author: SANDERS, Judge.

text:
    Judith FAIN et al. v. FACULTY OF the COLLEGE OF LAW OF the UNIVERSITY OF TENNESSEE et al.
    Court of Appeals of Tennessee, Eastern Section.
    March 11, 1977.
    Certiorari Denied by Supreme Court June 20, 1977.
    Beauchamp E. Brogan, Knoxville, for defendants-appellants.
    Dorothy B. Stulberg, Oak Ridge, for plaintiffs-appellants.
   OPINION

SANDERS, Judge.

Suit was filed by a number of students in the College of Law against the Dean and faculty members of the College of Law of the University of Tennessee. The purpose of the suit was to have the Court hold that meetings of the faculty and meetings of committees composed of faculty members and students were subject to the Tennessee Open Meetings Act under T.C.A. § 8-4401, et seq.

The complaint seeks an injunction against such meetings' being held without admitting the public. It seeks to require adequate notice be given of the meetings and to require minutes of the meetings to be published.

The Chancellor held the provisions of T.C.A. § 8-4401, et seq., are applicable to such meetings. He held that notice of such meetings should be given. He enjoined the Defendants from holding meetings without complying with the Act. He held the Act did not prohibit voting by secret ballot at the meetings. He denied Plaintiffs’ request for attorneys’ fees. He also suspended the injunction pending appeal.

Both sides have appealed and assigned error. The Defendants say it was error for the Court to hold their meetings were subject to the Act. The Plaintiffs say it was error for the Court to hold that a vote could be taken by secret ballot. They also say it was error for the Court to deny their request for attorneys’ fees and to suspend the injunction pending this appeal.

There is virtually no dispute as to the material facts in the case. The case turns on one simply question — Do the meetings of the faculty and committees of the College of Law constitute the meeting of a “governing body” of a public body with authority to make decisions for or recommendations to a public body, as set out in the Act?

As pertinent here, T.C.A. § 8-4402 provides:

“All meetings of any governing body are declared to be public meetings open to the public at all times, except as provided by the Tennessee constitution.
“ ‘Governing body’ means the members of any public body which consists of two or more members, with the authority to make decisions for or recommendations to a public body on policy or administration.
“ ‘Meeting’ means the convening of a governing body of a public body for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter.”

To determine whether or not the meetings are within the Act we need to look at the organizational structure of the University of Tennessee and the committees within the College of Law.

The affairs of the University are governed by a Board of Trustees. Article VI of the Charter of the University of Tennessee provides as follows:

“SECTION 1. The governing body of the University shall be a Board of Trustees consisting of five ex officio members and eighteen additional appointive members.
The By-laws of the University provide: Article 1, SECTION 1.—
“THE BOARD OF TRUSTEES, which is the governing body of The University of Tennessee, shall have full and complete control over its organization and administration, also over its constituent parts and its financial affairs. . . .”
SECTION 2.—
“THE BOARD OF TRUSTEES SHALL:
“(a) Establish policies controlling the scope of the educational opportunities to be offered by the University and also policies determining its operation in general; however, the planning and development of curricula shall be the function of the faculties; . . . .”

The Board of Trustees governs the affairs of the College of Law in the same manner as the other colleges in the University. The University is organized in pyramid fashion with the Board of Trustees occupying the position of final authority at the top of the structure. The Board of Trustees formulates policies for the governance of the University and implements its policies through a chain of command through the President who, in turn, entrusts the administration of affairs concerning the various colleges through the Vice-Chancellor of Academic Affairs who, in turn, directs the administration of University policy through the Deans of the various colleges in the University. It is the Dean of the College and not the faculty of the college that is held directly accountable in this chain of command.

The Deans of the colleges are the chief administrative officers of their respective colleges, but cannot formulate policies that govern the college. These policies must come from the Board of Trustees. Nor can the Dean make recommendations to the Trustees. The Dean has the sole responsibility for the functions of his college. The individual members of the faculty in the College of Law have no authority over the way and manner the college is run. Nor do they have authority to make decisions for or recommendations to the governing body of the University.

The predecessor Deans of the College of Law, prior to the present Dean Pennegar, consulted with members of the faculty very infrequently concerning the functions of the College. One witness described Dean Pennegar’s predecessor on faculty consultation by saying he might stop you in the hall to ask you a question, make a note and stick it in his watch pocket, and that was the last you would hear of it.

When Dean Pennegar came to the University in 1971 he started soliciting “input” from the faculty. He began forming committees among the faculty, in many cases with student members, to advise him and assist him in decision making. Although the number of committees may vary from year to year, at the time of the trial of this case there were some 14 committees covering such things as admission standards, curriculum, re-admission, faculty appointments, legal clinics, etc. The Dean determines the size and members of the committees, defines their purposes and limits of activity. He may dissolve any or all of the committees at any time. He may adopt or reject recommendations of the committees. If recommendations are made which he is without authority to implement he may pass them on to the Vice-Chancellor of the University. The Dean prepares the agenda for the committee and faculty meetings and presides over the meetings. There are no provisions in the Charter or By-Laws of the University authorizing the committees and they exist at the will of the Dean.

The Plaintiffs insist that since these committees have authority to make recommendations to the Dean and since the Dean passes some of these recommendations on to the Vice-Chancellor who, in turn, may pass them on to the President of the University who, in turn, may pass them on to the Board of Trustees, this makes the members of the faculty a “governing body” and their meetings within the meaning of the Act.

We cannot agree. The committees exist by virtue of having been created by the Dean. They derive their authority from the Dean. Their authority is to make recommendations to the Dean. The Dean is not a public body, he is an administrative officer. Consequently, the faculty meetings and committee meetings of the College of Law are not subject to the provisions of the Act.

The Chancellor, in his memorandum opinion, relies heavily on a decision recently handed down by our Supreme Court in the case of Dorrier v. Dark, Tenn., 537 S.W.2d 888 (1976), to support the proposition the meetings are within the Act. We believe the Chancellor’s interpretation of the language of the Court in Dorrier is too expansive. The Court held that meetings of the Metropolitan Board of Education were subject to the provisions of the Open Meetings Act, thereby rendering the Board’s action terminating Dark as a teacher in the Metropolitan school system void. The Court’s ruling was primarily concerned with constitutional issues and held: (1) The Act was not unconstitutionally vague; (2) nor was it unconstitutionally broader in scope than its caption; and (3) it did not infringe upon rights of free speech of members of governing bodies.

Dorrier is factually distinguishable from the case at bar. In that case it was stipulated the Metropolitan Board of Education was a governing body. The defendants in Dorrier asserted the term “public body” as used in the definition of “governing body” in the Act was so uncertain that men of common intelligence must necessarily guess as to its meaning and differ as to its application. The Supreme Court did not find the Act to be ambiguous as to its application and stated as follows at page 892 of its opinion:

“It is clear that for the purpose of this Act, the Legislature intended to include any board, commission, committee, agency, authority or any other body, by whatever name, whose origin and authority may be traced to State, City or County legislative action and whose members have authority to make decisions or recommendations on policy or administration affecting the conduct of the business of the people in the governmental sector.”

The Chancellor, in his memorandum opinion, reasoned that, since the University of Tennessee was created by action of the state legislature and the Board of Trustees was created by the state legislature to govern the University, the meetings of the faculty and committees of the College of Law were “traceable” to state legislative action through the Board’s delegation of authority to various individuals and groups of individuals in the structure of the University to administer its policies, thereby bringing such meetings within the Act.

We cannot agree with the Chancellor’s interpretation. What the Supreme Court said must be considered in light of reasonable application. While it is true the existence of the University and the Board of Trustees is traceable to an Act of the legislature, this does not mean that when the Dean of the College of Law asks a given number of faculty members to serve on a committee to assist him in decision making, the committee has its genesis in the legislature.

The Court, in Dorrier, also stated the bar should not take the opinion as being an advisory opinion as to the application of the Act in every instance. It is quite clear the Court considers such determinations to be purely factual in nature, the result being dependent on the facts in each individual case.

Plaintiffs contend that, while in form the Board of Trustees is the governing body of the University, in substance it is actually the faculty who govern the College of Law.

The proof does not support this assertion. The University of Tennessee is organized in such manner that it leaves no doubt where the power to govern lies.

The Plaintiffs insist the faculty has certain governing functions expressly reserved in the By-Laws of the University. They refer to Article I, Section 2(a) of the ByLaws of the University, which states “. the planning and development of curricula shall be the function of the faculties.”

If this provision of the By-Laws can be construed a delegation of authority to the faculty, those meetings of the faculty pertaining to curricula matters might be subject to the Act. However, the individual college faculties have no authority to affect changes in the curriculum of their respective colleges, nor does the faculty of a college, as such, have the authority to make recommendations pertaining to the curriculum of any authority outside of the college. The faculty may make recommendations pertaining to the curricula but, unless the Dean approves the recommendation or elects to pass it to the Undergraduate Council which will, in turn submit the recommendation to the Faculty Senate for final approval, the recommendation does not leave the College of Law. Therefore, even with respect to matters pertaining to curricula, the faculty does not exercise any governmental authority, nor does it have the power to make recommendations to a governing body, which would bring it within the provisions of the Act.

The parties stipulated meetings of the Undergraduate Council and the Faculty Senate are conducted in a public atmosphere but, since the issue as to the status of meetings held by the Faculty Senate and Undergraduate Council are not before us at this time, we shall not address it.

Plaintiffs also assert the law faculty is a governing body within the meaning of the Act because the faculty must necessarily perform governmental functions with respect to the establishment of institutional policies in order to retain its accreditation with various professional accrediting organizations such as the American Bar Association and the Association of American Law Schools in compliance with University directive that all colleges be fully accredited by profession accrediting organizations for the discipline.

Although the Plaintiffs assert this as argument, they cite us to no proof or authority to support it.

The requirement of the Association of American Law Schools, Article 6, Section 4, alluded to by Plaintiffs, states:

“A faculty of high competence and suitable size, vested with primary responsibility for determining institutional policies.”

This merely requires the faculty have primary or initial responsibility and not final authority. The A.A.L.S. requirements are guidelines and failure to totally comply will not result in automatic loss of accreditation. Article 2, Section 2-2 of the Association of American Law Schools, states:

“In determining whether a school fulfills and can continue to fulfill the obligations of membership, the controlling issue is the overall quality of the school measured against the standards of quality articulated in the Requirements of Article 6. The statements of Approved Association Policy and the Regulations are designed to provide guidance in making this assessment. They are not meant to be taken as implying that formal compliance with their specific terms is necessarily equivalent to satisfaction of the qualitative requirements, or that departure from any of their specific terms is automatically demonstrative of qualitative failure.”

Plaintiffs cite, and the Chancellor relied on, Cathcart v. Andersen, 85 Wash.2d 102, 530 P.2d 313 (1975), wherein the Supreme Court of Washington affirmed the Court of Appeals which held faculty meetings at the University of Washington Law School were subject to the state’s open meetings act, to support the proposition that meetings of law faculties are “meetings” of the “governing body” of the law school. The result reached in Cathcart v. Andersen, supra, is distinguishable from the case at bar in that the University of Washington law faculty was authorized to act as a governing body. At page 315, of 530 P.2d of its opinion the court said:

“Not only was the law school facility itself created pursuant to statute, but the faculty of each college or school was empowered, as agent of the board of regents, to govern the immediate affairs of the respective college or school.”

This is clearly not the situation presented in the case at bar.

Since neither the meetings of the Dean’s advisory committees nor the meetings of the faculty of the College of Law meet the criteria of a “governing body” within the provisions of the Act, the Defendants’ first assignment of error is sustained.

Our ruling on this assignment makes the assignments of error by the Plaintiffs moot.

The remaining assignments of the Defendants are pretermitted.

The decree of the Chancellor is reversed. The Plaintiffs’ complaint is dismissed.

The costs of this appeal, together with the costs in the Trial Court, are taxed to the Plaintiffs.

PARROTT, P. J., and GODDARD, J., concur.


source: Caselaw Access Project

author: BYERS, Judge.

license: Public Domain

text:
    Claude R. TRAIL, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 17, 1976.
    Certiorari Denied by Supreme Court Feb. 14, 1977.
    H. Thomas Parsons, Manchester, for appellant.
    R. A. Ashley, Jr., Atty. Gen., Donald S. Caulkins, Asst. Atty. Gen., Nashville, Charles S. Ramsey, Jr., Dist. Atty. Gen., John Rollins, Asst. Dist. Atty. Gen., Manchester, for appellee.
   OPINION

BYERS, Judge.

The Appellant was convicted of driving while under the influence of an intoxicant, second offense, and sentenced to serve nine (9) months in the County Workhouse and to pay a fine of Three Hundred Dollars ($300.00). In addition, the judgment prohibits the Appellant from operating a vehicle on the public roads of this state for three (3) years.

The evidence shows that on July 24,1975, at approximately 7:15 p. m., a collision between two (2) vehicles occurred on U.S. Highway 55 in Coffee County, Tennessee. A state trooper went to the scene to investigate. When he arrived, he found, among other things, that the Appellant had sustained a laceration to his face. In addition, a woman who had been riding as a passenger in the Appellant’s vehicle was hysterical. Both of these people were outside the vehicle when the trooper arrived. Because of their condition and the traffic condition, the trooper had the Appellant and the woman taken to the hospital. After completing his investigation at the scene of the collision, the trooper went to the hospital. Upon arriving at the hospital, the trooper asked the Appellant if he had been driving one of the vehicles involved in the collision. He also asked the Appellant if he would submit to a test to determine whether he was intoxicated. The Appellant told the officer that he was driving one of the vehicles involved in the collision and that he would submit to a blood alcohol test. The Appellant was not seriously injured. The Appellant was not given Miranda warnings prior to being asked if he had been operating one of the vehicles. The blood alcohol test revealed the alcohol content in the Appellant’s blood to be 0.13.

The Appellant assigns three (3) errors. Assignments one (1) and two (2) question the sufficiency of the evidence upon which to base the verdict and the third (3rd) assignment of error asserts that it was error to admit the statement, made by the Appellant, that he was driving one of the vehicles, because he was not advised of his constitutional rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

We will treat these assignments jointly, because the third (3rd) assignment of error will control the ruling on assignments one (1) and two (2).

The Appellant contends that when the officer asked him if he had been driving the vehicle that he was in custody. Further, he contends that at the time of the question by the officer, the focus had shifted from a general investigatory stage to that of an accusatory stage. We do not agree. Clearly, if the officer had inquired of the Appellant at the scene if he were driving one of the vehicles at the time of the collision, such inquiry would have been admissible as a general on the scene investigatory question. Braziel v. State, 529 S.W.2d 501, (Tenn.Cr.App.1975). The fact that the officer had the Appellant removed to the hospital for medical care prior to making inquiry would not significantly shift the inquiry to the accusatory stage. When an accident occurs on the highways, officers are required to prepare and file accident reports. It is incumbent upon them to determine who was operating a vehicle involved in the accident. The nature of the interrogation and its purpose are significant in determining the admissibility of the statement made by an accused. We do not think that the questioning in this case went so far as to be accusatory. The statement made by the Appellant is admissible. State v. Morris, 224 Tenn. 437, 456 S.W.2d 840 (1970).

Even though we are of the opinion that the statement of the Appellant is admissible for the above reasons, we do not think this case is controlled by Braziel v. State, supra, or State v. Morris, supra. We think this case is controlled by California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971). At issue in Byers was the complaint that a California statute, which required a motorist involved in an accident to stop and give his name, was unconstitutional because it compelled self-incrimination contrary to the Fifth (5th) Amendment to the United States Constitution. The United States Supreme Court rejected this contention and held that the statute was not unconstitutional. The Court held that the California statute was a reasonable administrative scheme not directed at obtaining incriminating evidence. Further, the Court pointed out that whether a criminal charge followed the self-identification depended upon other factors and independent evidence. We see no reason why the same rationale should not apply in this case. Tennessee Code Annotated § 59-1003, sometimes called the “hit-and-run statute,” which is similar to the California statute at issue in Byers, requires that the driver of a vehicle involved in an accident reveal his name to any person with whom he has collided. The fact that the information which the operator of a vehicle is required by statute to give is elicited by an officer in the ordinary course of an accident investigation is no bar to its admission. We hold, therefore, that an officer may, in the course of an investigation of an automobile accident, make inquiry of a person to determine if he had been operating a vehicle involved in a collision without giving the Miranda advice. Further, it is our opinion that the statement of a person in response to such question, revealing that he was in fact the operator of a vehicle involved in an accident, is admissible and not a violation of the Fifth (5th) Amendment of the United States Constitution.

The statement of the Appellant that he was driving the vehicle; the testimony of the officer that the Appellant was intoxicated; and the result of the blood test showing the Appellant's intoxication were sufficient upon which to base the verdict.

The Appellant has failed to demonstrate that the evidence preponderates against the verdict of the jury. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963); Jamison v. State, 220 Tenn. 280, 416 S.W.2d 768 (1967).

The assignments of error are overruled, and the judgment of the trial court is affirmed.

O’BRIEN and DUNCAN, JJ., concur.


author: DAUGHTREY, Judge. GALBREATH, Judge,

text:
    Jack F. CLARIDAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Dec. 30, 1976.
    Certiorari Denied by Supreme Court April 25, 1977.

      E. E. Edwards, III, and Joe P. Binkley, Sr., Nashville, for appellant.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, Aaron Wyckoff and C. Douglas Thoresen, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Jack F. Clari-day, was indicted and convicted for accepting a $2,500.00 bribe while he was a member of the Metropolitan Nashville-Davidson County Council. The jury assessed his sentence at not less nor more than three years incarceration. On appeal the defendant assigns eighteen errors as grounds for seeking reversal of his conviction. Several of these assignments are not fully briefed before this Court, and therefore can afford the defendant no relief. Although those that remain raise several substantial issues for our determination, we find no reversible error and, accordingly, we affirm the judgment entered below.

The act of bribery in this case undoubtedly was precipitated by the existence of a local practice known as “councilmanic courtesy.” Under this practice, proposed zoning and sewer ordinance changes were subject to veto by the council member in whose district the proposed changes would be effected.

An Alabama real estate development company, desiring to construct a shopping center complex in Donelson (Davidson County) Tennessee, determined that it would first be necessary to build a private sewer system in order to secure building permits for the proposed shopping center. Sewer ordinances were subject to Council approval, and two of the developer’s employees, Charles Satterfield and Harold Hale, contacted the district Council member — the defendant, Jack F. Clariday— seeking his support for their company’s construction plan.

Satterfield first talked to Clariday during the fall of 1972 at the defendant’s place of business, his Donelson barber shop. Asked to sponsor the necessary sewer ordinance, Clariday responded, “Well, I can do this, but why the hell should I?” It quickly became apparent that the defendant wanted to relocate his shop in the new complex. This idea was not acceptable to the developers for various reasons, including the relative commercial undesirability of the defendant’s type of business and the existence of prior space commitments with other major companies.

After several unfruitful meetings between Satterfield and Clariday, Satterfield introduced the defendant to Hale, who met with Clariday on more than one occasion in a bowling alley located across from the defendant’s barber shop. Hale also resisted the defendant’s demands to relocate in the new complex. Pressed for favorable action on the sewer ordinance, Clariday finally complained in exasperation, “Why should I [sponsor this bill]? Kroger’s making money on this. You’re making money on this, but I’m not making a penny on it.” To this Hale replied, “What would it take?” The defendant picked up a napkin and wrote “$2,500.00” on it.

Hale and his business associates subsequently conferred over the matter and decided to pay the bribe rather than have the construction project tied up any longer. Pursuant to explicit telephone instructions received from the defendant on November 2, 1972, Hale returned to Nashville and on November 7 went to the law office of one James A. Carney, to whom he delivered an envelope containing twenty-five $100.00 bills. A few days later Carney gave the envelope to Clariday at a Donelson church the two of them regularly attended.

Thereafter Clariday undertook sponsorship of the needed sewer ordinance, although there was an additional period of delay before its ultimate passage. During this time the defendant convinced the shopping center developers to build his new barber shop for him at cost. (It was finally located at one end of the complex, rather than in the main traffic area as Clariday had originally demanded.)

Over a year later Clariday recontacted Hale and returned the $2,500.00, after the Metropolitan Council Ethics Committee had begun hearings concerning the activities of some ten or twelve Council members (including the defendant).

I. Applicability of T.C.A. § 39S02

The defendant was charged and convicted under T.C.A. § 39-802, a statute which was first adopted in 1858, as derived from a similar provision enacted in 1829, and which provides:

Any executive, legislative, or judicial officer who corruptly accepts, or agrees to accept, any gift or gratuity, or thing of value, or any promise to make any gift, or do any act beneficial to such officer, under an agreement or with an understanding that his vote, opinion, or judgment is to be given in any particular manner, or upon any particular side of any question or proceeding which is, or may by law be brought, before him in his official capacity, or that, in such capacity, he is to make any particular appointment, shall, on conviction, be punished by imprisonment in the penitentiary not less than three (3) years nor more than twenty-one (21) years.

The defendant contends that this provision has no application to the facts alleged in the indictment because of the subsequent enactment of T.C.A. § 39-804, which governs the acceptance of bribes by any “[p]eace officer or as such state, county or municipal employee . . . ,” The defendant argues that as a municipal official he is covered exclusively by the terms of the latter statute. We do not agree.

By its plain language § 39-802 applies to “any executive, legislative, or judicial officer” (emphasis ours) and prohibits exactly the kind of illegal conduct charged in the indictment in this case, /. e., the acceptance of a gratuity by such official “under an agreement or with an understanding that his vote . . . is to be given in any particular manner . . . .”

By its terms § 39-804 applies to the misconduct of two other principal categories of persons connected with governmental activities, i. e. “any police officer or official, sheriff, deputy sheriff, constable, town marshall, game warden, deputy game warden, state highway patrolman or any other state, county, or municipal peace officer, or any state, county or municipal employee . .” (emphasis ours). It is clear that the defendant falls into neither of the major categories elaborated in § 39-804. If his misconduct is not covered by § 39-802, it is not proscribed at all. We do not think the legislature intended to create such a gap in the law, and we prefer to give full effect to the plain language of § 39-802.

It follows that the trial judge was correct in overruling the defendant’s motion to quash based on this issue, and the related assignment of error must therefore be overruled.

II. Pre-trial Publicity

The Metro Council Ethics Committee held hearings during February and March of 1974. The defendant’s activities in connection with his successful attempt to relocate his barber shop were among the subjects considered by the Ethics Committee, but there was no investigation into the $2,500.00 bribe for which the defendant was tried in this case.

Clariday was indicted for bribery in May 1974, and his attorney filed a plea in abatement some two months later, in which he alleged that massive pre-trial publicity “generated by the misconduct of the government,” i. e. the Ethics Committee hearings, had so prejudiced the defendant’s case that he was unable to secure a fair and impartial trial. The defendant’s request for dismissal of the charge on its merits was predicated on various federal authorities, the most relevant being Delaney v. United States, 199 F.2d 107 (1st Cir. 1952), and United States v. Abbott Laboratories, 369 F.Supp. 1396 (E.D.N.C.1973).

In Delaney a subcommittee of the United States House of Representatives held public hearings that involved a defendant awaiting trial on a pending indictment. The First Circuit Court of Appeals indicated that when damaging publicity results from such hearings, the government “may find it necessary to postpone the trial until by lapse of time the danger of prejudice may reasonably be thought to have been substantially removed.” Id. at 114.

While we do not disagree with the policy expressed in Delaney, we think that case is distinguishable from the facts before us: here the subject matter of the hearings was different from the misconduct alleged in the indictment; Clariday was not charged until after the hearings were concluded; and no continuance was sought by the defendant (presumably none was needed) because at the trial some ten months after the conclusion of the hearings, the voir dire of the jury by defense counsel was entirely perfunctory. Furthermore, the record fails to reflect any inordinate difficulty in seating a qualified jury. We note finally that the remedy suggested in Delaney is continuance, and not outright dismissal as requested here.

In Abbott, the court did order dismissal as a result of adverse pre-trial publicity, because five days before the indictment was handed down, the Food and Drug Administration (at whose request the Justice Department initiated prosecution) disseminated prejudicial information against the defendant. The Court concluded that such an “extreme penalty” was necessary “because the government . . . solely generated the prejudicial publicity (emphasis added).” 369 F.Supp. at 1404. Again, the situation here must be distinguished. In the case before us there was a difference in the subject matter investigated by the two bodies (the Ethics Committee and the Grand Jury). Furthermore, the publicity in this case was generated not only by the public hearings, but also by various press confer-enees and interviews initiated by the defendant and his counsel. The defendant obviously thought that increased publicity would work to his benefit. He cannot now be heard to complain that it did not.

Finally, the defendant argues that the State’s motion to strike the plea in abatement had the procedural consequence of admitting the truth of all factual allegations in the plea. This is a correct statement of law. State v. Black, 524 S.W.2d 913 (Tenn.1975). Applied here, it means that the State admitted the existence of extensive publicity concerning Clariday as a direct result of the Ethics Committee hearings. It does not mean that the defendant’s conclusions were conceded by the State, e. g. that the State was “guilty of misconduct,” or that the publicity made it “impossible for the defendant to receive a fair trial,” or that the Grand Jury was “improperly influenced” by the publicity.

The assignment of error attacking the order of the trial court granting the State’s motion to strike the defendant’s plea in abatement is overruled.

III. Prosecution’s Failure to Disclose

The defendant filed extensive pre-trial discovery and disclosure motions, relying on the existing State statutes and on constitutional guarantees. He complains on appeal that he was not furnished statements made by the defendant to Satterfield and Hale and that the State violated his right to due process in failing to disclose the prior statement of a material witness (Carney) which was inconsistent with his testimony at trial.

The statements made by the defendant to the two witnesses for the State are plainly outside the purview of T.C.A. § 40-2441, which limits discovery of an accused’s statements to those “made before any law enforcement officer or agency . . . .” Although Hale later cooperated with the State and was given immunity from prosecution in exchange for his testimony against Clariday, he certainly was in no sense an agent of the State at the time the undisclosed statements were made. We therefore find no violation of T.C.A. § 40-2441. The defendant’s reliance on State v. Gaddis, 530 S.W.2d 64 (Tenn.1975) is misplaced. Gaddis relates to the substantially broader provisions of T.C.A. § 40-2044, governing inspection of tangible evidence, and by its own terms cannot be retroactively applied to the case before us.

The purported inconsistent statement by the witness Carney was not made a part of the record on appeal and is not properly before us for review.

The assignments related to non-disclosure are overruled.

IV. Applicability of the Best Evidence Rule

According to Hale’s testimony, after the defendant wrote the figures $2,500.00 on a napkin, the napkin “was discarded by either Mr. Clariday or myself, I don’t know (whom).” He further testified that it was not presently in his possession.

The defendant objected to the introduction of this testimony on the grounds that it constituted hearsay and that it was inadmissible unless the original napkin was produced in court. He now argues that because the napkin may have been destroyed at the hands of the proponent, oral testimony as to its content must be excluded by operation of the best evidence rule. We do not agree.

In the first place, it is far from clear that the rule ought to be applied in these circumstances. The transaction here was conversational in nature, and what is relevant is not the “document” itself, but the fact that it was “executed.” See McCormick, Evidence § 233 (2d ed. 1972). The napkin in question also bears close resemblance to an inscribed chattel, to which the production-of-documents rule is applied on a discretionary basis “in light of such factors as the need for precise information as to the exact inscription, the ease or difficulty of production, and the simplicity or complexity of the inscription.” Id. at § 232.

Even if the best evidence rule is applicable here, it must be remembered that the rule is one of preference rather than exclusion. Thus, in an instance involving loss or destruction of a document relevant to the issues being litigated, “if as a practical matter the document cannot be produced . . . , the production of the original is excused and other evidence of its contents becomes admissible.” Id. at § 237.

There was no dispute at trial as to the non-existence of the original writing, but the defendant objected to the proponent’s offer of oral testimony on the ground that because the original was destroyed by the proponent, secondary evidence of its content was inadmissible. However, this result would follow only if the proponent were unable to show “that the destruction was accidental or was done in good faith, without intention to prevent its use as evidence. . . . ” Id.

The record before us fails to raise any inference of fraud. Furthermore, the writing itself was uncomplicated and there is no suggestion of testimonial mistransmission of its content. The defendant does not contest the accuracy of the witness’s testimony concerning what was inscribed on the napkin. Instead he wishes by means of the best evidence rule to bar introduction of testimony concerning what was written on the napkin, arguing that the napkin itself may never have existed nor the event ever transpired. As we have noted previously, the function of the rule is not to exclude documentary evidence, but only to require production of the best available form of that evidence. Once the secondary evidence had been admitted, the defendant was free to use all regularly available methods to impeach the testimony of the witness as to the occurrence or non-occurrence of the event itself, i. e. the defendant’s act of inscription on the napkin.

The trial court committed no error in allowing introduction of this evidence. The related assignment of error is overruled.

V. Admissibility of Tape Recording

On March 20, 1974, just after the conclusion of the Ethics Committee hearings and after the Tennessee Bureau of Investigation had conducted interviews of Satterfield and Hale, but two months prior to the defendant’s indictment and arrest, Clariday called Hale at Hale’s home in Alabama, apparently to determine whether Hale had talked to the authorities in Nashville about the $2,500.00 bribe. The conversation was recorded by a device which the T.B.I. had attached to Hale’s telephone with his knowledge and consent. Both the tape and a written transcription were introduced into evidence over the defendant’s two-pronged objection: first, that the conversation was irrelevant; and second, that it violated his rights under the Fourth, Fifth, and Sixth Amendments to the United States Constitution, as well as his parallel rights under the Tennessee Constitution.

The conversation between Clariday and Hale was short and to the point:

“Hale: Hello.
Clariday: Is Hale there?
Hale: This is he.
Clariday: Hale, this is Jack Clariday. Hale: Yes.
Clariday: Did you talk to the grand jury or the District Attorney?
Hale: I didn’t talk to the Grand Jury. The assistant district attorney called me up, and I came to Nashville last week.
Clariday: What, did you tell him the whole story?
Hale: Just like I told you, I just told him what happened. Not to go into real detail about it.
Clariday: Did you tell him that I paid you back?
Hale: Yeah, and that . . . that came out.
Clariday: When did you, I mean, what I am trying to find out what position I am in . . . Did you tell him I paid you back, when I did or before I did or when?
Hale: I just, ah, I told him you paid me back, the date you paid me back, right, that came out.
Clariday: You mean the other day?
Hale: Yeah, uh huh, or whenever it was, two or three weeks ago.
Clariday: I guess they are going to put me in the penitentiary then.
Hale: They had me ... ah . threatened me with an indictment, ah, and I had to go.
Clariday: How did they find out about your deal, I mean about you?
Hale: I don’t know. They knew a lot of stuff that surprised me that I didn’t. I don’t know how they found out, Jack, but they called me up and called my attorney and said, you know, unless you get to Tennessee that it was going to be the federal boys down on me.
Clariday: On this?
Hale: Yeah, and ah, when I got there they said they could have indicted me and again that was something that they were pushing hard to get and
Clariday: Well, did they offer you immunity to talk to them?
Hale: Yeah, ah, I would have to say that.
Clariday: I am sorry that it all happened, but it did and I don’t know where we will go from here. I guess they’ll just burn me.
Hale: I don’t know Jack. It was more serious than I thought . . . and maybe, like I say, I don’t know what all is going on up there. I don’t keep up close contact with it but it’s a problem.
Clariday: I’ll . . . I’ll just have to suffer it out I guess.
(Operator signals end of initial period)
Clariday: I’ll see you then, Hale.
Hale: O.K.
Clariday: Bye-Bye.
Hale: Bye.”

The defendant’s contention that this conversation is irrelevant because it represents “no more than the statement of a dejected man” who has “no confidence that he will be treated fairly” must be rejected out of hand. We agree that many of the statements made during the conversation were prejudicial to the defendant’s case. So are most admissions against interest offered by a party-opponent at trial. But we know of no established rule of evidence which would prevent the introduction of these otherwise relevant statements. Not only do the statements tend to show a consciousness of guilt on Clariday’s part, but the reference to his return of money to Hale tends to prove that he accepted money from Hale in the first place. We conclude that the taped conversation is not subject to attack on the basis of its probative value.

The testimony complained of tend-constitutional error in the introduction of the tape. The circumstances of the conversation bear strong resemblance to the facts in Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966). There the government informer was a personal confidant of Hoffa’s and was secretly reporting to government officials statements made by Hoffa both to him and to others within his hearing. The United States Supreme Court found no constitutional violations under the Fourth, Fifth, or Sixth Amendments.

As to the defendant’s contention related to the Fourth Amendment’s protection against unreasonable search and seizure, the Hoffa court held that the informer’s presence did not constitute unwarranted government intrusion, that he was in Hoffa’s hotel suite by invitation, and that, visa-vis the informer, Hoffa had “no interest legitimately protected by the Fourth Amendment” because “[he] was not relying on the security of the hotel room” but “upon his misplaced confidence that Partin (the informer) would not reveal his wrongdoing.” Id. at 302, 87 S.Ct. at 413.

If, under the authority of Hoffa, Hale could testify to his conversation with Clari-day, we see little practical merit in holding that the same conversation could not be recorded and the tape played before the jury, so long as the existence of the recording device was known to one of the parties to the conversation. A plurality of the United States Supreme Court has so held, despite the post-JTof/a case of Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), in which the Court outlawed indiscriminate electronic surveillance in the absence of an authorizing warrant. Writing for the Court in United States v. White, Justice White noted:

If the law gives no protection to the wrongdoer whose trusted accomplice is or becomes a police agent, neither should it protect him when that same agent has recorded or transmitted the conversations which are later offered in evidence to prove the State’s case. 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971) (plurality opinion).

See also Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); United States v. Dowdy, 479 F.2d 213, 229 (4th Cir.), cert. denied 414 U.S. 823, 94 S.Ct. 124, 38 L.Ed.2d 56 (1973), United States v. Puchi, 441 F.2d 697 (9th Cir. 1971); cf. Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312 (1966).

The White plurality’s “assumption of risk” analysis has been subjected to criticism by both the courts and the commentators. See e. g., People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975) (position taken by Harlan, J., dissenting in White, adopted by 6-1 majority); Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 406-07 (1974). But without regard to the soundness of that theory, we think the facts here can be distinguished from those in the usual “bugged” agent situation (typified in White) so as to escape further constitutional criticism: in the case before us the defendant was dealing not with a secret agent, but with someone who told him immediately and unequivocally, at the very beginning of the telephone conversation, that he had become, in effect, an informer for the State. Under these circumstances, we think the defendant made his remarks at his own risk, and, like the White plurality, we are unable to see how the recording of those statements makes any significant, practical or constitutional difference in the result. We agree with Justice White’s conclusion that “[gjiven the possibility or probability that one of his colleagues is cooperating with the police, it is only speculation to assert that the defendant’s utterances would be substantially different or his sense of security any less if he also thought it possible that the suspected colleague is wired for sound.” 401 U.S. at 752, 91 S.Ct. at 1126.

Nor do we think that evidence of the taped conversation violated the defendant’s privilege against self-incrimination. This same question was addressed in Hof fa; there the Court rejected the defendant’s Fifth Amendment claim because his statements to the undercover agents were voluntary and because the facts showed no governmental intrusion. 385 U.S. at 303-04, 87 S.Ct. 408. These conclusions are equally applicable to the facts here. As this court has recently observed, “[w]hile the Fifth Amendment protects one against compulsory furnishing of evidence against oneself, it does not extend to non-privileged communications to third parties.” Sheets v. Hathcock, 528 S.W.2d 47, 50 (Tenn.Cr.App.1975). Accord, Couch v. United States, 409 U.S. 322, 93 S.Ct. 611, 34 L.Ed.2d 548 (1973). Although the third party here was a government informer at the time of the conversation, the defendant was not in custody nor subject to interrogation. Thus the Miranda requirements do not apply.

Finally, we note that the defendant’s Sixth Amendment claim in this context is virtually the same as that raised and rejected in Hof fa. There the Court held that nothing in previous Supreme Court rulings mandated the right to counsel prior to arrest, and that “[t]here is no constitutional right to be arrested.” 385 U.S. at 310, 87 S.Ct. at 417. Thus, under the Sixth Amendment, a criminal defendant has the right to the guiding hand of counsel during every critical stage of a criminal proceeding, once it has been formally commenced by arrest or indictment, but he or she has no right to counsel during police investigation or surveillance prior to the initiation of “adversary judicial proceedings.” Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972).

We therefore hold that introduction of the recorded conversation violated no constitutional rights of the defendant and we overrule the assignment of error relating to this question.

VI. Order of Presentation at Trial

The defendant next complains that the court committed error in allowing the State to recall a witness in rebuttal for the sole purpose of redeeming the testimony she gave during direct examination. The witness was a telephone company official who testified that a certain call was made from a specific business at a specific time. When the defense proved that the business establishment in question was closed at the time of the alleged call, the court allowed the State to recall the witness to correct her testimony — she testified that she had misread the telephone number in the company records by one digit.

We are not convinced by the defendant’s argument that this constituted an abuse of discretion on the ground that it somehow made the defendant’s efforts to impeach the witness look “underhanded.” The assignment is therefore overruled.

The defendant also challenges the trial court’s decision to allow the State to reopen its case, another area of trial procedure which clearly falls within the trial judge’s discretion. When the State closed its case in chief late one afternoon, the trial judge apparently adjourned court despite the defendant’s desire to enter a motion for a directed verdict of not guilty. The next morning the State was allowed to reopen its case over the defendant’s objection that the State had failed to prove venue prior to resting its case, that the defendant had sought to have a verdict of not guilty directed on this basis on the previous afternoon, and that his challenge to the State’s case on this basis would be improperly thwarted if the State were belatedly allowed to prove venue. His objection was overruled.

The State then called James Carney, the intermediary in the delivery of the $2,500.00 from Hale to Clariday. On the previous day this witness had testified that he received the funds from Hale in his law office located in Nashville, Davidson County, and that within a few days he turned over the envelope to Clariday “on church grounds outside the church building on Lakeland and McGavock.” Upon recall the next day the witness was asked if the church was located in Davidson County, Tennessee, and he responded affirmatively. The defendant contended, and continues to do so, that in the absence of this latter piece of testimony, the record fails to establish venue in Davidson County. We disagree.

There can be no dispute that Carney was acting as Clariday’s agent in the transmission of these funds, whether or not Carney realized this at the time he received the envelope containing the bribe money. While we agree with the proposition espoused by the defendant that venue for accepting a bribe lies only in the county where the bribe was accepted, we see no reason not to extend this rule to cover the locus of a constructive acceptance, in light of the fact that there is no dispute that the money received by the defendant’s agent was subsequently turned over to the defendant. This being true, we think that the bribe was constructively in Clariday’s possession from the moment it was received by Carney, acting as his designated agent. Furthermore, the trial court could have taken judicial notice that the intersection of Lakeland Drive and McGavock Pike lies within the boundaries of Davidson County. White v. State, 540 S.W.2d 287, 289 (Tenn. Cr.App.1976).

We therefore conclude that venue had been established at the time the State closed its case, and that a reopening was unnecessary for this purpose. In reaching this conclusion we are mindful that venue is a jurisdictional requisite under Tennessee law and cannot be waived by going to trial on the merits of the case. Nevertheless, it is also true that venue is provable merely by a preponderance of the evidence, and we do not think the same legal niceties must be applied in proving venue as are required to establish the existence of an essential element of the offense charged.

Moreover, we hold that the trial court’s action in permitting the State to reopen its case was not an abuse of discretion under these facts. Under Tennessee law a judge has the discretion to permit the introduction of further evidence even after a party has moved for a directed verdict. Boone v. Citizens’ Bank & Trust Co., 154 Tenn. 241, 290 S.W. 39 (1927); Kelley v. Brading, 47 Tenn.App. 223, 337 S.W.2d 471 (1960). Courts in other states have recognized this rule and have applied it to criminal cases in which the State has been permitted to reopen its case for the purpose of establishing venue. McClain v. Commonwealth, 189 Va. 847, 55 S.E.2d 49 (1949); People v. Eger, 299 Mich. 49, 299 N.W. 803 (1941); Alstott v. State, 205 Ind. 92, 185 N.E. 896 (1933).

In the absence of any manifest injustice, the trial court’s exercise of discretion here must be upheld. Higgins v. Steide, 47 Tenn.App. 42, 335 S.W.2d 533 (1959). The assignment of error is therefore overruled.

VII. Trial Court’s Failure to Direct the Verdict

The defendant presents several legal and factual bases on which he contends the trial judge should have directed a verdict of not guilty. We have examined them all, and we find as to each of the grounds that the facts adduced at trial made out a prima facie case for the jury’s determination.

One additional legal ground is put forward, that the trial court should have directed a verdict of not guilty on the basis of the controversy surrounding the question of venue. We think this contention is legally unmeritorious. See Section VI, supra. Accordingly, we overrule all those assignments related to the court’s refusal to direct a verdict in the defendant’s favor.

VIII. Qualification of the Jury Foreman

Some time shortly after the verdict was returned, the defendant’s attorneys discovered that the jury foreman was a part-time student at Nashville’s YMCA (night) Law School, where he was enrolled in a criminal law class taught by District Attorney General Thomas H. Shriver, the chief prosecuting officer in the county in which the trial occurred. Although Shriver’s signature appeared on the indictment (which was read to the jury at the commencement of trial), he did not participate in any phase of the actual trial of the case. Nevertheless, the defendant insists that the juror in question was unqualified to sit on the jury and that his failure to disclose his relationship with the district attorney deprived defense counsel of the intelligent exercise of peremptory challenges in the defendant’s behalf.

There is no evidence in the record to suggest that the law student-juror answered any question falsely or withheld requested information. Furthermore, questions addressed by the defense to the prospective jurors can only be described as perfunctory. (They were also surprisingly few in number, given the defendant’s previous complaint concerning the amount of publicity which preceded the trial. See Section II, supra.) In the absence of questions calculated to produce specific answers, we think the defendant waived his right to object to a juror’s failure to volunteer what could reasonably be interpreted as extraneous information. Monday v. State, 160 Tenn. 258, 23 S.W.2d 656 (1930).

The defendant next argues that in the circumstances of this case the undisclosed relationship of teacher-student in effect disqualifies the juror per se, under the authority of Toombs v. State, 197 Tenn. 229, 270 S.W.2d 649 (1954). In Toombs the Tennessee Supreme Court held that a kindred relationship and close friendship of a juror who was a first cousin of the prosecuting witness’s wife should have been re-vealed by the juror when he was asked if he knew of any reason why he could not give all parties a fair trial. The Court said that the juror’s “failure in this respect justifies the conclusion that he had a purpose unfavorable to [the defendants] in withholding that information. . . Id. at 651. Therefore the Court found a disqualification propter affectum, i. e. one based on the bias or partiality of the juror (as opposed to a disqualification propter defectum, arising from requirements relating to age, residency, physical or mental disability, relationship, etc.). As a result, the Toombs Court held that the defendants were entitled to a new trial despite the failure of the defense attorneys to inquire specifically into the relationship between the prospective jurors and the prosecuting witness.

We are urged by the defendant to extend the rule of Toombs to the facts before us. We decline to do so. The distinguishing factors between the two cases are too obvious to require detailed analysis. Moreover, at least one Tennessee court has previously determined that the existence of a teacher-pupil relationship between attorney and juror does not give rise to an inherently prejudicial situation. Sears v. Lewis, 49 Tenn.App. 631, 357 S.W.2d 839, 842 (1961). Furthermore, there was no proof offered at the hearing on the motion for a new trial, either by way of affidavit or by oral testimony, to show any improper influence on the verdict by the juror in question. Under such circumstances, we find that the defendant has failed to discharge his burden of showing a prima facie case of bias or favor. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555 (1945).

Since we hold that the juror was not legally disqualified, and there being no evidence in the record showing actual favor or partiality affecting the outcome of the trial, we overrule the assignment of error related to this issue.

We can find no error in the record which would require reversal of this conviction. The judgment of the trial court is therefore affirmed.

RUSSELL and GALBREATH, JJ., concur.

GALBREATH, Judge,

concurring.

While concurring without reservation in Judge Daughtrey’s opinion I would follow precedent laid down by such humane jurists as Mr. Justice Cook in Woodruff v. State, 164 Tenn. 530, 51 S.W.2d 843 (1932), and urge that clemency, if appropriate, be extended if application is made on behalf of the defendant, whom I regard as a product of the same misguided but all too often tolerated approach to public service that resulted in the prosecutions of and clemency bestowed upon such political figures as a former President and Vice-President of the United States.

Hopefully, the painful lessons of recent years that have forcibly taught those entrusted with public office that they, even more than others, should refrain from violation of law, will be effective. It is doubtful if any useful purpose to society will be served by incarcerating any first offenders in this category, if it is made to appear that the chances of them again engaging in improper conduct is remote and that the chances for complete rehabilitation are promising. The deterrent effects of the ordeal inherent in the publicity surrounding the prosecution is probably much more effective than would be punishment and in illustrating graphically that, in our society, no person is above the law.

      . Code 1858, § 4798.

      . Acts, 1829, Ch. 23, Sec. 44.

      . Code 1932, § 11084.

      . “Any of the officers, officials or state, county or municipal employees mentioned in § 39-803 who corruptly accepts, or agrees to accept, any gift, gratuity, or thing of value, or any promise to make any gift or gratuity, for doing any act other than those required by law of him as peace officer or as such state, county or municipal employee, or who refrains or desists from performing any such duty, shall be guilty of a felony and be punished by imprisonment in the penitentiary for no less than two (2) years or more than ten (10) years. In any prosecution under this section or § 39-803, neither the officer, nor the state, county or municipal employee, nor the person offering, giving, promising or receiving the bribe shall be deemed to be an accomplice of the other so as to require corroboration.”

      . The actual list of persons covered by § 39-804 appears in § 39-803, governing the bribery or offer of a bribe to an official, and is incorporated by specific reference in § 39-804. See n. 4, supra.

      . The defendant also relies, apparently by analogy, on Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), in which the United States Supreme Court held that dismissal on the merits is the only constitutionally appropriate remedy for violation of an accused’s speedy trial rights. To our knowledge, no such exclusive remedy for prejudice engendered by adverse pre-trial publicity has been recognized by any federal or state courts. The usual mode of relief is by change of venue or continuance.

      . See T.C.A. § 40-2044 and § 40-2441.

      . See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Branch v. State, 4 Tenn.Cr.App. 164, 469 S.W.2d 533 (1970).

      . The State did furnish the defendant with a transcription of a telephone conversation between Hale and Clariday that occurred after Hale was interviewed by the State prosecutor and investigator. See Section V, infra.

      . The defendant has failed to brief the hearsay question presented. We conclude that the testimony does not involve hearsay, because the evidence was offered not to prove the truth of the matter recorded, but only that the event in fact occurred. It is in the nature of a verbal act. See McCormick, Evidence § 249 (2d ed. 1972). But the question is academic, because even if the evidence were viewed as hearsay, it comes within a well-recognized exception to the rule against hearsay: admissions of a party-opponent. See McCormick, supra, § 262.

      .The State responds that the “proponent” of this evidence is the State rather than the witness Hale, and that Hale’s failure to preserve the napkin is not attributable to the State. This argument is not unreasonable, but we think it is unnecessary to decide this point. The evidence fails to show conclusively who actually disposed of the napkin; it also fails to indicate any fraud in the loss of this evidence.

      . Significantly, none of the dissenters in White specifically questioned the status of Hoffa.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . No effort to make such a motion appears in the bill of exceptions until the following morning. However, at that time the State did not contest defense counsel’s assertion that he had tried to make his motion the evening before and was prevented from doing so by a specific ruling of the court.

      . During voir dire for the defendant, defense counsel discussed the concept of reasonable doubt, informed the jury that the defendant sought only a fair trial, and asked if the relative position of the defendant and the prosecuting witness would prevent any of the prospective jurors from giving the defendant a fair trial. After receiving no reply, defense counsel immediately accepted the jury. The only specific individual questions put by the defense were aimed at a prospective alternate, who was not seated. The jurors were asked their “occupations” by the prosecutors, to which the juror in question answered, apparently truthfully, that he was on the administrative faculty at Mehar-ry Medical School. The trial judge asked if any of the jurors had been represented by any of the four lawyers in the case, two assistant district attorneys and two defense attorneys. Shriver, as noted, was not among the four.

      . Such bases for disqualification are deemed waived once the jury is sworn. Durham v. State, 182 Tenn. 577, 188 S.W.2d 555, 557 (1945).


author: TATUM, Judge.

text:
    Kenneth Ray WILLIAMS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 12, 1977.
    Certiorari Denied by Supreme Court June 27, 1977.

      J. Thomas Caldwell, Ripley, for appellant.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Michael Whitaker, Dist. Atty. Gen., Preston Parks, Asst. Dist. Atty. Gen., Somerville, for appellee.
   OPINION

TATUM, Judge.

Appellant was convicted of second degree murder in the Circuit Court of Lauderdale County and his punishment was fixed at 10 years in the State Penitentiary. We must affirm.

A summary of the evidence accredited by the jury supports the following facts: Appellant was the former husband of the deceased, Barbara Thompson, and they had four children. The deceased had remarried to Victor Thompson. The children were visiting in appellant’s home at the time of the death of their mother.

On June 18, 1975, the frame dwelling house of Victor and Barbara Thompson completely burned and after the fire, only ashes remained. The fire was discovered at about 5:10 P.M. and was well under way at that time. The fire was of unknown origin. However, kerosene was kept in the house.

The body of Barbara Thompson was found inside the building, where she had been lying upon a bed in her own bedroom. She was burned to the extent that only 55 pounds of her torso remained.

The deceased had worked the day of her death at a point about 25 miles from her home. A real estate salesman talked with her by telephone at 4:10 P.M. that same afternoon and arranged to meet her 15 or 20 minutes later for the purpose of showing her a house. The real estate agent arrived at the house which was to be shown about 4:30 P.M., but the deceased did not appear. He attempted to telephone her at home about 5:00 o’clock P.M. Her telephone rang but no one answered. He attempted to telephone her again about 5:15 P.M. and the telephone did not ring. The fire was discovered at about 5:10 P.M.

Appellant and deceased were divorced on September 24, 1973, and the divorce decree obligated appellant to pay child support. He had failed to pay child support and had been arrested for contempt of court in March of 1975. Mrs. Thompson had, shortly before her death, consulted with an attorney about citing the appellant for contempt of court again.

Appellant was seen on the afternoon of the fire between 1:00 o’clock and 1:15 P.M. at a grocery store near the Thompson home. At that time, he had no scratch marks on his face or neck. He was again seen at the Thompson home while it was burning and at that time, he had fresh scratch marks on his face and neck.

Appellant’s automobile was seen parked 400 to 500 yards west of the Thompson home (at about 4:45 P.M., 5:05 P.M. and 5:15 P.M.) the afternoon of Mrs. Thompson’s death. Boot prints were discovered the morning after the fire, beginning at the edge of a plowed field at the yard of the Thompson home. They led away from the home for a distance of about 300 yards to a field road which was north of a blacktop road. The field road was west of the Thompson residence and the boot prints were leading in the general direction in which appellant’s automobile had been parked. There was substantial evidence that the boot prints were made by a pair of boots admittedly owned by appellant.

Appellant did not work on the day of the fire. Appellant testified that he worked the night shift on June 17 and slept until approximately 1:00 o’clock P.M. on June 18. He testified that his present wife was trying to awaken him and they began to wrestle and that as she was falling off the bed, she grabbed for him and scratched his face. He cleaned up, then went to the store where he was seen by other people who testified that at that time he did not have a scratched face. He said that he was not feeling well and that he telephoned his employer that he would not work that day. He went to see his doctor but the doctor was not in his office. He returned home at about 3:30 or 4:00 o’clock P.M. and remained there until his mother telephoned his home and he learned that the house was on fire. He took his son and two daughters to the fire at 5:00 o’clock P.M. or a few minutes thereafter. He took his children home from the fire because they were upset and then returned to the fire with another son. He denied that he had been in the area where the boot prints were found and he denied having anything to do with the death of his former wife. He denied that the automobile parked in the area belonged to him.

Appellant’s wife corroborated his testimony-

There was evidence at the instance of appellant that deceased and her present husband were having marital difficulties; that he was a man of violence and profited by his wife’s death by reason of an insurance policy; and that the deceased had been seeing an unknown male visitor practically every night while her husband was working. In rebuttal, appellant’s daughter testified that he did not arrive home on the day of the fire until about twenty minutes after five in the afternoon and that this was only five or ten minutes before they learned of the fire.

The only medical evidence of the cause of death of Mrs. Thompson was the testimony of Dr. J. T. Francisco, a highly qualified forensic pathologist who is Chief Medical Examiner for the State of Tennessee. Dr. Francisco performed an autopsy on the body of the deceased. He testified that from his examination, Mrs. Thompson did not breathe any carbon-contained materials before her death and he concluded that she was dead when the fire started. There was no evidence of heart attack, stroke or other common natural disease. The stomach contained no chemical material, drugs or barbiturates. No alcohol was in the blood. He testified:

“Q. Could you say with any degree of medical certainty that that was the cause of death, Dr. Francisco?

A. Yessir. Well, in this sense. Death was due to pulmonary edema. Now, pulmonary edema is the type findings of the cause of death is a finding that is consistent with smothering, consistent with the exclusion of oxygen from the body, from some cause from which smothering is a cause and which these findings would be present that the person was dead before the fire occurred.”

On cross-examination, he testified that fire, at the time of death, was not in such proximity to the body that the body would have been in position when alive to inhale smoke from the fire because there was no smoke present in the lungs.

In his first two assignments of error, appellant assails the sufficiency of the evidence. In an excellent brief and able argument, counsel concedes that the corpus delicti can be established by circumstantial evidence but urges that the evidence in this case is insufficient to establish the corpus delicti. In considering these assignments, we must bear in mind the following propositions of law: Corpus delicti may be established by circumstantial evidence but the burden of proof is upon the State to establish the corpus delicti and the criminal agency of the accused beyond a reasonable doubt. Foster v. State, 180 Tenn. 164, 172 S.W.2d 1003 (1943). Evidence which merely makes it possible for the fact in issue to be as alleged, or which raises a mere conjecture, surmise or suspicion, is insufficient. Fine v. State, 193 Tenn. 422, 246 S.W.2d 70 (1952). When the State relies upon circumstantial evidence, as in other cases, the facts proven must be consistent with the hypothesis of guilt and must exclude every other reasonable theory or hypothesis except that of guilt. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959). The State must prove to a moral certainty that a criminal offense was committed and that the accused committed the offense. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958). The question of whether or not the State has sufficiently established the corpus delicti and the guilt of an accused is primarily a function of the jury. McClary v. State, 211 Tenn. 46, 362 S.W.2d 450 (1962). The weight of circumstantial evidence is a question for the jury to determine. The inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are also questions primarily for the jury. Marable v. State, 203 Tenn. 440, 313 S.W.2d 451 (1958).

In applying the law to the facts in this case, we will also bear in mind that the jury verdict of guilty, approved by the Trial Judge, terminates the presumption of innocence of the accused and clothes him in a presumption of guilt in this Court. We are not permitted to reverse a conviction upon the facts unless the evidence clearly preponderates against the verdict of the jury and in favor of the innocence of the accused. We may review the evidence only to determine whether it preponderates against the verdict and the appellant has the burden of showing on appeal that the evidence preponderates against the verdict and in favor of his innocence. Osborne v. State, 512 S.W.2d 612 (Tenn.Cr.App.1974); Sloan v. State, 491 S.W.2d 858 (Tenn.Cr.App.1972).

The medical proof is that Mrs. Thompson died from pulmonary edema. This is caused by the exclusion of oxygen from the body (smothering). She breathed no smoke before her death. Appellant concedes that there is a possibility that the deceased died by a criminal act but insists that it is equally as likely that the ceiling, attic and upper parts of the house fell on the deceased, smothering her. We think that the jury was justified under the evidence in excluding the latter possibility, and in concluding that she would not voluntarily remain in a burning house until the roof fell upon her unless she was asleep or unconscious. Her remains were found in her bed after the fire, but she had made arrangements with a real estate dealer at 4:10 P.M. to meet him at a house in “fifteen or twenty minutes”. It is highly improbable that she would go to bed under the circumstances, fall asleep, and not be awakened by the heat of a fire or smoke before the house burned to the extent that the roof collapsed. She had not been taking drugs or barbiturates or alcohol. The real estate agent telephoned her home at 5:00 o’clock P.M., but received no answer, although the telephone did ring.

In addition, the evidence sufficiently precluded the possibility of illness. She had a history of good health and worked until the day of her death. Dr. Francisco determined that she did not have a heart attack, stroke or other common natural disease. At 4:15 P.M. when the real estate agent telephoned her, she apparently was alert and well and was planning to meet him to look at a house that she and her husband would possibly buy. She obviously intended to leave her home immediately as she was to meet him in “fifteen or twenty minutes”. We are aware that certain heart ailments will prevent the intake of oxygen and cause pulmonary edema but this possibility was excluded by the testimony of Dr. Francisco. Moreover, the jury was justified in concluding that if she remained in the house alive until the fire reached the stage that the burning roof collapsed upon her, she would have smoke in her lungs.

We cannot say that there was no evidence of a corpus delicti or that the evidence preponderates against the jury finding of a corpus delicti.

Appellant further states that if a crime was committed, the evidence of his guilt is insufficient to support a verdict. In considering this proposition, we are bound by the above-mentioned rules of law. Appellant insists that under the evidence, there is no exclusion of other reasonable theories or hypothesis except that of his guilt. He says that it is equally as possible that the deceased’s husband, Victor Thompson, or the unknown visitor, committed the crime. There is direct evidence that Victor Thompson did not commit the crime and that he was at work at the time the crime was committed. There is no evidence of the presence of anyone other than the appellant on the premises when the crime was committed. There was considerable circumstantial evidence that appellant was on the premises with the deceased when the crime was committed, that he had a struggle with someone after he had left his home and the store and that he attempted to conceal his presence by leaving through the fields and by parking his car some distance from the house.

As above pointed out, the weight of circumstantial evidence is a question for the jury to determine. The inferences to be drawn from such evidence, and the extent to which the circumstances are consistent with guilt and inconsistent with innocence, are questions primarily for the jury. The jury has responded to these questions adversely to appellant. The appellant has failed to show that the evidence preponderates against the verdict and in favor of his innocence.

Appellant’s defense of alibi was rejected by the jury. This is a matter that is left to the jury with other facts in the case. Smith v. State, 205 Tenn. 502, 327 S.W.2d 308 (1959).

We do not weigh the evidence as a thirteenth juror but are bound by the familiar rules, previously mentioned. We must therefore, overrule Assignments I and II.

Appellant states that the Court erred in disallowing the testimony of Mrs. Sadie Ozment, the mother of the deceased. The Court sustained the State’s objection to her testimony that about one week prior to the death of the deceased, the deceased told the witness that the deceased’s present husband (Victor Thompson) had attempted to smother her a time or two with a pillow. The witness would also have testified that the deceased expressed fear of Victor Thompson and stated that he wanted her insurance money. This evidence was properly excluded as mere hearsay. If the witness had observed deceased’s husband attempting to smother the deceased, that would not have been incompetent as hearsay, but what the deceased told the witness concerning this alleged episode, is not within any of the exceptions to the hearsay evidence rule. It is not a part of the res gestae. See, Garrison v. State, 163 Tenn. 108, 40 S.W.2d 1009 (1931); Ashby v. State, 124 Tenn. 684, 139 S.W. 872 (1911).

Appellant contends that the Attorney General was allowed by the Court to bring out points in closing argument which were not referred to in the argument of the defense counsel and was, therefore, not rebuttal and was outside the record. The argument of appellant’s counsel is not in the record and we are unable to say that the State’s closing argument was not rebuttal. See, Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857 (1968). Nor do we find that the argument referred to was predicated on evidence not introduced during the trial of the case. The Attorney General pointed out characteristics about appellant’s boots and the boots are in evidence. This is legitimate advocacy. See, Kirkendoll v. State, 198 Tenn. 497, 281 S.W.2d 243 (1955). There is no merit in this assignment.

The judgment of the Circuit Court of Lauderdale County is affirmed.

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


author: DWYER, Judge. TATUM, Judge,

text:
    Alvin BENTLEY, Wayne Kephart and Gary Lane, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 21, 1977.
    Certiorari Denied by Supreme Court June 13, 1977.

      Jere B. Albright, Humboldt, Fred Collins, Milan, for appellants.
    R. A. Ashley, Jr., Atty. Gen., William C. Koch, Jr., Asst. Atty. Gen., Nashville, W. R. Kinton, Jr., Dist. Atty. Gen., Trenton, for appellee.
   OPINION

DWYER, Judge.

The appellants, Alvin Bentley, Wayne Kephart and Gary Lane, appeal their convictions for committing the offense of contributing to the delinquency of a minor, T.C.A. 37-201 et seq., with resulting punishment to each of a fine of fifty dollars plus confinement for six months in the Gibson County Jail.

The appellant Kephart also appeals his conviction for committing the offense of possessing marijuana imposed by the trial court when Kephart waived the jury. The punishment imposed on this judgment was confinement for sixteen days in jail. We will consider both appeals in this opinion.

There are several assignments of error which paraphrased are these: the search warrant obtained for Kephart’s motel room was fatally defective and the evidence seized as a result of that search should have been excluded; the warrantless search of Lane’s room was illegal because his consent was not free and voluntary; the court erred in not dismissing the possession of marijuana charge against Kephart; the trial court erred in not charging appellants’ special request, to wit, it must be shown that appellants knew the prosecutrix was under eighteen years of age in order to convict them; and the argument of the State’s attorney was a comment on appellants’ failure to testify.

The evidence in this record reveals that a girl seventeen years of age, with physical attributes of a much older woman, was posing with the appellants in photographs which depicted acts of intercourse, fellatio, cunnilingus and group sex interplay. The girl, testifying as a witness for the State, acknowledged that she had told the appellants that she was eighteen, that she had been married and that she had a child. This witness also acknowledged providing the camera and suggesting taking the photographs which, coupled with her testimony, support the indictment charge. There is no suggestion from the proof of the State that this girl was other than a willing participant in all the acts that were supposed to have contributed to her delinquency. When she was taken into custody with the appellant Bentley, she gave her age as eighteen to the officers.

The appellants did not testify; however, the appellant Lane called one of the officers who arrested him to show that initially he had refused the officer’s permission to search his motel room. This officer related that only after being placed under arrest, being told that the officers would get a search warrant and come back, and being put in a police car which started to leave the motel, did the appellant give them permission to search his room. Some of the incriminating photographs introduced at trial were then found in a suitcase in his room at the Southgate Motel, which photographs depict Kephart and the girl engaging in sexual activity.

The search of appellant Kephart’s room and car at the Greystone Motel was accomplished by the Milan and Gibson officers after obtaining a search warrant, upon the following affidavit:

“Affiant further states as follows: Informant who has in the past furnished reliable and credible information stated to affiant that informant while in the afore-described room was shown obscene and pornographic materials by an occupant of the room and that affiant believer (sic) based on informant’s information that obscene and pornographic materials are on the aforedescribed premises for the purpose of sale or distribution.”

This search warrant, we think, is void: it fails to state a date when the offense was supposed to have occurred, Welchance v. State, 173 Tenn. 26, 114 S.W.2d 781 (1938); and the photographs being described as obscene and pornographic, we think, states a bald conclusion, Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968). The State concedes that considerable questions are raised as to the validity of the search warrant and the obtaining of the photographs and the marijuana as a result of this search.

The photographs recovered as a result of the search of Kephart’s room under the warrant should not have been admitted into evidence, we think, against Kephart over his objection.

Consequently, the discovery of the marijuana in Kephart’s room as a result of this unreasonable search and its admission into evidence over objection was error. His conviction for possessing marijuana cannot stand and is accordingly reversed.

The State argues that under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), “[the] ‘fruits of the poisoned tree’ [doctrine]” requires that all of the photographs seized in Kephart’s room should have been suppressed as to all three appellants; if we follow this argument, the only evidence left would be the testimony of the prosecutrix and the pictures taken from Lane’s possession. The State then argues that her testimony would be sufficient evidence to sustain these convictions.

In applying Wong Sun, supra, to the facts in this case, we think none of the photographs seized in either search were admissible against Kephart as the pictures illegally taken from his room led to the arrest and search of Lane with discovery of pictures of Kephart and the girl in Lane’s suitcase.

We think Bentley and Lane cannot claim the constitutional right of Kephart to exclude evidence gathered from the unreasonable search of his room due to lack of standing. Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208 (1973). The use of the incriminating photographs depicting prohibited sexual acts involving Lane and Bentley seized from Kephart’s room, therefore, were competent against them and proper for the jury to consider.

We think the search of Lane’s room under the circumstances shown in this record was a far cry removed from a free consent search. The clear evidence reflects his refusal to permit a search when arrested and placed in custody in the squad car. His consent came about only when told they (police) would go get a warrant if he did not consent and started the squad car to do so. His permission then falls short of being voluntary in view of the “totality of circumstances” rule found in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 2058, 2059, 36 L.Ed.2d 854 (1973).

In substance, we hold the pictures seized from Kephart were inadmissible against him as a result of the defective search warrant and the search of Lane’s room and the discovery of photographs of Kephart and the girl were the fruits of the unreasonable search on the defective warrant as outlined. These pictures of Kephart should not have been admitted into evidence. The lack of standing by Lane and Bentley prevents their challenging the search of Kep-hart’s room. The pictures seized therein were incompetent as to Kephart but competent as to Lane and Bentley.

The State argues that if Wong Sun, supra, prohibits the use of the fruits of the poisonous tree against Kephart, the girl’s testimony alone would support his conviction. We think the use of the illegally seized photographs from his room and car had to have a tremendous impact on the jury in weighing her testimony. We cannot say that the use of the photographs did not influence the jury’s verdict as to him and we think it deprived Kephart of a fair trial. The conviction of Kephart for contributing to her delinquency is accordingly reversed and the record as to him is remanded for a new trial. The pictures seized from Kep-hart’s room with no right to privacy inuring to Lane and Bentley depicting these two appellants in sexual activity with the prose-cutrix, coupled with her testimony are sufficient facts to support their convictions.

We think it was improper for the court to charge on the definitions of obscenity, T.C.A. 39-1010, in this record, which at most would be harmless error. With our holding above there was no error in denying appellants’ special request, the trial court properly charged the jury the applicable law. T.C.A. 37-254. This assignment is overruled.

The argument of the State’s attorney not being transcribed into the record, we find no merit in the assignment pertaining thereto.

The contributing to the delinquency of a minor convictions as to Lane and Bentley are affirmed. The judgment of Kephart for contributing to the delinquency of a minor and his possession of marijuana are reversed. The judgments as to him in these two convictions are accordingly remanded for a new trial.

WALKER, P. J., concurs.

TATUM, Judge,

dissenting.

Although I concur with the majority in their holding insofar as the search of the appellant’s premises are concerned and the disposition made by the majority on this proposition, I would reverse and remand as to all defendants on Assignment of Error III.

This assignment is as follows:

“The Court erred in refusing to instruct the jury that in order to return a verdict of guilty, the jury must find that the defendants knew or had knowledge of such facts that they should reasonably have known that the prosecuting witness, Jenny Goodrich, was a minor, under eighteen (18) years of age.”

The prosecuting witness testified that she told at least one of the appellants that she was 18 years of age and that she had previously been married. The majority describes the prosecuting witness as “a girl 17 years of age, with physical attributes of a much older woman”. Having viewed the photographs of the prosecuting witness, I am in full agreement with the majority in their description of her.

The State concedes that the Trial Judge did not instruct the jury concerning the appellants’ knowledge of the prosecuting witness’s true age, but the State says that this is harmless error because the appellants not only caused the minor to violate T.C.A. § 39-3013(A) but because they also caused her to commit delinquent acts by violating T.C.A. § 39-707 (crime against nature statute) and that T.C.A. § 37-254 does not require “knowledge" of the age of the minor.

It is true that the Trial Judge charged the jury the applicable law under T.C.A. § 37-254. If the Trial Judge had stopped there, then I could agree with the majority, but the jury was instructed on T.C.A. §§ 39-3010 — 39-3013 as follows:

“Now, as applied to this case, the State charges these three defendants with contributing to the delinquency of a minor or a child.
I charge you with regard to obscene material that under Section 39-3ol0, [sic] there is defined a certain matter or things that are declared to be obscene by the Statute. The definitions under that particular Statute, Section, 39-3010, says that obscene means that the average persona [sic] applying contemporary community standards will find that the work, taken as a whole, appeals to the Prurient interst [sic], that the work depicts or describes in an offensive way, sexual conduct, and that the work taken as a whole lacks serious literary, artistic or political or scientific value.
The term Prurient interst [sic] means a shameful or morbid interest in sex. The term matter, as applied to obscent [sic] matter includes any number of things, including books or drawings or photographs or picutres [sic] or films. Under this act it is declared to be unlawful and a criminal offense, to knowingly send into the State or to prepare in this State, for sale, distribution, exhibition or display, any matter which is declared to be obscene; which as the statute describes it means that the average person applying contemporary stanrds [sic] would find obscene under this statute.
I charge you further that if an adult encourages, aids or abettes [sic] or contributes to a minor to bring about or to display or take part in the exhibitiion [sic] or display of obscene matter under the Statute in the State of Tennessee, this person sould [sic] be guilty of contributing to the delinquency of a minor.” The pertinent portion of T.C.A. § 39-3013

is as follows:

“39-3013. Importing or preparing in state for sale, distribution, or exhibition — Distribution to or employment of minors — Penalties.—(A) It shall be unlawful to knowingly send cause to be sent, or bring or cause to be brought, into this state for sale, distribution, exhibition, or display, or in this state to prepare for distribution, publish, print, exhibit, distribute, or offer to distribute, or to possess with intent to distribute or to exhibit or offer to distribute any obscene matter. It shall be unlawful to direct, present, or produce any obscene theatrical production or live performance and every person who participates in that part of such production which renders said production or performance obscene is guilty of said offense.
sfc * * ⅜ ⅜ ⅜
(C) It shall be unlawful to hire, employ, or use a minor to do or assist in doing any of the acts described in subsection (A) with knowledge that a person is a minor under eighteen (18) years of age, or while in possession of such facts that he or she should reasonably know that such person is a minor under eighteen (18) years of age.” (Emphasis added).

Since the Trial Judge instructed the jury on the violation involved in T.C.A. § 39-3013, I would hold that it was incumbent upon him to also charge the jury that before the appellants could be convicted under this Code Section, the State must prove beyond a reasonable doubt that the appellants had knowledge that the prosecuting witness was under the age of 18 years or that they were in possession of such facts that they should reasonably know that she was under the age of 18 years.

I cannot justify instructing the jury on the portion of T.C.A. § 39-3013 that would be harmful to the appellants and failing to instruct the jury on the portion of the same Code Section that might be beneficial to the appellants.

As above stated, the prosecuting witness said that she was 18 years of age and her physical appearance would buttress anyone’s reliance upon her statement. I am convinced that the Trial Judge’s rejection of the special request could very well have affected the results and I do not think that this was harmless error.

I would sustain Assignment III and would reverse and remand as to all three appellants.