author: LEWIS, Judge.

text:
    Melvin A. LEVY and M. L. Fortner, Plaintiffs-Appellants, v. STATE of Tennessee BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.
    Calvin N. Taylor, Cheek, Taylor & Groover, Knoxville, for plaintiffs-appellants.
    William M. Leech, Jr., Atty. Gen., Frank J. Scanlon, William B. Hubbard, Asst. At-tys. Gen., Nashville, for defendants-appel-lees.
   OPINION

LEWIS, Judge.

Plaintiffs have appealed from the decision of the Chancellor in affirming the Board of Examiners for Speech Pathology and Audiology (hereafter Board) in the denial of their licensure as audiologists pursuant to T.C.A. § 63-1713, the “grandfather clause” of the Licensure Act for Speech Pathologists and Audiologists of 1973.

This is the second appeal. Plaintiffs had previously applied to the Board for a license to practice audiology. The Board held a hearing and, thereafter, denied their application.

Plaintiffs filed a petition for review in the Davidson County Chancery Court. The Chancellor affirmed the Board’s decision.

Plaintiffs subsequently appealed to the Tennessee Supreme Court, resulting in a remand to the Chancery Court to remand to the Board for written findings of fact and conclusions of law. Levy v. State Board of Examiners for Speech Pathology and Audiology, 553 S.W.2d 909 (Tenn.1977).

On remand, the Board reviewed the record, reaffirmed its denial, and made the following findings of fact and conclusions of law, which we paraphrase:

1. The prospective licensee bears the burden of establishing compliance with T.C.A. § 63-1713.
2. The practice of audiology involves a wide variety of testing techniques and necessarily requires the capability to conduct certain tests.
3. Once the disability is ascertained, an audiologist has the capability of utilizing rehabilitative and habilitative techniques.
4. For a person to actively engage in the practice of audiology it is necessary that he or she be capable of rendering the services outlined above.
5. Prior to their application for licen-sure, plaintiffs were licensed hearing aid dispensers and fitters.
6. Plaintiffs have failed to demonstrate a capability of rendering the full range of testing and remedial services an audiologist would necessarily be able to perform.
7. From the personal experience of Board members, it is their opinion that plaintiffs’ professional and work experience does not constitute what is traditionally and professionally understood to be the practice of audiology.
8. The applicants have not engaged in the practice of audiology as that practice is defined by law and understood by the Board for any period of time prior to their application for licensure.

Plaintiffs’ appeal to this Court is predicated on three (3) assignments of error:

I.
TENNESSEE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY WAS ARBITRARY AND CAPRICIOUS AND ABUSED ITS DISCRETION IN DENYING PLAINTIFFS’ LICENSURE AS AUDIOLOGISTS PURSUANT TO THE LICENSURE ACT FOR SPEECH PATHOLOGISTS AND AUDIOLOGISTS OF 1973, TENNESSEE CODE ANNOTATED SECT. 63-1702 et seq. AND THE CHANCELLOR ERRED IN FAILING TO REVERSE THE BOARD’S DECISION.
II.
THE DECISION OF THE TENNESSEE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY IS UNSUPPORTED BY EVIDENCE WHICH IS BOTH SUBSTANTIAL AND MATERIAL IN LIGHT OF THE ENTIRE RECORD IN THIS CASE AND THE CHANCELLOR ERRED IN NOT REVERSING THE DECISION OF THE BOARD.
III.
THE TENNESSEE BOARD OF EXAMINERS FOR SPEECH PATHOLOGY AND AUDIOLOGY ACTED IN VIOLATION OF APPELLANTS’ CONSTITUTIONAL RIGHTS AND ON UNLAWFUL PROCEDURE AND IN EXCESS OF ITS STATUTORY AUTHORITY BY CONSIDERING FACTS NOT IN THE RECORD AND BY REDEFINING THE “PRACTICE OF AUDIOLOGY” CONTRARY TO THE DEFINITION PROVIDED IN THE TENNESSEE CODE ANNOTATED, SEC. 63-1703(g) AND THE CHANCELLOR ERRED IN NOT REVERSING THE DECISION OF THE BOARD.

We will discuss the assignments together.

The intent of the Legislature in enacting T.C.A. § 63-1701 et seq. is stated in T.C.A. § 1702:

It is the purpose and intent of the general assembly by this enactment to safeguard the public health, safety, welfare, and to protect the public from being misled by incompetent, unscrupulous, and unauthorized persons, and to protect the public from unprofessional conduct by qualified speech pathologists and audiologists, by providing the regulatory authority over persons offering speech pathology and audiology services to the public.

T.C.A. § 63-1703(f) defines “audiologist” as:

“One who practices audiology; . . ”

Subsection (g) establishes:

“The practice of audiology” means the application of nonmedical principles, methods, and procedures of measurement, testing, appraisal, prediction, consultation, counseling, and instruction relating] to hearing and disorders of hearing for the purpose of modifying communicative disorders involving speech, language, auditory function, or other aberrant behavior related to hearing loss.

T.C.A. § 63-1705(1) authorized the board:

To administer, coordinate, and enforce the provisions of this chapter, evaluate the qualifications of applicants, supervise the examination for applicants, .

That it is properly within the legislative prerogative to delegate discretionary powers to administrative bodies is well established in the law. See generally Tasco Developing and Building Corporation v. Long, 212 Tenn. 96, 368 S.W.2d 65 (1963). However, such discretionary powers cannot be unfettered. See generally Gatlinburg Beer Regulations Committee v. Ogle, 185 Tenn. 482, 206 S.W.2d 891 (1948).

In order to effectuate an orderly licensing and testing procedure, T.C.A. § 63-1710 further empowers the Board to act, in relation to establishing licensing requirements by requiring that the applicants must:

Pass an examination covering the areas of speech pathology, audiology, and speech and hearing services approved by the board. . . . Written examinations may be supplemented by such oral examinations as the board shall determine.

The content, subject matter, of the test is left to the discretion of the Board. This evidences the Legislature’s intent to grant the Board a broad power to establish the qualifications necessary to practice the professions in question. And in accordance with the general rule, this grant of discretion is not unfettered. The delegation of authority pursuant to T.C.A. §§ 63-1705 and 1710 to establish minimum requirements to be licensed in the field requires the Board to make a determination within the confines of T.C.A. § 63-1702 — to safeguard the public health, safety, welfare, etc. — and with the ambit of the broad definitional requirements of T.C.A. § 63-1703.

To insure that the Board has the requisite knowledge and capacity to make such determination, the Legislature established specific requirements for membership on the Board. See T.C.A. § 63-1704. In essence, this section requires the Board to be composed of six (6) members. Five (5) are to be specialists in speech pathology or audiology, and the sixth physician specializing in otolaryngology, an ear, nose and throat specialist. The section further requires that the five (5) non-physician members be qualified for license in accordance with T.C.A. § 63-1710.

Plaintiffs applied for a licensure under T.C.A. § 63-1713, which is the “grandfather clause” for those who had been actively engaged in the practice of speech pathology or audiology for a period of six months in the two years preceding the enactment.

Thus, at the hearing it was the Board’s duty to determine if the plaintiffs were engaged in the practice of audiology for the requisite time period.

Plaintiffs established that they were licensed pursuant to T.C.A. § 63-1501 ét seq. as hearing aid dispensers and fitters. In fact, that had been their sole occupation for the past number of years. It was on the basis of this experience that they sought licensure as audiologists.

Pursuant to the hearing,, the Board determined that to be licensed as an audiologist or to have been so engaged for the statutory time requisite, one should be capable of applying:

A wide variety of testing techniques utilizing, in some instances, sophisticated equipment to determine the “site of lesion” or cause of hearing disfunction. Working in this capacity as audiologists would have the capability of utilizing, where appropriate, such tests as the pure-tone audiometry test, the impedience au-diometry test, the Bekesy audiometry test, the loudness balance test, and the tone decay test.

Further:

Once the site of lesion or cause of a hearing disfunction is determined, the audiologists, again in conjunction with a doctor of medicine, has the capability of utilizing a number of rehabilitative or habilitative techniques aimed at the hearing disfunction. Such techniques include drill work to develop lip-reading abilities or sound differentation, counseling on the social and psychological aspects of a hearing disfunction, use of amplification devices, including hearing aids and auditory training.

The Board also determined:

For an individual to actively engage in the practice of audiology, it is necessary that he or she have a familiarity with and a capability of rendering the basic types of services set forth [above].

Though an audiologist may appear to specialize in one particular area of audiological testing or therapeutic work, his or her understanding and capabilities regarding the broad spectrum of an audiologists practice are a necessary element of the specialty practice.

The Board then concluded:

Nothing presented in the hearing indicated to the Board that the activities of Mr. Levy and Mr. Fortner were anything
beyond the activities of a hearing aid dispenser.

We can find no arbitrary or capricious action on the part of the Board. It has acted within the legislative mandate of effectuating the orderly application of this act in protecting the public welfare by carefully defining the requisites of practicing audiology. It has acted within the narrow scope of the purposes of the act as enumerated in T.C.A. § 63-1702. Further, a contrary finding on the part of the Board would have been to “grandfather” in all licensed hearing aid dispensers actively engaged in the practice of dispensing hearing aids for the statutory period. The net effect would have been an implied revocation of T.C.A. § 63-1501 et seq., which we failed to discern from the language of T.C.A. § 63-1701 et seq. or its legislative history.

It is plaintiffs’ contention that the Board acted in excess of its statutory authority by considering facts not in the record and by redefining the “practice of audiology” contrary to the definition of T.C.A. § 63-1703(g). We note that the “personal opinion” of the Board members based on their experience is merely expressive of their expertise used in aiding them to define “engaged in the practice” of audiology.

Having determined that the Board acted within the scope of its statutory authority, it remains that we determine whether the Board’s holding as to these plaintiffs is supported by substantial and material evidence.

The scope of judicial review of administrative agency action is codified at T.C.A. § 4-523:

(h) The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if the rights of the petitioner have been prejudiced because the administrative findings, inferences, conclusions or decisions are:
(5) unsupported by evidence which is both substantial and material in light of the entire record.
In determining the substantiality of evidence, the court shall take into account whatever in the record fairly detracts from its weight, but the court shall not substitute its judgment for that of the agency as to the weight of the evidence on question of fact.

The record reveals that the experience on which plaintiffs rely was exclusively as it regarded the dispensing and fitting of hearing aids, their licensed profession. The evidence also revealed that the plaintiffs were not experienced in conducting many of the tests the Board deemed basic in the field of audiology. Further, the evidence shows that the plaintiffs’ experience in counseling, appraisals and predications is narrowly confined to the profession of hearing aid dispensing.

We, therefore, conclude that the record contains substantial evidence to warrant the findings of fact and conclusions of law by the Board.

Therefore, it is evident that the Chancellor did not err in refusing to reverse the decision of the Board.

It should be noted that nothing herein is to be construed as forfeiting plaintiffs’ rights to gain licensure as audiologists by taking the examination as prescribed in T.C.A. § 63-1701 et seq.

The judgment of the Chancellor is affirmed with costs to plaintiffs.

SHRIVER, P. J., and TODD, J., concur.


source: Caselaw Access Project

author: TATUM, Judge.

license: Public Domain

text:
    Frederick BURNS, Alias, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    May 3, 1978.
    Eric D. Christiansen, Greeneville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William O. Kelly, Asst. Atty. Gen., Nashville, John K. Wilson, Asst. Dist. Atty. Gen., Larry Weems, Asst. Dist. Atty. Gen., Greene-ville, for appellee.
   OPINION

TATUM, Judge.

The appellant, Frederick Burns, seeks reversal of four convictions for passing forged instruments over the value of $100. He assigns no error relating to the sufficiency of the evidence, conduct of the trial, or punishments; but rather to the court’s refusal to dismiss the presentments with prejudice on the ground that the State failed to prosecute the charges within the time limit set by the Interstate Compact on Detainers (T.C.A. § 40-3901 et seq.). He also assigns error that he was not granted a speedy trial. We reverse the convictions and dismiss the presentments.

We will summarize the pertinent facts. The presentments were returned on 13 January 1975. Several capiases were issued, but could not be served because the whereabouts of the appellant was unknown. Subsequently, the Greeneville Police Department determined that the appellant was an inmate in the Federal Penitentiary at Lewisburg, Pennsylvania and on 14 July 1975, a detainer for the appellant was placed with the Lewisburg authorities. On 21 July 1975, the warden at Lewisburg, in compliance with Article III(c) of the Interstate Compact on Detainers, notified the appellant of the untried charges against him and of his right to make a request for final disposition of these charges in Tennessee and to a trial within 180 days. The notice instructed the appellant to notify Mr. G. C. Nye of the Lewisburg Records Office if he desired to request final disposition of these untried charges.

On 28 July 1975, the appellant sent to Mr. Nye a written request stating, “I would like to have the detainer that you notified me of, from Greeneville, Tennessee, disposed of by the agreement act.” However, the appellant’s request for final disposition was not forwarded by the warden at Lewisburg to the “appropriate prosecuting officers and courts” in Greene County, Tennessee, as required by Article 111(d) of the Interstate Compact. Therefore, the Tennessee authorities did not request temporary custody of the appellant within 180 days for trial as required by the Interstate Compact, although on 8 October 1975, the Greeneville Police Department inquired of the Lewis-burg Penitentiary whether the appellant could be released for trial. On 21 October 1975, the Greeneville Police Department was informed by letter from the Lewisburg Penitentiary that the appellant could be returned for trial under the terms of the Interstate Compact on Detainers or by Writ of Habeas Corpus. On 21 December 1976, the District Attorney General requested temporary custody of the appellant under the Interstate Compact. On 31 May 1977, the appellant was brought to trial.

After a hearing, the Trial Court dismissed appellant’s motion to dismiss on the grounds that the State officials were not dilatory in bringing the appellant to trial and that the appellant was not prejudiced by the delay.

The ultimate question for determination is whether the District Attorney General must actually receive notice of a defendant’s request for final disposition of untried charges to invoke the provisions of the Interstate Compact. Article 111(a) of the Interstate Compact provides that a defendant “shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint . . .” Article 111(b) of the Compact provides:

(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.

In deciding a kindred question in Nelms v. State, 532 S.W.2d 923, 926, 927 (Tenn.1976), the Tennessee Supreme Court said:

Secondly, the State maintains that it should not be prejudiced because Iowa authorities negligently failed to provide Tennessee authorities with an offer of temporary custody as provided by Article V(a) of the Compact. This position necessarily encompasses the view that the burden is on the defendant to insure that he is temporarily released from custody so that he may stand trial in another state. The statute clearly does not place such a burden on the defendant. It merely requires that the defendant cause “ . . . to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment ...” T.C.A. § 40-3901, Article 111(a). The petitioner clearly complied with this provision.
* * * * * *
Petitioner should not be charged with the responsibility of insuring that his captors have complied with provisions of the law when he has no control over their activities. By placing the burden of insuring compliance on the two states involved, the defendant is less likely to become “the victim of their contributory inaction.” People v. Esposito, 37 Misc.2d 386, 201 N.Y.S.2d 83, 90 (Queens County Ct. 1960).

We hold that after a detainer has been filed, the Interstate Compact is triggered when a prisoner gives his captors notice of his request for final disposition of untried charges against him in compliance with Article 111(b). The default of prison officials in the “sending state” in not notifying the officials in the “receiving state” is not imputable to a prisoner and does not defeat the prisoner’s right under the Interstate Compact. The lack of prejudice by the delay and the diligence exercised by the officials in the “receiving state” is immaterial and of no effect. This holding is in accord with the authorities of other member jurisdictions. Rockmore v. State, 21 Ariz.App. 388, 519 P.2d 877 (1974); Pittman v. State, Del.Supr., 301 A.2d 509 (1973); People v. Masselli, 17 A.D.2d 367, 234 N.Y.S.2d 929 (1962); People v. Esposito, 37 Misc.2d 386, 201 N.Y.S.2d 83 (1960).

The above holding renders moot the constitutional speedy trial question.

The judgments of the Criminal Court of Greene County are reversed and the indictments are dismissed with prejudice.

O’BRIEN and DAUGHTREY, JJ., concur.

      . The United States is a party to the Interstate Agreement on Detainers Act, § 1 et seq., 18 U.S.C.A. App. (Supp.1976).


author: DAUGHTREY, Judge.

text:
    Lonnie Ray WALTERS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 11, 1978.

      J. Harvey Cameron, Jasper, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert E. Kendrick, Asst. Atty. Gen., Nashville, J. William Pope, Dist. Atty. Gen., Pikeville, William C. Killian, Asst. Dist. Atty. Gen., Jasper, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Lonnie Ray Walters, was convicted by a jury of assault and battery with intent to commit rape, and he was sentenced to serve three to ten years in the penitentiary. The sole question on appeal is whether the trial court erred in excluding evidence of the 13 year old victim’s alleged prior sexual activities. The defendant insists that because the defense of consent was raised at trial, he had the “right” under T.C.A. § 40-2445 to introduce testimony by a witness who purportedly saw the victim in bed with another young man at some unspecified time during the previous year. T.C.A. § 40-2445 provides:

Specific instances of prior consensual activity between the victim and any person other than the offender shall not be admitted into evidence in prosecutions under §§ 39-3701, 39-3702, 39-3705, 39-605, 39-606 and 39-707 provided, however, that when consent by the victim is at issue, such evidence may be admitted if it is first established to the court outside the presence of the jury and spectators by the method of clearing the courtroom that such activity shows such a relation to the conduct involved in the case on the part of the victim that is relevant to the issue of consent.

At the trial, the proof showed that on the day in question the victim had drunk one or two beers before she and her sister met the 27 year old defendant and his younger brother. The defendant offered to take the two young girls home. He followed a circuitous route which need not be detailed here; but it is relevant to note that during this ride he bought more beer with the victim’s money and that the child consumed some of it. And it is uncontradicted that she was intoxicated and lying on the back seat of the defendant’s car when he ran out of gas on the way to her home. After the other two passengers left the car and walked down the road to get gas, the defendant dragged the victim into the woods. A sheriff’s deputy who arrived on the scene shortly thereafter was attracted into the woods by her screams and discovered the victim lying on the ground in a ditch with the defendant straddling her. She was struggling to escape, and as the deputy approached the defendant “struck her right in her mouth and nose area and the blood was just flying.” The defendant’s pants were unzipped, the victim’s pants had been pulled down, and he had “his left hand on her pubic area.” The sheriff pulled the defendant off the victim, who was still screaming and “hysterical.” She had swollen lips and was bleeding from her mouth and nose, her face was bruised and skinned, and “she was completely exhausted” to the point that she had to be picked up and carried away from the scene by one of the officers.

Juxtaposed to this proof was the defendant’s testimony that he and the victim had gone into the woods at her insistence, after she had taken him by his hand and proposed they “take a walk.” He said that she later fell and that as he reached to help her up she grabbed him, pulled him down and started kissing him. He said he hit her because she was “teasing” him; when asked if she had screamed, he replied, “She might had did, you know, how two are when they get sort of intoxicated, how they laugh and cut-up and holler and all this good stuff . . ."

The jury disbelieved the defendant’s claim of consent, with obvious good reason. The trial court held a § 40-2445 jury-out hearing concerning the evidence of the victim’s prior sexual activity, after the defendant offered it on the question of her consent, and sustained the State’s motion to exclude it. We think his ruling was correct, for two reasons. First, the defendant failed to raise anything resembling a legitimate defense of consent sufficient to trigger the exception in T.C.A. § 40-2445, which allows evidence of the victim’s prior sexual activity only in those cases involving a question of consent. Second, even if there had been a sufficient threshold showing on the question of consent, there was no demonstration of relevance as required by the statute.

The defendant wholly misconstrues T.C.A. § 40-2445. That statute creates no “right” to introduce evidence of the victim’s prior sexual activity whenever the defense of consent is raised, but merely allows such proof in the trial court’s discretion where “such activity shows such a relation to the conduct involved in the case” to make it probative on the question of consent. The defendant made no showing of relevance at trial, and on appeal he makes no argument that the proffered evidence was relevant in this case. We are unable to divine its probative value under the established proof, and we therefore find no error in the trial court’s decision to exclude it.

The judgment is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


text:
    Dorothy M. GRIFFIN and William H. Stringer, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 29, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.

      Robert E. Burch, Dickson, for appellants.
    William Leech, Jr., Atty. Gen., William 0. Kelly, Asst. Atty. Gen., Nashville, James Kenneth Atkins, Asst. Dist. Atty. Gen., Charlotte, Dan Cook, Asst. Dist. Atty. Gen., Ashland City, for appellee.
   OPINION

TATUM, Judge.

The appellants, Dorothy M. Griffin and William H. Stringer, were sentenced to serve ten years in the penitentiary for second-degree murder. By numerous assignments of error, they attack their convictions on sundry and divers grounds. The assignments are without merit.

We will summarize the accredited evidence. Shortly before midnight on 2 April 1977, Constable Howard Bowen was struck by an automobile driven by Dorothy M. Griffin on Highway 46. Her companion, William H. Stringer, the car’s owner, was convicted as an aider and abettor. Griffin and Stringer had left a nightclub in Dickson County where they had been drinking beer. Shortly before he was struck, Constable Bowen had pulled over an automobile with no taillights. The driver, Levi Odom, stopped his car on the shoulder of the northbound lane of Highway 46 with its left wheels adjacent to the eastern margin of the highway. Constable Bowen also stopped his automobile on the eastern shoulder of the highway behind the Odom automobile, but further from the margin of the paved portion of the highway. As Constable Bowen was standing on the highway, near the edge of the paved portion talking with Mr. Odom (who remained seated in his car), he was struck by the appellants’ northbound vehicle. His left leg was severed from his body and he was knocked approximately 50 feet from where he was standing. The appellants’ vehicle was brought to a stop 590 feet from the point of impact; there was flesh on the right headlight and front bumper of their car. The right side of the car was bent in the area below the right windshield. Constable Bowen had left a blue light flashing on the dashboard of his automobile and there was evidence that this light was visible to approaching traffic. The appellants’ vehicle left no skid marks.

It was determined that Mrs. Griffin had .13% blood alcohol content and Mr. Stringer had .23%. There was other substantial evidence that the appellants were intoxicated; there were two six packs of beer in the appellants’ automobile, one of which was missing two cans.

Stringer did not testify. Mrs. Griffin denied being intoxicated. She testified that after she left the nightclub, she drove on Highway 46 towards Dickson. When they approached the Odom and Bowen automobiles, Stringer told her, “Watch those cars,” and she replied, “I see the cars” (referring to the Odom and Bowen ears). She testified that she was meeting a string of cars traveling toward her and as she was watching them, she “could not keep my eye on both sides of the road.” She further testified:

. The first thing I know, the glass was flying out of the side of the car, and I said to Bill: “What in the world has happened?” He said: “Dot, stop!” Said: “You have just killed that man.” I pulled to the side of the road and stopped. He gets out of the car. He says: “Sit here. I’m going back to identify myself.” And I sat there till they come and got me.

In their first assignment, the appellants state that driving while intoxicated, without more, is insufficient to establish malice. In Shiflet v. State, 216 Tenn. 365, 373, 392 S.W.2d 676, 680 (Tenn.1965), our Supreme Court said:

It is conceded by Counsel for defendant that the criminal intent necessary to sustain a conviction of murder in the second degree is supplied from an unlawful act which is malum in se, and that driving an automobile while under the influence of an intoxicant is such an unlawful act. Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685 (1927); Owen v. State, 188 Tenn. 459, 221 S.W.2d 515 (1949); Rogers v. State [196 Tenn. 263, 265 S.W.2d 559 (1954)], supra; Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500 (1957).
In the case of Tarvers v. State, 90 Tenn. 485, 16 S.W. 1041 (1891), this Court said:
“If the act done was an unlawful act, and the doing of it was directly perilous to human life, and so known to the wrongdoer, that then there is implied such a high degree of conscious and willful recklessness as to amount to that malignity of heart constituting malice. The result may not have been intended, yet the deliberate and conscious doing of an act, the probable consequence of which was death, amounts to murder at common law.”

In an effort to define the distinctions between involuntary manslaughter and second-degree murder in these type cases, we have thoroughly reviewed all of our reported cases on the subject and have agreed with the conclusion of another panel of this court expressed in Layne v. State, 531 S.W.2d 802, 804 (Tenn.Cr.App.1975):

From a close reading of the two lines of cases cited above it would appear that there has evolved over the past fifty years a blurring of the distinction between manslaughter and murder when the death results from the unlawful operation of a vehicle. Inasmuch as the highest Court of this State has consistently affirmed convictions for either offense found by the jury, we must affirm the conviction in this case.

In overruling this assignment, we must observe evidence of malice other than the intoxication of the driver. Though the Odom and Bowen vehicles were visible for one-fourth mile, Mrs. Griffin, by her own admission, was incapable of observing her own side of the road, though she had been warned by her companion to watch the Odom and Bowen vehicles. There was evidence from which the jury could infer that she was driving at a high rate of speed and failed to see the deceased who was unquestionably standing in the highway directly in her path. When she finally brought her automobile to a stop, she did not attempt to assist the person whom she had been told that she had struck. We think that these facts, in addition to her intoxication, support the jury’s finding of malice and verdict of second-degree murder.

In their second assignment, the appellants insist that the trial judge erred in charging the jury in the language of T.C.A. § 59-1047, saying that alcohol content of more than .10% created a presumption of intoxication. The appellants insist that the use of the word “presumption” violated the due process clause of the United States Constitution, citing Mullaney v. Wilbur, 421 U.S. 684, 44 L.Ed.2d 508, 95 S.Ct. 1881 (1975).

At the appellants’ request, the trial judge gave the jury this additional instruction:

If the Defendant is shown by a blood test to have .10% of alcohol in his blood, you may infer that the Defendant is under the influence of an intoxicant. The State must prove the fact of the intoxication, and the Defendant must not be called upon to overcome any presumption with respect to any necessary elements of the offense.

If the trial judge’s original charge was erroneous, the error was cured and rendered harmless beyond a reasonable doubt by this supplemental instruction.

In the third assignment, the appellants say that the court erred in refusing to instruct the jury that the death must have been caused by the unlawful act in order to convict of homicide. The appellants candidly say, “This assignment is a vigorous and direct assault upon the rule of Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685 (1927).” The Keller rule is that in a prosecution for vehicular homicide of one who, while intoxicated, ran an automobile over the deceased, the question as to whether the intoxicated condition of a defendant was the cause of death does not arise, since driving while intoxicated is unlawful act malum in se. This rule has been criticized by some and praised by others , but it has been consistently followed by the appellate courts of this State. See Fuston v. State, 215 Tenn. 401, 386 S.W.2d 523 (1965); Hardin v. State, 210 Tenn. 116, 356 S.W.2d 595 (1962); Edwards v. State, 202 Tenn. 393, 304 S.W.2d 500 (1957); McGoldrick v. State, 159 Tenn. 667, 21 S.W.2d 390 (1929); Cole v. State, 512 S.W.2d 598 (Tenn.Cr.App.1974); Shadden v. State, 2 Tenn.Cr.App. 450, 455 S.W.2d 164 (1970). Though the trial judge did not submit the issue of proximate cause or causal connection to the jury, we must overrule this assignment because the Keller rule was in force when this homicide occurred and when the case was tried.

Assignment four attacks the rule which permits the jury to imply malice from proof of driving while intoxicated. Our discussion of the first assignment disposes of this assignment. This rule is firmly established.

In assignment five, the appellants say that error was committed in admitting the results of Mrs. Griffin’s breath test; they say that the State failed to show the proper functioning of the machine or the certification of the operator. The appellants cite Pruitt v. State, 216 Tenn. 686, 393 S.W.2d 747 (1965); Fortune v. State, 197 Tenn. 691, 277 S.W.2d 381 (1955). The record does not support the allegations in this assignment. The operator of the machine had received special training on its operation and testing. He had approximately two years’ experience in using the machine. The machine is serviced every three months. The witness testified that the machine was tested before each use to determine whether it was functioning properly. The evidence was admissible under the Fortune and Pruitt criteria. This assignment is overruled.

In their next assignment, the appellants complain of eleven instances of alleged misconduct of the Assistant District Attorney General; they say they should have been granted a mistrial because of his making certain statements and asking certain questions of witnesses. We will not burden this opinion with a separate discussion of each alleged act of misconduct. Many of the questions and statements complained of were competent and material; the trial judge sustained objection to others; no objection was made to still others. None of them were of such magnitude as to warrant the granting of a mistrial. The trial judge did not abuse his discretion and this assignment must be overruled. Hembree v. State, 546 S.W.2d 235 (Tenn.Cr.App. 1976); Layman v. State, 1 Tenn.Cr.App. 83, 429 S.W.2d 832 (1968).

The appellants next say that there was no evidence of venue. Constable Charles Don Jackson testified that the occurrence was “on 46 highway in Dickson County.” There was other evidence that the incident occurred in Dickson County. This assignment is without merit.

The appellants next complain of the trial judge’s refusing to permit their counsel to review his jury instructions prior to delivery and ordering counsel not to interrupt his delivery of the charge. Counsel cites no authority in support of this assignment and we know of none. No prejudice is shown. There is no merit in this assignment.

Finally, the appellants complain of the trial judge’s permitting an expert witness to answer a hypothetical question assuming facts not in evidence. The State asked an expert witness to relate the minimum number of beers a person weighing 115 pounds would require before reaching a blood alcohol content of .13%. A similar question was asked concerning a 160 pound person with a blood alcohol content of .23%. The trial court admitted this evidence contingent upon the State’s later proving the weight of the two appellants; this was never done.

The trial judge later instructed the jury:

THE COURT: Ladies and gentlemen of the Jury, there’s no proof in this record as to the weight of either of these Defendants. And so, insofar as this hypothetical that the witness testified about, you must disregard it insofar as it relates to these Defendants inasmuch as there’s no testimony in this record as to what either of these Defendants weighs—not one word of evidence that the Court recalls pertaining to that.

A hypothetical question should properly be excluded where the question assumes facts not in evidence. Moon v. Johnston, 47 Tenn.App. 208, 337 S.W.2d 464 (1959); Sepaugh v. Methodist Hospital, 30 Tenn.App. 25, 202 S.W.2d 985 (1946). However, any error was cured by the court’s instruction not to consider it. Bennett v. State, 530 S.W.2d 788 (Tenn.Cr.App.1975); Craig v. State, 524 S.W.2d 504 (Tenn.Cr.App.1974).

The judgment of the Criminal Court is affirmed.

RUSSELL, P. J., and DAUGHTREY, J., concur.

      . See Murder Convictions for Homicides Committed in the Course of Driving While Intoxicated, 8 Cumb.L.Rev. 477 (1971). The rule was criticized by the writer of this opinion in a concurring opinion in Billy Millsaps v. State, No. 70, McMinn. Co. (Tenn.Cr.App. Nov. 29, 1976):
      “The leading case, Keller v. State, 155 Tenn. 633 [299 S.W. 803] (1927), holds that in involuntary manslaughter cases where the accused is under the influence of an intoxicant, the State is not required to prove causal connection between the intoxicated condition of the accused and the death of the victim.
      * * * * * *
      “I do not quarrel with the holdings in the foregoing cases that contributory negligence is not a defense. However, I cannot rationalize the rule that in automobile homicide cases in which the driver is intoxicated, it is not necessary to show that intoxication was at least a contributing cause of the death of another person. This rule is not applicable in any other type homicide case. For example, in Harper v. State, [206 Tenn. 509] 334 S.W.2d 933, 939 (1960) (shooting homicide), the Supreme Court said: “It is general knowledge among people of ordinary intelligence that an accidental homicide which did not result from an unlawful act or an act done in an unlawful manner, etc., is not an unlawful homicide.” (Emphasis supplied). See also, Roe v. State, 210 Tenn. 282, 358 S.W.2d 308 (1962); Copeland v. State, 154 Tenn. 7 [285 S.W. 565] (1926).”

      . 41 Harv.L.Rev. 669 (1928).

      . The Vehicular Homicide Act, effective May 11, 1978, requires that the killing be the proximate result of the driver’s intoxication or conduct creating a substantial risk of death or serious bodily injury. See T.C.A. § 39-2412.


author: O’BRIEN, Judge.

text:
    Edgar Virgil DUKES, III, and Ronald David Dukes, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 30, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.

      Ray E. Cate and William A. Davidson, Knoxville, for appellants.
    Brooks McLemore, Jr., Atty. Gen., Robert L. Tucker, Asst. Atty. Gen., Nashville, A1 C. Schmutzer, Jr., Dist. Atty. Gen., Sevier-ville, for appellee.
   OPINION

O’BRIEN, Judge.

Defendants filed a joint appeal from their conviction for murder, armed robbery, kidnapping to commit robbery, and using a firearm in the commission of a felony. They were committed to serve life in the penitentiary for each of the first three offenses and for a period of five (5) years for the offense of using a firearm in the commission of a felony.

By their first assignment of error defendants contend that the murder indictment should have been dismissed in this case because the alleged offense occurred in a county other than the one in which they were indicted.

This case resulted from a robbery and kidnapping which transpired in Union County. According to the evidence it is probable that the homicide of the victim occurred in adjoining Knox County. Mr. Hollis Kitts operated Jim’s Sport Shop in Union County. He was the victim of the various offenses with which defendants were charged. Sometime prior to 08:30 P.M. the store was robbed of several hundred dollars and a number of firearms. Mr. Kitts was abducted by the robbers. Two days later his wallet, and various of the items it contained, were found scattered along a roadside in Knox County. A day or two after that his body was discovered on a side road just inside the Knox County line. Investigation led to defendants. Ronald Dukes was arrested on December 27, 1976. He gave several statements, first denying any involvement in the crimes, and then, ultimately implicating himself. Edgar Dukes surrendered himself on January 1, 1977. Before he was formally arrested he gave a statement disclosing the location of one of the pistols taken in the robbery, and narrating his version of the robbery, kidnapping, and homicide. Shortly after Edgar was placed in custody Ronald gave another statement substantially corroborating the one given by Edgar.

It is the contention of defendants that there was not any evidence to indicate where the victim was killed, other than where his body was found, therefor the State failed to prove that any act or criminal intent was initiated in Union County. Their written statements, introduced into evidence, generally reflect a plan to rob Jim’s Sport Shop, and take Hollis Kitts as hostage. An accomplice, who was tried separately, shot and killed Mr. Kitts without their prior knowledge or consent after they had crossed the county line.

T.C.A. Sec. 40-105 provides:

“When an offense is committed partly in one (1) county and partly in another, or the acts or effects thereof constituting or requisite to the consummation of the offense, occur in two (2) or more counties, the jurisdiction is in either county.”

Venue is a jurisdictional matter and not an element of the crime charged. It may be established by a preponderance of the evidence and it is not necessary that it be shown beyond a reasonable doubt. See Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883 (1944). We have previously related some of the circumstances bearing on the issue. In addition there was evidence that the co-defendant, Robert Sands, had stated while on the way to the scene of the robbery that he might have to “waste” a certain person if he was at the store. Any material fact may be established by either direct or circumstantial evidence. The jury was warranted in deciding that the intention to kill Mr. Kitts had been formed in Union County or that the homicide actually occurred there prior to his transportation across the county line. This would lay jurisdiction for trial of the defendants in either county. T.C.A. Sec. 40-105, Stinson v. State, supra.

Defendants say it was error to deny a continuance in the case and cite various reasons through different assignments. They say the Union County Grand Jury originally returned an indictment against them on February 7, 1977 charging them with murder, kidnapping and armed robbery. Subsequently on March 17, 1977 the grand jury met and returned three separate indictments charging them with these offenses plus a charge of employing a firearm in the commission of a felony. The case being set for trial on March 31, 1977 defendants were not allowed the statutory time of fourteen (14) days, excluding Sundays, between indictment and trial in accordance with T.C.A. Sec. 40-2005.

We find defendant’s argument to be without merit. On March 17, 1977, at the same term, the grand jury amended the previously returned indictments. The amended indictments did no more than charge the same offenses separately rather than as different counts in the same indictment and added the charges of common law murder and simple kidnapping. This accrued to defendants’ benefit. We do not find any actual violation of T.C.A. Sec. 40-2005. Our courts have held that the legislature intended that the delay between indictment and trial to apply only where the indictment or presentment and arrest occurred substantially at the same time. See Hood v. State, 187 Tenn. 501, 216 S.W.2d 14. Where no prejudice has been shown by failure to comply with this section, a reversal is not warranted. See Neal v. State, 206 Tenn. 492, 334 S.W.2d 731.

Defendants submit that statements made by them were introduced into evidence erroneously because they were not properly advised of their constitutional rights and the statements were involuntarily given. They contend they were interrogated at length and coerced by a threat to turn them over to a crowd which had collected outside the jail. They also say they were under the influence of drugs at the time the statements were obtained.

After a thorough and comprehensive jury-out hearing the trial judge found that the witnesses made their statements voluntarily and knowledgeably of their own volition without any intimidation, coercion, threats, promises, trickery or fraud. The court found that, based on their backgrounds, the defendants probably had been drug users but found no evidence the use of drugs had clouded or impeded their minds to the extent their statements were involuntary. There is adequate evidence in the record to show defendants were advised of their constitutional rights prior to making any statement. We concur in the findings of the trial judge. A confession is generally admissible even though made at a time the accused was suffering from, or under the influence of narcotic drugs, provided that at such time the accused is capable of making a narrative of past events or of stating his own participation in the crime. See Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972). The assignment is overruled.

Defendants say the trial court erred in delaying decisions on a motion to dismiss the indictment until the day of the trial. The contention is that the delay in the court’s ruling prejudiced them by creating uncertainty in their minds and impairing their defense due to emotional instability. No evidence or authority was cited to sustain this contention. The motions to dismiss the indictments applied only to the charge of murder and a possible change of venue. We are satisfied the trial judge properly delayed his decision and defendants were not prejudiced in any manner by the delay. The motion for continuance on that basis was properly denied. The assignment is overruled.

Defendants also say they were prejudiced in denial of an application for continuance because they were denied the opportunity to develop newly discovered evidence and locate material witnesses.

Both defendants had admitted to their involvement in the offenses for which they were indicted. Two days before the trial date counsel moved for a continuance based on defendants’ request to proceed on an alibi defense that would have placed them elsewhere than the situs of the offenses. The motion for continuance was overruled on the morning of trial. Defense counsel notified the court of this change in defendants’ strategy and asked to be allowed to withdraw as counsel. The court was advised that the proposed alibi witnesses had been contacted and would not support the alibi defense. The trial judge agreed that counsel had acted diligently in investigating the new defense and declined the continuance. This was a matter which was discretionary with the trial judge and we find no abuse of his discretion. We overrule the assignment.

Defendants claim error because of denial of a motion made on the trial date for a further mental evaluation by a psychiatrist to determine their competency at the time of the commission of the crime.

A hearing was held on defendants’ original motion for psychiatric evaluation and although the trial judge found no evidence to indicate they were not competent he ordered an evaluation because of the serious nature of the offenses with which they were charged. The evaluation was apparently made at a community mental health center as provided for in T.C.A. Sec. 33-708(a). The report of evaluation found the defendants competent to advise with counsel and to stand trial. The motion for further examination was for the purpose of determining their competency at the time the crime was committed. The trial judge commented that if there was any reason whatsoever to question the defendants’ competence he would grant a continuance for further evaluation. In the absence of any proof of that nature he denied the continuance and put defendants to trial. Our review of this record confirms the decision of the trial judge. There is not a modicum of evidence to indicate that further evaluation at State expense, or otherwise, would have been of any benefit to these defendants. The trial judge found there was nothing in the evaluation report to indicate that further evaluation was needed. The decision in such matters is discretionary with the trial judge. Mackey v. State, 537 S.W.2d 704 (Tenn.Cr.App.1975). There is no requirement in the statute that a mental evaluation be made, or, if any examination is directed by a trial judge, that such examination be made by a psychiatrist. We overrule the assignment.

Defendants claim prejudice by denial of an application for change of venue.

T.C.A. Sec. 40-2201 provides:

“In all criminal prosecutions the venue may be changed, upon the application of a defendant, when it is made to appear satisfactorily to the court that, from undue excitement against the prisoner in the county where the offense was committed, or any other cause, a fair trial could probably not be had.”

There was a motion filed and pre-trial proof heard in support of an application for change of venue. There was very little evidence offered beyond the affidavits of defendants and their testimony to the effect that they did not think they could get a fair trial in Union County. The court called a witness, a former sheriff in the county, who was of the opinion that defendants could get a fair trial in that county. Defendants called the incumbent sheriff who was of the opinion a fair trial could be had. After the evidence was offered the court reserved judgment until a voir dire of a tentative jury could be held. The trial judge suggested that if it appeared at that time a fair trial could not be had the motion for change of venue would be granted. On the morning of the trial one hundred sixty-three prospective jurors were present. Forty-seven jurors were excused. Twenty-six of those were excused because they had a fixed opinion about the guilt or innocence of defendants. The remainder were excused for other miscellaneous reasons. The twelve jurors finally selected stated they had no preconceived opinion about the guilt or innocence of the accused. There is no indication in the record that they were influenced in any manner by any of the factors raised in argument in defendants’ brief. Even though a prospective juror has read or heard some publicity about a case, or heard some person mention it, that is not sufficient to disqualify him if he is otherwise qualified and if he states on oath, notwithstanding what he read or heard, he believes he can give the defendants a fair and impartial trial on the law and the evidence. See Dupes v. State, 209 Tenn. 506, 354 S.W.2d 453. We overrule the assignment.

Defendants claim error on denial of a motion to challenge a juror for cause.

In the brief it is commented that defendants had exhausted all of their preemptory challenges and denial of the challenge of a juror for cause brought on a further denial of a fair and impartial trial.

Defendants gave no reason whatsoever to the trial judge to justify their motion to challenge for cause, nor have they attempted to justify the assignment by setting forth any grounds in this court. Under such circumstances we find the assignment to be without merit.

Defendants say it was error to deny a motion to excuse prospective jurors from the courtroom before proceeding with the voir dire examination.

Defendants’ brief cites a number of different factors that might or could have affected the prospective jurors waiting to participate in the voir dire examination. However there is no evidence in this record that any of the factors enumerated influenced any of the jurors individually or the twelve individuals finally selected as a jury. Out of one hundred sixty-three prospective jurors there were fifty-one veniremen who had not been called by the time the jury had been selected. The entire process took approximately three hours. We do not find any abuse of the trial judge’s discretion in overruling the motion to voir dire the prospective jurors individually. We overrule the assignment.

Defendants claim it was prejudicial error to deny a motion for mis-trial after some forty prospective jurors had stated they had formed an opinion of guilt.

This charge is not borne out by the record. We have already stated that twenty-six prospective jurors were dismissed because they said they had fixed opinions. The court did not allow one of these individuals to state the basis for his opinion, that is, whether or not he believed that the defendants were guilty or innocent. Defendants do not cite a single incident to support the assignment. We have carefully read the voir dire examination, particularly that part conducted by the trial judge, and we do not agree that any criticism of the jurors on his part was prejudicial. The record indicates he expressed general disbelief that some prospective jurors would let “hearsay” prejudice them against the defendants prior to the time they had heard any of the evidence in the case. The trial judge was diligent in his efforts to provide a fair and impartial jury. Although it might have been better, if possible, to sequester the remaining prospective jurors, we do not find any evidence in this record of any prejudice against the defendants. We overrule the assignment.

Defendants complain of comments by the State’s attorney in closing argument. We have reviewed the cited example of improper argument and fail to see how defendants could have been unduly prejudiced by the remark. Objection was made, sustained, and the jury admonished that it was their responsibility to make the judgment in the case. We overrule the assignment.

It is claimed the court erred in denying defense counsel’s motion to withdraw after defendants abandoned their preconceived defense and instructed counsel they wished to interpose a defense of alibi.

Defense counsel determined to their own satisfaction that the alibi defense was false and could not be sustained by supporting witnesses. On the morning of the trial the court was notified of this tactical move by defendants. A conference was held in chambers and the motion to withdraw was denied. At trial defendants testified in their own behalf that they were elsewhere at the time of the offenses.

Obviously counsel did everything possible to prevent the defendants from jeopardizing their own defense. They took the only ethical stand which they could in informing the court of the circumstances. Although counsel now says they could not predict or plan a proper defense no evidence is offered to show how denial of the motion to allow them to withdraw prejudiced the defendants. If the defense was prejudiced in any manner by the conduct of defendants or their choice of defense, that was a matter of their own choosing about which they now have no right to complain.

Defendants claim error upon denial of a special request for instructions to the jury.

Defendants submitted a special request which involved the venue on the murder charge and the duties of the jury in the event they found the homicide occurred outside of Union County. We have examined the instructions of the trial judge in reference to the venue of the case and find it to be a correct statement of the law. Having properly instructed the jury on the issue the trial judge was under no duty to grant appellants’ special request. See Freshwater v. State, 2 Tenn.Cr.App. 314, 453 S.W.2d 446.

Defendants make several assignments in which they claim that the verdict of the jury was contrary to the law:

(a) The verdict finding them guilty of murder, kidnapping and armed robbery, and the use of a firearm while committing the offense of kidnapping was erroneous because the conviction of one offense was a bar to the conviction of any other offense since the same evidence was involved in each offense.
(b) They were convicted of kidnapping to commit robbery and the use of a firearm while committing kidnapping. The prescribed penalties for these offenses include enhanced punishment and therefore conviction of one is a bar to conviction for the other.
(c) The penalty invoked by the jury for the offense of using a firearm while committing kidnapping was life imprisonment. The maximum penalty prescribed for the offense is five years in prison. Defendants say this was an expression of the prejudice and inflamed condition of the collective mind of the jury.

Defendants were convicted of armed robbery, kidnapping to commit robbery, use of a firearm while committing the offense of kidnapping, and murder in the first degree. The crimes of armed robbery, kidnapping with intent to commit robbery, and murder in the first degree are three separate and distinct offenses against the law. Although they occurred at substantially the same time, or in chronological sequence in the course of a single criminal episode, they are not identical offenses. Different evidence was required to prove each of the offenses. The statutory elements of the offenses are different and none of the three are included within the other. In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the United States Supreme Court stated the rule to be followed:

“The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not . . . ”

In State v. Hudson, 562 S.W.2d 416 (Tenn.1978), the Tennessee Supreme Court stated the purpose of T.C.A. Sec. 39-4914 was to provide additional punishment for one who employs a firearm as a means of committing a felony and did not create a new offense. Rather, it amended by implication those felony statutes which do not otherwise provide an increase in punishment for use of a firearm in committing such felonies. The intent of the legislature was to provide for increased punishment in such cases because of the presence of aggravating circumstances.

We conclude that the separate conviction in this case for using a firearm in committing the kidnapping should be deleted. The judgment for kidnapping to commit robbery should be revised to specify the offense to be kidnapping to commit robbery by the use of a firearm, and by providing that the punishment for that offense consist of the two sentences fixed by the jury that is life in the penitentiary, plus five years, those two sentences to run consecutively.

This will also resolve the second complaint above in which defendants say their conviction for kidnapping to commit robbery and the use of a firearm while committing kidnapping cannot stand.

When the jury returned a verdict finding the defendants guilty of the offense of using a firearm while committing kidnapping the sentence originally fixed by them was life imprisonment. The trial judge directed the jury to resume their deliberations and return a correct sentence. This was done and a new sentence fixed at a term of five years. The theory propounded is that the verdict and sentence of the jury was preconceived prior to their deliberation and was contrary to the law. They say the harshness of the sentence indicated the jury was prejudiced against them. We disagree. All of the sentences meted out by the jury are within the range prescribed by law. In such a case the sentences cannot normally be considered excessive nor are they indicative of passion, or prejudice, or caprice on the part of the jury. Wiley v. State, 552 S.W.2d 410 (Tenn.Cr.App.1977); Anglin v. State, 553 S.W.2d 616 (Tenn.Cr.App.1977). The trial judge had the jury correct the erroneous sentence returned for the offense of using a firearm to commit kidnapping. This court has further revised the judgment to conform with the case law in this State. See State v. Hudson, supra. The judgment of the trial court in respect to kidnapping to commit robbery and using a firearm to commit kidnapping are vacated and revised to constitute the single offense of kidnapping to commit robbery by use of a firearm with the punishment fixed at life in the penitentiary for the offense of kidnapping plus five years as enhanced punishment for committing the offense of kidnapping by use of a firearm, with the sentences to be served consecutively.

The judgment of the trial court is in all else affirmed.

DAUGHTREY and BYERS, JJ., concur.


text:
    David Leon STINSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 7, 1978.
    Certiorari Denied by Supreme Court March 5, 1979.
    Edward G. Thompson, Shelby County Public Defender, Walker Gwinn and Larry Moore, Asst. Public Defenders, Memphis, for appellant.
    William M. Leech, Jr., Atty. Gen., Richard S. Maxwell, Asst. Atty. Gen., Nashville, Edgar A. Peterson, IV, Asst. Atty. Gen., Memphis, for appellee.
   OPINION

TATUM, Judge.

The appellant David Leon Stinson, has appealed his conviction for receiving stolen property with punishment of not less than nor more than three years in the State penitentiary. The only question involved on this appeal is whether the trial judge erred in overruling the appellant’s pre-trial motion to suppress which attacks the unlawfulness of the appellant’s arrest and the constitutionality of a seizure made at the time of the arrest. We find the trial judge’s ruling on the motion was correct and affirm his judgment.

The appellant was arrested on 9 August 1977 during the daytime in the business section of downtown Memphis. Two uniformed police officers were walking down an alley when the appellant, looking over his shoulder, entered the alley and walked toward them. The appellant was carrying a bundle of what appeared to be new un-packaged clothing. When the appellant was about 15 feet from the officers, he turned his head around and saw them; he looked “shocked” at seeing the officers and he immediately “spinned around” and started walking in the opposite direction. The policeman called the appellant and he came to them. They observed that the bundle of clothing was three men’s suits which were on coathangers and still had tags on them.

He told the officers that he did not work in the area and had bought the clothing from an unknown individual on the street who was “supposed” to still be there. He offered to give the clothing to the officers if they would let him go. The appellant led the officers to the spot where the alleged sale had been made, but the person was not there. The officers then arrested the appellant for grand larceny, and seized the clothing. After the appellant was incarcerated, further investigation revealed that the suits were missing from Daileys Credit Clothing at 100 South Main Street in. Memphis.

The observations of the police officers and the conduct of the appellant before the officers detained him gave the officers reasonable ground upon which to base a “founded suspicion” that the bundle was stolen merchandise; consequently, the appellant’s detention was not arbitrary or harassing. The officers, under the circumstances, had both the right and duty to detain the appellant initially for further investigation. State v. McLennan, 503 S.W.2d 909 (Tenn.1973).

After detaining the appellant, the officers observed that the clotting still bore tags, was unpackaged, and apparently new. The appellant attempted to bribe the officers with the clothing and did not give a reasonable account for his possession of the clothing. These facts gave the officers probable cause to believe that the clothing was recently stolen and that the appellant had committed a felony in connection therewith. See Bush v. State, Tenn., 541 S.W.2d 391 (1976). The arrest was lawful. Jones v. State, 161 Tenn. 370, 33 S.W.2d 59 (1930); Dittberner v. State, 155 Tenn. 102, 291 S.W. 839 (1927); Davis v. State, 2 Tenn.Cr.App. 297, 453 S.W.2d 438 (1970). It is elementary that the lawful arrest authorized the seizure of the clothing. Graham v. State, 218 Tenn. 453, 404 S.W.2d 475 (1966); Fox v. State, 214 Tenn. 694, 383 S.W.2d 25 (1964).

The main thrust of the appellant’s argument is that the arrest was unlawful because the officers “had no information regarding any stolen suits in the area.” The officers did not know from whom the suits had been stolen until the next day. The appellant argues that this circumstance renders a warrantless search illegal, but he cites no authority in support of this proposition and we have found none. In People v. Moore, 13 Cal.App.3d 424, 435, 91 Cal.Rptr. 538, 545 (1970), the California court had no difficulty in dealing with this question:

It is also argued that the arrest was illegal because Lee was not aware of any particular felony which Moore had committed. This circumstance is hardly determinative. If a known professional burglar walks down the street furtively carrying a small safe with physical indications that it has lately been ripped out of a wall, no one would deny a peace officer’s right to make an arrest although he has no information concerning the particular burglary which produced the safe.

We hold that neither the absence of a complaint to the police by the victim of the crime, nor the police’s lack of knowledge of the identity of the owner of the stolen property rendered the arrest illegal.

The judgment of the trial court is affirmed.

DWYER and O’BRIEN, JJ., concur.


author: GREENHILL, Chief Justice.

text:
    M. James BROOKS, Jr., et al., Petitioners, v. James Marshall JONES, Respondent.
    No. B-7625.
    Supreme Court of Texas.
    Feb. 28, 1979.
    Rehearing Denied April 3, 1979.

      Roberts, Harbour, Smith, Harris, French & Ritter, John M. Smith, Longview, for petitioner.
    L. F. Burke, Longview, J. R. Cornelius, Jefferson, G. Brockett Irwin, Longview, for respondent.
   GREENHILL, Chief Justice.

Dr. James Brooks, his brother, and Brooks Oil Company, all hereinafter referred to as Brooks, brought suit to enjoin M. Carl Jones from interfering with his and their use of two different but adjoining roads across the land of Jones. An illustrative plat of the land and the roads is set out below; and, as will be discussed below, this is but the last chapter in protracted litigation.

Upon the trial which is before us, the jury found for Brooks. It found that an East-West road across Jones’ land had been dedicated to the public, and that Brooks had acquired the right to use an adjoining North-South road by prescription, — ten years of use by Brooks adverse to Jones. The trial court agreed that the East-West road had been dedicated, but it entered a judgment notwithstanding the jury’s verdict as to the North-South road. It held that as a matter of law, Brooks had not acquired the right to use the North-South road by prescription.

The Court of Civil Appeals was of the view that the trial court correctly held that Brooks had not made such requisite exclusive and adverse use of the North-South road as to be ripen into a prescriptive right. Instead of affirming the trial court’s judgment in this respect, it ordered Brooks’ case dismissed upon the basis of a res judicata plea. 564 S.W.2d 147. A writ of error was granted because of that holding which we regard as erroneous. Our holding is that the trial court correctly refused to declare an easement by prescription in the North-South road, and that Brooks had no justicia-ble interest in the East-West road.

Brooks acquired a 30.57-acre tract of land (the shaded portion in the map below) in Marion County on September 15,1958, from Mahlon Walters. At that time Gulf Oil Corporation owned most of the land on the north, west, and south sides of the tract purchased by Brooks. The east side of Brooks’ property is bordered by Caddo Lake. On April 27, 1960, M. Carl Jones bought the land surrounding Brooks’ tract from Gulf.

The East-West road begins on .the west at the end of F. M. Road 727 and is on land owned by M. Carl Jones. The road leads in an easterly direction from the end of F. M. Road 727 to a cabin owned by Jones on the east side of the Texas-Louisiana border. Prior to reaching the Texas-Louisiana border, the North-South road intersects with the East-West road and leads north across Jones’ land into Brooks’ land. Brooks and others had used the East-West road, and the trial court found it to be a dedicated road. Brooks had also used the North-South road over Jones’ land, as had Jones.

In 1961, Jones, desiring to improve his property, notified Brooks by letter dated May 31st, that he was locking the gate on the North-South roadway. Jones also informed Brooks that he wanted to keep poachers off his land and that he was going to place a gate at the entrance of the North-South roadway and was going to fence the rest of his property, and that he wanted Brooks to have a key. He sent Brooks a key. Brooks notified Jones that he did not desire the key, and that if Jones wanted to put up a gate, they would work out a double lock arrangement. Under this arrangement each man could unlock the gate using his own separate key to unlock his own separate lock; apparently, each lock was placed in a different link of a chain. This was done. The double lock arrangement continued until 1972 when Jones locked Brooks out of the East-West roadway and the North-South roadway ostensibly for the reason that Brooks would not pay a part of the maintenance cost of the roads.

Previous Trials and Res Judicata

This dispute has been in the courts since 1972. In that year, Brooks brought this suit against Jones. The prayer was for a temporary injunction, — and upon a final hearing, for a permanent injunction. A judgment was entered in 1972 which simply denied Brooks injunctive relief. No appeal was taken.

Brooks again brought the matter before the trial court in 1974, and the trial court dismissed the case as having already been adjudicated; i. e., res judicata. In an appeal from that action, the Court of Civil Appeals reversed. Its opinion recites that the record on the former hearing had not been introduced; and it could not tell whether an interlocutory temporary injunction. to preserve the status quo had been entered, or whether there had been a full trial on the merits. The appellate court wrote that the only evidence introduced tended to show that it was limited to “issues pertinent to an application for temporary injunctive relief.” The earlier appellate court’s judgment was that the appeal of such an interlocutory order should be dismissed, and the appeal was dismissed. 531 S.W.2d 221 (1975). A writ of error was refused by this Court with the notation of no reversible error.

While the Court of Civil Appeals in this appeal indicated that the trial court properly granted the judgment notwithstanding the verdict as to the North-South road, it held that the matter really was “res judica-ta” this time. Its order was that the case should be, and was, dismissed. A writ of error was granted because of that holding, and we hold that it was error. We agree, however, in substance with the dictum of the Court of Civil Appeals, that Brooks did not establish a right by prescription on the North-South road, and that, in effect, Brooks has no justiciable interest in the East-West road.

The Court of Civil Appeals held that the matters settled at the hearing held on the application for a temporary injunction were res judicata as to the present case because the parties and issues decided were much the same. It relied on as authority several decisions which have made somewhat similar holdings. See Wilson v. Abilene Independent School District, 204 S.W.2d 407 (Tex.Civ.App.—Eastland 1947, writ ref’d n. r. e.); International Longshoremen v. Galveston Maritime Ass'n, 358 S.W.2d 607 (Tex.Civ.App.—Houston 1962, no writ); and Furr’s Inc. v. United Specialty Advertising, 385 S.W.2d 456 (Tex.Civ. App.—El Paso 1964, writ ref’d n. r. e.).

In each of the cases relied upon by the Court of Civil Appeals, an appeal was taken from the temporary injunction hearing. In the instant case, although notice of appeal was given, no appeal was ever prosecuted from the denial in 1972 of the temporary injunction. It can be inferred that Brooks apparently decided to wait and settle the issue in the trial for a permanent injunction.

It is true that this Court has long held that “. . . if in a former suit an issue which goes to the foundation and existence of a cause of action has been litigated, such issue cannot be again litigated in a later suit, regardless of the form it may take.” Mayfield Co. v. Rushing, 133 Tex. 120, 127 S.W.2d 185 (1939). As was stated in Wilson v. Abilene Independent School District, supra:

The scope of the term ‘final judgment’ within the meaning of the rule here under consideration, has been declared not to be confined to a final judgment in an action but to include any judicial decision upon a question of fact or law which is not provisional and subject to change in the future by the same tribunal.

A corollary rule is aptly stated in Texaco Inc. v. Parker, 373 S.W.2d 870 (Tex.Civ.App.—El Paso 1963, writ ref’d n. r. e.), dealing with the choices of a losing litigant in a hearing on temporary injunction:

a dissatisfied litigant has a choice — he may appeal or seek a trial on the merits. Having elected to appeal, he should thereafter be bound by matters fully litigated and determined in the same manner as appeals from final judgments.

In cases such as this, where the losing party elects not to pursue an appeal, but instead proceeds to the trial on the merits of a permanent injunction, such party will not be bound, under the doctrine of res judicata, by those issues decided in the prior hearing on the temporary injunction.

Prescriptive Easement

Although the Court of Civil Appeals erred in dismissing the appeal from trial court, it did not commit error in its opinion wherein it applies the Texas law concerning prescriptive easements. The undisputed facts indicate that both parties used the North-South road from between 1960, when Jones bought the surrounding land, until 1968 or 1969. Therefore, Brooks’ use of the North-South road coincided with Jones’ use except for the period between September 11, 1958 and April 27, 1960, which was prior to Jones’ purchase of the land. Furthermore, Brooks has not contended before this Court that he has an implied easement of necessity.

To obtain a prescriptive easement one must use someone else’s land in a manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of time. Texas W. Ry. Co. v. Wilson, 83 Tex. 153, 18 S.W. 325 (1892). In that case this Court stated:

The doctrine is well established that the burden of proof is upon the party claiming the easement in the land of another without any contract or express grant thereto, to establish all of the necessary facts from which the right may be presumed in his favor. He must clearly show open and peaceable possession for the full period required under the statute to preclude a recovery of land against one having no other title, and with at least the implied acquiescence of the owner, and that during all of such time the use and enjoyment of the right has been exclusive, uninterrupted and continuous, and under a claim of right adversely to the owner of the fee. If there is a failure to establish any of these essential elements by a preponderance of the evidence, the claim to the easement cannot be maintained [citing authorities].

There is no evidence of use for the required length of time of the land in question by Brooks which would be to the exclusion of the use by Jones.

Brooks contends that the fact that he returned a key to the gate to the North-South road given to him by Jones, insisting instead on a double lock system, evidences his claim of right to the North-South road. It has long been the law in Texas that when a landowner and the claimant of an easement both use the same way, the use by the claimant is not exclusive of the owner’s use and therefore will not be considered adverse. In Sassman v. Collins, 53 Tex.Civ.App. 71, 115 S.W. 337 (1908, writ ref’d), it was written:

In this case it was shown that the owner of the servient estate likewise used this way for his own convenience and in connection with his [own] farm. Therefore, the use of the way by others could not become adverse, for it is held . that the use of a way over the land of another is not deemed adverse where the way is also used by the owner of the land; and in such a case use for the prescriptive period will not give a way by prescription.

Following Sassman v. Collins, supra, there were several opinions by courts of civil appeals which followed the rule as set out. See, e. g., Callan v. Walters, 190 S.W. 829 (Tex.Civ.App.—Austin 1916, no writ) and Tolbert v. McClellan, 241 S.W. 206 (Tex.Civ.App.—Texarkana 1922, no writ). There was at least one intermediate court which in dicta refused to follow the Sass-man rule. Foster v. Patton, 104 S.W.2d 944 (Tex.Civ.App.—Austin 1937, writ dism’d). However, the Foster case was specifically not followed by this Court in Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622 (1950). In Othen, this Court adopted the rule as set out in Sassman. The court in Othen quoted the court in Callan v. Walters:

The use of a way over the land of another when the owner is also using the same is not such adverse possession as will serve as notice of a claim of right, for the reason that the same is not inconsistent with a license from the owner.

This rule was reaffirmed by this Court in O’Connor v. Gragg, 161 Tex. 273, 339 S.W.2d 878 (1960). The Court held:

There is no evidence which even tends to show a right, or a claim of right, of either the Graggs or the public to use the roadway to the exclusion of [the] petitioners’ [owners’] right to use the roadway involved.

While other jurisdictions do not require the prescriptive use to be exclusive by use by the owner of the land, this rule of property has long been the established rule in Texas. See also Rickel v. Manning, 369 S.W.2d 655 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.); Rust v. Engledow, 368 S.W.2d 635 (Tex.Civ.App.—Waco 1963, writ ref’d n. r. e.); Gill v. Pringle, 224 S.W.2d 525 (Tex.Civ.App.—Waco 1949, writ ref’d); and Dailey v. Alarid, 486 S.W.2d 620 (Tex.Civ.App.—Tyler 1972, writ ref’d n. r. e.). In the present case where both Jones, the landowner, and Brooks used the road, each in furtherance of his own purposes, we cannot say that there is any evidence of exclusiveness of use.

Brooks, having failed to satisfy all of the requirements for a prescriptive easement, acquired no easement rights in the North-South road. Since Brooks has no easement rights in the North-South road, and the East-West road does not touch his land, he does not have a justiciable interest in the East-West road. A public dedication is enforceable by the public authorities of the state, county or municipality involved. See State v. Goodnight, 70 Tex. 682, 11 S.W. 119 (1888); Webb, Texas Volunteer Fire Dept. v. English, 377 S.W.2d 237 (Tex.Civ.App.—Fort Worth 1964, writ ref’d); and City of Corsicana v. Zorn, 97 Tex. 317, 78 S.W. 924 (1904). Public dedications are enforceable by private landowners who have a property interest that will suffer if the publicly dedicated land is obstructed. Fall v. Thompson, 126 Tex. 326, 87 S.W.2d 712 (1935). However, the East-West road in question lies entirely upon the land owned by Jones. Since Brooks could not reach his property even if the East-West road was publicly dedicated, he has no property right which would give him a justiciable interest in this road.

Ordinarily, when a court of civil appeals has dismissed a case and has not ruled upon its merits, we will remand the cause to that court for consideration. Bay v. Mecom, 393 S.W.2d 819 (Tex.1965). However, in cases such as this where it is apparent that the Court of Civil Appeals has fully considered the merits and has indicated how it would dispose of the case on remand, a remand would be pointless; and this Court will render judgment.

Therefore, the judgment of the Court of Civil Appeals dismissing the appeal is reversed. Judgment is here rendered that, as found by the trial court, Brooks does not have a prescriptive easement on the North-South road; and judgment is further rendered that Brooks has no justiciable interest in the East-West road.

POPE, J., not sitting.

      . During the course of this lawsuit M. Carl Jones has died. Upon the filing of a suggestion of death by counsel, this Court granted the motion to substitute James Marshall Jones, the provisional administrator of Mr. M. Carl Jones’ estate, as Respondent.

      . All emphases contained herein are added.

      . The law in many other jurisdictions does not require the easement to be used by a person without the concurrent use by the owner as long as the use is adverse. See 1 THOMPSON ON REAL PROPERTY § 422 (3rd ed. 1939) and 4 TIFFANY, REAL PROPERTY § 1199 (3rd ed. 1975). The text writers appear to favor this “majority” rule.


author: DENTON, Justice.

text:
    F. R. HERNANDEZ CONSTRUCTION & SUPPLY COMPANY, INC. et al., v. NATIONAL BANK OF COMMERCE OF BROWNSVILLE, Respondent.
    No. B-7635.
    Supreme Court of Texas.
    March 14, 1979.
    Rehearing Denied April 18, 1979.

      Bonner & Bonner, William L. Hubbard and Curtis Bonner, Harlingen, for petitioners.
    Franklin T. Graham, Jr., Brownsville, for respondent.
   DENTON, Justice.

This is a suit to collect principal, interest and attorney’s fees on a promissory note. The sole issue here concerns an award of attorney’s fees based upon a fixed percentage of the principal and interest due on the note. Specifically, the issue is whether an omitted, unrequested finding that the contractual fee is unreasonable will be supplied by presumption in support of the trial court judgment, if the trial court expressly finds that a lesser fee is reasonable and the omitted finding of unreasonableness is supported by the evidence.

The National Bank of Commerce of Brownsville, respondent here, brought suit as holder of a promissory note executed by Hernandez Construction Company, Inc., et al., petitioners here. The note provided that “in the event that this note is placed into the hands of an attorney for collection an additional fifteen percent (15%) on the amount of principal and interest then owing shall be added to the same as attorney’s fees.” The trial court rendered judgment in favor of the Bank for principal and interest of $105,916.74 and attorney’s fees of $10,000. In response to the Bank’s request for findings of fact and conclusions of law, the trial court found that the Bank agreed to pay its attorney 15% of the outstanding principal and interest due on the note as an attorney’s fee, and that $10,000 is a reasonable sum for the services rendered by the Bank’s attorney.

The Bank appealed, contending that it is entitled to the contractual percentage of fees provided for in the note. The court of civil appeals reversed that part of the trial court’s judgment awarding attorney’s fees, and rendered judgment for the Bank in the amount of $15,887.51, an amount equal to 15% of the principal and interest due on the note. 564 S.W.2d 499. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Texas courts do not regard agreements to pay attorney’s fees based on a percentage of the unpaid balance and interest on a promissory note as absolute promises to pay the contractual amount, but as contracts to indemnify the holder of the note for attorney’s expenses actually incurred in collecting the principal and interest on the note. See, e. g., Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948 (1960); Brannin v. Richardson, 108 Tex. 112, 185 S.W. 562 (1916); Lanier v. Jones, 104 Tex. 247, 136 S.W. 255 (1911); First National Bank v. Robinson, 104 Tex. 166, 135 S.W. 372 (1911); Highlands Cable Television, Inc. v. Wong, 547 S.W.2d 324 (Tex.Civ.App.—Austin 1977, writ ref’d n. r. e.); see 17 A.L.R.2d 288, 298 (1951) (collected authorities). Consequently, the obligor of the note can challenge the reasonableness of contractual attorney’s fees. See, e. g. Kuper v. Schmidt, supra, 338 S.W.2d at 950; Brannin v. Richardson, supra, 185 S.W. at 565; Lanier v. Jones, supra, 136 S.W. at 255; see 18 A.L.R.3d 733, 746 (1968 & Supp. 1978) (collected authorities). Some courts have stated that if the holder of the note agrees to pay the contractual percentage to the attorney employed to collect the note, then the obligor of the note must pay the full contractual amount as indemnity, even if the amount is unreasonable. Frantz v. Masterson, 133 S.W. 740 (Tex.Civ.App.—1911, writ dism’d); First National Bank of Houston v. J. I. Campbell Co., 52 Tex.Civ.App. 445, 114 S.W. 887 (1908, no writ); Dunovant’s Estate v. Stafford & Co., 36 Tex.Civ.App. 33, 81 S.W. 101 (1904, writ ref’d). However, the rule that has emerged in Texas is that the holder of the note is not entitled to recover the full contractual amount if the obligor of the note shows that the fee should be limited to an amount that is reasonable under the circumstances. See, e. g., Kuper v. Schmidt, supra, 338 S.W.2d at 950; Brannin v. Richardson, supra, 185 S.W. at 565, Micrea, Inc. v. Eureka Life Insurance Co., 534 S.W.2d 348, 356 (Tex.Civ.App.—Fort Worth 1976, writ ref’d n. r. e.); Fisher v. Howard, 389 S.W.2d 482, 488 (Tex.Civ.App.—Dallas 1965, no writ); Kost Furniture Co. v. Los Angeles Period Furniture Co., 147 S.W.2d 862, 864 (Tex.Civ.App.—Galveston 1941, Dism. Judgm. Cor.). In Kuper v. Schmidt, our last expression concerning the issue of contractual attorney’s fees, we stated the rule as follows:

It is now settled that as between the legal owner and holder of a promissory note and those who are obligated to pay the same, the former is prima facie entitled to recover the attorney’s fees stipulated therein upon the happening of the contingency which makes the same payable. In the absence of an issue affirmatively tendered by the defendant, it is not necessary for the plaintiff to prove an agreement to pay such fee to an attorney or that the same is reasonable. The usual attorney’s fee clause is, however, in the nature of a contract of indemnity and cannot be regarded as providing for liquidated damages or a penalty. Upon a proper showing the holder will be limited to an amount which is reasonable under the circumstances, and may be denied any recovery where it appears that no expense has been incurred as a result of the maker’s default. 338 S.W.2d at 950 (citations omitted), (emphasis added).

In order to make a “proper showing” that the fee should be reduced, the obligor must first plead and prove that the contractual fee is unreasonable. See, e. g., Brannin v. Richardson, supra, 185 S.W. at 565; Highlands Cable Television, Inc. v. Wong, supra, at 327; International Shelters, Inc. v. Corpus Christi State National Bank, 475 S.W.2d 334, 336 (Tex.Civ.App.—Corpus Christi 1971, no writ); Twin City Bowling Lanes, Inc. v. C.I.T. Corporation, 376 S.W.2d 94, 96 (Tex.Civ.App.—Fort Worth 1964, no writ). To complete the showing, however, the obligor must also prove a lesser amount that is reasonable under the circumstances. See, e. g., Kuper v. Schmidt, supra, 338 S.W.2d at 950; Micrea, Inc. v. Eureka Life Insurance Co., supra, 534 S.W.2d at 356; Kost Furniture Co. v. Los Angeles Period Furniture, supra, 147 S.W.2d at 864. These two elements comprise the affirmative defense of unreasonableness of attorney’s fees. See e. g., Highlands Cable Television, Inc. v. Wong, supra; Micrea, Inc. v. Eureka Life Insurance Co., supra; Gardner v. Associates Investment Co., 171 S.W.2d 381 (Tex.Civ.App.—Amarillo 1943, writ ref’d w. o. m.).

In their answer, Hernandez pled that “the payment of fifteen (15%) additional as attorney’s fees . . . would be an unreasonable amount and not representative of the work involved in the collection of said note.” At the nonjury trial, the parties did not dispute that principal and interest in the amount of $105,914.74 was due on the note. The sole disputed issue at trial concerned the reasonableness of the attorney’s fees provided for in the note. An officer of the Bank testified that the Bank agreed to pay its attorney the contractual fee for collecting the note. Another witness testified that the $15,000 was an unreasonable amount and that $5,000 would be reasonable under the circumstances. The trial court, after hearing this testimony, initially announced judgment for the Bank “in the amount of $15,916.74 as agreed to by the parties at the time of entering into the agreement;” however, the court stated that it would accept briefs on the issue of attorney’s fees. After studying the briefs submitted by the parties, the trial court set aside its previous judgment and set an evidentiary hearing on the reasonableness of the contractual attorney’s fees.

At the hearing, both parties presented evidence. One attorney testified that 15% of the principal and interest due was unreasonable because of the large principal due under the note and the time required for an attorney to collect a note in circumstances similar to those before us. Both parties presented evidence on the amount of time required for an attorney to collect a note and the hourly wage of attorneys employed to collect notes. The Bank’s attorney testified on what he did to collect this particular note.

After hearing this testimony, the trial court rendered judgment for the Bank in the amount of $10,000 for attorney’s fees. Although the Bank did not request a specific finding concerning the reasonableness of the contractual fee, the trial court found, in response to the Bank’s request for other findings of fact and conclusions of law, that “attorney’s fees in the sum of $10,000 is reasonable for the services rendered by Plaintiff’s attorney.” Neither party requested additional findings of fact.

Although the court of civil appeals recognized that Hernandez could challenge the reasonableness of the attorney’s fee provided for in the note, it held that the trial court’s finding that $10,000 is a reasonable fee does not satisfy Hernandez’s burden of proving that $15,000 is an unreasonable fee:

We hold that the express findings made by the trial court cannot extend by implication to cover future (sic) independent issuable facts. Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627, 634 (1957); Gasperson v. Madill National Bank, 455 S.W.2d 381, 399 (Tex.Civ.App.—Fort Worth 1970, writ ref’d n. r. e.); McKenzie v. Carte, 385 S.W.2d 520, 529 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). Ap-pellees cannot ignore the above cited rule. Once the trial court made the specific finding that a certain attorney fee was reasonable, it was their duty to request a further finding concerning their affirmative defense upon which they now rely, i. e., that the stipulated amount in the note was unreasonable. 564 S.W.2d at 502.

We disagree with the court of civil appeals. Rule 299 states the situation in which omitted findings will be presumed from express findings:

Where findings of fact are filed by the trial court they shall form the basis of the judgment upon all grounds of recovery and of defense embraced therein. The judgment may not be supported upon appeal by a presumption of finding upon any ground of recovery or defense, no element of which has been found by the trial court; but where one or more elements thereof have been found by the trial court, omitted unrequested elements, where supported by evidence, will be supplied by presumption in support of the judgment. Refusal of the court to make a finding requested shall be reviewable on appeal, [emphasis added]

The trial court expressly found one of the elements of the defense relied on by Hernandez: the lesser fee of $10,000 is a reasonable fee. The other element of the defense is supported by evidence that the contractual fee is unreasonable. A finding of unreasonableness is an “omitted unrequested element” of a defense, “supported by the evidence” and “will be supplied by presumption in support of the judgment.” By the express terms of Rule 299, we hold that unreasonableness of a contractual attorney’s fee will be presumed from the express trial court finding that a lesser sum is a reasonable fee. Tex.R.Civ.Proc. 299; see Dewitt v. Brooks, 143 Tex. 122, 182 S.W.2d 687 (1944); Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562 (1943); Marlow v. Medlin, 558 S.W.2d 933 (Tex.Civ.App.—Waco 1977, writ ref’d n. r. e.) (malice presumed from finding of material false misrepresentation); In Interest of B. J. B and C. E. B, 546 S.W.2d 674 (Tex.Civ.App.—Texarkana 1977, writ ref d n. r. e.) (“in child’s best interest” presumed from finding that parent’s conduct endangered child’s wellbeing); O’Benar v. O’Benar, 410 S.W.2d 214 (Tex.Civ.App.—Dallas 1966, writ dism’d) (“holding out” element presumed from findings of other two elements of common law marriage); Paul v. Johnson, 314 S.W.2d 338 (Tex.Civ.App.—Houston 1958, writ dism’d) (proximate cause presumed from findings of specific acts of negligence).

We recognize that an express finding of fact cannot extend by implication to cover independent grounds of defense. See, e. g., Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957); McKenzie v. Carte, 385 S.W.2d 520 (Tex.Civ.App.—Corpus Christi 1964, writ ref’d n. r. e.). This rule is not applicable in this cause. Reasonableness and unreasonableness of attorney’s fees are not further independent issuable facts. The challenge to the reasonableness of attorney’s fees is one ground of defense comprised of two elements: (1) the contractual fee is unreasonable, and (2) a lesser fee is reasonable under the circumstances. Kuper v. Schmidt, supra; Brannin v. Richardson, supra; Highlands Cable Television, Inc. v. Wong, supra; Micrea, Inc. v. Eureka Life Insurance Co., supra. Hernandez pled that the contractual fee was unreasonable. At a trial in which the only disputed issue was the reasonableness of the contractual fee, Hernandez presented evidence that the fee was unreasonable and that a lesser fee would be reasonable. At an evidentiary hearing set solely to determine the reasonableness of attorney’s fees, evidence was presented showing unreasonableness and a lesser reasonable amount. The question of reasonableness of attorney’s fees was squarely before the trial court. In this context, the issue of reasonableness and unreasonableness is so intertwined that a specific finding of a reasonable attorney fee does not then require the obligor of the note to request a specific finding that the contractual fee is unreasonable. See, 4 R. McDonald, Texas Civil Practice § 16.09 (rev. 1971).

We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

      . Attorney’s fees expended to collect attorney’s fees provided for under a promissory note are not recoverable unless the contract between the parties so states. See Southwest National Bank v. Employers’ Indemnity Corporation, 12 S.W.2d 189 (Tex.Comm’n App.—1929, judgmt. adopted); Miller v. Bush, 42 S.W.2d 156 (Tex. Civ.App.—Waco 1931, writ refd); 42 C.J.S. Indemnity § 13 (1944).

      . At the beginning of the trial, Hernandez agreed to tender this amount into the registry of the court. The payment was actually made to the Bank three days later.

      . References to rules are to the Texas Rules of Civil Procedure.

      . The cases relied on by the court of civil appeals are distinguishable from the situation here. In Duncan v. Willis, the trial court found that a person voted against consolidation because he was mistaken as to the correct box in which to place his mark. We refused to extend this finding to include a finding that the person voted against consolidation because another person placed marks in the box: “[E]xpress findings made by a trial judge cannot extend to cover further independent issuable facts.” 302 S.W.2d at 634. In McKenzie v. Carter, the appellant argued that eviction of the lessee was justified because the lessee was engaging in illegal activities on the premises. The court of civil appeals stated: “The trial court did not make any findings concerning any illegal operation or any other finding whatsoever that would lend support to appellants’ theory of defense . . the failure of the appellants to request additional findings of fact effects a waiver of the ground of defense, no element of which has been found.” 385 S.W.2d at 529. Unlike the situation before us in this cause, the Duncan and McKenzie cases involved the presumption of an independent defense completely unrelated to any express finding of the trial court.