author: CLAYTON, Justice.

text:
    John Gregory WATKINS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    May 2, 1978.
    John B. Southard, Jr., Asst. Public Defender, Terrence R. Fitzgerald, Deputy Public Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Victor Fox, Asst. Atty. Gen., Frankfort, for appel-lee.
   CLAYTON, Justice.

The appellant, John Gregory Watkins, was convicted of robbery in the first degree and first-degree assault and was sentenced to 20 years on each charge.

On January 11, 1975, an attempted robbery occurred at Thoroughbred Liquor Store in Louisville, Kentucky. Walter Smith and Donald L. Goeing, Sr., were working in the store when at approximately 11:30 p. m., three or four black males entered the store. Smith testified that one of them walked up to the counter and asked for a pack of cigarettes. When Smith turned around, the man said, “This is a holdup.” Goeing was refilling the soda machine at this time and when the assailant saw some movement in that direction, he stated, “I said, don’t reach for anything,” and fired two shots at Goeing. One shot hit Goeing in the arm and the other went through the right ventricle of his heart. Goeing was hospitalized for 12 days and recovered after a 3V2-month convalescence.

The evidence against the appellant was based on identifications made by Smith and Goeing. Defense counsel submitted a written pretrial motion for a suppression hearing on the identification testimony. Before any evidence was heard, this motion was reasserted in court, out of the presence of the jury, and was denied. Prior to testimony and identification by Smith and Goeing, defense counsel objected to not being allowed an in-camera hearing, since it forced him to explore the circumstances of the identification testimony in the presence of the jury, but was overruled. The defense repeatedly moved for a mistrial on this point and again was denied. The appellant was then taken to the hospital in the custody of two police officers and was identified by Goeing from his hospital bed.

Appellant’s first assignment of error is that the refusal of the trial court to conduct a suppression hearing to review the procedures by which the appellant was identified and the failure to suppress such identification testimony deprived him of a fair trial. This court stated in Ray v. Commonwealth, Ky., 550 S.W.2d 482,483 (1977): “Although we are of the opinion that the holding of such a hearing prior to the introduction of this testimony would have been the preferred course to follow, we are not persuaded the failure to have done so requires reversal of appellant’s conviction.” We are persuaded that the identification evidence fails to raise any impermissible suggestiveness and the appellant was in no way prejudiced. We are further convinced that under the “totality of the circumstances” appellant received a fair trial.

Appellant’s next assignment of error is that the court erroneously permitted the prosecutor to amend the indictment at the close of the evidence and thereby exposed the appellant to double jeopardy and denied him a fair trial. At the close of the proof for the Commonwealth, the prosecutor moved to amend the indictment to charge the appellant with the robbery of Walter Smith instead of Donald Goeing. As stated by the appellant in his brief, the question is whether the amendment of the indictment violated the constitutional protection against double jeopardy and denied Watkins a fair trial. We see no prejudice in merely changing the names of the victims. The appellant testified that he was not even present at the scene of the crime. How could he have been prejudiced? RCr 6.16 permits the court to amend the indictment prior to the verdict if no additional or different offense is charged and if the substantial rights of the defendant are not prejudiced. See also Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

The appellant’s next assignment of error is that the admission into evidence of statements containing references to other offenses deprived the appellant of a fair trial. This court is, however, of the opinion that the trial court did not err in permitting appellant’s previous statements into evidence for purposes of impeachment. See discussion in Jett v. Commonwealth, Ky., 436 S.W.2d 788 (1969). In an oral statement made to the investigating officer ón the night of the alleged offense, the appellant stated that he spent the entire night at his relatives’ house. Subsequently he made a written statement saying that he was at a pool hall in the area of the Thoroughbred Liquor Store on the evening of the robbery attempt. The testimony relating to other offenses was activity unrelated to the appellant but was that of other individuals not on trial.

Appellant’s final assignment of error is that the closing argument of the Commonwealth’s Attorney deprived him of his right to a fair trial. We have studied the evidence relating to this argument and find it to be without merit and that the final argument of the Commonwealth’s Attorney was within the bounds of propriety.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PALMORE, Chief Justice.

license: Public Domain

text:
    Elmer L. BLAIR, Movant, v. GENERAL ELECTRIC COMPANY and Workmen’s Compensation Board of Kentucky, Respondent.
    Supreme Court of Kentucky.
    May 2, 1978.

      W. David Klingman, Frockt & Klingman, Louisville, for movant.
    Charles S. Cassis, Hal Nance Bogard, Brown, Todd & Heyburn, Louisville, William L. Huffman, Director, Workmen’s Compensation Board, Dept, of Labor, Frankfort, for respondent.
   PALMORE, Chief Justice.

This is a workmen’s compensation proceeding in which Elmer L. Blair, a die-setter, employed by General Electric Company, was awarded benefits under KRS 342.-730(l)(c) 16 for total loss of vision in one eye. Though it is clear from the evidence and, of course, could scarcely be denied, that such an injury results in some degree of permanent occupational disability, the board rejected Blair’s contention that his recovery is not limited to the scheduled or “price tag” figure set by KRS 342.730(l)(c) 16, but comes within the enlarging provision of KRS 342.730(l)(c) 27.

Blair’s appeal to the Court of Appeals from an order of the circuit court affirming the board’s award having been unsuccessful, he sought and was granted a discretionary review by this court.

The case brings us to another milestone in the long and turbulent history of the “schedule of benefits” statute, which began in 1918 as § 4899, Carroll’s Kentucky Statutes, became KRS 342.105 in the statutory revision of 1942, and was placed in KRS 342.730(l)(c) by virtue of Chapter 78, Acts of 1972.

It has been observed many times before that the originating purpose of the schedule was to determine, in advance, uniformly and presumptively, the percentage of occupational disability resulting from each of the enumerated injuries. Cf. Holt v. West Kentucky Coal Company, Ky., 350 S.W.2d 155, 156 (1961). Evasions of this simple scheme were, however, not long in forthcoming, and eventually it became settled that an injury to one of the scheduled members of the body could produce greater disability than a complete loss of it, in which event the schedule was held inapplicable. See Black Mountain Corporation v. Letner, 303 Ky. 807, 199 S.W.2d 611, 612 (1947).

In the statutory revision of 1942, what had theretofore been § 4899 of the Kentucky Statutes was split into KRS 342.105, which contained the schedule, and KRS 342.110, which provided for “all other cases of permanent partial disability.” In 1946 (Sec. 6, Ch. 37, Acts of 1946) the latter of these two statutes was amended to include the following new sentence:

“In no event shall compensation for an injury to a member exceed the amount allowable for the loss of such member.”

It would seem that this plain, unambiguous little sentence would have ended the battle against the schedule, but not so. Human ingenuity was not to be so easily thwarted. As said in Holt v. West Kentucky Coal Company, Ky., 350 S.W.2d 155, 158 (1961), “The Board and this Court soon departed from this mandate.” The new theoretical vehicle, adopted in Department of Mines and Minerals v. Castle, Ky., 240 S.W.2d 44,45 (1951), was that an injury to a member may extend beyond the member, “so that it adversely affects a workmen’s general ability to labor, ... or limits his occupational opportunities to obtain the kind of work he is able to do,” and in such ease “a recovery on the basis of the loss of a member is inadequate, since the disability is greater than the loss of a member and is not simply an injury to a member.”

Ten years later, in Holt [350 S.W.2d 155], the court sought to restore order by according to KRS 342.110 its clearly intended meaning. Prophetically, perhaps, a dissenting opinion protested that KRS 342.105 “simply prescribed the minimum allowance for the loss of a member,” etc. (Emphasis added.) Meanwhile, despite the anemic logic of Castle, evidently the General Assembly found it agreeable, and by Sec. 7, Ch. 147, Acts of 1960, transferred the phraseology of that opinion bodily into KRS 342.110, so that the sentence then read as follows:

“Compensation for an injury or disability to a member shall not exceed the amount allowable for the loss of such member unless the effects of the injury or disability extends [sic] beyond the member to the body as a whole so that it adversely affects a workmen’s general ability to labor, or limits his occupational opportunities to obtain the kind of work he is customarily able to do.”

Developments after 1960 are reviewed in Owens v. Kroehler Manufacturing Company, Ky., 461 S.W.2d 103 (1971), which, in abiding by Holt and restricting compensation to the schedule, concludes by observing that by virtue of a 1970 legislative amendment the law now provides “that if any of the injuries or disabilities specified adversely affects an employee’s ability to labor or limits his occupational opportunities to obtain the kind of work he is customarily able to do, his compensation benefits shall not be limited by KRS 342.105, and he shall be awarded compensation benefits under other applicable or appropriate sections of the Chapter on workmen’s compensation. Thus, the legislature has made a policy change which we recommended, at- least inferentially, in Holt.” (Emphasis added.)

The policy change cited in Owens is embraced in Sec. 3, Ch. 6, Acts of 1970, paragraph (22) of which remains unchanged today as KRS 342.730(l)(c) 27.

KRS 342.730(l)(c) 27, which until 1972 was a part of KRS 342.110, preserves the language from Castle [240 S.W.2d at p. 45] except for the words, “extends beyond the member to the body as a whole,” which had been brought into the statute in 1960 but were omitted in 1970. In other words, the 1970 policy change mentioned in Owens [461 S.W.2d at p. 105] consisted simply of deleting the requirement that the effects of the injury “extend beyond” the injured member.

Thus it may be seen that the schedule of benefits for specified injuries, though intended in the beginning to be exclusive, has become just what the dissenting opinion in Holt (350 S.W.2d at p. 161) maintained it was all along, merely a minimum. There were too many instances in which its rigid strictures did injustice, so at first the court bent and at last the legislature fell with it.

We do not like to say this. It would better suit our preference if it were said more clearly and forthrightly in the statute itself. As we look back over its history we see a time when this court could have been and probably was criticized for construing it inconsistently with what it plainly said and probably meant. Now we are construing it exactly according to what it says, with the hope that at long last what it says and what the General Assembly intends for it to mean have become one and the same.

It is not possible for a laboring man to lose the use of an eye and not suffer some loss of his “ability to labor” and some limitation of his “occupational opportunities to obtain the kind of work he is customarily able to do.” The statute does not say that the degree of such loss or limitation shall be substantial or that it be reflected in an immediate reduction in pay. If the injury “adversely affects” the workman’s “ability to labor” or his “occupational opportunities,” then “his compensation benefits shall not be limited” to the schedule. Carefully read, these words are quite plain.

It is our conclusion that Blair is entitled to have his degree of occupational disability fixed by the Workmen’s Compensation Board and, if the benefits allowable on the basis of that disability exceed those that would be payable in accordance with an award under KRS 342.730(l)(c) 16, to be compensated accordingly. Cf. C. E. Pennington, Inc. v. Winburn, Ky., 537 S.W.2d 167, 168 (1976).

The decision of the Court of Appeals is reversed with directions that the cause be remanded to the Jefferson Circuit Court for entry of a new judgment consistent with this opinion.

All concur except for STEPHENSON, J., who dissents.


author: MARTIN, Chief Judge.

text:
    Arnold J. LEE as Property Valuation Administrator of Cumberland County, Kentucky and on behalf of others similarly situated, Appellants, v. COMMONWEALTH of Kentucky and Kentucky Registry of Election Finance and the Individual members thereof, Ap-pellees.
    Court of Appeals of Kentucky.
    March 24, 1978.

      William M. Newman, Jr., Louisville, for appellants.
    Walter C. Herdman, Asst. Deputy Atty. Gen., Frankfort, for Com. of Kentucky.
    Allen Prewitt, Jr., Frankfort, for Kentucky Registry of Election Finance.
    Before MARTIN, C. J., and HOGGE and WILHOIT, JJ.
   MARTIN, Chief Judge.

This is an appeal from a Franklin Circuit Court judgment upholding the statutory prohibition against making campaign contributions of any kind to a candidate for the office of Property Valuation Administrator. Because of the immediate nature of the question presented, on October 13, 1977, we issued an order reversing the judgment of the circuit court and indicated that a full opinion would follow. In this opinion we explain our decision and declare so much of KRS 121.045 as prohibits donations to a candidate for the office of Property Valuation Administrator unconstitutional under Section 59, subsection 29 of the Kentucky Constitution.

The appellant, Arnold J. Lee of Cumberland County, is one of the 120 county Property Valuation Administrators in Kentucky. He was an incumbent PVA and sought reelection in the November, 1977, General Election. As President of the Association of Property Valuation Administrators in Kentucky, he brought this class action suit to challenge a determination by the Kentucky Registry of Election Finance that no candidate for the office of PVA could receive campaign donations from homeowner in the county where he was running. The appellee, the Registry of Election Finance, is an independent agency of Kentucky government, charged with the enforcement of the provisions of the Corrupt Practices Act, KRS 121.015 through 121.990. The Registry, upon the advice of the Attorney General, advised the candidates for the office of PVA that KRS 121.045 prohibited donations from anyone whose property, whether real, personal, tangible, or intangible, might be assessed by a PVA.

In the trial court, appellant, as the representative of all candidates for the office of PVA, filed a declaration of rights proceeding under KRS 418.040. Notice of the filing of the complaint was sent by the clerk of the court to all candidates for the office of PVA in the 1977 election, asking if they wished to be part of the class determination. Only three rejected representation by appellant as part of a class under Rule 23.

In the complaint, appellant alleged that KRS 121.045 was not intended to foreclose all fund raising efforts by candidates for the office of PVA. The trial court found that the Property Valuation Administrator, whose sole purpose is to value property, must campaign for the office without donations from residents of his county.

The statute in issue is KRS 121.045, which provides:

No person other than a corporation, and no agent of such person on his behalf, shall contribute, either directly or indirectly, any money, service or other thing of value towards the nomination or election of any state, county, city or district officer who, in his official capacity, is required by law to perform any duties peculiar to such person not common to the general public, or to supervise, regulate or control in any manner the affairs of such person, or to perform any duty in assessing the property of such person for taxation. . . . (Emphasis added.)

This section of the Corrupt Practices Act has remained virtually unchanged since it was enacted by the General Assembly in 1916. Kentucky was an early leader in legislating control over the conduct of political campaigns. The paragraph quoted above was part of the original legislative directive designated as Section 1565 b-1 of Carroll’s Code of Kentucky. Over the years this wording remained unchanged and was reenacted and designated as KRS 123.030 when the Code was repealed. This designation remained until 1974 when this section was redesignated KRS 121.045, and that designation will be the one referred to throughout this opinion.

The 1916 Corrupt Practices Act was a short statute and was drafted for the elections of that period. The 1974 Corrupt Practices Act, on the other hand, was part of a complete reform program designed for present day elections. As a part of this reform program, the Registry of Election Finance, which had been created in 1966, was given supervisory control over all election financing. While its power to enforce its rules was upheld in Dempsey v. Stovall, Ky., 418 S.W.2d 419 (1967), the Registry had struggled for recognition in controlling campaign fund raising and expenditures. The reform program gave the Registry the necessary strength to monitor effectively all of the financial aspects of political campaigns. The penalties for a violation of KRS 121.990 are severe and can result in the voiding of an election.

Just as the election laws and the statutes affecting corrupt practices have changed over the years, so has the office of PVA, or property assessor as he was known in 1916. Effective December 1, 1969, under authority granted by Section 104 of the Constitution, the legislature created the office of Property Valuation Administrator and abolished the office of property assessor. The legislation was intended to professionalize the work of assessing property. To a great extent this laudable goal has been accomplished. A candidate for PVA is tested professionally before he can run for the office, and if elected, he is subject to the strict supervision of the Department of Revenue. See Department of Revenue v. Turner, Ky., 260 S.W.2d 658 (1953), KRS 132.370, 132.380 and 132.420. KRS 132.990 describes the specific penalties that can be invoked against the PVA if he fails to execute the duties of his office.

Having established this high degree of professionalism in carrying out the duties of PVA, the Corrupt Practices Act would give him no forum to explain his qualifications. The most important step before he can begin his duties is the requirement that he seek the office in a partisan election in his home county. To certify him professionally qualified and then to deny him any avenue to raise funds for his campaign is incongruous. This problem highlights the need for public financing of elections for offices such as PVA, but that is for the legislature to decide, not the courts. The obvious purpose intended by KRS 121.045 was to prohibit bribes, coerced donations from employees, and the payment for votes. See Brewer v. Compton, 276 Ky. 53, 122 S.W.2d 1024 (1934); Riddle v. Eaton, Ky., 447 S.W.2d 47 (1969). These were the problems that faced the Commonwealth in 1916. There is no legislative history to suggest that the interpretation advanced by the Registry was intended by the legislature when it enacted the 1974 election reform program.

In reviewing the constitutionality of the Federal Election Campaign Act of 1971, as amended in 1974, the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976), stated:

The Act’s contribution and expenditure limitations operated in an area of the most fundamental First Amendment activities. Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our constitution,

and further:

It can hardly be doubted that the constitutional guarantee, [of freedom of speech], has its fullest and most urgent application precisely to the conduct of campaigns for political office. Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 625, 28 L.Ed.2d 35 (1971).

While the court in Buckley v. Valeo, supra, proceeded to uphold the validity of the Act’s contribution limitations, 18 U.S.C. § 608(b), the court stated:

[T]he primary First Amendment problem raised by the Act’s contribution limitations is their restriction of one aspect of the contributor’s freedom of political association. The Court’s decisions involving associational freedoms establish that the right of association is a “basic constitutional freedom” Kusper v. Pontikes, 414 U.S. [51], at 57, 94 S.Ct. [303], at 307, 38 L.Ed.2d 260, that is “closely allied to freedom of speech, and a right which, like free speech, lies at the foundation of a free society.” Shelton v. Tucker, 364 U.S. 479, 486, 81 S.Ct. 247, 251, 5 L.Ed.2d 231 (1960). See, e. g., Bates v. Little Rock, 361 U.S. [516,] [518], 522-523, 80 S.Ct. 412, 416, 4 L.Ed.2d 480 (1960); NAACP v. Alabama, 357 U.S., at 460^61, 78 S.Ct., at 1170-1171; NAACP v. Button, 371 U.S. [415], at 452, 83 S.Ct. [328], at 347, 9 L.Ed.2d 405 (Harlan J., dissenting). In view of the fundamental nature of the right to associate, governmental “action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.” NAACP v. Alabama, supra, 357 U.S. [449], at 460-461, 78 S.Ct. [1163], at 1171, 2 L.Ed.2d 1488.

Our State Constitution § 1 and § 8 secures the right of free speech similar to that protected by the First Amendment to the Constitution of the United States. Further, the legislative intent of the Kentucky Corrupt Practices Act is similar to that of the Federal Election Campaign Act. That purpose is to guard against the reality or appearance of corruption in the election process, and to equalize the relative ability of all voters to affect the outcome of elections. See Buckley v. Valeo supra. It was on this former legislative rationale of removing any possible inference of impropriety in the election of a Property Valuation Administrator, that the trial court denied the right to solicit campaign funds because of KRS 121.045. In reading the Corrupt Practices Act we cannot discern a compelling state interest or a legislative intent to deny citizens of a particular county such a basic right as supporting the candidate of their choice for an elected county office. The result of such a policy would be to severely restrict the availability of candidates for the office of Property Valuation Administrator. With no campaign funds available, the voting public would be less informed and, under the decision of the trial court, possibly totally uninformed as to the qualifications of the candidates for the office of PVA. Such a prospect is hardly consonant with the “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open.” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 721, 11 L.Ed.2d 686 (1964).

Section 59 of the 1891 Constitution of Kentucky prohibits any law that appears to be special legislation, or is intended to treat one group of citizens differently than another group. Specifically, subsection 29 prohibits the enactment of a special law where a general law could be made applicable. The legislature is not prohibited from making reasonable classifications. Kentucky Milk Marketing and Anti-Monopoly Commission v. Bordon Co., Ky., 456 S.W.2d 831 (1970). However, a classification based upon purely artificial, arbitrary, or fictitious conditions is unreasonable and will not be permitted. Reid v. Robertson, 304 Ky. 509, 200 S.W.2d 900 (1947). We, therefore reluctantly declare unconstitutional so much of KRS 121.045 as prohibits donations to the election campaigns of candidates for the office of Property Valuation Administrator by persons whose property he may assess.

As ordered on October 13,1977, the judgment of the Franklin Circuit Court is reversed.

All concur.


author: PARK, Judge.

text:
    David S. SALSMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 31, 1978.
    Rehearing Denied May 19, 1978.

      Blake Page, Page & Clay, Winchester, for appellant.
    Robert P. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
    Before MARTIN, C. J., and WHITE and PARK, JJ.
   PARK, Judge.

The appellant, David S. Salsman, was indicted for rape in the first degree (KRS 510.040). Following a jury trial, Salsman was convicted of sexual abuse in the first degree (KRS 510.110). He appeals from the judgment of the Clark Circuit Court imposing a sentence of five years imprisonment.

On this appeal, Salsman raises two issues: (1) that he was entitled to a directed verdict of acquittal because of the Commonwealth’s failure to prove “forcible compulsion,” and

(2) that the trial court erred in submitting an instruction to the jury on sexual abuse in the first degree.

I

The testimony at trial was not conflicting. The conflict concerned the inferences to be drawn from the evidence. Salsman admits sexual intercourse with the prosecu-trix. However, he testified that the prose-cutrix did not resist. On this appeal, he contends that there is a complete absence of any evidence of forcible compulsion.

The prosecutrix was twenty-four years old at the time of the incident. According to a clinical psychologist who examined her, the prosecutrix had a verbal I.Q. of 57. With regard to verbal skills and reasoning skills, the prosecutrix was functioning at the level of a ten year old. The prosecutrix performed better in exercising performance skills which did not require the use of language. Respecting performance skills she was functioning on the level of a twelve to thirteen year old child. Her overall I.Q. average was in the 60’s. This placed her in the retarded range. In the opinion of the psychologist, the prosecutrix was capable of understanding that a sexual act was being performed upon her. However, he also testified that he observed that the prosecutrix was easily threatened and frightened and that her judgment in dealing with new experiences may be impaired. The record also establishes that the prosecutrix suffered from deafness and that she had to read lips if other persons were to communicate with her.

The prosecutrix was alone in the home of her natural mother and stepfather at the time of the incident. Shortly after noon, Salsman arrived at the home to deliver bread and milk. He was a route salesman for a dairy, and he had seen the prosecutrix at the home on other occasions when she was visiting her mother.

After placing the milk and bread in the refrigerator, Salsman asked the prosecutrix to have sexual relations with him. She refused. Salsman then opened his pants and sought to have the prosecutrix perform an act of fellatio. Again, she refused and resisted by covering her mouth. The prose-cutrix had been seated in a rocking chair when she resisted his first advances. Sals-man testified that he “grabbed her by the hand and pulled her up” out of the chair. He then removed her slacks, panties, and menstrual belt and pad. She continued to protest, saying, “No, no.” He then sought to have intercourse with the prosecutrix, both from the front and rear. Salsman testified that he used no physical force upon the prosecutrix, and that she did not resist other than saying, “No, no.” The prosecu-trix testified that she wanted to run away, but that she did not attempt to run away or to resist because she feared Salsman would hurt her.

When the prosecutrix’s stepfather returned to the residence around one o’clock, he found her “very nervous and upset.” Later, the prosecutrix was interviewed at the hospital by a detective with the Kentucky State Police. According to the detective, the prosecutrix was crying and very upset.

At common law, rape constituted sexual intercourse of a woman by force against her will. If the woman lacked the mental capacity to consent, force was deemed to have been used. The inability to consent took the place of the element of force in the crime of rape at common law. A woman was considered to be mentally incapable of consenting to intercourse if she could not appreciate or understand the wrong of having illicit intercourse or she did not have the will power to resist the accused. Wilson v. Commonwealth, 290 Ky. 223, 160 S.W.2d 649, 651-52 (1942); Jones v. Commonwealth, 154 Ky. 752, 159 S.W. 568 (1913). Even if the woman could understand the nature of the sexual act, she was deemed mentally incapable of granting consent if she lacked the mental capacity to resist.

Under the present penal code, a woman’s mental capacity to resist remains a relevant issue. However, mental incapacity to consent is no longer the equivalent of force. Lack of consent is a separate element of every offense defined by Chapter 510 of the Kentucky Revised Statutes. Lack of consent can result from forcible compulsion or incapacity. KRS 510.020. Whether this element of the offense is supplied by forcible compulsion rather than incapacity to consent can affect the degree of the offense. Compare KRS 510.040 (rape in the first degree) with KRS 510.060 (rape in the second degree). Forcible compulsion places the victim in fear of death or physical injury. With mental incapacity to consent, fear may be completely absent.

A man is guilty of rape in the third degree if he engages in sexual intercourse with a woman who is incapable of consent because she is mentally defective. KRS 510.060. A man is guilty of sexual abuse in the second degree if he subjects a woman to sexual contact who is incapable of consent because she is mentally defective. KRS 510.120. A woman is “mentally defective” if she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct. KRS 510.010(4). Under this definition, it is immaterial whether the person does not possess the power to resist because of a mental disease or defect. In determining whether a woman is incapable of granting consent because she is mentally defective, the sole question is whether she is capable of appraising the nature of the sexual act being performed. In this case, the record established that the prosecutrix did understand that Salsman was seeking to perform sexual acts upon her. The trial court correctly concluded that Salsman could not be guilty of either rape in the third degree or sexual abuse in the second degree on the theory that the prosecutrix was incapable of giving consent.

Before Salsman could be found guilty of either rape in the first degree or sexual abuse in the first degree, it was necessary for the Commonwealth to establish that he had exercised forcible compulsion upon the prosecutrix. KRS 510.010(2) defines that term as follows:

“Forcible compulsion” means physical force that overcomes earnest resistance or a threat, express or implied, that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself or another person or in fear that he or another person will be immediately kidnapped.

This definition is the same as that contained in section 1100 of the final draft of the Kentucky Penal Code, published in November 1971. Consequently, the commentary accompanying that section of the 1971 final draft may be used as an aid in construing the present penal code. Cooper v. Commonwealth, Ky., 550 S.W.2d 478 (1977); KRS 500.100.

In discussing the definition of forcible compulsion, the commentary states:

The term also includes a threat, express or implied, that overcomes earnest resistance by placing a person in fear of immediate death or physical injury to himself . . The threat must be communicated, and it must be the cause of the submission. The definition does not require that the victim’s fear be “reasonable.” One who takes advantage of a victim’s unreasonable fears of violence should not escape punishment any more than the swindler who cheats gullible people by false statements which they should have found incredible
. The phrase “earnest resistance” requires more than token initial resistance but less than showing that the victim was physically incapable of additional struggle against his assailant.

In determining whether the prosecutrix submitted to Salsman because of an implied threat which placed her in fear of immediate death or physical injury, a subjective rather than objective standard must be applied.

During the trial, the prosecutrix testified: D48 While he was doing this, were you trying to get free?
A Yes.
D49 Were you afraid of him?
A Yes.
D50 Why were you afraid of him?
A I don’t know.
D51 Are you afraid of people you don’t know very well?
A Very much. Strangers, I am scared of them, but I don’t know why.
X31 Did you do anything else? Did you holler or shout out?
A No. I was afraid to open my mouth. I don’t know. I was just scared. I am always scared.
I was trying to get away from him the best I could. I was scared. I thought I could run away.
X34 Did you try to run away?
A I felt like it. But I was afraid if I did, he might hurt me.
X37 Do you know what the word gentle means? He wasn’t holding you by the hair, or anything? He wasn’t rough with you?
A He was holding me — I don’t know — I don’t know why.
X38 Were you trying to move about and get away from him?
A I was trying to — however you say it — away. I was afraid to fight him. I was he might hurt me. (sic)
X39 He wasn’t being rough with you, though?
A No, sir.

According to the State Police detective, Salsman admitted to him that the prosecu-trix told him, “No, no,” several times. Sals-man himself admitted that the prosecutrix told him “no” more than once when he sought to perform the sexual acts with her.

In determining whether the prosecu-trix submitted to forcible compulsion, the jury was entitled to consider a number of factors. The prosecutrix was mentally retarded. Because of her deafness, she had difficulty understanding communications from other persons. She was alone in the house. Salsman ignored her physical resistance to his efforts to perform an oral sex act upon her. He ignored her repeated indications that she did not wish to have sex with him. He physically pulled her from a chair. Salsman physically held the prosecutrix while he removed her clothing.

We conclude that the trial court correctly submitted the question of forcible compulsion to the jury. Taking into consideration all of the circumstances, the jury could believe beyond a reasonable doubt that the prosecutrix was terror-stricken at the time she submitted to Salsman.

II

Salsman asserts that the trial court erred in submitting an instruction on sexual abuse in the first degree. The prosecutrix indicated that Salsman had sexual intercourse with her. Salsman himself admitted to having sexual intercourse. The physician who examined the prosecutrix at the hospital testified that there were signs of recent sexual intercourse. Consequently, Salsman asserts that there was no issue respecting sexual intercourse and that he was guilty either of rape or of no offense at all. When all of the evidence indicates that there was sexual intercourse and there is no evidence that there was only sexual contact, a defendant is not entitled to an instruction on the lesser offense of sexual abuse in the first degree. Isaacs v. Commonwealth, Ky., 553 S.W.2d 843 (1977); 1 Palmore and Lawson, Instructions to Juries in Kentucky § 2.32 Comment (1975). Asserting that there was no evidence of sexual contact alone, Salsman argues that it was prejudicial error to instruct on sexual abuse. Cf. Elmore v. Commonwealth, Ky., 520 S.W.2d 328, 331 (1975).

Even if the giving of an instruction on sexual abuse might constitute reversible error in a ease in which there was no evidence that the defendant’s act constituted only sexual contact, the giving of the instruction on sexual abuse was not reversible error in this case. First, we note that no objection was made at the trial level to the giving of the instruction, as required by RCr 9.54(2). Once the trial court had overruled the motion for a directed verdict of acquittal, as a matter of sound trial strategy, Salsman may have been delighted that the trial court gave the jury the option of finding him guilty of sexual abuse in the first degree which was only a Class D felony. Otherwise, the jury would have had only the option of finding Salsman guilty of rape in the first degree, a Class B felony, or returning a verdict of not guilty. Not having raised the question before the trial court, Salsman should not be allowed to complain of the instruction for the first time on appeal. Stinnett v. Commonwealth, Ky., 553 S.W.2d 55 (1977).

The crime of sexual abuse is clearly a lesser included offense of the crime of rape. Sexual intercourse is an element of rape. Sexual contact is an element of sexual abuse. Sexual intercourse always involves sexual contact as that term is defined in the statute. On the other hand, sexual contact does not always involve intercourse. In this case, Salsman made three attempts before he succeeded in having sexual intercourse with the prosecutrix. The evidence would support a finding that there was sexual contact when he attempted to force the prosecutrix to perform fellatio upon him and when he first attempted sexual intercourse with her. We conclude that the substantial rights of Salsman were not prejudiced when the trial court gave an instruction on sexual abuse in the first degree.

Ill

The judgment of the circuit court is affirmed.

All concur.


text:
    DEPARTMENT OF REVENUE, Commonwealth of Kentucky, and Maurice O. Carpenter, Commissioner, Department of Revenue, Appellants, v. LOUISVILLE CHILDREN’S THEATER, INC., Appellee.
    Court of Appeals of Kentucky.
    April 21, 1978.
    As Modified April 28, 1978.
    William S. Riley, William P. Sturm, Legal Staff, Dept, of Revenue, Frankfort, for appellants.
    Edwin H. Perry, Ellen M. Pedley, John S. Reed, II, Greenebaum, Doll, Matthews & Boone, Louisville, Kentucky Board of Tax Appeals, Frankfort, for appellee.
    Before MARTIN, C. J., and COOPER and VANCE, JJ.
   MARTIN, Chief Judge.

This is an appeal from a judgment of the Franklin Circuit Court exempting from sales taxation the Louisville Children’s Theater, Inc. The trial court determined the Children’s Theater to be a nonprofit public charity and an institution of education under Section 170 of the Constitution. We affirm.

The Children’s Theater is a Kentucky nonprofit corporation formed in 1948 under the provisions of KRS Chapter 273. The stated purposes were “to educate children in the public and private schools of the City of Louisville and environs by presenting educational plays and theatrical performances.” In furtherance of these goals, it has been producing and presenting in cooperation with Louisville area schools, plays and other dramatic performances for children for twenty-nine years. Each year it presents two series of plays, one for children of preschool age through first or second grade and the other for slightly older children of the elementary school level. In the course of staging these performances, children of all ages are given an opportunity to gain experience in acting, in the mechanical aspects of production, such as, set design and construction and costuming, and in theater management. Additionally, more formal educational activities are conducted, including classes for children employing the creative dramatics method of instruction and summer workshops in which classes are given in acting and other aspects of the theater.

Operating funds are derived from two principal sources, the larger being contributions and grants and the smaller being ticket sales. A small amount of income is also derived each year from other miscellaneous sources, including an annual charitable fund-raising event.

In addition to the selling of tickets to the performances of the Children’s Theater, a substantial number of free tickets are given to needy children who otherwise would be unable to attend. Children’s Theater also presents entirely free performances to special deserving groups. During the 1974-75 season, three special performances were presented solely for about 2,500 handicapped children. Special groups also are admitted without charge to dress rehearsals of the productions.

There are three salaried employees of the Children’s Theater, a director, business manager, and technical director. Professional actors and actresses are from time to time employed for the preschool program. All other personnel, including the officers and directors, the cast of all other than preschool productions, the “Cast Force” (an adult group), and the “Company” (a teenage group), volunteer their time and abilities. The members of the latter two groups of volunteers are responsible for such tasks as making scenery and costumes, ushering at performances, and promoting the plays.

The Children’s Theater owns no real property; therefore, the only issue on this appeal is whether or not it is exempt from the payment or collection of the sales tax under KRS 139.470.

The trial court, in holding Children’s Theater a “purely public charity” exempt from taxation under Section 170 of the Constitution, stated:

[T]he function of the LCT definitely put it within the orbit of those organizations contemplated as charitable by the Court in Bernheim. Construed as strictly as you please, the activities of LCT are well calculated to better the condition of mankind.

In reaching this conclusion, the court followed Commonwealth v. Isaac W. Bernheim Foundation, Ky., 505 S.W.2d 762, 763-4 (1974), which held that charity is not just providing necessaries for the poor or unfortunate, but rather it may consist of any activities which will reasonably better the living conditions of mankind generally.

In Bernheim, the Department of Revenue argued that the foundation was not an exempt charity because it had not carried out all of its stated charitable purposes and because, in operating a forest, it went beyond the “ . . fulfillment of basic human needs for food, clothing and shelter .” 505 S.W.2d at 763. The court in Bernheim rejected both arguments and adopted the position that the activities of an exempt charity need only “ . reasonably better the condition of mankind.” 505 S.W.2d at 764.

In the present case, the Department’s sole and narrow argument is that no organization can be tax exempt as a purely public charity unless it lessens the burden of government. The Department maintains that a series of Kentucky cases, including Bernheim, establish that no activity is charitable under Section 170 unless it removes from the Commonwealth the need to provide an activity or service. We do not agree.

As in Bernheim, all of the income of Children’s Theater is derived primarily from public and private donations and is devoted to charitable endeavors. Both organizations have paid professional staff as well as volunteer directors and workers, the salaries of the staff being an expense of the charity in each case.

In Banahan v. Presbyterian Housing Corp., Ky., 553 S.W.2d 48 (1977), the court held that two nonprofit corporations, owning and operating low and medium income housing for the elderly or physically handicapped, were exempt from taxation as purely public charities. This decision affirms the rationale of the Bernheim case and rejects the argument advanced by the Department in the present case. Both in Banahan and the present case, the Department argues that the charging of fees for the use of the charity rendered the activity non-charitable. The court there disagreed as we disagree. The opinion emphasizes that activities of the two charitable corporations paralleled the concern of the state in providing housing programs and other services for the elderly and handicapped.

The decision in Banahan reaffirmed the standard for determining a charity under Kentucky law. That test as stated in Iroquois Post No. 229 v. City of Louisville, Ky., 309 S.W.2d 353, 354 (1958), is:

First, the institution must itself be a charity and the income from its property must be used to further its charitable purpose; secondly, the property must be employed for a purely charitable purpose.

The decision in Bernheim went on to define the word “charity,” 505 S.W.2d at 764:

. [C]harity is broader than relief to the needy poor and includes activities which reasonably better the condition of mankind.

We believe that the proof in this case has established that Louisville Children’s Theater is a charity under Section 170 and exempt from Kentucky sales taxation. Through programs supporting the arts and theater, the state has indicated its interest in these projects. The projects of the Children’s Theater closely parallel these state-funded projects.

The cases that have been decided under Section 170 of the Constitution of Kentucky have at best lacked consistency. While we have found the Louisville Children’s Theater exempt from sales taxation because it is a charity, we also believe it qualifies for exemption under the education provision of Section 170.

The test for determining whether a taxpayer is an exempt institution of education under Section 170 was stated in Kesselring v. Bonnycastle Club, 299 Ky. 585, 589, 186 S.W.2d 402, 404 (1945), as whether the institution is “ . . .a place where systematic instruction in any or all of the useful branches of learning is given by methods common to schools and institutions of learning.” This case dealt with the Bonnycastle Club, which was properly denied an educational exemption because it was an exclusive social club with some athletic facilities and was only peripherally concerned with education or charity. The theater on the other hand has been widely accepted as an educational institution. Several states have held theaters exempt based on their educational activities. See Chester Theater Group v. Borough of Chester, 115 N.J.Super. 360, 279 A.2d 878 (1971); Stockton Civic Theatre v. Board of Supervisors, 66 Cal.2d 13, 56 Cal.Rptr. 658, 423 P.2d 810 (1967); Community Drama Ass’n. of Des Moines v. Iowa State Tax Com’n., 252 Iowa 854, 109 N.W.2d 23 (1961); Little Theatre of Watertown v. Hoyt, 7 Misc.2d 907, 165 N.Y.S.2d 292 (1956), aff’d. mem. 4 A.D.2d 853, 167 N.Y.S.2d 240 (1957).

In Stockton Civic Theatre v. Board of Supervisors, supra, the court summarized a situation almost identical to the present situation. The court stated at, 56 Cal.Rptr. 660 and 661, 423 P.2d 812 and 813:

The purposes of plaintiff nonprofit corporation, as set forth in its articles of incorporation, are to foster and stimulate interest in drama and music by the production of plays, musicals, light opera, and operettas; to gather, receive, study and disseminate information concerning plays, playwriting, acting, direction and production techniques; and to unite for mutual benefit persons interested in participating in those activities generally carried on by civic theatre groups.
The articles of incorporation also provide that the corporation is formed for purposes other than pecuniary gain, that no dividends or pecuniary profits shall be declared or inure to the members of the corporation, that no financial gain shall accrue to any member in the conduct of the business of the corporation, and that upon dissolution the assets remaining after payment of debts shall be distributed “to any charitable or civic institution or organization in the sole discretion of the directors.”

In 1962 plaintiff acquired a theatre in the City of Stockton which it uses for the production of popular plays and musical comedies. The real estate is used only for the operation of the theatre, and is not employed to benefit any officer, trustee, director, shareholder, member, employee, contributor, or bondholder. All productions in their entirety are produced by persons of amateur standing.

Membership in plaintiff is unrestricted and is obtained by anyone who purchases a season ticket to plaintiff’s plays, ordinarily $6 for four plays. In addition plaintiff obtains revenues from the sale of tickets for single performances and from gifts. Plaintiff’s financial statements indicate that for its 1962-1963 season approximately one-half of its income was from gifts and for its 1963-1964 season approximately 13 percent of its income was from gifts.

In 1963 the county assessor assessed plaintiff’s land and improvements for a total of $5,515, and plaintiff paid the resulting tax of $590.70 under protest and commenced this action.

The basic question involved is whether plaintiff is a corporation organized and operated for charitable purposes within the meaning of section lc of article XIII of the California Constitution and section 214 of the Revenue and Taxation Code. Secondly, there is involved the question as to whether plaintiff’s property is irrevocably dedicated to charitable purposes and upon liquidation will inure to a charitable organization within the requirements of subdivision (6) of the code section.

Section lc of article XIII provides in part: “In addition to such exemptions as are now provided in this Constitution, the Legislature may exempt from taxation all or any portion of property used exclusively for religious, hospital or charitable purposes and owned by community chests, funds, foundations or corporations organized and operated for religious, hospital or charitable purposes, not conducted for profit and no part of the net earnings of which inures to the benefit of any private shareholder or individual.”

The court then held that not only was the theater a charity but further held that the educational purpose may be regarded as a charity. The court stated 56 Cal.Rptr. at pages 662 and 663, 423 P.2d at pages 815 and 816:

(1) Charity is not confined solely to the relief of the needy and destitute.
(2) An educational purpose may be regarded as a charitable purpose.
(3) Activities of the Stockton Civic Thea-tre for the furtherance of the dramatic arts fall within the term charitable purposes as used in the California Constitution.

We believe that this argument is most persuasive in the present case.

All of the above cited cases dealt with nonprofit community drama groups dedicated to the betterment of the community or some part of it, through the offering of dramatic training and the presentation of dramatic literature. As the court pointed out in the Chester Theater Group case, 279 A.2d at 882, a theater group should be exempt when it fulfills, either partially or totally, the community need for the education of children “ . . .in the arts .

and offers activities and productions which intellectually and socially advance and benefit not only the individual participants involved but the general public as well.”

We were cited to only one older lower court case that disagrees with this conclusion. Little City Theatre of Dallas v. City of Dallas, 124 S.W.2d 863 (Tex.Civ.App.1939). This case can be distinguished on several grounds, primarily that the Dallas City Theatre had as its primary purpose the presentation of plays to the general public for their enjoyment. The theater was operated on the income from ticket sales only. The court held that the theater was not exempt from Texas ad valorem taxes. There was no issue of a charitable exemption as we have in the case of Children’s Theater. The only Texas exemption available to the theater group was from ad valo-rem taxes and it did not qualify as an educational unit.

In denying the educational exemption, the Board of Tax Appeals in the present case relied upon the fact that Children’s Theater presented its plays and other teaching activities at the schools involved. The Board held that Children’s Theater is not a “place” under the Kesselring test. We do not believe this record will support that finding. The word “place,” which appears in other exemptions of Section 170 of the Constitution, is not used in Section 170 in connection with the educational and charitable institutions which are exempted. The use of the word “place” in the Kessel-ring decision cannot be used to limit the two constitutional exemptions because of the specific language of Section 170. The Board further held under Kesselring that dramatics is a special accomplishment which cannot be educational. In Section 170 there is no special accomplishment exception to the institution of education exemption. Indeed, Section 170 contains rather stringent limitations on some of its exemptions while others, like the educational and charitable exemptions, are very broad and open by comparison. This evidences an intention of the drafters not to place such a strict construction on these exemptions.

The judgment of the Franklin Circuit Court is affirmed.

All concur.

      . The applicable statute is KRS 139.470. “Exempt kinds of transaction. — There are excluded from the computation of the amount of taxes imposed by this chapter:
      (1) Gross receipts from the sale of, and the storage, use or other consumption in this state of, tangible personal property the gross receipts from the sale of which, or the storage use or other consumption of which, this state is prohibited from taxing under the constitution or laws of the United States, or under the constitution of this state.”


author: WILHOIT, Judge.

text:
    Kenneth GRIDER and Ralph Roy d/b/a Grider & Roy Building Supply, Appellants, v. MUTUAL FEDERAL SAVINGS AND LOAN ASSOCIATION, Appellee.
    Court of Appeals of Kentucky.
    April 28, 1978.

      Terill A. Wilson, Russell Springs, for appellants.
    F. G. Neikirk, Somerset, for appellee.
    Before HOWARD, PARK and WILHOIT, JJ.
   WILHOIT, Judge.

This appeal is from a judgment of the Russell Circuit Court adjudging a mortgage to the appellee, Mutual Federal Savings and Loan Association, to be superior to the ma-terialmen’s lien of the appellants, Ralph Roy and Kenneth Grider.

The dispositive question presented to us on this appeal is whether the appellee association had actual notice of the equities of the materialmen prior to the time it disbursed all of the proceeds of a construction loan to a builder, so as to render the lien of the materialmen on certain premises superi- or to the mortgage of the association to the extent of advancements made after the association was given such notice.

On June 12, 1974, Chester A. Hicks, a builder, and his wife signed a note for $17,-500.00 and a mortgage on 2 then-vacant lots to secure a construction loan made by the association for improvements to be built on the lots. The mortgage was recorded on June 14, 1974, and the proceeds of the loan were disbursed to the builder in installments on July 5, July 31, and August 30, 1974, after the mortgage was recorded. The appellants furnished materials for the improvements erected on the property. They were never fully paid for their materials. No statement of lien was filed by them until September 23, 1974.

On July 21,1974, appellant Roy telephoned an officer of the association to discuss the debt owed to appellants by the builder. At the time this conversation took place the officer was made aware that appellants were furnishing materials for the construction on the lots. Although it is disputed as to whether Mr. Roy told the officer more about the builder’s unreliable financial condition, the trial court found only that he told the officer that the builder owed the appellants “eighty hundred dollars” and that Roy requested the officer’s help in collecting the money. The court specifically found that Mr. Roy did not tell the officer that the builder “was not paying his bills on time or was not able to do so or that Roy intended to file a lien.” Our examination of the record does not lead us to conclude that these findings were clearly erroneous and, therefore, they may not be set aside. CR 52.01. Since it is obvious that the conversation was brought about by the builder’s failure to pay appellants, we interpret the finding concerning failure to pay bills on time to mean that Mr. Roy did not mention that the builder was failing to pay other bills as they came due. The court also found that the association had “had previous lending experience” with the builder and that he “had always paid his bills.”

At the outset it should be noted that the trial court did not consider, nor is the question now raised, whether the mortgage loan here was obligatory or discretionary. See Percy Galbreath & Son, Inc. v. Watkins, Ky.App., ”560 S.W.2d 239 (1977). Because we believe our conclusion makes a consideration of that question and other questions raised on this appeal unnecessary, we will only discuss the appellants’ contention that Mr. Roy’s conversation contained sufficient information to put the association on notice, under KRS 376.010(2), of appellants’ equities, and thereby render their materialmen’s lien superior to the association’s mortgage to the extent of the last 2 advancements made to the builder.

Prior to the recordation of the association’s mortgage, appellants did not file a statement of intent to claim a lien as provided for in KRS 376.010, so we are not dealing with a question of constructive notice but one of actual notice to the association. Appellants insist that under Kentucky Lumber & Mill Work Co. v. Kentucky Title Savings Bank & Trust Co., 184 Ky. 244, 211 S.W. 765 (1919), it is only necessary that the association have knowledge that appellants did work for which they had not been paid and for which they were entitled to assert a statutory lien. They assert correctly that as a result of the telephone conversation the association had at least this knowledge. However, later cases determining how much information must be given to a mortgage holder to constitute actual notice of a claimed lien, interpret Kentucky Lumber & Mill Work Co., supra, to require more. Analysis of these cases leads to the conclusion that in order to have actual notice the mortgagee must know that there are unpaid claims for which a lien may be asserted and that the debtor is unable to pay such claims or that the claimant intends to “file a lien.” Johnson Lumber Co. v. Stovall, Ky., 394 S.W.2d 930 (1965); Collier v. Dillon, 313 Ky. 244, 230 S.W .2d 617 (1950); Ideal Supplies Co. v. Underhill, 213 Ky. 741, 281 S.W. 988 (1926).

It is clear that the association was never told that appellants intended to “file a lien” although there is evidence that such a course was suggested by the officer with whom Roy had the telephone conversation. It is equally clear that the association knew that appellants had an unpaid claim for which a lien could be asserted and the amount of such claim. But did the association know that the builder was unable to pay the claims?

The association had done business with the builder before and knew that he always paid his bills. The call from Mr. Roy was made at a time when scarcely a month could have elapsed from the time the materials were furnished by appellants. No information was given as to when payment by the builder was due or even if it was then due or past due. Only a request was made to assist in collecting the debt. This could have meant immediate assistance because the debt was then past due, or assistance at a later time when it became due. As a matter of fact, the appellants continued to furnish materials to the builder after the telephone conversation took place. This surely indicates that not even they believed he was unable to pay.

In a case such as this the burden is as much on the one asserting a materialmen’s lien as on the mortgagee to protect the rights of the materialmen. Ideal Supplies Co. v. Underhill, supra. The mortgagee must have or be given sufficient information to constitute actual notice within the meaning of our statute and case law. Here, the appellants did not communicate all of the requisite information nor has it been shown that the association had such knowledge.

The judgment of the trial court is affirmed.

All concur.


author: HOWARD, Judge.

text:
    CHESTNUT FLATS COAL COMPANY, INC., Appellant, v. Albert JONES, James R. Yocom, Commissioner of Labor and Custodian of the Special Fund, and Workmen’s Compensation Board, Appellees.
    Court of Appeals of Kentucky.
    April 28, 1978.
    Charles W. Berger, Berger & Berger, Pineville, for appellant.
    Earl L. Cole, Barbourville, for appellee, Albert Jones.
    Cyril E. Shadowen, Asst. Counsel Dept, of Labor, Louisville, Kenneth E. Hollis, Gen. Counsel Dept, of Labor, Frankfort, for ap-pellee, James R. Yocom, Commissioner of Labor & Custodian of the Special Fund.
    Before COOPER, HOWARD and WIL-HOIT, JJ.
   HOWARD, Judge.

This appeal concerns that portion of a judgment of the Bell Circuit Court which affirmed the Workmen’s Compensation Board’s Opinion and Award insofar as the award imposed all liability for the disability attributable to a traumatic wrist injury solely on the appellant-employer, Chestnut Flats Coal Company, Inc. (hereinafter referred to as the employer).

The Board found the claimant, Albert Jones, to be permanently and partially disabled, in the amount of 20% to the body as a whole, as the result of the wrist injury. The claimant stated that a six-foot-tall oak timber fell and hit his wrist, thereby injuring him. He had not had any problems with his wrist prior to the injury. The Board further stated that the omission to appoint a KRS 342.121 physician was harmless.

KRS 342.120 provides when the Special Fund is to be made a party in a compensation proceeding and subsection (2) of that section states that when the Special Fund has been made a party “ . the board shall direct the procedures provided in KRS 342.121.” (Emphasis added).

KRS 342.121(1) provides as follows:

If on a claim for compensation for disability resulting from a subsequent injury by accident or occupational disease any medical question shall be in controversy, or a determination thereof necessary to the proper apportionment of liability . therefor, the board shall refer the case to a physician appointed by it for the purpose of investigating and reporting to the board on the medical questions involved. . (Emphasis added).

The language in those two subsections is mandatory, and as a matter of course, the Board will appoint a physician. However, this Court has been able to find one case dealing with the failure of the Board to appoint a physician pursuant to KRS 342.-121, wherein the requirements needed prior to the appointment of a physician under that statute are discussed. In Young v. Arms, Ky., 465 S.W.2d 57, 60 (1971), the court states:

. Even if the Special Fund had been made a party in this case, the procedures outlined in KRS 342.121 would not have required the appointment of a physician by the board unless the evidence in the record disclosed a controversy about a medical question or established that the case was a proper one for apportionment and revealed the necessity for determining a medical question in order to make a proper apportionment.

In Young v. Arms, supra, the court found that there was a complete omission of proof upon whether a subsequent injury imposed upon a prior injury resulted in a combined disability greater than the disability which would have resulted from the subsequent injury alone. The court stated there was therefore no need for a KRS 342.121 physician as there was no controversy about a medical question nor a necessity for determining a medical question necessary to proper apportionment.

A review of the pertinent portions of the medical testimony in the instant case is warranted. Dr. J. L. Woolum, a general surgeon, is the claimant’s personal physician. Dr. Woolum testified that an x-ray of the claimant’s wrist, taken a few days after the injury, indicated not only a recent injury but also indicated that a pre-existing type condition was evident (malacia lunate bone condition). This condition usually takes some time to develop. Dr. Woolum’s testimony was to the effect that the blow from the timber aroused this non-disabling condition into disabling reality.

Dr. William G. Wheeler, the orthopedic surgeon who performed surgery on the claimant’s wrist, testified that he could not say with medical certainty whether the claimant had a dormant non-disabling wrist condition prior to the trauma. Dr. Wheeler testified that, if Dr. Woolum’s observations as to the prior wrist condition were true, the trauma Jones sustained would have aroused into disabling reality the condition which before had been dormant and non-disabling. Dr. Wheeler, at no time, saw the x-rays which, according to Dr. Woolum’s testimony, showed the pre-existing condition.

Dr. Curwood Hunter, a neurosurgeon, testified that he did not feel qualified to enter an opinion on the orthopedic problem in the claimant’s wrist. Dr. Hunter did not believe, however, that the wrist x-rays showed evidence of either a congenital or long-standing disease or condition.

The testimony of the other doctors only indicated that an injury, of the type the claimant said he sustained, could have caused the present disability in his wrist.

We think that this evidence establishes that a medical question is in controversy, i. e., whether the claimant had a pre-existing bone condition, dormant and non-disabling prior to the injury, a determination thereof being necessary to a proper apportionment. The omission to appoint a KRS 342.121 physician was therefore not harmless, regardless of the amount apportioned to the Special Fund by that physician.

We reverse the judgment of the trial court with directions to remand this case to the Board so that a KRS 342.121 physician can be appointed for determining the apportionment of liability between the Special Fund and the employer regarding the claimant’s wrist injury.

All concur.


author: CLEMENS, Presiding Judge.

text:
    Val Dean OSTRANDER, Appellant, v. STATE of Missouri, Respondent.
    No. 38344.
    Missouri Court of Appeals, St. Louis District, Division One.
    Jan. 31, 1978.
    Motion for Rehearing and/or Transfer Denied March 10, 1978.
    Application to Transfer Denied June 15, 1978.
    H. Carl Kuelker, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Pros. Atty., Clayton, for respondent.
   CLEMENS, Presiding Judge.

By a Rule 27.26 motion movant Val Dean Ostrander has challenged the 25-year sentence imposed after a jury trial on a charge of felonious assault. After trial but before being sentenced movant fled to South Carolina. He was returned to Missouri by extradition and sentence and imprisonment followed. He did not appeal.

Movant challenges his extradition under Agreement on Detainers, § 222.160, RSMo. He contends its purpose is to expedite untried charges, and that when extradited he had already been tried even though not yet sentenced. We need not resolve that issue.

In Watson v. State, 475 S.W.2d 8 [3, 4] (Mo.1972), the court held: “In a proceeding under S.Ct. Rule 27.26, we do not inquire into, the validity of extradition proceedings under which a defendant has been returned to this jurisdiction.” And, in Huffman v. State, 487 S.W.2d 549[1] (Mo.1972), the court ruled that “once the accused has been brought within the custody of the demanding state, the legality of the extradition is no longer a proper subject of any legal attack by him.” So it is here.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.


author: REINHARD, Judge.

text:
    Wayne TILLMAN, Plaintiff-Appellant, v. WEDGE MOBILE SERVICE STATION, Employer-Defendant-Respondent, and Royal-Globe Insurance Company, Insurer-Defendant-Respondent.
    No. 38894.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Feb. 21, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied June 15, 1978.

      Ray A. Gerritzen, St. Louis, for plaintiff-appellant.
    Ray Robert L. Nussbaumer, Kortenhof & Ely, St. Louis, for employer-insurer-defendants-respondents.
    Gene R. Spengel, Jr., St. Louis, Carroll J. McBride, Jefferson City, for State of Missouri second injury fund.
   REINHARD, Judge.

This is a proceeding under the Workmen’s Compensation statute, §§ 287.010 et seq. RSMo.1969. The Circuit Court of the City of St. Louis affirmed the award of the Labor and Industrial Relations Commission, denying compensation to the employee.

The employee’s evidence showed that he sustained an injury in the course of his employment. The employee was attempting to change a truck tire when one of the wheel bolts broke, flew off, and struck him in the head above the eye. The force of the impact caused employee to stumble abruptly backwards and to jerk his neck. Employee sustained a laceration and was driven to the hospital, where the wound was sutured. The sole issue was whether the employee suffered a permanent partial disability.

In this regard, the opinions of several physicians were elicited. Dr. James McFadden, Jr., a surgeon, testified on his behalf. A series of examinations revealed no objective injury. However, an x-ray diagnosis supplied by a radiologist led Dr. McFadden to conclude the employee had a 12% permanent partial disability.

In addition to evidence provided by Dr. McFadden, the report of Dr. Ralph Graff was admitted into evidence by consent of the parties. Based on his physical and neu-rologic examination, Dr. Graff concluded the employee had no disability.

During the proceedings before the referee, the employer sought to introduce the deposition of Dr. George Hawkins, in which the latter stated his conclusion that employee suffered no disability resulting from the accident. Attorney for the employee objected on the grounds a showing that Dr. Hawkins was not available to testify had not been made. Following some discussion, the referee agreed and declared a recess to allow the proponent of the deposition an opportunity to establish a proper foundation for its admission. The following day, Pete Venezia, a shorthand reporter, testified over employee’s objections that he had attempted to serve, earlier that morning, a notary public subpoena on Dr. Hawkins at the latter’s office. Venezia was met by Dr. Hawkins’ secretáry and was told the doctor was in surgery. On the back of the subpoena Venezia made the following notation: “Attempted service 10-8-75. In surgery. Nurse will not accept.” Over employee’s hearsay objection, the subpoena was admitted into evidence.

Thereafter, during a recess, the referee placed a telephone call to Dr. Hawkins office and was told by his secretary the doctor was engaged in practice on that particular day and on the previous day. The referee advised the parties of the phone conversation, to which attorney for the employee objected. The deposition of Dr. Hawkins again was offered in evidence, and satisfied that a proper foundation had been laid, the referee overruled employee’s objection to its admission. The referee found that the employee suffered no permanent partial disability and awarded no compensation to the employee. The Commission affirmed the award and adopted the referee’s findings of fact, rulings and conclusions of law.

Employee contends the deposition of Dr. Hawkins was inadmissible absent competent evidence that the doctor was not available to testify at the time the deposition was offered in evidence and that as a result thereof, the case should be reversed and remanded. He cites Rule 57.07(a)(3)(C), which provides:

“The deposition of any witness who is not present in court may be used by any party for any purpose if the court finds: * * * that the witness is a judge of a court of record, a practicing attorney or physician and engaged in the discharge of his official or professional duty at the time of trial; * * * ”

Subsection (b) of Rule 57.07 states:

“The facts which would authorize the use of the deposition may be established by the testimony of the deposing witness or by the certificate of the officer taking the deposition or by any competent evidence.”

In admitting the deposition, the referee ruled that the foundation requirement set out in Rule 57.07(b) had been satisfied. In his findings of fact and rulings of law, however, the referee specifically stated that his decision to deny compensation would be the same even if the deposition were found to be inadmissible, inasmuch as the report of Dr. Graff itself was sufficient basis for such a determination.

The Commission affirmed, but concluded the Rules of Civil Procedure do not apply in Workmen’s Compensation proceedings. The circuit court took the position that, although in general the rules do not apply in Workmen’s Compensation cases, Rule 57.-07 in particular does apply. We agree with the finding of the circuit court. See Groce v. Pyle, 315 S.W.2d 482, 492 (Mo.App.1958); § 287.560, RSMo.1969.

Section 287.560 provides for the taking and use of depositions in Workmen’s Compensation proceedings “in like manner as in civil cases in the circuit court,” and we find nothing to suggest the legislature intended something other than the plain meaning of this language. Rule 57.07 controls the use of depositions in court proceedings, and, by virtue of § 287.560, controls in like manner their use in Workmen’s Compensation proceedings.

Accordingly, the condition precedent to the admission of Dr. Hawkins’ deposition was the establishment by competent evidence of a proper foundation for its admission. The burden to show its admissibility is on the party offering the deposition, Null v. Gray, 534 S.W.2d 823, 826 (Mo.App.1976), and admissibility must be determined by reference to the ground on which it is offered and to the factual basis proved by the party offering the deposition at the time the offer is made. Jenni v. E. R. B. Land, Inc., 541 S.W.2d 743, 752 (Mo.App.1976).

Employer sought to have the doctor’s deposition admitted on the ground that he was engaged in professional duties and therefore was not available to testify. The circuit court concluded there was insufficient competent evidence to lay such a foundation. We agree. The only evidence of the doctor’s unavailability was the statement of his secretary, testified to by Vene-zia and acknowledged by the referee following his telephone inquiry, to the effect he was in surgery. Such evidence was predicated on hearsay and was not competent.

In this case, the failure to comply with the requirements of Rule 57.07 compelled the exclusion of the doctor’s deposition. We are not required, however, to reverse the decision of the Commission because of the admission of the deposition. It is the function of this court, on an appeal in a Workmen’s Compensation case, to review the whole record, including legitimate inferences to be drawn therefrom, in a light most favorable to the award of the Industrial Commission. We cannot substitute our judgment for that of the Commission, rather, we must uphold the decision of the Commission if it is supported by competent and substantial evidence. Miller v. Sleight & Hellmuth Ink Co., 436 S.W.2d 625 (Mo. 1969); Lindquist v. Container Corp. of America, 537 S.W.2d 676 (Mo.App.1976); Raef v. Stock-Hartis, Inc., 416 S.W.2d 201 (Mo.App.1967); Cowick v. Gibbs Beauty Supplies, 430 S.W.2d 626 (Mo.App.1968).

Apart from the deposition of Dr. Hawkins, there was substantial competent evidence to support the Commission’s award, to wit, the report of Dr. Graff. Hence the erroneous admission of the deposition does not warrant setting aside the award. See Vickery v. ACF Industries, Incorporated, 454 S.W.2d 620 (Mo.App.1970); Johnson v. Park N Shop, 446 S.W.2d 182 (Mo.App.1969). Cf. Caldwell v. J. A. Kreis & Sons, 72 S.W.2d 201 (Mo.App.1934). Employee argues that in any event, the referee should have made an award for disfigurement. The referee found the employee’s scar did not constitute a disfigurement which would affect his ability to obtain employment. Based upon the record and the scope of our review, we cannot disturb the referee’s finding.

Finally, employee contends he was denied a fair and impartial trial because the referee failed to maintain a neutral and objective stance throughout the proceeding. As evidence of bias, employee points to the conduct of the referee in telephoning the doctor’s office to ascertain the doctor’s unavailability, and to comments by the referee respecting the employee’s attorney’s refusal to agree to the admission of the deposition. While we seriously question the propriety of such conduct, we cannot conclude employee’s right to a fair and impartial hearing was impaired or in any way prejudiced. In the context of this proceeding, which is thoroughly detailed in the record, it is apparent the referee’s conduct was a good faith attempt to resolve a difficult procedural matter. We are not persuaded that the employee’s substantive rights were impaired, or that a thorough consideration of the merits of the case was not duly accorded him.

Moreover, on appeal, it is the award of the Industrial Commission, not the finding of the referee, which we review. The findings of the referee are in no way binding upon the Commission. The Commission reviews the record and, when appropriate, determines the credibility of the witnesses and the weight to be given their testimony, resolves any conflicts in the evidence, and reaches its own conclusions independently of the referee’s findings. Begey v. Parkhill Trucking Co., 546 S.W.2d 529, 532 (Mo.App.1977). Thus, even if the initial proceeding were tainted by the injudicious conduct of the referee, the Commission was impelled to reach its own decision free of any influence which earlier might have infected the case.

For the aforegoing reasons, we affirm the Commission’s final award denying compensation.

STEWART, P. J., and STEPHAN, J., concur.

      . Dr. McFadden concluded the employee had an asymptomatic condition of juvenile epiphy-sitis prior to the accident and that trauma to the head and neck, resulting from the accident caused the condition to become symptomatic. Thus, according to Dr. McFadden, the employee had a permanent condition prior and unrelated to the accident which was aggravated as a result of the accident.

      . There was no indication in the deposition that the doctor would be engaged in the discharge of his professional duties at the time of trial. Nor was a certificate of the officer taking the deposition presented. The employer therefore was obliged to introduce other competent evidence. Rule 57.07(b).

      . In their brief, respondents argue the deposition was admissible under Rule 57.07(a)(3)(E), which permits the use of a deposition of a witness not present in court if it is determined “that the witness resides in a county other than the one in which the trial is held; * * * ” Respondents suggest the deposition was admissible because Dr. Hawkins resides in St. Louis County and the hearing was held in the City of St. Louis. This, however, was not the ground on which respondents sought to have the deposition admitted, and no evidence of Dr. Hawkins’ residency was presented.

      . Rule 57.07(b) states that facts which would authorize use of the deposition may be established by “any competent evidence.” (Emphasis added). The rule is not restrictive as to what types of competent evidence will satisfy the requirements for admissibility, nor have our courts been strict in this regard. Clearly, the rule allows for the laying of a proper foundation at the time of the taking of the deposition. No such attempt was made here.

      .Section 287.190(4) provides:
      “If an employee is seriously mutilated or permanently disfigured about the normally exposed parts of the body, the division or the commission may allow such additional sum for the compensation on account thereof, as it may deem just, based upon the handicap suffered by the injured employee in obtaining employment; * * * ”


text:
    Betty S. BOYERS, Appellant, v. John Frank BOYERS, Respondent.
    No. 38229.
    Missouri Court of Appeals, St. Louis District, Division 2.
    Feb. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied April 10, 1978.
    Application to Transfer Denied June 15, 1978.

      Waldron & Lichtenegger, Kenneth L. Waldron, Jackson, for appellant.
    Robert L. Brown, Arnold, for respondent.
   REINHARD, Judge.

Appellant-wife appeals certain provisions of a decree of dissolution. She asserts that the court erred (1) in determining that the “Lake Farm” was the Respondent-husband’s separate property, and (2) in denying her request for maintenance.

The parties were married on the 28th day of June, 1969, and two children were born of the marriage. They were both employed at the same place at the time of the marriage and the wife continued to work until she was seven months pregnant.

The court set off to the husband as his separate property the home, some rental property, and an undivided one-half interest in the “Lake Farm” subject to a life estate in his father. The court divided the marital property with each party receiving one-half of its value, $14,642.73. Custody of the minor children was awarded to the wife and the husband was ordered to pay child support. An allowance was made to the wife’s attorney.

During the course of the trial, wife introduced into evidence two General Warranty deeds wherein the husband’s father and mother conveyed an undivided one-half interest in the “Lake Farm” to the husband. A life estate was reserved unto Grantor, Ira Boyers. The recited consideration in the deeds was “One dollar ($1.00) and other good and valuable considerations . . .”

They also provided that the husband was to be liable for payment of one-half of the total taxes and special assessments falling due thereafter. Apparently the other one-half interest in the “Lake Farm” was similarly conveyed to the husband’s brother, Kelly.

Section 452.330.1, RSMo 1973 Supp., provides that in a proceeding for “. dissolution of the marriage . . . the court shall set apart to each spouse his property and shall divide the marital property in such proportions as the court deems just . . . .” Subsection 2 of § 452.330 defines marital property as “. . . all property acquired by either spouse subsequent to the marriage except: (1) Property acquired by gift, bequest, devise or descent; . . . .” Subsection 3 of § 452.330 provides that all property acquired by either spouse subsequent to the marriage and pri- or to a decree of legal separation is presumed to be marital property. The presumption of marital property is overcome by a showing that the property was acquired by gift.

The trial court found that the conveyance of the “Lake Farm” to the husband and his brother was a gift; therefore, the husband’s one-half interest was his separate property and not marital property. During the trial the husband testified that he did not pay any consideration for this property and his testimony was corroborated by his father, who stated that the farm was a gift to his sons. However, the wife testified that her husband informed her that he and his brother had bought the farm.

The wife argues that the court improperly admitted the evidence of the husband and his father that the conveyance of the “Lake Farm” was a gift. She contends this violated the parol evidence rule. She claims the consideration stated in the deed was “One dollar ($1.00) and other good and valuable considerations . . . .” and a promise to pay one-half of all future taxes and special assessments. She says the consideration was executory in nature, and that the document was in essence a contract.

The general rule is that parol evidence is admissible to show the actual consideration for the deed. Allaben v. Shelbourne, 357 Mo. 1205, 212 S.W.2d 719, 724 (1948); Finley v. Williams, 325 Mo. 688, 29 S.W.2d 103, 106 (1930); Lenox v. Earls, 185 S.W. 232, 234 (Mo.App.1916); Staed v. Rossier, 157 Mo.App. 300, 137 S.W. 901, 904 (1911); See v. Mallonee, 107 Mo.App. 721, 82 S.W. 557, 559 (1904).

The stated consideration was one dollar and other valuable considerations. The court in Finley v. Williams, supra, stated 29 S.W.2d at page 106:

“The consideration stated in this deed is ‘the sum of one dollar and other good and valuable consideration.’ The words, ‘one cent,’ ‘one dime,’ and ‘one dollar,’ are the technical words used to express nominal consideration. . . . The fact that the sum of one dollar is stated as a consideration is modified by the next clause, ‘and other good and valuable consideration,’ and such clause is open to investigation and explanation.”

The clause, “John Boyers shall be liable for the payment of one-half the total taxes and special assessments hereinafter falling due and payable”, appears after the description. Real estate taxes are a lien upon the land and are chargeable to the property irrespective of who the owner is. § 137.170, RSMo; Evans v. Brussel, 330 S.W.2d 788 (Mo.1959). However, ordinarily the life tenant has the duty to pay all taxes assessed against the property in discharge of his duty so as to maintain the property in that it will not pass over to the remainder-man permanently reduced in value. 1 American Law of Property § 2.19.

The remainderman had a vested interest in this case and the donor has the right to place such restrictions or conditions on a gift which are not inconsistent with the vesting of title. The donee’s obligation to pay taxes during the period of the donor’s life estate does not affect the nature of the transaction.

We hold that the recitals in these deeds do not remove them from the general rule that parol evidence is properly admissible to show the true facts of a transaction as to the consideration. The court properly admitted the testimony that it was a gift and that no consideration was paid.

Whether or not there was a gift of the “Lake Farm” is a fact question, Lewis v. Lewis, 354 Mo. 415, 189 S.W.2d 557, 560 (1945) and the burden of proof on the issue rested with the husband. Williams v. Ellis, 323 S.W.2d 238, 240 (Mo.1959). Since the conveyance was made during the marriage it was presumed to be marital property until a showing had been made that it was acquired by gift. § 452.330.3, RSMo 1973 Supp. There was substantial evidence to support the trial court’s determination that the conveyance constituted a gift and was not marital property. Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo.1976).

Wife further contends that the court erred in denying her request for maintenance. She testified that she only wanted maintenance for herself until the youngest child entered school. The court had before it sufficient evidence to make a determination under § 452.335 as to maintenance. We have reviewed the record in the light of Murphy v. Carrón, supra, and we cannot say that the court’s determination denying her request for maintenance is against the weight of the evidence or that it erroneously declares or applies to the law.

STEWART, P. J., and STEPHAN, J., concur.

      . A donor can make a valid gift reserving a life interest in himself. Telle v. Roever, 159 Mo. App. 115, 139 S.W. 256 (1911).

      . The court also found that each party had in his or her possession certain personal property, including automobiles, which each should retain.

      . The wife relies on Jackson v.- The Chicago St. P. & K. C. R’y Co., 54 Mo.App. 636 (1893); Halferty v. Scearce, 135 Mo. 428, 37 S.W. 113 (1896).

      . Most Warranty Deed forms used in Missouri contain similar clauses pertaining to taxes, as do wife’s exhibits 4 and 5 (Warranty Deeds conveying land to the senior Boyers).

      .Consideration is not a necessary element of a deed. Judge Douglas, in Brown v. Weare, 348 Mo. 135, 152 S.W.2d 649, 653 (1941), stated: “It is true that a deed without any consideration is good as between the parties or their heirs. . . However, it is a simpler, and a usual and sound, conveyancing practice to recite at least a nominal consideration, so that a stated consideration will appear on the face of the deed.”

      . Born, May 21, 1972.


author: McMILLIAN, Judge.

text:
    Florence 0. WILLIAMS, Petitioner-Respondent, v. Eldon E. WILLIAMS, Respondent-Appellant.
    No. 39247.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 7, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.
    Benson Cytron, House Springs, for respondent-appellant.
    David J. Barton, Arnold, for petitioner-respondent.
   McMILLIAN, Judge.

Appellant Eldon E. Williams appeals from an order and decree entered by the circuit court of Jefferson County granting respondent Florence 0. Williams a new trial in a dissolution of marriage proceeding. For reversal appellant argues that the trial court erred (1) in granting a new trial on its own motion because the court order was entered beyond the thirty day period, Rule 75.01, V.A.M.R., when the trial court had no jurisdiction, Wiseman v. Lehmann, 464 S.W.2d 539 (Mb.App.1971); and (2) in not specifying of record its grounds for sustaining respondent’s motion for a new trial and because the new trial was not granted on discretionary grounds, error is presumed, Curtis v. Curtis, 491 S.W.2d 29 (Mo.App. 1973). For the reasons discussed below, we disagree and, accordingly, affirm.

Respondent originally instituted this proceeding for dissolution of marriage. The dissolution of the marriage is conceded by both parties; consequently, tho contention here affects only the property settlement. At an uncontested hearing on March 1, 1977, the trial court received into evidence, without any objections from either party, a separation agreement and an addendum thereto setting forth all agreements as to property, support and custody of the parties’ minor child. After the hearing, pursuant to § 452.325(2) RSMo Supp.1973, the trial court found the separation agreement including the addendum to be conscionable and approved it and entered a decree of dissolution.

On March 10, 1977, respondent filed a motion to vacate and set aside judgment and for a new trial. On May 10, 1977, after a hearing, the trial court granted respondent a new trial, stating . the Court is going to sustain the motion of petitioner [respondent here] for new trial. Further, the court on its own motion is also going to order a new trial in this cause.” The reason assigned by the trial court was the difference in cost of real estate sold as shown in a series of documents, marked as Respondent’s Exhibit C, on Colewil Corporation. In one part of the exhibit the cost price was $208,000 and in another part of the same exhibit the cost price was $185,-000. The trial court further noted the lack of clarity as to the specific values of other real estate listed under the assets of Colewil Investment Co., certain unclear statements as to the installment method of accounting and the fact that the audit was made in 1976.

In her motion to vacate and set aside judgment and for a new trial, inter alia, respondent alleged that the disclosure made by appellant not only was inaccurate but also failed to fairly reflect the present value of the assets listed therein. Respondent also alleged that there was a contract for the sale of the parties’ real estate in Missouri for $55,000 when in fact the contract was for only $50,000. Respondent further alleged that she had not understood the provisions of the separation agreement, specifically the method of payment of the proceeds of the Missouri real estate, and that before and at the time of the rehearing on March 1, 1977, respondent was under extreme mental and nervous strain and was not able to review the terms of the separation agreement.

While we agree with Wiseman v. Lehmann, 464 S.W.2d 539, 543 (Mo.App. 1971), that the power of a court to correct, amend, vacate, reopen, or modify a judgment upon its own motion is limited to thirty days after entry of judgment, that point of law is not apposite. In this case the trial court apparently granted a new trial not only in accordance with respondent’s motion for a new trial, but also on its own motion as an additional basis. Thus, that part of the trial court’s order purporting to grant a new trial on its own motion is surplusage.

Neither do we find Curtis v. Curtis, 491 S.W.2d 29 (Mo.App.1973), to rule this case. In Curtis, without referring to any of the grounds in the party’s motion for a new trial, the trial court gratuitously sustained the motion for a new trial and set aside its previous order because of a court practice. The trial court’s order in Curtis merely stated “. . . motion for a new trial was argued and sustained. . . .” Id. at 33. In Curtis, and rightfully so, the order granting a new trial was reversed because of a violation of Rule 78.01, V.A. M.R. (see present Rule 78.03, V.A.M.R., effective January 1, 1975), which requires a specification of grounds in the trial court’s order.

In this case the trial court, as indicated in its order for a new trial, set forth at length its reasons which are consonant with respondent’s allegations that appellant’s disclosure was inaccurate and did not fairly reflect the present value of their assets. Moreover, in reviewing the action of the trial court in sustaining the motion for a new trial, we give the specified ground a broad and liberal construction, e. g., Denimas v. St. Louis Outdoor Advertising, Inc., 452 S.W.2d 303, 307 (Mo.App.1970), citing Donati v. Gualdoni, 358 Mo. 667, 216 S.W.2d 519, 521 (1949). We are unable to find any abuse of discretion by the trial court, e. g., Laclede Investment Corp. v. Kaiser, 541 S.W.2d 330, 333 (Mo.App.1976), and accordingly, affirm.

Judgment affirmed.

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


author: SMITH, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Gregory SYKES, Defendant-Appellant.
    No. 38719.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 14, 1978.
    Motion for Rehearing and/or Transfer Denied May 9, 1978.
    Application to Transfer Denied June 15, 1978.

      Paul E. Corning, Jr., Clayton, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Noel L. Robyn, Clayton, for plaintiff-respondent.
   SMITH, Judge.

Defendant appeals his conviction by a jury of armed robbery and the jury-imposed five year sentence of imprisonment. We affirm.

Defendant’s first contention is that he was entitled to a directed verdict of acquittal because of the insufficiency of the evidence to establish his guilt. The manager of the Quick Shop in Charlack in St. Louis County testified to having been held-up by a lone gunman who took money from him. He could not identify defendant as the robber, but did testify that the robber had carried two fruit juice bottles to the checkout counter before pulling a gun on the witness. Fingerprints were lifted from the fruit juice bottles. These matched defendant’s fingerprints taken at the time of his arrest. Defendant admitted his participation in the hold-up and gave a written confession to a policeman from Charlack. Defendant testified he had never been in the Quick Shop and that the confession was obtained through coercion.

The circumstances surrounding the confession were in dispute and it was the province of the judge and then the jury ■ to determine the voluntariness of the confession. We find no basis for holding those determinations erroneous. The evidence was sufficient to support the conviction.

Defendant contends the prosecutor pursued a line of questioning on cross-examination of defendant designed to elicit that defendant was being held by the police for more than one robbery at the time of the confession. This point was not raised in the motion for new trial and is not preserved for appellate review. We do not find plain error. The prosecutor’s questions did elicit the information complained of. However, the questions were legitimately addressed to the occurrences and conversations leading to the confession. Defendant had made such cross-examination permissible when he testified on direct about some of the occurrences and conversations in the police station. It was not improper for the prosecutor to develop all of the occurrences and conversations leading to the confession.

Defendant also raises as plain error certain allegedly inflammatory remarks made by the prosecutor during argument. The matter was not raised in the motion for new trial and the only objection made at the time the statements were made was that they were “argumentative.” We do not consider that a proper objection to an argument. We have reviewed the statements and do not find plain error. State v. Raspberry, 452 S.W.2d 169 (Mo.1970).

Defendant’s last point is that the trial court erred in giving MAI-CR 1.10, the “hammer” instruction, after the jury had deliberated 4V2 hours. We find no abuse of discretion in the giving of MAI-CR 1.10 at the time or under the circumstances.

Judgment affirmed.

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