author: PER CURIAM.

text:
    In re the MARRIAGE OF Billy WOLF, Plaintiff-Respondent, and Viola L. Wolf, Defendant-Appellant.
    No. KCD 28451.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    McMullin, Wilson & Schwarz, Kansas City, for defendant-appellant.
    John C. Milholland, A. J. Anderson, Har-risonville, for plaintiff-respondent.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   PER CURIAM.

The parties were granted a divorce and, upon the open consent of the mother, the custody of the girl child Michele, then three years of age, was awarded to the father. Two years later the mother petitioned that the custody of the child be given her on the change of condition of her remarriage. The trial court denied the request and this appeal follows.

There is no serious contention in the evidence that the custodial care of the father fell short in care, affection, or attention to her physical needs. In fact, there is no doubt that he clothed her, fed her, led her to church and school, and was in the most tender way also a surrogate mother. The complaint here is that on three occasions the father took to his bed a woman— not his wife — in a resort cabin which the child shared. The evidence is ambiguous whether the intimacy was displayed in the presence of the child. The judgment of the trial court implies a finding contrary to the contention which assumes such conduct by the father. There is no reason to disturb that finding.

The basic point attempted is that the father is morally unfit for custody of the daughter because inquiry whether the conduct described “would teach the child bad morals or be bad for her emotional or mental health” he responded: “No, I don’t think it upset her at all.” The inquiry, however, presupposed that the child witnessed the intimacies, a contention which the judgment of the court resolves contrarily. It poses an hypothesis not raised by the evidence. The father acknowledged that such conduct would not be proper, and it is to be believed, he does and will comport himself accordingly. The finding of the court that the father remains fit for custody is supported by substantial evidence.

Nor has the mother proved change of condition other than remarriage-. She and her present husband, a Navy careerist, will presently move to California under orders. They offer the child the benefits which attend governmental service; pleasant quarters, schools and medical attention. The child, however, already enjoys the fulfillment of these needs. The new husband acknowledges that the child is presently well cared for, but sees the need for more discipline. The evidence shows, however, that the child is happy, healthy and well-adjusted, and no cause for additional discipline appears. The finding of the trial court that no change of condition was proved is supported by the evidence.

A fuller opinion in this case would have no precedential value; the judgment is affirmed under Rule 84.16.


source: Caselaw Access Project

author: SHANGLER, Presiding Judge.

license: Public Domain

text:
    John Henry GALLUP and William Ernest Baker, Appellants, v. STATE of Missouri, Respondents.
    No. KCD 28458.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    William G. Mays, II, Public Defender, 13th Judicial Circuit, Columbia, for appellants.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondents.
    Before SHANGLER, P. J., and SWOF-FORD and SOMERVILLE, JJ.
   SHANGLER, Presiding Judge.

This appeal comes from adverse judgments under Rule 27.26 proceedings. The defendants were charged by single information with kidnapping and rape in violation of §§ 559.240 and 559.260, RSMo 1969. They were convicted on each count and sentenced to consecutive sentences. Their direct appeal was denied and the post conviction motion ensued.

At the time they were sentenced the operation of § 546.480, RSMo 1969, mandated that when any person was convicted of more than one offense before sentence shall have been pronounced upon him for either offense, the second sentence must commence at the termination of the first. That is to say, the sentences must run consecutively. This statute was thereafter held to deny such a defendant the equal protection of the laws and was for that reason declared unconstitutional by the Missouri Supreme Court in State v. Baker, 524 S.W.2d 122, 126[5, 6] (banc 1975). The court remanded the causes for resentencing and the exercise of discretion by the trial judge as to whether the sentences on the counts were to be concurrent or consecutive.

Although the sentences were imposed upon each defendant without specific reference to § 546.480, we must assume that the trial judge acted on the requirements of the law for consecutive sentences in such circumstances.

The point made by the movants as the Rule 27.26 proceeding, and now on appeal, is that the ruling in Baker must be given retrospective application to their convictions, so that the sentences imposed upon them under § 546.480 then extant are invalid, are subject to vacation and remand for concurrent or consecutive determination, according to an exercised judicial discretion.

Since the Baker decision, our appellate courts have uniformly treated as invalid consecutive sentences imposed under the mandatory operation of § 546.480, without regard to whether conviction was returned before or after the rendition of Baker. State v. Brown, 525 S.W.2d 565, 568[6] (Mo. App.1975); State v. Burnside, 527 S.W.2d 22, 25[6] (Mo.App.1975); State v. Mullen, 532 S.W.2d 794, 800[11] (Mo.App.1976); State v. McCollum, 527 S.W.2d 710, 714[4, 5] (Mo.App.1975); State v. Jordan, 532 S.W.2d 776, 782[6] (Mo.App.1976). The rationale for this procedure no doubt rests on those principles which give retrospective application to new constitutional standards when fundamental rights are affected and the administration of justice is not unduly burdened thereby. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Linkletter v. Walker, 381 U.S. 618, 628, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Spidle v. State, 446 S.W.2d 793, 795 (Mo. 1969).

The judgments are reversed and the causes remanded for redetermination of sentences by the trial court and the exercise of judicial discretion whether they shall run concurrently or consecutively.

All concur.


author: WASSERSTROM, Judge.

text:
    James Christian MORGAN, Appellant, v. Ethyl Mildred MORGAN, Respondent.
    No. KCD 28492.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Lester E. Adams, Jr., Kansas City, for appellant.
    Mary K. Andersen, Kansas City, for respondent.
    Before DIXON, P. J., PRITCHARD, C. J., and WASSERSTROM, J.
   WASSERSTROM, Judge.

In this suit for dissolution of marriage the court awarded custody of three minor children to the wife and ordered the husband to pay periodic child support. The sole issue on appeal is whether the trial court had jurisdiction to make those determinations.

The parties were married in Canada in 1947. The husband’s petition in this case states that the parties lived there until sometime preceding July, 1970. The husband’s brief states, and the wife’s brief accepts the statements, that the parties came with their children from Canada to live in Missouri; that the parties separated; and that after the separation the wife took the children and returned to live in Canada.

The husband then filed this suit for dissolution of marriage and caused the wife to be served by Registered Mail. She filed answer and cross-petition; and when the case was reached for trial she, but not the children, returned to be in attendance.

When the case was called for hearing, the husband’s counsel moved that no orders be made for child support because of lack of jurisdiction in that the children were neither domiciled nor physically present within Missouri. That motion was overruled. After entry of judgment, the husband filed motion for reconsideration of the orders as to child custody and support based on the same alleged lack of jurisdiction. This motion was also overruled.

Of the husband’s five Points on Appeal, only two are in form sufficiently complying with Rule 84.04(d) to be entitled to consideration. These are Point II, which alleges error in overruling the husband’s jurisdictional objection at the commencement of the proceeding, and Point IV which assigns error in overruling the husband’s motion for reconsideration. It may be noted in passing that the husband’s other three points, though defective in form, also all aim basically at the same jurisdictional objection.

The husband’s jurisdictional objection in this case is completely answered by the exhaustive opinion on this subject by Judge Cross of this court in Kennedy v. Carman, 471 S.W.2d 275 (Mo.App.1971). That opinion approved § 79 of Restatement Second, Conflicts of Law, as being consistent with and merely declaratory of the Missouri case law. That section states that “[a] state has power to exercise judicial jurisdiction to determine custody ... of the person of a child (c) who is neither domiciled nor present in the state, if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.” See also to the same effect, Searles v. Searles, 495 S.W.2d 759 (Mo.App.1973).

Here the husband is the party who brought suit, and the wife answered and appeared personally before the Missouri court. The trial court therefore had in personam jurisdiction over both parents, and accordingly under the rules stated in Kennedy, it had jurisdiction to make the orders in question relative to child custody and maintenance.

Affirmed.

All concur.


author: TURNAGE, Presiding Judge.

text:
    John W. MISTLER, Appellant, v. STATE of Missouri, Respondent.
    No. KCD 28551.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.
    Robert E. Harris, Warrensburg, for appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   TURNAGE, Presiding Judge.

John Mistier filed a motion under Rule 27.26 to vacate a judgment and sentence entered pursuant to his plea of guilty to stealing over $50.00. After an evidentiary hearing, the court made findings of fact and conclusions of law and overruled such motion.

On this appeal Mistier contends his motion was erroneously overruled because he was denied effective assistance of counsel in that his attorney coerced him to plead guilty after he had stated he was innocent; the trial court stated in its commitment he was to be confined for burglary second degree, rather than stealing; and he was denied his right to counsel of his own choice, i. e., a fellow inmate. Affirmed.

At the time Mistier pleaded guilty the court made a complete record to show the voluntary nature of the plea. This record reveals Mistier was appearing with his retained counsel and that he had no complaint about his counsel’s service. When questioned by the court concerning what he had done to make him think he was guilty of the offense charged, Mistier stated he had driven out to a house in the country, kicked the door of a tool shed open, opened his ear trunk, taken several articles from the shed, put them in his trunk and later sold the articles for $80.00. Mistier was accompanied by two other men and he drove his own car.

After accepting Mistler’s guilty plea, the court sentenced him to five years imprisonment, but placed him on probation. Subsequently, the court found the probation conditions had been violated and the court revoked the probation and ordered Mistier into custody of the Department of Corrections. The order revoking probation and ordering Mistier into custody erroneously stated he had been sentenced on a charge of burglary second degree.

Prior to the hearing on this motion, Mistier requested that a fellow inmate be brought from Moberly to represent him at the hearing. The court had previously appointed an attorney to represent Mistier. The court denied the request to have the fellow inmate represent Mistier. That refusal is now urged as reversible error.

Sections 484.010 and 484.020, RSMo 1969, require that a person have a license to practice law before he may appear before a court as an advocate in a representative capacity. Concededly the fellow inmate was not a licensed attorney. Furthermore, even in criminal proceedings the constitutional right to counsel does not mean an accused is entitled to any particular attorney. State v. Jefferies, 504 S.W.2d 6 (Mo.1974). Here Mistier had counsel and was not entitled to have an unlicensed inmate appear to represent him.

Mistier next complains the court erred in overruling his motion on his assertion he was denied effective assistance of counsel because his attorney coerced him into pleading guilty after he told his attorney he was innocent. The evidence at the hearing on this motion was conflicting even on the part of Mistier. At one point Mistier stated he drove to the farmhouse and while he was knocking at the door, his two associates stole an air compressor and other items without his knowledge. At another point in his testimony, he admitted he returned to his car and saw the air compressor in his trunk and hurriedly left the premises when he saw another car approaching. At still another point he stated he had fully admitted his guilt at the time of his plea of guilty.

The attorney who represented Mistier at and prior to his guilty plea testified and unequivocally denied Mistier had made any statement to him concerning his innocence. On the contrary, he stated Mistier told him he was guilty and was insistent on pleading guilty in the hopes he could get probation so that he could quickly marry. On this conflicting evidence, the trial court found Mistier was not denied the effective assistance of counsel but on the contrary advised his attorney he wanted to plead guilty and from the evidence available to the attorney there was a sound basis for the plea.

This court is required to give due regard to the opportunity of the trial court to observe and hear witnesses. This court will defer to the determination of the credibility of witnesses by the trial court unless an abuse of discretion is shown. McCarthy v. State, 502 S.W.2d 397 (Mo.App.1973). No abuse of discretion is shown nor attempted to be shown in this case in the finding Mistier was not denied effective assistance of counsel.

Mistier finally contends he was unlawfully confined in the Department of Corrections because of the error in the order revoking his parole and committing him to the Department of Corrections in stating the charge upon which he had been convicted was burglary second degree rather than stealing over $50.00.

The judgment and sentence by which Mistier was convicted of stealing over $50.00 was correctly entered at the time he pled guilty. There is no question concerning the judgment and sentence as originally entered. The order revoking parole was not a sentence but a commitment by which the Department of Corrections was authorized to hold Mistier in custody. The language of a judgment and sentence should be controlling over that of a commitment. State v. Harrison, 276 S.W.2d 222 (Mo.1955).

In this instance, the judgment and sentence originally entered were correct and the commitment simply contained a clerical mistake in describing the charge upon which the judgment and sentence had originally been entered. Since the judgment and sentence control, there was no reason the trial court could not correct this clerical mistake in the commitment as it did. Certainly, there was nothing in this clerical misstatement which in any way invalidated the authority of the Department of Corrections to hold Mistier in custody.

Judgment affirmed.

All concur.


author: ROBERT R. WELBORN, Special Judge.

text:
    Kent MEANS, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 28556.
    Missouri Court of Appeals, Kansas City District.
    Oct. 12, 1976.

      Terry E. Brummer, Asst. Public Defender, Columbia, for movant-appellant.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for respondent.
    Before TURNAGE, P. J., and WEL-BORN and HIGGINS, Special Judges.
   ROBERT R. WELBORN, Special Judge.

Appeal from denial of relief in proceeding to set aside judgment of conviction and sentence to 20 years’ imprisonment entered on plea of guilty to robbery, first degree.

On February 18, 1975, Kent Means entered a plea of guilty in the Callaway County Circuit Court to a charge of robbery, first degree. He was sentenced to 20 years’ imprisonment. On August 19,1975, he filed a motion to vacate and set aside the judgment pursuant to Rule 27.26. A hearing was had on the motion and the trial court entered findings of fact and conclusions of law adverse to movant and denied relief. This appeal followed.

In this court, the sole contention of appellant is that in finding his plea voluntary and knowing the circuit court erred because he had not been fully advised of the elements of robbery in the first degree. He specifically contends that he was not aware that the state had to prove beyond a reasonable doubt that the victim of the robbery parted with his property because of fear induced by the robber.

In arguing this point, appellant completely ignores the trial court’s finding that appellant’s attorney did explain to appellant that the state was required to prove this element; that the attorney did, following the preliminary hearing at which the victim of the robbery to some degree minimized his feeling of fear, explain to appellant that the state might not be able to prove that element of the offense. Appellant can prevail here only if he demonstrates that such finding is clearly erroneous. Rule 27.26(j). Having failed even to attempt such demonstration, the ruling of the trial court should not be disturbed.

Even if appellant’s testimony of his ignorance were to be accepted, he would not be entitled to relief on the grounds now urged. At his plea of guilty, the trial court asked appellant to state the facts of the offense. Appellant said:

“I drove up and parked behind the Site’s Station. I pulled up behind Site’s Service Station, parked behind it, it and the drive-in, and got out and went around the building down on this side of the building, going this way, I believe it’s north, and got out and crawled up through the woods. When he went in the back room, I come around the front with the shotgun and pointed it at him and told him to give me the money. He gave me the money and I left.”

The following colloquy was part of the proceedings leading to acceptance of the guilty plea:

“THE COURT: Did you in fact on the thirtieth day of October of 1974 by means of a shotgun take this property in question?

“THE DEFENDANT: Yes, Your Honor.

“THE COURT: Did you take it from the person of one Thomas Wayne Cook by either physically injuring him or threatening him with physical injury in order to take possession of this property?

“THE DEFENDANT: Yes, Your Hon- or.”

At the 27.26 hearing, appellant was asked: “You don’t deny you took the shotgun into the station and pointed it at him and told him to give you the money?”

Appellant replied: “No I do not deny that, I did that.”

Appellant thus clearly admitted facts showing his guilt of the offense of robbery in the first degree. At the preliminary hearing, there was some testimony to the effect that the victim had put his finger in the barrel of the gun and pushed it away and that he stated that he first became frightened after the robber had left. It is clearly the law of this state that such evidence would not have avoided a finding of guilt on a charge of robbery nor would it have justified submission of a lesser charge of stealing from the person. State v. Parker, 324 S.W.2d 717 (Mo.1959); State v. Tidwell, 500 S.W.2d 329, 332[8] (Mo.App. 1973); State v. Blewett, 507 S.W.2d 56, 57[1] (Mo.App.1974).

The recent decision of the United States Supreme Court in Henderson v. Morgan, — U.S. -, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), is of no assistance to appellant. There a conviction for second degree murder was reversed because in his plea, of guilty it was not explained to the defendant that an intention to kill was an element of the offense nor did his admission stating the facts include that element. The court concluded that there had been no admission of the facts requisite for a conviction of the offense. Here appellant did admit the requisite facts and he is entitled to no relief on the grounds now urged.

Judgment affirmed.

All concur.


author: HARBISON, Justice.

text:
    Orman H. EDWARDS, Jr., Appellant, v. TENNESSEE BAPTIST CHILDREN’S HOME et al., Appellees.
    Supreme Court of Tennessee.
    Nov. 1, 1976.
    Samuel L. Swann, Springfield, for appellant.
    Prank C. Ingraham, Nashville, Ross H. Hicks, Clarksville, for appellees.
   OPINION

HARBISON, Justice.

This case involves the proper disposition of the undistributed income from a small family trust created by the will of Barney McNichols.

The decedent died testate in Montgomery County, Tennessee, his will being admitted to probate on August 10, 1966. The first item of the will directed payment of debts, funeral and administration expenses. In the second item decedent devised to his wife his fifty-acre farm, together with a life interest in the tools, equipment and livestock thereon. In the third item of the will certain specific bequests were made, and in the fourth item the Executor was directed to convert all of the remainder of the estate into cash. After payment of debts and administration expenses, the residue was directed to be paid to a named trustee,

“. . . who shall hold and invest the same in an approved'manner, as hereinafter provided, and shall pay the income therefrom to my wife, Irene McNi-chols, for and during her life time, either in quarterly, semi-annual, or annual installments.”

Upon the death of his wife, testator provided that the trust should terminate, and specific directions were made for the disposition of the corpus, with the residue thereof being bequeathed to the Tennessee Baptist Children’s Home.

Although other issues were involved in the trial court, as to the construction of other parts of the will, on this appeal the entire controversy involved certain undistributed income which had accumulated pri- or to the death of Mrs. McNichols.

Mrs. McNichols, widow of testator and recipient of the trust income for life, died on April 10, 1974. The sole beneficiary of her will is her son, appellant Orman H. Edwards.

A very brief stipulation of facts appears in the record. Other than this stipulation and such facts as may be gleaned by inference from the exhibits thereto, there was no testimony offered.

It was stipulated that a certain savings account “is the corpus of the trust established by paragraph Fourth of the Barney McNichols’ will.”

This bank account is evidenced by a ledger sheet of a pavings bank in Clarksville, beginning in May 1961 and ending in May 1968. The exact date of death of Mr. McNichols is not shown in the record, but apparently the account had in it about twenty-five thousand dollars when he died. The last entry on the ledger sheet is May 1, 1968, and at that date the account had a balance in it of $26,813.89. What happened to the account thereafter, prior to the death of Mrs. McNichols, and the balance therein at the time of her death are simply not shown in the record. It is stipulated, however, that:

“The only payment made from these funds to date were for payment of debts incidental to the decedent’s death. The said account has continued to draw interest.”

It was further stipulated:

“Irene McNichols a life beneficiary of said trust paid income taxes for the years 1969, 1970 and 1971 for the interest on this account which she had never withdrawn nor demanded from James C. Cunningham, Trustee.”

The Trustee, Mr. Cunningham, died in 1974, shortly after the death of Mrs. McNi-chols. The parties apparently treat the foregoing stipulation as stating that no income from the trust was ever paid to Mrs. McNichols or drawn from the trust by her. Whether she paid taxes thereon in any of the other years than those listed in the stipulation is not shown.

Exhibited to the stipulation were inheritance and estate tax returns on the estate of Mrs. McNichols, and these showed that she was ninety years of age at the time of her death and that she had assets in the amount of approximately seventy thousand dollars. The record is silent as to her standard of living, expenses, dependents, or as to any other circumstances which might shed light on the present controversy.

This action was instituted by the successor personal representative of Mr. McNi-chols’ estate for construction of portions of his will and for instructions concerning the undistributed income from the trust estate. On behalf of the residuary beneficiary, the Tennessee Baptist Children’s Home, it is insisted that Mrs. McNichols had in effect rejected the bequest to her of the trust income, and that the undistributed income, accumulated prior to her death, should pass to it as the ultimate residuary legatee. On behalf of the sole beneficiary of the estate of the life tenant it is insisted that the undistributed income from the trust belonged to the life tenant, and was her property, passing under her will.

The Chancellor found in favor of the residuary legatee under the will of Mr. McNi-chols, and, in effect, held that Mrs. McNi-chols had rejected the trust income by not making demand for payment of the same to her.

The Chancellor recognized case law from Tennessee to the contrary, but apparently relied upon a tax case, Earle v. Commissioner, 157 F.2d 501 (6th Cir.1946), in support of his conclusion that the undistributed income remained a part of the trust estate.

We are unable to agree with the conclusions of the Chancellor. In the first place, the Earle case held that the undistributed trust income was the property of the life tenant, and was taxable in her estate, and was not a part of the residue of the original testator’s estate. The holding in the Earle case is consistent with the position of the appellant, that, whether the life tenant demanded or received payment of the trust income or not, it was equitably her property in the hands of the trustee and was therefore taxable to her.

In the case of Miller v. Miller, 203 Tenn. 590, 315 S.W.2d 101 (1958), the Court held that the undistributed trust income was the property of the life tenant, whether paid to her or not, under the terms of a will which made no provision for accumulation of income by the trustee. See also National Geographic Society v. Williams, 497 S.W.2d 908 (Tenn.App.1972), in which conduct and agreements by the life tenant were held sufficient to estop her from claiming certain undistributed income.

There is simply insufficient evidence in the record before us to justify any conclusion that the life tenant deliberately or knowingly rejected the payment to her of income from the trust. The fact that she included it as taxable income for at least three years is some indication that both she and the trustee treated it as belonging to her, and the mere fact that she let it remain in custody of the family trustee, in our opinion, is not decisive or controlling.

It appears from exhibits to the record that the trustee was also the executor of the estate of testator, and he witnessed the will of Mrs. McNichols. He was given wide discretion regarding investments of the trust funds. Certainly it seems more probable that he was accumulating the interest for Mrs. McNichols’ benefit and holding it at her request than that she had rejected it, particularly since she paid taxes on it at least part of the time. The record does not disclose the amounts of interest after 1968 or what other income the life tenant may have had. We are simply unable to find evidence of any donative intent upon her part, to leave the accumulated interest to the charitable remainderman of her husband’s will.

The judgment of the Chancellor is reversed, and the cause is remanded to the Chancery Court for further proceedings consistent with this opinion, to the effect that the undistributed income, accumulated prior to the death of the life beneficiary, shall be distributed to the Executor of her estate and treated for all purposes as assets of her estate.

Costs incident to this appeal, together with all costs accrued in the trial court, will be paid out of the estate of the testator, Barney McNichols.

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


author: WALKER, Presiding Judge.

text:
    Theodore GRANT, Petitioner, v. STATE of Tennessee, Respondent.
    Court of Criminal Appeals of Tennessee.
    Dec. 17, 1975.

      Harry F. Burnette, Chattanooga, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Bart Durham, Asst. Atty. Gen., Thomas J. Evans, Asst. Dist. Atty. Gen., Chattanooga, for respondent.
   OPINION

WALKER, Presiding Judge.

After an evidentiary hearing, the trial judge found to be without merit all Grant’s claims for postconviction relief and dismissed his petition. We agree and affirm the dismissal.

Grant is serving a life sentence for rape. On his direct appeal we affirmed his conviction in an unpublished opinion released at Knoxville (William Eric Bell and Theodore Grant v. State; cert. denied as to Grant February 19, 1974).

The petitioner’s principal complaint challenges the effectiveness of his appointed counsel. That attorney testified and the trial judge’s findings of effective counsel are fully sustained by the proof in accordance with the standards of Baxter v. Rose, Tenn., 523 S.W.2d 930. His first counsel, Honorable Roy Scruggs, died and Honorable J. L. Bailey, Jr., was appointed to replace him. Mr. Bailey obtained previous counsel’s file, visited the petitioner three times in jail, conferred numerous times with his wife and his witnesses. There is no merit in the contention that counsel failed to subpoena any witnesses the petitioner wanted.

At the trial his counsel challenged the preindictment lineup and questioned it in his motion for a new trial. In view of Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411, he could hardly be held incompetent for failing to assign it as error on appeal. We reviewed the evidence carefully on appeal and found no constitutional error.

On direct appeal we considered the failure of the trial judge to furnish Grant a transcript of a habeas corpus hearing. Although it is not clear what the petitioner claims occurred at his habeas corpus hearing, the pleadings indicate that it was a hearing on the question of bail and that petitioner was represented by his first counsel. In this proceeding he complains that counsel should have appealed that proceeding in order to get a transcript so he could see if there was any conflict in the testimony of the witnesses. For that failure he says counsel was incompetent. We find no ineffectiveness of counsel for his failure to use this method to obtain a transcript.

Likewise without merit is the claim that Judge Hinson should not have heard this proceeding because he had heard the early habeas corpus petition. Judge Grant was the trial judge at the conviction but had retired at the time of this proceeding and the Chief Justice designated Judge Hinson to hear it.

Petitioner’s counsel called this question to the attention of Judge Hinson, remarking, “This may be a case that someone else should rule on, but we can continue as you will, . . . ” We think he acquiesced in Judge Hinson hearing the case. In any event there was no prejudice to the petitioner by Judge Hinson’s hearing the case.

In his order of dismissal, the trial judge held it was unnecessary to set forth in his order his findings of fact and conclusions of law when he gave his reasons in open court. In State v. Gilley, Tenn., 517 S.W.2d 7, our Supreme Court stressed the importance of explicit findings of fact and conclusions of law in final orders dismissing petitions. The better practice is to place the findings of fact and conclusions of law in the final order on the minutes.

All assignments of error are overruled and the judgment is affirmed.

GALBREATH and DUNCAN, JJ., concur.


text:
    Earnest L. WHITE and Robert Earl Cole, Plaintiffs-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Feb. 19, 1976.
    Ural B. Adams, Jr., Asst. Public Defender, Memphis, for plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Arthur T. Bennett and James W. Harrison, Asst. Dist. Attys. Gen., Memphis, for defendant-in-error.
   OPINION

WALKER, Presiding Judge.

In this appeal in error from their first degree murder convictions and 25-year sentences, we first .consider the question the defendants, Earnest L. White and Robert Earl Cole, recognize the most important in the case. May a trial judge act on a motion for a new trial more than 60 days after he vacates the bench? The defendant insists that TCA 17-116 clearly means that he must act within that time. The state urges that we hold this statute directory and not mandatory and that any noncompliance in this case was harmless.

The trial of these defendants was heard by Honorable Perry H. Sellers, Judge of the Shelby County Criminal Court, Division I, on June 18-21, 1974. Following their conviction of first degree murder, Judge Sellers sentenced each defendant to 25 years in the penitentiary in accordance with the jury's verdict. The defendants moved for a new trial and Judge Sellers at that time set the motion for hearing July 12, 1974. The written motion was filed that day, July 12, 1974, and Judge Sellers reset it for July 16, 1974.

A number of resettings of the motion followed. Judge Sellers reset it for August 27. On that day, Judge Faquin, sitting by interchange, reset it.

We judicially know that Judge Sellers retired September 1, 1974, and was succeeded by Judge Bernie Weinman. The successor judge reset the motions on October 16 and November 6.

On December 18 the defendants amended their motion for a new trial and Judge Sellers, as retired judge, reset it December 19, 1974; January 3, 1975; and January 16, 1975. Judge Weinman reset it February 14 and March 27. Judge Sellers again reset it April 4 and heard and overruled the motion April 9, 1975, at which time he granted an appeal to this court and allowed the defendants 60 days to file their bill of exceptions.

The defendants did not timely file their bill of exceptions and this court on September 10, 1975, granted their petition for a delayed bill of exceptions. On October 23, 1975, the defendants applied to Judge Weinman to sign the bill of exceptions but he was of the opinion that Judge Sellers was the proper judge to approve it and ordered that counsel tender it to him. Judge Sellers then approved the bill of exceptions October 27, 1975.

Nothing appears in this record to give the excellent retired judge authority to hear the motion for a new trial or to sign the bill of exceptions more than 60 days after he vacated his office. For that reason we think the provision of TCA 17-116 that his powers in this respect shall not extend beyond 60 days from his vacation of office apply in this case. The error cannot be considered harmless.

We therefore conclude that the case must be reversed and remanded for a new trial.

It is so ordered.

DWYER, J., and PHIL B. HARRIS, Special Judge, concur.


author: O’BRIEN, Judge.

text:
    Carolyn Janie FREEMAN and John Virgil Hamby, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 22, 1976.
    Certiorari Denied by Supreme Court Oct. 18, 1976.

      Jay Fred Friedman, Memphis, for appellants.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, Michael W, Hughes, Asst. Atty. Gen., Memphis, for appellee.
   OPINION

O’BRIEN, Judge.

The indictments against these defendants were returned in the Criminal Court for Shelby County, Tennessee. Carolyn Janie Freeman was convicted of unlawful possession of a legend drug. Her punishment was fixed at six months in the county jail, plus a fine of five hundred dollars ($500.00). John Virgil Hamby was found guilty on three charges, on two of which he was granted a new trial. The remaining conviction was for possession of a controlled substance with intent to sell. His punishment was fixed at not less than five and one-half (5V2) years nor more than eight (8) years in the penitentiary, plus a fine of five thousand dollars ($5,000.00).

On this appeal defendants say that error occurred in the trial court upon denial of a plea in abatement which was filed on the date of the trial. The plea alleged in substance that the grand jury which returned the indictment against defendants was not composed of a fair cross section of the community in that women, young people under the age of thirty, blacks, and all but middle income persons were systematically excluded. Also, that the petit jury panel was composed in an unconstitutional manner in that persons between the ages of eighteen (18) and thirty (30), blacks, and women were systematically excluded.

Defendants rely on Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690, which was decided by the United States Supreme Court on January 21st, 1975. Defendant Freeman was indicted on August 31st, 1973. Defendant Hamby was indicted on May 21st, 1974. They came to trial on March 17th, 1975. On January 27th, 1975, the United States Supreme Court decided the case of Daniel v. Louisiana, 420 U.S. 31, 95 S.Ct. 704, 42 L.Ed.2d 790, in which it was held that Taylor v. Louisiana, supra, was “not to be applied retroactively, ... by juries empan-elled prior to the date of that decision.” The Taylor decision applied itself exclusively to the composition of petit juries, as well as did Daniel, supra. We make no difference between the composition of a grand jury, or a petit jury, in applying the principal of denial of retroactivity set forth in Daniel v. Louisiana, supra. We base this decision on the factors identified in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. To do otherwise would seriously disrupt the administration of criminal laws in this State to a degree which cannot be justified in this case. In Daniel v. Louisiana, supra, the United States Supreme Court specifically stated that the “[Taylor] decision did not rest on the premise that every criminal trial, or any particular trial, was necessarily unfair because it was not conducted in accordance with what we determined to be the requirements of the Sixth Amendment.” We note that the plea in abatement in this case came many many months after the indictments, and after defendants had previously submitted not-guilty pleas. See Yearwood v. State, 2 Tenn.Cr.App. 552, 455 S.W.2d 612. We also observe that eight women served on the jury panel which convicted defendants. With the exception of the constitutional grounds raised by the Taylor v. Louisiana decision, the grounds in defendant’s plea in abatement were well known to them for many months prior to trial. The assignment cannot be sustained.

Defendants say the trial court erred in giving an instruction to the jury concerning parole, which, at that time, was mandatory under the provisions of T.C.A. See. 40-2707 as amended by Sec. 2 of Chapter 163 of the Public Acts of 1973.

On February 16th, 1976, the Tennessee Supreme Court released its opinion in the case of Farris et al. v. State, 535 S.W.2d 608, in which it held Sec. 2, Chapter 163, Public Acts of 1973 to be unconstitutional and void. However, on March 30th, 1976, the Supreme Court released its opinion on a petition to rehear in the Farris case in which it held that in accordance with Rogers v. State, 196 Tenn. 263, 265 S.W.2d 559, the Farris procedure would not be followed in every case, and that in those cases where the prohibited charge was given after the release of the main opinion it would be considered reversible error; that the rule would be applied along with all other relevant criteria in all cases arising prior to its release. The jury instructions in this case were delivered on March 19th, 1975. As pointed out in the State’s brief, these grounds were not raised in defendant’s motion for new trial. The trial judge will not be put in error upon matters not brought to his attention for correction in the motion for new trial. Kirby v. State, 214 Tenn. 296, 379 S.W.2d 780. Under the circumstances of this case, the assignment will be overruled.

Defendant, Hamby, says the trial judge erroneously and prejudicially instructed the jury that Tuinal was an Amphetamine.

Defendant was indicted for, among other, offenses, possession of Tuinal containing amobarbital and secobarbital with intent to sell, as classified in T.C.A. Sec. 52-1417.

The State’s evidence indicated that certain pills found in a search of defendant’s residence were known by the trade-name, Tuinal. That these capsules contained amyl barbital (sic) and secobarbital.

In reference to the indictment at issue, the trial judge instructed the jury as follows:

“Indictment No. 41854 charges John Virgil Hamby with the offense of Unlawful Possession of a Controlled Substance, with Intent to sell, to-wit: Tuinal. This offense includes the lesser offense of Unlawful Possession of a Controlled Substance, to-wit: Tuinal.”
“T.C.A. Sec. 52-1417 provides as follows: (a) the controlled substances listed in this section are included in Schedule III. (c)(1) Any substance which contains any quantity of a derivative of barbituric acid, or any salt of a derivative of barbituric acid, except those substances which are specifically listed in other schedules.”
“Tuinal is classified in Schedule III as a controlled substance.”
“Tennessee Code Annotated Section 52-1432 provides as follows:
(a) Except as authorized by Sections 52-1408 — 52-1448, it is unlawful for any person to manufacture, deliver, sell or possess with intent to manufacture, deliver, or sell, a controlled substance. (1) Any person who violates this subsection with respect to: 52-1432(C) a controlled substance classified in schedule III is guilty of a felony and upon conviction shall be imprisoned for not less than three (3) years nor more than eight (8) years and in addition thereto may be fined not more than ten thousand dollars ($10,000).
(b) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by sections 52 — 1408—52—1448.
(b)(1) Any person who violates this subsection shall be guilty of a misdema-nor (sic) and, upon first conviction, be sentenced to confinement in a county jail or workhouse for a period not to exceed eleven (11) months, twenty-nine (29) days and/or fined an amount not to exceed one thousand dollars ($1,000).”

In instructing the jury as to the form to be used to assess punishment in event they found defendant guilty, the court referred to Tuinal as an Amphetamine in several instances, and also informed them that if they found defendant guilty of unlawful possession of Tuinal, an Amphetamine, with intent to sell, they should fix punishment at some period of time not less than three (3) years and not in excess of five and one-half (5¾⅞) years minimum, nor more than eight (8) years maximum, together with a fine, if merited, not to exceed ten thousand dollars ($10,000). He then went on to instruct them in reference to the penalties for the lesser included offenses under schedule III of the Narcotic Drug Law.

It is quite clear that the trial judge erred in the instructions to the jury regarding punishment. We hold that the defendant has no cause for complaint. The specific charge in the indictment against defendant is that he possessed, with intent to sell, “Tuinal” containing amobarbital and seco-barbital. Insofar as we have been able to determine Tuinal is not specifically scheduled as a prohibited substance under the Narcotic Drug Law of this State. Amobar-bital and secobarbital are schedule II drugs listed in T.C.A. Sec. 52-1415(h) and (j), respectively. Penalty for possession of Schedule II substances with intent to sell is not less than four (4) years nor more than ten (10) years with the discretionary addition of a fine not to exceed fifteen thousand dollars ($15,000). The trial judge erroneously charged the penalties for possession of Schedule III drugs, which certainly accrued to defendant’s benefit. Amphetamine is also specifically a Schedule II drug listed in T.C.A. Sec. 52-1415(d). The penalty is the same as for other Schedule II drugs. This eliminates any prejudice to defendant insofar as punishment is concerned.

Other than the errors which have been pointed out here, the jury instructions are full and sound and not subject to any criticism. We do not think that the inadvertent use of the word Amphetamine by the trial judge in the jury instructions, as it pertains to the penalties to be assessed, can be considered anything more than surplus-age. Nor, can we see, as argued by the defendant, that he is subject to subsequent prosecution for this same offense as a result of the error in the charge. The assignment is overruled.

Defendant objects to the jury inspecting the search warrant on the theory that it contained hearsay evidence.

There is no indication in this record that the search warrant was made available to the jury for its examination. The evidence indicates to the contrary. This court can make no assumption that the jury examined the search warrant on the basis of a silent record. The recitals in the warrant are not subject to re-examination here, or in the trial court, except for the purpose of determining the validity of the warrant. This was done by the trial judge in a hearing out of the presence of the jury. Poole v. State, 4 Tenn.Cr.App. 41, 467 S.W.2d 826.

Defendant was not convicted on the basis of the affidavit contained in the search warrant, but upon the evidence introduced in open court.

Defendant says it was error to allow some of his personal papers seized during the execution of the search warrant to be admitted as evidence.

The items complained of were found in the course of the search of defendant’s residence for contraband. They included correspondence addressed to defendant at that address, and some slips of paper containing numbers, or names and phone numbers. It is the State’s position that the papers seized tended to prove defendant was in possession of the residence, and that the drugs seized were possessed with an intent to sell. The evidence objected to has not been included as an exhibit to the Bill of Exceptions and for this reason the assignment cannot be considered.

Defendant contends it was error to overrule a motion to produce the informant described in the search warrant for the purpose of confrontation.

Defendant has failed to designate the point in the record where the ruling of the trial court on this matter appeared. Rule 14(2). We do not find any such motion in the record. The assignment is overruled.

Defendant says it was error to deny a request for special instructions to the jury regarding possession of the premises by two or more persons.

The special instructions requested have not been included in the Bill of Exceptions and under these circumstances the assignment may not be considered. Schweizer v. State, 217 Tenn. 569, 399 S.W.2d 743. Our reading of this record indicates that the requested instruction was covered by the general charge, therefor it would not be error to refuse to deliver the instruction requested. Hall v. State, 200 Tenn. 436, 292 S.W.2d 716.

Defendants assign error to admission in evidence of a bag of marijuana because the chain of custody was questionable.

We disagree with defendant’s view of the evidence. The chain of custody was satisfactorily established. Moreover, it does not appear that defendants were convicted for possession of the marijuana in question. The assignment is overruled.

Defendant says it was error to deny a directed verdict under Indictment No. B-41853.

Defendant was granted a new trial in No. B-41853, and the matter is not properly before us. The assignment is overruled.

Defendant Freeman says her Fourth Amendment rights were violated by a search of her person and it was error to admit the results of the search into evidence.

When the officers entered the residence of the defendant Hamby to conduct a search, which was found to be lawful, they found defendant Freeman in the kitchen in the company of several other persons, including Hamby, who responded to the name “Toad”. A large quantity of illicit drugs were found at which time the occupants of the kitchen were arrested and searched. The pills were found in Freeman’s purse inside a smaller coin purse. The arresting officers testified they were searching for weapons and drugs. The search was incident to a lawful arrest and the fruits of the search were properly admitted into evidence. Armour v. Totty, 486 S.W.2d 537, (Tenn.1972).

As to each defendant, the judgement of the trial court is affirmed.

WALKER, P. J., and DWYER, J., concur.

      . Thus the grand jury was empanelled at some earlier date.


author: TATUM, Judge.

text:
    Cyril Lee WALDEN, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 13, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.
    Richard L. Banks, Cleveland, for appellant.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
   OPINION

TATUM, Judge.

Appellant was convicted of rape by a jury in the Criminal Court of Bradley County and sentenced to serve 10 years in the State Penitentiary. We must affirm the conviction.

Appellant has made three assignments of error, none of which tests the sufficiency of the evidence. However, the assignments of error can be better understood if we briefly summarize the facts.

The victim and her boyfriend, both teenagers, ran away from their home in Kentucky about one month before this offense was committed. They had been to Florida and were traveling back through Bradley County, Tennessee in complete poverty. Their automobile quit running in Bradley County where they met appellant and he gave them assistance with the automobile. These three parties then drove around on the back roads in appellant’s car and drank a six-pack of beer. Appellant stopped the car and induced victim’s boyfriend to walk off down the road looking for a part of the automobile that had been supposedly lost. When the boyfriend left, appellant advanced upon the victim but she escaped through the back window of the car and ran off into the woods. After the episode in the woods, she found her boyfriend and they returned to appellant’s car. Appellant then drew a knife on these parties and ordered the boyfriend to leave. Being afraid, the boyfriend left but went to a farmer’s home and telephoned the police. After the boyfriend left, appellant raped the victim coercing her with the knife. After the rape, but before the victim left the scene, the police appeared and subsequently appellant was located and arrested. Appellant offered no proof in the case.

The first assignment of error is aimed at the action of the Trial Judge in excusing for cause certain prospective jurors who stated on their voir dire examination that they would not consider the testimony of a female witness who had voluntarily engaged in illicit sex practices. These prospective jurors made these statements in response to questions asked by the District Attorney General, who first informed the jurors that the victim would testify that she had been traveling with her boyfriend prior to this occurrence and had willingly had sexual intercourse with him.

The general rule is expressed in 50 C.J.S. Juries § 246(c) (1947):

“A juror is properly excluded who will not accord to the testimony of a particular class of persons or to a particular person the weight to which it is legally entitled.”

In Green v. State, 147 Tenn. 299, 247 S.W. 84 (1922), a juror, after having been sworn, arose and stated that he did not believe that a Christian should have anything to do with punishing people and that he would not convict the accused but would leave his punishment to God. The Trial Judge discharged this juror and selected another. In affirming this action, the Supreme Court acknowledged that when a juror confesses to an incurable prejudice which disqualifies him from exercising the functions of a juror or acting impartially as between the parties a continuance of the trial would be a farce as it would be impossible to obtain a fair and impartial verdict.

Appellant pleaded not guilty and did not set up any defense based on a theory that the victim had given consent to the act of sexual intercourse. Therefore, the provisions of T.C.A. 40-2445 would not be applicable in this case to impeach or discredit a rape victim. This code section provides that prior consensual sexual activity of a rape victim cannot be shown in evidence unless the defendant claims that the female consented to the sex act. This code section was enacted to protect the female victim from unnecessary embarrassment. When the District Attorney told the prospective jury panel of the prior sex acts of victim and her boyfriend, this could not have prejudiced appellant. The general rule is that unchastity of a witness alone will not impeach her. This fact alone does not warrant the jury in completely disregarding the testimony of such witness. In State v. Jones, 215 Tenn. 206, 385 S.W.2d 80 (1964), it was held that a witness could be asked whether she had worked as a “call girl” for the purpose of discrediting her. The term “call girl” connotes that a person is a professional prostitute. Evidence of non-commercial, non-felonious and private sex acts will not impeach or discredit a witness’s testimony and such evidence is not admissible for that purpose. Merriman v. State, 71 Tenn. 393 (1879).

The prospective jurors were not qualified as jurors in this case if they could give no weight to the testimony of a male or female who had engaged in prior sex acts. They could not render a true verdict on all of the law, and the evidence. The Trial Judge properly excused these prospective jurors peremptorily. Both the defendant and the State are entitled to a fair trial by unbiased jurors and it is the duty of the Trial Judge to discharge any juror who for any reason cannot or will not do his duty in this regard. Boyd v. State, 82 Tenn. 161 (1884). The prosecutor had a right to ask these jurors if they would completely disregard the testimony of the victim under the circumstances of this case. The State could not have been afforded a fair trial had he not done so. T.C.A. § 40-2507 is not contrary to this holding.

Assignment of Error No. I is overruled.

The second assignment of error complains that the Attorney General, in final argument, was permitted to comment on the fact that the appellant did not testify.

Appellant gave a written statement to police officers in which he admitted many of the occurrences of the time when the rape allegedly took place. However, he denied having sexual intercourse. In the final argument, the District Attorney General quoted portions of the appellant’s written statement that he contended supported the State’s theory. The District Attorney General was arguing that the statement did not explain these events that he contended supported the State’s theory. On one occasion, the District Attorney General expressly stated, “No explanation in this statement as to why-”. Shortly thereafter, he quoted another portion of appellant’s signed statement to the jury that he thought supported the State’s theory, at which time he simply stated, “No explanation”. Thereupon, counsel for appellant objected on the grounds that the District Attorney General was commenting on his client not testifying and the District Attorney General again said, “There is no explanation in this statement”. He continued to argue on this same subject but thereafter expressly said, “There is no explanation in this statement”. (Emphasis supplied)

We do not interpret the argument of the District Attorney General as being a comment on appellant’s failure to testify at the trial. This was a reference to admissions made by appellant in the signed statement which the State contended was of such nature the appellant would have ordinarily explained in the statement. This is not prohibited. See, Conner v. State, 531 S.W.2d 119 (Tenn.Crim.App.1975); Wright v. State, 512 S.W.2d 650 (Tenn.Crim.App. 1974); Holder v. State, 490 S.W.2d 170 (Tenn.Crim.App.1972). Moreover, the Trial Judge charged the jury that appellant’s failure to take the stand could not be considered as an admission of guilt or as evidence against him.

Assignment of Error II is overruled.

The Trial Judge charged the jury in part as follows:

“Rape. Rape is the unlawful carnal knowledge of a woman, forcible and against her will.
To authorize a conviction of rape, the jury must believe from the evidence, beyond a reasonable doubt, that the defendant had carnal knowledge of the victim, forcible and against her will, and that she did not yield herself willingly during any part of the act.” (Emphasis supplied)

Appellant complains of the Trial Judge using the word “victim” as above indicated. Appellant insists that this was reversible error because it was his theory that the woman was not raped and was therefore not a “victim”. This was the only time during the Trial Judge’s charge that he referred to the female as being a “victim”. However, the Court was using the word “victim” in context with the general definition of the crime of rape and he was not instructing the jury that the female was in fact raped. The Court subsequently charged the jury that a penetration of the female organ by the male organ was essential and that this must be accomplished with force and against the consent of the female. In viewing the charge as a whole, it is apparent that the jury could not be misled by the Trial Court’s employment of the word “victim” in this instance. If this was error, it was harmless. (T.C.A. § 27-117)

It results that all of the assignments of error are overruled and the judgment of the Trial Court is affirmed.

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


text:
    Luther R. MARTIN et al., Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 20, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      R. A. Ashley, Jr., Atty. Gen., Jack E. Seaman, Asst. Atty. Gen., Nashville, Richard A. Fisher, Dist. Atty. Gen., Cleveland, for appellee.
    Edwin Harris, Madisonville, for appellants.
   OPINION

TATUM, Judge.

Appellants, Luther Martin, R. S. (Nig) Cline and Ross Martin were convicted in the Criminal Court of Monroe County of assault to commit murder in the second degree and they were sentenced to not less than two nor more than five years in the State Penitentiary. We must affirm.

The evidence accredited by the jury discloses the following facts: On July 14,1975, Wilford Bookout was doing farm chores at his residence in a rural section of Monroe County. Appellants passed by his residence in a pickup truck. They then returned and again passed the Bookout residence with Luther Martin driving the truck. Ross Martin was seated in the center and R. S. Cline on the right side. R. S. Cline and Ross Martin commenced firing shots, Ross Martin firing from the driver’s window and R. S. Cline firing out of the right window. Wilford Bookout procured his shotgun from a vehicle in his garage and fired it into the front windshield of the truck, wounding Luther Martin in the neck. This occurred after appellants commenced firing.

The Sheriff found two pistols and a pair of “knucks” in appellants’ pickup truck shortly after the shooting episode. Cline was intoxicated.

There was evidence that Ross Martin had threatened to kill Wilford Bookout and his son. Ross Martin’s son has since been convicted of the homicide of Wilford Bookout’s son.

Appellants’ version of the incident was that they were going to Ross Martin’s house to get fruit jars for canning beans and that as they approached Wilford Bookout’s residence, Bookout began shooting at them and then R. S. Cline reached into the glove compartment of the pickup truck and got a pistol and returned Bookout’s fire.

A jury having found appellants to be guilty and the Trial Judge having approved the verdict, appellants stand before this court clothed in a presumption of guilt. We cannot reverse under the first assignment of error unless we find that the evidence preponderates against the verdict of the jury. Halpin v. State, 515 S.W.2d 658 (Tenn.Cr.App.1974). We do not find that the evidence preponderates against the jury verdict and therefore Assignment of Error I is overruled.

Assignment No. II complains of the action of the Trial Judge in overruling appellant’s motion to dismiss the indictment, “because the same showed on its face it had been changed or amended”.

The indictment is for murder in the first degree. It was prepared on a printed form with the main body of the charge written in long hand, and states in part as follows:

“. . . and feloniously and willfully make an assault upon the body of Wilford N. Bookout with a deadly weapon; to-wit: a pistol, by firing the same at the said Wilford N. Bookout unlawfully,

Where the word “pistol” appears above, the word “firearm” had been originally written and stricken with a pen and the word “pistol” placed in lieu thereof. The words “with the” had been written before the word “unlawfully” and the words “with the” had been stricken. All of the above quoted portion of the indictment was written in long hand with a pen.

After the jury had been sworn, appellant made a motion to dismiss the indictment on the grounds that it had been amended. The Assistant District Attorney General offered to take the stand and testify concerning the indictment.

In support of their contention, appellants cite the 1847 case of McKinley v. State, 27 Tenn. 72 (1847). In that case, the State sought and obtained leave of the Court to resubmit an indictment to the Grand Jury for an amendment. The Supreme Court held the amendment had not been spread on the minutes of the Trial Court, showing that the amendment was an act of the Grand Jury and that the amended indictment was therefore bad. We have the opposite situation before us here. The indictment with the word “pistol” and the other alterations appear to be in Minute Book 14 at pages 820, 821 of the Criminal Court of Monroe County. The record certified to us shows that the indictment was in the corrected condition when it left the Grand Jury.

The Supreme Court, in McKinley v. State, supra, affirmed the well-known rule that an appellate court is bound by the record as certified to it. We are bound to presume that this indictment left the hands of the Grand Jury altered as above-described and that the record as certified to us is correct. Assignment of Error II is overruled.

The third assignment of error is that appellants had been placed in former jeopardy.

There was no plea of former jeopardy. On suggestion of diminution of the record, the Clerk of the Trial Court certified to this court a copy of an indictment returned in August, 1974, and order in case numbers 4083, 4084 and 4085. It does not appear that this indictment and order were actually a part of the record in this case (no. 4248). The indictment in this case, no. 4248, was returned in May, 1975. The order above mentioned directed a jury verdict on the August, 1974 indictment.

The first indictment is substantially the same as the second indictment except in the first indictment this offense was charged to have been committed with a “rifle” and the second indictment charged that a “pistol” was used.

Without going into the question of whether the defense was properly pleaded and proved, we will consider this assignment on its merits. Appellant contends that the order directing a verdict in favor of appellants in the first prosecution barred the second prosecution. The verdict was directed on the first indictment because there was a material variance between the indictment and the proof.

In support of their contention, appellants cite Young v. State, 185 Tenn. 596, 206 S.W .2d 805 (1947). While this case correctly states the applicable rule of law, it does not support appellants’ theory. The Supreme Court, speaking through Judge Prewitt, held:

“(1) In Hite v. State, 17 Tenn. 357, the Court laid down the rule that to entitle a prisoner to the benefit of the plea, it is necessary that the crime charged be precisely the same in each indictment, and said at page 378 of 17 Tenn.:
< * * * gu^j jf variances are in those things which are material, autre-fois acquit cannot be pleaded in bar— either the first indictment was ineffectual, and therefore the acquittal of no avail, or the record will prove not applicable to the evidence, and therefore the objection is needless; * *
Thus, if there be a material variance between the averments, the two prosecutions are separate as a matter of law.” 206 S.W.2d 805, at 805.

In the first indictment, appellants were accused of making an assault with a rifle and the proof was that they used a pistol. In State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491 (1970), the defendants were indicted for and convicted of armed robbery. Under a previous indictment, the defendants had been charged with using a pistol but the proof was that they had used a .22 caliber rifle and a directed verdict of not guilty had been entered. Subsequently, the defendants were indicted for armed robbery with a rifle for which they were convicted. The Supreme Court, speaking through Justice Humphreys, observed that in many jurisdictions, the courts no longer notice minor variances in the indictment and proof. However, Tennessee continues to adhere to the strict common law rule requiring proof of allegations as charged in the indictment. For example, if a person or thing necessary to be mentioned in an indictment is described with greater particularity than is requisite, such person or thing must be proved exactly as described in the indictment. If a man were charged with stealing a black horse, the allegation of color, although unnecessary, yet being descriptive of that which is material could not be rejected. The Court in State v. Brooks supra, proceeded to sustain the Trial Court’s action in overruling the plea of former jeopardy. It was not necessary for the State to have charged in the first indictment that the crime was committed with a particular type firearm but since the State elected to specify the firearm as being a pistol, it was necessary to prove that the crime was accomplished with a pistol and not a rifle. The acquittal of these defendants of robbery with a pistol did not bar a prosecution for the same robbery with a rifle. This rule applies to the case now before us. The acquittal of other offenses of an assault with a rifle does not bar a prosecution for assault with a pistol.

For the foregoing reasons, Assignment No. Ill is overruled.

Assignment IV complains that the Court failed to instruct the jury concerning “reasonable doubt” and most especially, appellants complain that the Court did not specifically instruct the jury that if proof in support of their self-defense theory was sufficient to raise a reasonable doubt of their guilt, then they should have been acquitted.

The Court charged the jury on the law of self-defense. Appellants rely upon Frazier v. State, 117 Tenn. 430, 100 S.W. 94 (1906), a murder case where the defendants relied on the law of self-defense. There, the Trial Judge charged the jury,

“If, from all the facts and circumstances of the case, you find the defendants’ contention to be true, they would be justified, under the law of self-defense, and not guilty.” 117 Tenn. 430, at 451, 100 S.W. 94, at 99.

The Court held that under the foregoing charge, the jury was left to understand that the burden was not only on the defendants to establish their theory of self-defense, but that they must do so to the satisfaction of the jury or by a preponderance of the evidence; while under the correct rule, if the evidence offered to prove the offense ereat-ed in the mind of the jury a reasonable doubt of its truth, the defendants were entitled to a verdict of not guilty. The Trial Court in Frazier repeatedly instructed the jury “If you find from the evidence that defendants are guilty” and phrases such as “If you find to your satisfaction” and similar phrases without using the term “reasonable doubt”. This was insufficient. At the conclusion of the charge, the Court used the term “reasonable doubt” one time but the Supreme Court held that this was in reference only to the grade of the offense of which the defendants might be convicted and the jury was never informed that they could not convict of any offense unless the proof established their guilt beyond a reasonable doubt.

The Court held:

“The defendants were entitled to have the jury fully and fairly instructed upon the doctrine of reasonable doubt. They were entitled to have it done in such a manner that the jury should understand that it was necessary for the State to establish the guilt of the defendants, and the existence of every element necessary to constitute the offense of which it was sought to convict them, before they could be found guilty, and if, from the entire evidence in the case, a reasonable doubt existed of the truth of the defense upon which the defendants relied, that they were entitled to a verdict of not guilty. We do not mean to hold that it was necessary to charge upon this subject in every paragraph of the charge, but in such manner that the jury should understand that the rule as to the quantum of proof required to convict in criminal cases applies to every material fact in issue. ... 117 Tenn. 430, at 464, 100 S.W. 94, at 103.

We do not have the same situation here. In this ease, the Court discussed the reasonable doubt standard on seven separate occasions in the charge. In the paragraph immediately preceding the self-defense charge, the Court instructed the jury in detail explaining that they must, before convicting, be convinced of guilt beyond a reasonable doubt. At the conclusion of the charge, the Trial Judge stated:.

“A defendant in a criminal case is presumed to be innocent of the charges against him. This presumption remains with the defendants throughout every stage of the trial, and it is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendants are guilty. The burden of proving the defendants guilty beyond a reasonable doubt rests upon the state. This burden never shifts throughout the trial. The law does not require a defendant to prove his innocence. Rather, if the state fails to prove the defendants guilty beyond a reasonable doubt the jury must acquit them.”

The charge must be viewed and its fairness determined from a full reading of that charge and not excerpts from it. Wallace v. State, 500 S.W.2d 629 (Tenn.Cr. App.1973); Marshall v. State, 528 S.W.2d 823 (Tenn.Cr.App.1975). The defendant has a right to have every issue of fact raised by the evidence and material to the defense submitted to the jury under proper instruction by the Court. In considering the instructions as a whole, we find them to be full and fair. The jury was not misled by the Court’s instructions. Appellants submitted no request for further instructions as T.C.A. § 40-2517 requires.

Assignment of Error IV is overruled.

In Assignment V, appellants complain that the Trial Judge charged the jury concerning matters of parole in compliance with T.C.A. § 40-2707 which Code Section has been held to be unconstitutional by the Supreme Court of Tennessee in Farris v. State, 535 S.W.2d 608 (Tenn.1976). Rule 14(5) of the Tennessee Supreme Court Rules (Adopted by this Court) requires action of the Trial Court urged as error in this Court to have been “specifically stated” in the Motion for a New Trial and overruled below in order to be considered on appeal. The rule in Farris v. State, supra, applies in cases only “wherein appropriate assignments have been made, and which have not yet become final”. Since the charge complained of was not brought to the attention of the Trial Judge in the Motion for a New Trial, we hold that “appropriate assignments” have not been made. Assignment V is overruled.

Judgment of the Criminal Court of Monroe County is affirmed.

WALKER, P. J., and O’BRIEN, J., concur.