, Jr., Lowell T. Hughes, Van Antwerp, Hughes, Monge & Jones, Ashland, for appellant.
    Michael R. Dowling, Ashland, for appel-lee Lyons.
    Cyril E. Shadowen, Dept, of Labor, Louisville, Kenneth E. Hollis, Dept, of Labor, Frankfort, for appellee Yocom.
    Before HOWERTON, COOPER and HAYES, JJ.
   HOWERTON, Judge.

This is a workmen’s compensation case. Appellant was the employer of appellee’s now deceased husband, Clarence Lyons, who suffered an episode of ventricular tachycardia shortly after reporting to work on March 8, 1973. The employee died on March 13,1973 from further heart problems while he remained hospitalized in Ashland, Kentucky.

The deceased had been employed by appellant for approximately 18 years. In October 1972, Mr. Lyons suffered a severe myocardial infarction at home. He returned to work as a tow-motor operator on February 18, 1973. This type work was described by the plant physician as being similar to operating an automobile or a tractor.

Appellee filed her claim with the Workmen’s Compensation Board in January 1974, alleging that her husband died as a result of his employment with Armco. The appel-lee, Special Fund, was joined as a party because of the defendant’s preexisting heart condition.

On May 3, 1976, the Board rendered its opinion and award. The Board awarded Nora Lyons weekly benefits in the amount of $60.25 as widow of Clarence Lyons, and the sum of $20.25 per week as the next friend of Catherine Lyons, infant daughter of the decedent. The Special Fund was directed to pay one-half of the award. The employer was also directed to pay the medical expenses and the sum of $1500.00 for burial expenses. The Greenup Circuit Court affirmed the award.

The appellee, Special Fund, has submitted its brief which generally supports the positions taken by the appellant, but the Fund failed to appeal the Board’s decision to the circuit court, and it is therefore precluded from any relief on this appeal. It does request, however, a reversal of the judgment as to the employer, and a direction by the court to the Board “to dismiss the Special Fund in the future where the claimant had a previous heart condition known to him and to his physician that arose prior to any work-related incident that gave rise to a compensation claim.”

Three of the findings by the Board constitute the basis for the Board’s award and the errors claimed on this appeal. The three findings read in full as follows:

2. The plaintiff’s decedent, Clarence L. Lyons, deceased, was 43 years old at the time of his death on March 13,1973. The plaintiff and decedent were married in 1953 and were living together at the time of his death. In October 1972, the decedent had a massive heart attack and was hospitalized. He remained in the hospital until November 10, 1972, and was off of work until about February 26,1973. The decedent worked for about one week and a half, and then had another attack (apparently of heart failure and arrhythmia) at work on March 8, 1973. The Board finds the second attack to be work-related and to arise out of and in the course of plaintiff’s employment. Moore v. Square D Company, Ky., 518 S.W.2d 781. This was a “fortuitous, unexpected injury traceable to the work by virtue of having occurred in the course of the work”. His demise was set off by the attack at work, no matter if he died of arrhythmia of the heart or congestive heart failure.
5. Plaintiff probably had a disability when he went back to work. There is a question in the evidence if he should have been working although his doctors had released him to work. The Board finds he was not limited in his occupation. The Court of Appeals has previously indicated this argument is somethink [sic] of a “red herring” in a case not to be cited as authority. This issue is questionable in this case, but from what we can find on it, it appears the Supreme Court will not say there has to be an exclusion for it, especially when the decedent is working.
7. The decedent had atherosclerotic coronary heart disease which was dormant and occupationally non-disabling, and was aroused into disabling reality by the incident of March 8,1973. The Board cannot find any medical evidence where the doctors apportioned responsibility. The Board has the right to fix the relative contributions of the preexisting disease and the incident where the doctors do not. Ed Hall Drilling Co. v. Profitt, Ky., 424 S.W.2d 403. We apportion liability 50% on the Special Fund and 50% on the employer.

Appellant presents three arguments. The first argument is generally concerned with the test or requirement of legal causation between the activities of the work and a disabling or fatal heart attack. The second issue questions the Board’s failure to assign a percentage of the decedent’s disability to a prior active heart condition. The third and final argument contends that the Board’s apportionment of disability was clearly erroneous in that there was no proof to support such a finding or award.

For its first argument, appellant alleges that there was no substantial evidence in the record to find that the work caused the employee’s death. The Board’s findings on this point are contained in Finding # 2, quoted above.

Finding # 2 does conclude that death “was set off by the attack at work . . .” The evidence in the record is, at best, very weak on this point, and the Board found simply that the heart attack was work-related, because the employee was on the job when the attack occurred. The Board cited the case of Moore v. Square D Company, Ky., 518 S.W.2d 781 (1974) in support of the finding. The finding that the attack occurred while at work is accurate, but we must consider whether or not Moore, id., supports such a conclusion that the attack was caused by the work. Two other questions which are necessarily intertwined with our review of this issue are what proof of causation is required in heart attack cases, and what are this Court’s limitations on judicial review?

The two leading cases which are most dispositive and informative on the issues just presented are Moore, id., and Hudson v. Owens, Ky., 439 S.W.2d 565 (1969). Hudson, id., provides the most thorough explanation of the law in heart attack cases, and it remains the law in Kentucky as of today, except as it has been modified by subsequent cases, including Moore, supra.

Lyons, Hudson and Moore had heart attacks while at work. Lyons and Hudson had suffered previous attacks and therefore had known, preexisting conditions. Moore had his first attack while at work. Hudson’s medical proof indicated a causal relationship between the work and the attack. The medical proof in Moore, supra, and the case sub judice was against a finding of a work-caused relationship. Since there was no proof of medical causation on behalf of Moore or Lyons, there was no proof as to apportionment, which proof would be necessary if the Special Fund was to share in the liability. Hudson’s widow was denied compensation, while the widows of Moore and Lyons were awarded compensation by the Board.

In Hudson, supra, the court makes it clear that, “As to resolving issues of fact, the statute vests that function in the Board with judicial review restricted to a determination of whether the factual findings of the board are ‘clearly erroneous’.” Hudson, supra, at p. 568. In affirming the Board’s negative finding of causation, the court concluded, “It appears to us that the evidence on the issue was not so strong as to compel such a finding, nor can we characterize claimant’s evidence as so persuasive that it was clearly unreasonable for the board not to be convinced by it.” Hudson, supra, at p. 570.

The problem presented in all of these cases is one of determining causation. Hudson, supra, at p. 568. As to a finding of causation, the opinion concluded that where the physical effort of the work precipitates an internal breakdown resulting in disablement, the employee has sustained a “personal injury” which is automatically accepted as “traumatic”. Hudson, supra, at p. 568. The court rejected the “usual” and “unusual” strain test for a determination of “accidental,” and concluded that an “Accidental result is enough to constitute an accidental injury.” Hudson, supra, at p. 569. As to the required accidental quality of the injury, Hudson, supra, reads at p. 569:

In short, a fortuitous unexpected injury to the workman, traceable to the performance of the work, is sufficient to provide the accidental quality demanded by our compensation statute.

It was this statement regarding the accidental quality required for a compensable injury that was paraphrased in Moore, su pra, and again in the Finding # 2 of the Board in the case at bar. The portion of the statement as quoted from Moore, supra, in the findings is nothing more than a phrase taken out of context. When read as a whole, Moore, supra, 518 S.W.2d at p. 784, was referring to the need for proof of a traumatic injury by accident, and that in a heart attack case, the accidental quality portion of causation is met if the unexpected injury occurred during the course of the work.

Moore, supra, does not, and cannot, stand for the proposition that a heart attack is work-related if it occurs while the employee is at work. A claimant is still required to prove a work-connected cause from the totality of the circumstances. We can conclude from the fact that Hudson’s fatal heart attack occurred on the job that one does not sustain a compensable heart attack merely because he was “at work” when the attack occurred.

We may be required to give a liberal interpretation to our workmen’s compensation statutes, but Kentucky has already frightened away many existing and would-be employers with previous enactments and interpretations. This court is not going to send the remainder of them running with a ruling that an injury (heart attack) is com-pensable if it merely occurs at work without other proof that it was work-caused. Workers must be compensated for injuries and diseases caused by the work they perform. This is a legitimate cost to the employer and his product or service. But, there must be proof of causation by the work, and more proof is required than having a job and being on the employer’s premises when a heart attack occurs.

While we may be limited in our review of the Board’s findings, we must conclude in this case that the limited findings of the Board do not support the award. The Board had no evidence of causation other than presence at the job site, and its finding or conclusion of causation is therefore clearly erroneous.

Opinions and awards of the Workmen’s Compensation Board often present the court very limited findings to support the conclusions and the award. The Board would do well to consider the opinion of the court in Hudson, supra, as it discussed considerations which should be made in heart attack cases. For one thing, the court’s opinion in Hudson, supra, 439 S.W.2d at p. 569 reads:

In such eases, the policy question will still be present, to-wit, at what point for compensation purposes shall the element of work-connection be viewed as de minimis and the cardiac disability held to be merely coincidental with, rather than ‘caused’ by, the work-connected event?

In the case sub judice there was apparently no consideration whatsoever of this issue. The court’s opinion also indicates that the determination of causation must be made from the “totality of circumstances”. Hudson, supra, at p. 569. This includes medical evidence as well as other relevant, factual information.

In Moore, supra, the court determined that the Board did look at the totality of the circumstances, even though there was no medical proof to establish the connection of the work to the heart attack. Unlike the case on this appeal, however, the Board in Moore, supra, did make specific findings of causation. The medical proof was held to be only a part of the total evidence. The Board, in Moore, supra, specifically found that:

1) The attack occurred during the course of his work after 6½ to 7 hours of comparatively heavy work; 2) He previously had been able to perform his work without substantial interruption, and this was his first heart attack.

Moore, supra, therefore, did not vitiate the requirement that a heart attack both arise out of and occur in the course of the claimant’s employment. Both Moore, supra, and Hudson, supra, involved disabilities which occurred prior to the effective date of amendments enacted by the 1972 General Assembly. The statutory test for compens-ability which is applicable to the present claim is stated as a “work-related, harmful change in the human organism” [KRS 342.-620(1)], rather than the earlier “traumatic personal injury sustained by the employee by accident . . . arising out of and in the course of his employment” [KRS 342.-005(1)]. The change in the statutory language is one of form rather than substance, however, as was demonstrated in Seventh Street Road Tobacco Warehouse v. Stillwell, Ky., 550 S.W.2d 469 (1976), where it was stated, at p. 470, that, “ ‘[W]ork-relat-ed’ and ‘arising out of and in the course of [the] employment’ are synonymous terms.”

We must conclude as to the first issue that the Board failed to apply the correct standard to determine whether the present heart attack was caused by the work in the sense that it arose out of and occurred in the course of the decedent’s employment.

The second and third issues are somewhat related and will be discussed together. The appellant argues that Clarence Lyons clearly had a disability preexisting March 8, 1973, and the percentage of that disability should have been determined and deducted from any award levied against the employer. Appellant also contends that it was error to apportion the award on a 50-50 basis between it and the Special Fund, as there was no evidence to determine such an apportionment.

The two findings by the Board relating to these issues are Findings # 5 and # 7 which were quoted above in full. The findings actually conflict in part. Finding # 5 begins, “Plaintiff probably had a disability when he went back to work.” Finding # 7 reads, in part, “The decedent had atherosclerotic coronary heart disease which was dormant and occupationally non-disabling . . . We can only conclude from the findings and from the record, as a whole, that error was committed by the Board, and by the circuit court in affirming the Board, both as to the findings and as to the resulting award.

The facts are overwhelming that Clarence Lyons’s October heart attack caused permanent heart damage, and although he had been permitted to return to work, he had at least a 40% disability. The mere fact that an employee is able to work is not conclusive that the employee has no occupational disability. Griffin v. Booth Memorial Hospital, Ky., 467 S.W.2d 789 (1971). He was under a doctor’s care after his return to work, and he continued to take regular medication for his condition. He also carried nitroglycerin tablets and other medication for emergencies. Any findings to the contrary would be clearly erroneous. A person who has a disease condition known to him, and who is being treated medically for that condition, does not have a dormant, nondisabling disease condition. Young v. Pugh, Ky., 463 S.W.2d 928 (1971).

Likewise, there was no proof in the record to support any apportionment between the employer and the Fund. The Board obviously determined that an equitable solution would be to permit each defendant to share the cost on an equal basis. The apportionment part of the findings was added to the typed opinion in handwriting.

A similar situation existed in Moore, supra, where the medical proof had not supported causation. The opinion of the court reads, 518 S.W.2d at p. 785:

The question of apportionment was not in the case until the board, despite the medical testimony, found that the work was a causative factor. After making that finding, the board should have caused [the] medical evidence to be produced on the question of apportionment.

This point is moot in this case because of the other determinations made in this opinion, but it is valuable for some clarification of the law for the benefit of the Workmen’s Compensation Board in future, similar cases.

As to the question of a preexisting disabling disease condition, the appellee, Special Fund, should have had no liability. KRS 342.120. It was proper to join the Fund as a party. KRS 342.120(l)(a) or (b). However, the Fund is not liable for the active disability of a preexisting disease. KRS 342.120(4). But, in this action, the Fund must pay the 50% award levied against it because it failed to perfect an appeal. Yocom v. Tri-County Sanitation Service, Inc., Ky., 522 S.W.2d 850 (1975).

As to appellant’s argument that the preexisting disability should have been determined as a percentage and deducted from any final award, we will have to first examine the current status of the law on this point. Actually, the whole question of apportionment and deductions originates in KRS 342.120. Subsection (3) provides that “ . . . [T]he employer shall be liable only for the degree of disability which would have resulted from the latter injury or occupational disease had there been no preexisting disability or dormant, but aroused disease or condition.” Subsection (4) then requires the remaining part attributable to the arousal of a dormant disease to be paid by the Special Fund. Subsection (4) specifically excludes, “ . . . all compensation which the provisions of this chapter would have afforded on account of prior disabling disease or injury had it been compensated thereunder, . . .

Apportionments are thus required when a claimant has either a preexisting disability to be deducted from the claim, or when a dormant, nondisabling condition is aroused into disabling reality which is deductible by the employer, but paid for by the Special Fund. A situation may also exist when a prior disability is to be excluded and the remaining disability is apportioned between the employer and the Fund because of the arousal of a dormant condition in addition to the preexisting disability.

As to either type of apportionment, however, the Board must first determine if the later injury alone and independently would have caused the resulting disability. If so, no apportionment is necessary. Young v. Fulkerson, Ky., 463 S.W.2d 118 (1971). For example, if an employee had either a preexisting disability and/or a dormant disease, and he was subsequently killed instantly by an explosion, the latter accident independently caused his death, and no apportionment would be necessary. The employer would be responsible for the entire claim.

The Board did not find, and we cannot say, whether any deduction should have been made for the preexisting disability. The Board’s Findings # 5 and # 7 do not provide specific answers regarding the independence of the second heart attack in the cause of death, nor are there specific answers regarding apportionment for purposes of excluding part of an award for the preexisting disability.

It would certainly be to everyone’s advantage, in the future, if the Board and the practicing Bar would provide more complete and specific findings of fact to support the conclusions of law and the award. Answers to all of the issues and policy questions discussed in this opinion should be considered in heart attack cases. This court cannot make such findings at this point in the proceedings, but in this case, the additional findings will not be necessary.

The case is reversed, with directions to the circuit court to remand the case to the Board for judgment dismissing appellee’s claim against the appellant. The Board shall also be instructed to retain the award originally entered against the Special Fund.

All concur.


author: DOWD, Judge.

text:
    Verbal D. GIBSON, Employee, Plaintiff-Respondent, v. Minnie V. GREENFIELD, Employer No. 1, d/b/a Bonneville Inn Restaurant, Defendant-Appellant, and John Anderson, Employer No. 2, Defendant-Respondent.
    No. 38169.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 17, 1978.
    Clinton B. Roberts, Roberts & Roberts, Farmington, for defendant-appellant.
    Dallas W. Cox, Jr., St. Louis, for plaintiff-respondent.
   DOWD, Judge.

This is a suit under the Workmen’s Compensation Law to recover damages for injuries suffered in a fall while employee was at work at a restaurant. The Circuit Court of St. Francois County affirmed the Industrial Commission’s award of $5,000 to employee, respondent Verbal D. Gibson, and against employer Minnie Greenfield, appellant. The issues here are which of two employers is legally liable and whether the court erred in holding employer Greenfield liable in her individual capacity.

Our standard of review is a narrow one. We view the record in the light most favorable to the findings of the Commission, considering all inferences favorable to its result. The award will not be set aside unless the Commission’s findings are unsupported by competent and substantial evidence and contrary to the overwhelming weight of the evidence. Brooks v. General Motors Assembly Division, 527 S.W.2d 50, 53 (Mo.App.1975).

The Commission, with a minor exception, adopted the referee’s findings of fact, and conclusions of law. The referee found that Minnie Greenfield, d/b/a Bonneville Inn Restaurant was the employer of claimant at the time claimant sustained an accidental injury on August 29,1972. The referee also found that Minnie Greenfield and John Anderson had not reached a meeting of the minds regarding a lease of the restaurant and that at the time of the accident Anderson was acting as agent for appellant, and that appellant had never relinquished control and supervision over the management of the restaurant. The trial court sustained the findings and award of the Commission. Employer Greenfield appeals.

Appellant Minnie Greenfield first claims that the Commission erred in its finding that she was the employer of the injured employee. Appellant argues that the record as a whole establishes that John Anderson was the employer of claimant at the time of the accident. We disagree.

The record reveals that in September 1971, Minnie Greenfield formed a corporation known as Bonneville Inn Restaurant, Inc. She was the sole officer and shareholder. From February 1 through March 15, 1972, she operated the restaurant with her brother, John Anderson, as a partnership, splitting profits and losses equally. This arrangement ended due to a dispute between the two. However, later there were discussions about Anderson and his wife taking over the operation of the restaurant from Minnie Greenfield. On August 17, 1972 Minnie Greenfield drew up a memorandum of lease. The lease set forth the amount of the rent, the duration of the lease, and stated there were to be no major changes in the restaurant operation. The memorandum of lease was not signed. Although the memorandum of lease provided that the Andersons were to take possession September 1,1972, they took over earlier at Minnie Greenfield’s request, to better prepare for the upcoming Labor Day weekend. On Sunday, August 27, 1972, the changeover took place. Employee, Verbal Gibson, was injured at work on August 29, 1972.

We hold that the Commission’s findings that appellant Greenfield was the sole and only employer of the employee at the time of the accident was supported by competent and substantial evidence and not contrary to the overwhelming weight of the evidence. Brooks v. General Motors Assembly, supra. Supporting this conclusion includes the fact that John Anderson had not paid rent for the restaurant to his sister at the time of the injury, and did not possess the keys to the premises. Nor was there a binding lease present here. A valid lease requires a clear intention common to both parties. Crestwood Plaza, Inc. v. Kroger Co., 520 S.W.2d 93, 98[15] (Mo.App.1974). There was not sufficient meeting of the minds between Greenfield and her brother to conclude there was a contract of lease. Macy v. Day, 346 S.W.2d 555[1, 2] (Mo.App.1961). They had different views of the meaning of the clause that there were to be no major changes in operation of the restaurant. Minnie Greenfield thought it meant that John Anderson could not turn the restaurant into a nightclub and no liquor could be served. John Anderson thought it meant that his sister would have continuing control over the operation of the restaurant.

Also significant is the question of control. Although Anderson may have been in possession of the premises, he was not a lessee unless he also had exclusive control of the restaurant. Friend v. Gem International, Inc., 476 S.W.2d 134, 138[3] (Mo.App.1971). See also Busby v. Stimpson, 542 S.W.2d 551, 553[3] (Mo.App.1976). We agree with the finding below that Minnie Greenfield had not relinquished her right to control the management of the restaurant. She could veto a decision by John Anderson to hire a certain employee, and on one occasion she refused his request to close one of the night shifts. During the period the arrangement was in effect, Minnie Greenfield rejected about six different proposals that John Anderson made to her for changing the operation of the restaurant. Minnie Greenfield terminated the lease by sending a letter to her brother in August, 1973, which was about six months earlier than the termination date stated in the memorandum of lease. She did this because her brother told her that he would shut down the restaurant or “run it to suit himself.” She began running the restaurant by herself on August 29, 1973. Appellant’s first point is without merit.

Appellant next contends that if the Commission does not find that John Anderson was the employer, then the competent and substantial evidence demonstrates that the employer of claimant was the corporation Bonneville Inn, Inc., and not Minnie Greenfield. Appellant argues that the record as a whole establishes that the corporation, Bonneville Inn, Inc., operated the restaurant. We disagree. The restaurant building was owned by Minnie Greenfield individually. The check that John Anderson paid to Minnie Greenfield for rent and inventory when his tenancy began was made out to Minnie Greenfield, endorsed by her, and a receipt for this payment was signed by her. It was deposited in her own personal account. The income she received from renting the property to her brother was reported in her personal income tax return for 1972. The named insurer on the workmen’s compensation policy was Minnie Greenfield, and not the corporation. The memorandum of lease was written on stationery which carried the restaurant letterhead and read “Bonneville Inn”, not “Bonneville Inn, Inc.”

We believe there is competent and substantial evidence to support the Commission’s finding that Minnie Greenfield individually and not the corporation operated the restaurant and was therefore the employer of claimant at the time of the injury. Appellant’s point is without merit.

Respondent moves this court to award damages for a frivolous appeal under Rule 84.19. This motion is denied.

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.


author: STEWART, Judge.

text:
    STATE of Missouri ex rel. Isadore ZIGLER, Administrator of the Estate of Roberta Zigler, deceased, Relator, v. The Honorable George ADOLF, Judge of the Circuit Court of the City of St. Louis, Respondent.
    No. 38678.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Jan. 17, 1978.
    Stan J. Goodkin, Rosecan, Popkin & Cher-vitz, St. Louis, for relator.
    Sam T. Vandover, St. Louis, for respondent.
   STEWART, Judge.

We issued an alternative Writ of Mandamus on the petition of Isadore Zigler, Administrator of the Estate of Roberta Zigler, deceased. Relator is plaintiff in a wrongful death action in which Russell Superfine is defendant. By our alternative writ, the trial court was ordered to vacate its order striking paragraph 9 of Count I of plaintiff’s petition. Having exercised our discretion and issued the alternative writ, we retain jurisdiction under authority of State ex rel. Broglin v. Nangle, 510 S.W.2d 699 (Mo.1974), and our writ is made peremptory-

The petition in the trial court, seeking damages from defendant for the wrongful death of Roberta Zigler, was initially filed in the names of Isadore Zigler and Irene Zigler as the parents of Roberta. By leave, relator was substituted as plaintiff.

The cause is before us on the First Amended Petition which is in two counts. Count I of the petition alleges specific negligence, Count II is based on the theory of res ipsa loquitur. In all other respects the counts are identical. The action is brought by the father of Roberta Zigler as Administrator of the Estate of Roberta Zigler. The petition alleged that Roberta was 25 years of age at the time of her death; that she left no spouse, minor child or children; that Isadore and Irene Zigler are the surviving parents of the deceased; that they had suffered pecuniary loss as a result of the death of their daughter; and that they were the only persons entitled to receive any amounts recovered by plaintiff pursuant to § 537.080(3).

Other allegations of Count I of the petition which are necessary to our determination are contained in paragraphs 7 and 9. Paragraph 7 reads:

“7. At the time of her death, deceased was industrious, in good health, and was the only daughter born to Irene and Isa-dore Zigler, her surviving parents herein. During deceased’s lifetime, she was employed as a medical records clerk earning approximately $8,000 per year, and was capable of earning and continuing to earn more during her lifetime; in addition, deceased devoted much of her time to caring for and rendering many services to her aforesaid surviving parents.”

Paragraph 9, which was ordered stricken by the trial court, reads:

“9. By reason of deceased’s death, as a direct result of the wrongful and negligent acts and omissions of Defendant and the aggravating circumstances attending said death, her aforesaid surviving parents have lost the valuable services of their daughter, have expended monies for deceased’s funeral bill and have thereby been damaged in the amount of $75,000.”

Respondent seeks to justify striking paragraph 9 on the basis that the parents of a minor child may recover only for loss of services for the minority of the deceased child. From that premise, respondent argues that “the Legislature saw fit to preclude the parents of an adult, unmarried daughter or son from claiming damages occasioned by the death of said son or daughter and lodging the cause of action in the administrator of the decedent, then the parents of this Decedent, Isadore and Irene Zigler, are precluded from claiming as an element of damages ‘valuable services’ alleged to have been provided them by said Decedent. Certainly such is true in view of the fact that said parents are not the real parties in interest.” He cites Collins v. Stroh, 426 S.W.2d 681, 686 (Mo.App.1968).

The ease cited by respondent is no longer the law of this state. In Mitchell v. Buchheit, 559 S.W.2d 528 (Mo. filed December 19,1977), the Supreme Court said, “Parents, seeking to recover for the death of a minor child, should not be prohibited from trying to establish a reasonable probability of pecuniary benefit from the continued life of said child beyond the age of minority. We so hold, ...”

Relator relies upon § 537.080(3) which reads:

“(3) If there be no husband, wife, minor child or minor children, natural born or adopted as herein indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased and the amount recovered shall be distributed according to the laws of descent. As amended Laws 1955, p. 778, § 1 (§ 537.070); Laws 1967, p. 663, § 1.”

The Supreme Court in Rogers v. Fiandaca, 491 S.W.2d 560 (Mo.1973), specifically ruled the very issue before us in this case. It held that parents could recover for the wrongful death of an unmarried adult child who left no surviving minor children. The court also ruled that the action could be brought by the executor or administrator of the estate of the deceased. See also Mitchell v. Buchheit, supra. In such a case, the executor or administrator brings the action as trustee for the parents. The action is not brought on behalf of the estate of the deceased. McCullough v. W. H. Powell Lumber Co., 205 Mo.App. 15, 216 S.W. 803 (1919). By § 537.090 as amended in 1973, plaintiff is entitled to recover “. such damages as will fairly and justly compensate such party or parties for any damages he or they have sustained . . . ”

Relator here brings the action as trustee for the benefit of the parents of Roberta, an adult child who left no spouse or minor child or children. The petition alleges that the parents are the only persons entitled to any recovery made by the relator in the action. Paragraph 9 alleged proper elements of damage in the action and was improperly stricken. Our alternative Writ of Mandamus is made peremptory.

McMILLIAN, P. J., and REINHARD, J., concur.


author: CLEMENS, Presiding Judge.

text:
    Madelyn M. NAGEL, Appellant, v. Robert M. NAGEL, Respondent.
    No. 38910.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 17, 1978.
    Dubail, Judge, Kilker & Maier, William B. Smith, St. Louis, for appellant.
    Daniel V. O’Brien, James T. O’Brien, St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Plaintiff-wife has appealed from a modification order in favor or defendant-husband wherein the trial court had reduced defendant’s monthly child support obligation by $200.

When the marriage was dissolved in December of 1975 it was agreed the husband’s monthly net income was $1,200, and the court had then awarded the wife $700 monthly child support. Two years later the husband moved to reduce the amount of child support, his monthly income having fallen by $140, from $1,200 to $1,060. The trial court granted the husband’s motion by reducing his monthly child support obligation by $200, from $700 to $500. The wife has appealed, contending there was no evi-dentiary support for the reduction.

By § 452.370.1, VAMS, a child support decree may be modified “only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable.” We have scanned the record and find the only changed circumstance is the husband’s $140 reduced monthly income. Only to that extent is the modification order supported by the evidence.

The modification order is remanded and the trial court is directed to amend its order, as of January 12,1977, by reducing the monthly child support allowance from $700 to $560.

SMITH and McMILLIAN, JJ., concur.


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Rondel Alfred DUNN, Defendant-Appellant.
    No. 37977.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 17, 1978.
    Hanks, Taylor & Suddarth, W. Morris Taylor, Clayton, for defendant-appellant.
    Jeffrey W. Schaeperkoetter, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., James R. Hartenbaeh, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals from his conviction by a jury of stealing a motor vehicle and the resultant five year sentence.

Defendant’s initial challenge is to the sufficiency of the evidence to support the verdict. On July 11, 1975, defendant and another man, Joseph Fredericks, went to Six Flags Amusement Park in St. Louis County in defendant’s van with defendant driving. They initially parked in the employees’ section of the parking lot. Fredericks left the van and walked around through the parking lot. He returned to the van and they moved to a new location. Both Fredericks and defendant exited the van and walked through the parking lot toward the main gate. They did not go to the main gate, but instead returned to the van. They sat in the van for a few minutes, then exited the van again. They again walked toward the main gate but only for two aisles. They then returned to the van. As they returned both men stopped next to a 1975 Lincoln Continental, cupped their hands and looked through the windows of the Lincoln into the car. Defendant was on the driver’s side, Fredericks was on the passenger’s side. After a few seconds both men reentered the van which was about ten feet from the Lincoln. They both remained in the van for several minutes. Fredericks then left the van and went to the passenger’s side of the Lincoln. He entered the Lincoln and drove off. Very shortly thereafter defendant started the van and, following some distance behind the Lincoln, started to leave the parking area. Both Fredericks and defendant were arrested as they attempted to leave the area by St. Louis County police stationed at Six Flags to conduct surveillance regarding car thefts. Defendant and Fredericks had been under surveillance by these officers at Six Flags for an hour and a half. The Lincoln belonged to David Waldman who had not given defendant or Fredericks permission to use the vehicle. On the floor of the Lincoln when Fredericks was arrested were a dent puller with a portion of the vehicle’s ignition lock still attached to it, another piece of the ignition and a screwdriver.

Defendant testified that he took Freder-icks to Six Flags to meet a man on business. Defendant didn’t know who the man was or what the business was. Defendant admitted the peregrinations through the parking lot but explained them as having to do with Fredericks’ attempts to meet someone. Finally, Fredericks told defendant he planned to steal some tires. Defendant refused to participate, Fredericks tried to persuade him, and finally Fredericks left defendant’s van saying he didn’t need defendant any more. Defendant testified he did not know Fredericks intended to steal a vehicle, did not see him enter the Lincoln although located ten feet away in broad daylight with a view of the passenger door, and did not know Fredericks had stolen the car until defendant was stopped on his way out of the parking lot.

We find the evidence sufficient to support the verdict. Defendant’s reliance upon State v. Eye, 492 S.W.2d 166 (Mo.App.1973) is misplaced. The evidence and the reasonable inferences to be drawn therefrom establish more than presence of the defendant at the scene and suspicious conduct. The evidence clearly establishes that Fredericks stole the automobile virtually under the eyes of defendant. The two men came to Six Flags together, did not enter the amusement facility itself, walked throughout the parking lot for an hour and one half, specifically “checked out” the vehicle stolen, and left the parking area almost in tandem. The evidence warranted a finding that they were acting together in a preconceived plan to steal a vehicle and that they did so.

Defendant’s remaining point is that the trial court erred in failing to sustain defendant’s objection to a question asked of defendant on cross-examination and in failing to declare a mistrial. The question, objection, court ruling, and answer were as follows:

“Q. Mr. Dunn, on February the 17th, 1975, did you steal property from an automobile in St. Louis County.
“Mr. Taylor [defense counsel] I am going to object to that, your honor. That is completely improper. I am going to ask for a mistrial. That is an improper question about some other crime.
“The Court: Overruled.
“Q. (By Mr. McConnell) [Prosecutor] You may answer sir.
“A. No, sir, I did not.”

The State contends the question was permissible as it tends to show intent, absence of mistake or accident and common scheme or plan, three of the exceptions to the general rule precluding evidence of other crimes. State v. Reed, 447 S.W.2d 533 (Mo.1969). We are unable to comprehend how a totally unrelated crime occurring six months earlier than the one for which the defendant was on trial, at some unidentified location in St. Louis County under un-described circumstances tends to show anything except the bad character of defendant. And it is precisely that showing which the general rule is designed to prohibit. The question was not permissible as an exception to the general rule. State v. Reed, supra.

The State further contends that the question was permissible to attack defendant’s credibility pursuant to State v. Foster, 349 S.W.2d 922 (Mo.1961). We are reluctantly constrained to agree. Defendant attempts to distinguish this case from State v. Foster, supra, State v. Williams, 492 S.W.2d 1 (Mo.App.1973) and State v. Summers, 506 S.W.2d 67 (Mo.App.1974) on the basis that each of those cases involved cross-examination of witnesses, not the defendant. The law is clear, however, that a defendant who testifies in his own behalf may be impeached in the same manner as any other witness. State v. Williams, 525 S.W.2d 395 (Mo.App.1975); State v. Massa, 512 S.W.2d 912 (Mo.App.1974); Secs. 491.050, 546.260, R.S.Mo.1969.

It appears to us that the more serious vice is the holding of State v. Foster, supra, that while arrest, charges or investigations of criminal conduct may not be inquired into, it is permissible to inquire of a witness whether he has committed a crime, even though no conviction has resulted. That holding was based upon Wendling v. Bowden, 252 Mo. 647, 161 S.W. 774 (1913). Wendling, however, was decided at a time when it was permissible to attack a witness’ credibility by showing his general bad character and it is largely upon this basis that the holding relied upon in Foster was made. In 1935 in State v. Williams, 337 Mo. 884, 87 S.W.2d 175 (1935), the Supreme Court reversed its prior decisions and prohibited impeachment of a witness through a showing of general bad character. It is questionable, therefore, that the Wendling case, supra, provides a strong base for the Foster decision.

It is difficult to allow an inquiry such as that posed in the present case and yet condemn inquiries into arrests, charges and investigations. Section 491.050 R.S.Mo.1969 permits examination only on prior convictions, and State v. Massa, 512 S.W.2d 912 (Mo.App.1974) precludes direct reference to prior arrests. To allow the prior arrest to be established under the guise of searching for an admission effectively destroys the intent of the act — to limit examination to prior convictions. Furthermore, it is apparent that it is not the answer which prejudices the defendant, it is the question that carries the poison. A general question of whether the witness has every committed a crime may have little effect on a jury. Where, however, the question contains detailed information such as date, location, victim, or nature of the crime, the jury must, as reasonable persons, conclude that the question is based upon information known to the questioner. A negative answer can have little or no effect on this basic conclusion, and a jury is inevitably left with a belief that the witness has committed the inquired of crime, and is a person of bad character. This is true whether the question has support in fact or not.

We would if the matter were one of first impression hold the question improper and reverse the case and remand for new trial. We are bound, however, by State v. Foster, supra, and its progeny, and must, pursuant to that authority, affirm. We transfer the matter, however, to the Supreme Court for reexamination of the law.

Cause transferred to the Supreme Court for reexamination of the law.

CLEMENS, P. J., and McMILLIAN, J., concur.


author: McMILLIAN, Judge.

text:
    STATE of Missouri, Respondent, v. James VOYLES, Appellant.
    No. 38332.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 17, 1978.
    E. D. Lofftus, Fenton, for appellant.
    John Ashcroft, Atty. Gen., Nanette Lau-ghrey, Asst. Atty. Gen., Jefferson City, for respondent.
   McMILLIAN, Judge.

Defendant James Voyles appeals from a judgment entered upon a jury verdict finding him guilty of robbery in the first degree, §§ 560.120, 560.135 RSMo 1969, in the circuit court of Jefferson County. Defendant was sentenced to a five-year term of imprisonment.

For reversal defendant contends that the trial court erred by (1) making improper comments to the jury, (2) misleading and confusing the jury so as to permit it to return inconsistent verdicts, and (3) improperly polling the jury and compelling it to continue to deliberate. For the reasons discussed below, we affirm.

Because defendant does not question the sufficiency of the evidence we shall set forth only that evidence necessary for our decision. From the evidence presented the jury could have reasonably found that prior to 10:00 P.M., on December 16, 1975, John Crisl, Randy Cleveland and defendant had discussed an armed robbery. After they discovered that their first selected business establishment was closed, they selected the APCO Service Station. Defendant, who was driving the car, dropped off Cleveland in the vicinity of the service station. Cleveland took with him a ski mask, a shotgun and a pillow case. A few minutes later Cleveland returned wearing the ski mask and carrying the shotgun and the pillow case which was filled with money. Crisl said that Cleveland, upon his return, told him that, “he had to hit the lady two or three times so she couldn’t use the phone.” Later the three divided the money; each received about sixty dollars.

Although the victim was unable to identify the robber, she did testify that an armed, masked man carrying a shotgun struck her and took approximately $180.00.

On the basis of the above evidence defendant was charged, in separate informa-tions which were later consolidated, with armed robbery and assault with intent to do great bodily harm, § 559.180, RSMo 1969. The jury found defendant guilty of robbery (Count II) but not guilty of assault (Count I).

The trial court began the case and finished the evidence, instructions and arguments on May 25, 1976. At 6:30 P.M. that same day the jury began its deliberations. At 10:30 P.M. the jury advised the bailiff that they were ready to return to the courtroom. The jury informed the trial court that it could not agree upon a verdict. The trial court then inquired whether they had been able to agree upon a unanimous verdict, “ . . . for either guilt or innocence . . . ?” Subsequently the trial court found that the jury stood nine and three on both counts. The trial court then read the “hammer instruction,” MAI-CR No. 1.10, and further instructed the jury to resume its deliberations at 11:03 P.M. At 12:30 A.M. (May 26, 1976), the jury returned to the courtroom. Once again the trial court inquired whether it had been able to arrive at a “verdict on guilt or innocence?” Being informed that the jury had not been able to reach a verdict, the court excused the jury to go home at 12:40 A.M.

The jury resumed its deliberations at 10:10 A.M., the next morning, May 26,1976. At 10:45 A.M., the jury requested the instructions in the case and a transcript of defendant’s testimony. The trial court advised the jury that defendant’s testimony was unavailable because no transcript had been prepared. The trial court did send down the instructions. The trial court also noted that through inadvertence it had earlier that morning, at 10:10 A.M. given the jury the wrong set of instructions, i.e., MAI-CR 1.02, 2.20, 1.06 and 1.08.

At twelve noon the jury returned to the courtroom and, in answer to the inquiry of the trial court whether they had reached a verdict on guilt or innocence, the foreman informed the trial court that it had reached a verdict on Count I (assault), but not on Count II (robbery). The foreman, however, informed the trial court that they were close to a verdict on Count II and requested to be allowed to continue deliberations. At 12:25 P.M., the jury returned with its verdict, finding defendant not guilty of Count I (assault) but guilty of Count II (robbery).

The crux of defendant’s argument is that the trial court intimated to the jury by asking if it had arrived at a “verdict of guilt or innocence” that it was to find defendant guilty unless it was able to agree unanimously on his innocence. In other words, defendant argues that instead of using the word “innocence,” the trial court should have used the words “not guilty” and, by failing to do so, the trial court negated defendant’s presumption of innocence. Granted, it would have been preferable if the trial court had used the words “not guilty.” Yet, we refuse to condemn the trial court’s choice of words as error because any reasonably intelligent juror would know that innocence is freedom from guilt. In fact, each of the verdict directors importuned the jury either to find defendant guilty if all of the elements of the crime charged were present or to find defendant not guilty. In reference to the assault charge the jury did find defendant not guilty. Thus, we find no validity in this allegation of error.

Included as part of defendant’s first claim of error, he alleged that the trial court had deprived the jury of its written instructions for seven hours. This claim of error is not sustained by the record. From the record it appears and the trial court freely admits, that on the second day of trial the jury was inadvertently given only those instructions that the trial court read to them at the commencement of the trial. This set of instructions included MAI-CR 2.20, the burden of proof instructions. This mistake was corrected within forty-five minutes. While we will concede that this was irregular, we find no prejudicial error in this regard.

Defendant’s second allegation of error is that the verdicts are inconsistent, i.e., the verdicts found him guilty of the robbery but not guilty of the assault. In State v. Larkins, 518 S.W.2d 131, 137 (Mo.App.1974), citing with approval Canaday v. United States, 354 F.2d 849 (8th Cir. 1966), we held that inconsistency in verdicts on separate counts of an indictment was not fatal. We noted that the Eighth Circuit’s position was fashioned after an earlier decision of the United States Supreme Court, Dunn v. United States, 284 U.S. 390, 52 S.Ct. 189, 76 L.Ed. 356 (1932). In Dunn, Mr. Justice Holmes stated:

“Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.
⅜! ⅜ ⅜! * ⅜ ⅜
“That the verdict may have been the result of compromise, or of a mistake on the part of the jury, is possible. But verdicts cannot be upset by speculation or inquiry into such matters.” (Id. at 393-94, 52 S.Ct. at 190 (citations omitted))

Here, as in Larkins, supra, the prosecution proceeded upon separate counts. Yet, in any event, we find no inconsistency in the verdicts because in State v. Amerson, 518 S.W.2d 29, 32 (Mo.1975), citing State v. Thomas, 452 S.W.2d 160, 164 (Mo.1970), our supreme court declared, “ . . [w]hen a defendant is charged with committing two criminal offenses that involve different elements, a jury may find him guilty of one crime and acquit on the other charge . ’ ” Not only are the elements of robbery and assault not identical, but from the evidence presented, a jury could have reasonably concluded that the assault was not committed in furtherance of the robbery or that defendant did not encourage or aid Cleveland to commit the assault.

Finally, while the author of this opinion is no proponent for the submission of the so-called “hammer instruction,” MAI-CR 1.10, we find no abuse of discretion by the trial court in its submission to the jury under the circumstances shown herein. Moreover, not only has our supreme court sanctioned the “hammer instruction,” e.g., State v. Smith, 431 S.W.2d 74 (Mo.1968); State v. Baker, 293 S.W.2d 900 (Mo.1956), but also the trial court in this case scrupulously followed the Notes on Use suggested by the court. Because we find neither coercion, e.g., State v. McAllister, 468 S.W.2d 27 (Mo.1971), nor any attempt by the trial court to obtain an indication of the result favored, e.g., State v. Talbert, 454 S.W.2d 1 (Mo.1970), we reject this claim of error.

Accordingly, judgment affirmed.

CLEMENS, P. J., and SMITH, J., concur.

      . The “Allen” or “dynamite charge” (as it is called in California) was disapproved by the California Supreme Court in People v. Gainer, 19 Cal.3d 835, 139 Cal.Rptr. 861, 566 P.2d 997 (1977). Accord, United States v. Thomas, 146 U.S.App.D.C. 101, 449 F.2d 1177 (1971); United States v. Fioravanti, 412 F.2d 407 (3d Cir.1969); United States v. Brown, 411 F.2d 930 (7th Cir. 1969). The instruction has been disapproved in 22 states. See e.g., Kersey v. State, 525 S.W.2d 139 (Tenn.1975); Annot., 18 ATLA News L. 481 (1975). Contra, United States v. Robinson, 560 F.2d 507 (2d Cir. 1977). The charge originated in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). For criticism of the charge see Note, The Allen Charge: Recurring Problems and Recent Developments, 47 N.Y.U. L.Rev. 296 (1972); Note, An Argument for the Abandonment of the Allen Charge in California, 15 Santa Clara Law 939 (1975).


author: TITUS, Judge.

text:
    W. H. POWELL LUMBER COMPANY, INC., and Vessell & Bahr Furniture Co., Inc., Plaintiffs-Appellants, v. FEDERAL LAND BANK ASSOCIATION OF MOUNTAIN GROVE-ROLLA, Defendant-Respondent, and Hugh W. Ford and Saundra E. Ford, Defendants.
    Nos. 10386 and 10387.
    Missouri Court of Appeals, Springfield District.
    Jan. 26, 1978.

      Dewey A. Routh, Routh, Thomas & Birdsong, Rolla, for plaintiffs-appellants.
    Charles T. Smallwood, Williams & Small-wood, Rolla, for defendant-respondent.
   TITUS, Judge.

Plaintiffs (W. H. Powell Lumber Company, Inc. and Vessell & Bahr Furniture Co., Inc.) appeal from the order sustaining the motion of Federal Land Bank Association of Mountain Grove-Rolla (hereinafter “defendant”) to quash plaintiffs’ special execution under a mechanic’s lien judgment. Defendant appeals from the court’s order overruling its motion to quash general execution under the same mechanic’s lien judgment.

No trial was conducted. Consequently, the transcript on appeal, as it mutually concerns the instant parties, consists only of pleadings, orders, a judgment and the notices of appeal. Therefore, those portions of the transcript and briefs which repose in disputed or not-agreed-to areas will be ignored in our recastings because pleadings do not prove themselves [Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975)] and proof cannot be bottomed on assertions printed in briefs. Hendrix v. State, 495 S.W.2d 457, 460 (Mo.App.1973).

Chronology

August 30, 1973 — Two deeds describing the real estate in question were recorded. One, a warranty deed dated August 30, 1973, conveyed the fee title to the property to Hugh W. and Saundra E. Ford (hereinafter “the Fords”). The second was a deed of trust dated August 27,1973, executed by the Fords which named Federal Land Bank of St. Louis (hereinafter “FLB-StL”) the cestui que trust.

March 27.1974 — Plaintiffs filed their separate notices of mechanic’s liens “for work and labor done and materials furnished by [the plaintiffs] under contract with [the Fords], owner.” Plaintiff lumber company stated the “first item of said account was furnished on June 20, 1973,” which would have been two months before the Fords acquired title to the real estate. Both notices acknowledged the existence of the deed of trust executed by the Fords to a named trustee for the benefit of FLB-StL, supra.

April 5. 1974 — A warranty deed (dated the same day) was recorded which involved the subject real estate. The deed named the Fords as grantors and the defendant as grantee.

September 5. 1974 — Plaintiffs filed separate petitions to enforce their claimed mechanic’s liens. The Fords and the defendant were designated as parties defendant. FLB-StL was not made a party. While the petitions acknowledged the April 5, 1974, conveyance by the Fords to the defendant, supra, no mention was made of the August 1973 deed of trust given by the Fords for the benefit of FLB-StL. Each petition prayed judgment for the sum (with interest) allegedly due each plaintiff “and that the same may be declared a lien against the property above described.” Defendant was personally served and answered. The Fords were notified by publication but never answered and were ultimately declared to be in default.

May 27. 1975 — Without ascertaining, “by a fair trial in the usual way, the amount of the indebtedness for which the lien is prosecuted” (§ 429.210 and Rule 101.06), judgments were entered as follows: “ . by Agreement of plaintiff[s] and [defendant], judgment is entered for the plaintiff[s] and against [defendant] and for the plaintiff[s] and against [the Fords] in the sum [claimed by each in the petitions], together with interest . . . . Cost to be taxed to [defendant and the Fords]. This judgment declared to be a lien against the real property described in plaintiffs’] Petition filed herein.” [On November 14, 1975. an amended judgment was entered by the court in the same language, save that the amended judgment described the property charged with the lien as required by § 429.230 and Rule 101.08. See Rules 74.-30(10) and 74.31 relative to curing judgment imperfection of this character by amendment].

July 1. 1975 — FLB-StL caused a foreclosure sale of the involved real estate under the terms of the deed of trust executed by the Fords, supra, and became the purchaser thereof.

January 27. 1976 — Plaintiffs filed “Special Execution Under Mechanic’s Lien” commanding the sheriff “that all the goods, chattels and real estate of [the defendant] you cause to be made the sum aforesaid, together with interest thereon . . ., and if no sufficient property of said debtor can be found to satisfy said judgment . . ., then that you cause the same ... to be made out of the buildings located on said real estate owned and claimed as aforesaid . . ..''

February 24.1976 — Defendant filed “Motion to Quash Special Execution” which motion was sustained on March 2. 1976.

March 12. 1976 — Plaintiffs filed “General Execution” against “the Goods and Chattels and Real Estate of the” defendant.

March 19. 1976 — Defendant filed “Motion to Quash General Execution” which was denied on Mav 14. 1976.

As above noted, the consolidated appeals are (1) by plaintiffs from the order quashing special execution, and (2) by defendant from the order denying its motion to quash general execution.

The Executions

If an execution is unauthorized by the judgment, a motion to quash it is the proper remedy. Weniger v. Weniger, 32 S.W.2d 773, 774[2] (Mo.App.1930). Ergo, to determine if the court erred in quashing the special execution (as contended by plaintiffs) or erred in not quashing the general execution (as claimed by defendant), we first must determine what kind of judgment we have or purport to have.

There is no doubting but that plaintiffs sought to avail themselves of the benefits bestowed by the laws and rules relating to mechanics’ and materialmen’s liens. §§ 429.010-429.340; Rules 101.01-101.21. Had plaintiffs prevailed upon personal service of the debtors-owners (the Fords), they would have been entitled to bipartite judgments. § 429.240; Rule 101.09. The first part of the judgments would have been in personam against the debtors-owners “as in ordinary cases;” the second part, to have been operative only if the property of the debtors-owners was insufficient to pay the judgments, would have been in rem to be levied of the property charged with the liens. Dill v. Poindexter Tile Company, 451 S.W.2d 365, 373 (Mo.App.1970). The second part of such judgments would be of concern only in those instances where the debtors are not the present owners of the property. Poore v. International Paper Company, 455 S.W.2d 13, 16 (Mo.App.1970). However, plaintiffs, in any event, would not be entitled to a personal judgment for the amounts allegedly due them for materials furnished and labor performed under their contracts against anyone other than the Fords, the debtors-owners [Vasquez v. Village Center, Inc., 362 S.W.2d 588, 592 (Mo.1962)], and they would not be entitled to a personal judgment against defendant. Lowry-Miller Lumber Co. v. Dean, 226 Mo.App. 783, 786, 47 S.W.2d 164, 166[6] (1932). Nonetheless, as previously observed, personal service was not obtained upon the debtors-owners (the Fords). They were only notified of the causes by publication which will not support personal judgments against them. Trout’s Investments, Inc. v. Davis, 482 S.W.2d 510, 518[6] (Mo.App.1972). In fine, there was no party to the causes in question against whom plaintiffs were entitled to obtain personal judgments.

When we view judgments, they “should be construed ‘ “in light of the situation of the court, what was before it, and the accompanying circumstances” ’ . . ., and its meaning should be determined in the light of the character and object of the proceeding culminating in the judgment. . We should examine and consider the judgment in its entirety, and we should be concerned with the ‘sense,’ rather than the ‘abstract force,’ of the language employed. It may be presumed that the court intended to render a valid, not a void, judgment; and, where it is reasonably possible to do so, such construction should be adopted as will give force and effect to the judgment, will make it serviceable instead of useless, and will support rather than destroy it.” Jeans v. Jeans, 314 S.W.2d 922, 925[5 — 7] (Mo.App.1958).

In this instance the suits before the court sought to obtain for the plaintiffs the benefits of the laws relating to liens of mechanics and materialmen. The debtors (the Fords) named in the action had not been personally served and their notification by publication would not support personal judgments against them. The only other party named in the causes, the defendant, was not a debtor of the plaintiffs. Valid personal judgments could not be rendered against the defendant because it was simply the grantee of the real estate after the work and labor done and the materials furnished by the plaintiffs under contracts with the Fords had been completed. Hence, with no party defendant being subject to personal liability and with the view that the court intended to render valid judgments, the recitation that “judgment is entered for the plaintiff[s] and against [defendant] and for the plaintiff[s] and against [the Fords]” for stated sums of money must be considered as neutral or ineffective and the only portion of the judgments to which a claim of valid vitality could repose would be those portions declaring them “to be a lien against the real property”, thereby authorizing only a writ of execution via “special fieri facias” (§ 429.250; Rule 101.10).

A fieri facias is “the ordinary writ for the seizure and sale of the property of a judgment debtor under execution.” 30 Am. Jur.2d, Executions § 28, p. 461. “A special execution is one that directs a levy on some special property, while a general execution is one that makes no such requirement but demands a levy on the debtor’s property generally.” 33 C.J.S. Executions § 12, at p. 146; State ex rel. Madden v. Padberg, 340 Mo. 667, 674, 101 S.W.2d 1003, 1008[3] (banc 1937). In this case the “Special Execution Under Mechanic’s Lien” which issued was a hybrid writ. The first portion purported to authorize an execution against the defendant’s property generally as if it was predicated upon an in personam judgment, while the second part would have activated a special execution against specified real estate if the general execution proved unfruitful. Since, as previously observed, defendant was not personally liable for the debts, nor lawfully subject to personal judgment, the general execution portion of the so-called special execution was unwarranted and unauthorized, and the trial court was correct in quashing the special execution. It is self-evident from what has just been written that the trial court erred in failing and refusing to quash the general execution against “the Goods and Chattels and Real Estate of the” defendant.

Albeit we have disposed of the specific questions necessarily germane to the two appeals, we have made no effort to consider the “Points and Authorities” (which should properly be labeled “Points Relied On”) appearing in the brief of plaintiffs as appellants. This for the simple reason that they are penned heedless of the mandates of Rule 84.04(d). Without recasting the “points”, it suffices to say that before the intent of any one of them could be understood or ascertained it would be necessary to analyze them in the light of a reading of the transcript and argument portion of the brief, and that we are not required to do. Dors v. Wulff, 522 S.W.2d 325, 327[5] (Mo.App.1975). Simply stating what alleged errors are, without also stating wherein and why they are errors, neither sates the requirements of Rule 84.-04(d) nor preserves anything for appellate consideration. Lee v. Rolla Speedway, Inc., 539 S.W.2d 627, 629-630[4] (Mo.App.1976).

The trial court’s quashing of the special execution is sustained. Its ruling refusing to quash the general execution is reversed.

It is so ordered.

All concur.

      . References herein to statutes and rules are to Missouri Revised Statutes, V.A.M.S., and to Missouri Supreme Court Rules, V.A.M.R.