author: PER CURIAM:

text:
    STATE of Missouri, Plaintiff-Respondent, v. Calvin HANSON, Jr., Defendant-Appellant.
    No. 10862.
    Missouri Court of Appeals, Springfield District.
    March 7, 1978.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    David R. Fielder, Hamra & Fielder, Springfield, for defendant-appellant.
   PER CURIAM:

A jury on April 13,1977, found defendant guilty of the crime of capital murder. Defendant’s motion for a new trial was heard and overruled June 3, 1977, and defendant was granted allocution and sentenced to life imprisonment upon certain conditions not here germane. Defendant’s notice of appeal was filed June 13,1977, but contrary to certain inaccurate recitations contained in the notice, the court did not grant defendant leave to appeal in forma pauperis until June 28, 1977, or on the 12th day after the notice of appeal was to have been filed and the docket fee paid.

Inter alia, Rule 81.04, V.A.M.R., provides that the notice of appeal shall not be effective unless it be “filed not later than ten days after the judgment or order appealed from becomes final. . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.”

Albeit the notice of appeal was timely, though improperly filed by the clerk of the trial court, its filing was invalid and ineffective because it was not accompanied by the $20.00 docket fee and because the trial court’s order permitting defendant to appeal in forma pauperis was not entered until the time for filing the notice of appeal had long since expired. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976). As the notice of appeal was untimely filed and, hence invalid, we have no jurisdiction. State v. Lawson, 560 S.W.2d 324 (Mo.App.1977).

The appeal is ordered dismissed and defense counsel is admonished to con the provisions of Rule 28.07, V.A.M.R.

All concur.


source: Caselaw Access Project

author: BILLINGS, Chief Judge.

license: Public Domain

text:
    In re the MARRIAGE OF Connie Colene MABRY, Petitioner-Respondent, and Harold Eugene Mabry, Appellant.
    No. 10378.
    Missouri Court of Appeals, Springfield District.
    March 7, 1978.
    Stephen F. Lampo, Neosho, for petitioner-respondent.
    W. Henry Johnson, Douglas, Douglas & Douglas, Neosho, for appellant.
    Before BILLINGS, C. J., and TITUS and FLANIGAN, JJ.
   BILLINGS, Chief Judge.

In this dissolution of marriage proceedings the trial court granted wife $25 weekly maintenance. Husband appeals that part of the decree, contending the sum awarded is excessive.

We have read the transcript and the briefs of the parties. The award of maintenance is supported by substantial evidence and not against the weight of the evidence. Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). No error of law appears and an opinion would have no precedential value.

Judgment affirmed pursuant to Rule 84.-16(b), V.A.M.R.

All concur.


author: DOWD, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Johnny W. NYLON, Defendant-Appellant.
    No. 38642.
    Missouri Court of Appeals, St. Louis District, Division Four.
    March 7, 1978.

      Bruntrager & Bruntrager, P. C., Raymond A. Bruntrager, Jr., Robert J. Thomas, Jr., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Pros. Atty., George R. Westfall, Evelyn M. Baker, Asst. Pros. At-tys., Clayton, for plaintiff-respondent.
   DOWD, Presiding Judge.

Defendant appeals his conviction in a jury trial for robbery in the first degree by means of a dangerous and deadly weapon. Sections 560.120 and 560.135, RSMo 1969 V.A.M.S. The trial court sentenced him to life imprisonment under the Second Offender Act. § 556.280 RSMo 1969. We affirm.

Based on the evidence presented at trial, a jury could reasonably find that on January 31, 1976 Mr. Donald Fudge drove his wife and baby to a fast food restaurant. A man parked next to them and engaged in friendly conversation with Mrs. Fudge while her husband purchased food. The man then requested their assistance in starting his auto. After Mr. Fudge helped him get his auto started by using booster cables the man asked the Fudges to follow him a short distance. Several blocks later he pulled to the side of the road. Mr. Fudge passed him, and the man then followed them to the parking lot near their residence.

The Fudges parked the auto in the parking garage and returned through the lot on the way to their residence. The man once again followed them, and when Mrs. Fudge attempted to run away with the baby, the man put a pistol to Mr. Fudge’s head to force her to return. The man entered the building with the couple and struck Mr. Fudge on the head with a pistol as Fudge attempted to hit the fire alarm. Once inside the residence the man took money from Mr. Fudge’s wallet, and tied up both Mr. Fudge and a relative who lived with the couple. Mrs. Fudge stated during the trial that the man also tied up two children in a bedroom.

Police located the automobile driven by the man that same night at a gas station. Police went to a house where they believed defendant was located. As a police officer stepped into a bedroom, the defendant reached for a gun which was later admitted into evidence. The day following the arrest police conducted a lineup where both Mr. and Mrs. Fudge identified defendant as the robber. The police officer also investigated another person who looked similar to the robber, but found he had an alibi.

The state charged defendant under the names of Johnny Nylon a/k/a L. W. Brown. It introduced two exhibits which included certified copies of six prior convictions against L. W. Brown. The record also contained fingerprints and a photograph. The trial court concluded Johnny Nylon and L. W. Brown are the same person and sentenced him under the Second Offender Act. § 556.280 RSMo 1969.

Defendant raises seven issues in his appeal. First, he alleges the trial court erred in admitting into evidence the gun recovered at the time of his arrest. He claims no evidence was presented to show it was the weapon used during the robbery since the victims could only testify that the gun was similar to the weapon used during the robbery. A gun which was in the possession of defendant at the time of his arrest and was shown to be similar to the one used in the crime is admissible as evidence. State v. Cuckovich, 485 S.W.2d 16, 23 (Mo. banc 1972). The gun was properly admitted.

Defendant also contends that the trial court erred in permitting Mrs. Fudge to testify that her children were tied up. He argues that because the money was taken from Fudge before the robber went to the children’s bedroom, such testimony is irrelevant to proving the crime of robbery.

The general rule is that proof of commission of other crimes is not admissible unless it tends to establish the charge for which defendant is being tried. State v. Holbert, 416 S.W.2d 129, 132 (Mo.1967); State v. Reese, 364 Mo. 1221, 274 S.W.2d 304, 307 (Mo. banc 1954). However, there are many exceptions to this general rule. One exception is where the different crimes are so linked together that proof of one also involves proving the other. In such a situation evidence of the act constitutes a part of the res gestae and is admissible. State v. Garrison, 342 Mo. 453, 116 S.W.2d 23 (1938). To be a part of the res gestae the act must be substantially contemporaneous with the commission of the crime. It must occur in the same transaction as the crime, State v. Robb, 439 S.W.2d 510, 514 (Mo.1969), or the circumstances must indicate it is part of one continuous transaction in the accomplishment of a common design. State v. Jackson, 519 S.W.2d 551, 558 (Mo.App.1975).

In this case, the tying of the children was contemporaneous with the robbery since it occurred on the same occasion as the robbery. The act was part of a single continuous transaction taking place in the Pudge residence at the time of the robbery. For this reason, defendant’s second point is without merit.

Defendant also raises the point that there was insufficient evidence from which the trial court could conclude that Johnny Nylon and L. W. Brown were the same person for purposes of sentencing under the Second Offender Act.

Defendant is correct in that the person named in the prior conviction and defendant must be shown to be the same person. State v. Harris, 547 S.W.2d 473, 476 (Mo.1977). The state however, did show in this case, that Johnny Nylon and L. W. Brown are one and the same person. A photograph was included with the prior conviction, and while this court cannot compare the picture with defendant, “it may be reasonably and safely assumed that the trial judge compared the two.” State v. Collins, 394 S.W.2d 368, 371 (Mo.1965).

Thus, sufficient evidence was presented for the trial court to conclude Johnny Nylon and L. W. Brown were the same person. In addition, it is noted that the state’s information charged defendant under both names. Defendant’s contention is without merit.

The fourth point raised by defendant is that the jury should have had an opportunity to consider all lesser concluded offenses of the crime charged. Thus, it is contended the trial court erred in not submitting defendant’s instruction on stealing to the jury, since it includes all the elements of robbery except fear.

Where there is substantial evidence that the taking of money occurred without violence or putting the victim in fear, the court should submit instructions to the jury allowing them to find defendant guilty of stealing. State v. Parker, 324 S.W.2d 717, 722 (Mo.1959). However, fear is presumed where a deadly weapon is used to obtain money. State v. Keeney, 425 S.W.2d 85, 89 (Mo.1968); State v. Ray, 354 S.W.2d 840, 843 (Mo.1962). Where the state provides evidence of all the elements of robbery, including fear, and defendant presents evidence showing only that he committed no crime, no instruction on stealing is required. The defendant used a gun during the robbery and struck Mr. Fudge on the head, stunning him and causing profuse bleeding. The evidence indicates only that the crime committed is either robbery in the first degree or nothing. State v. Sawyer, 365 S.W.2d 487, 492 (Mo.1963). No instruction on stealing was required.

Defendant next contends that the court erred in permitting a police officer to testify that another possible suspect (Charles Maxey) had an alibi. He contends such testimony was prejudicial hearsay since the officer did not have personal knowledge of the suspect’s whereabouts at the time of the robbery.

We do not reach the merits of this contention since no timely objection was made to the testimony at trial. Rule 84.13; State v. McNeal, 539 S.W.2d 722, 725 (Mo.App.1976); State v. Johnson, 536 S.W.2d 851, 854 (Mo.App.1976). In addition, it cannot be said that the testimony resulted in a manifest injustice to defendant, especially given the fact defendant’s guilt was strongly established by other evidence. State v. Hurtt, 509 S.W.2d 14, 15 (Mo.1974). Admitting such testimony was not plain error. Rule 27.20(c). This contention is therefore dismissed.

Defendant’s next point is that the trial court should not have permitted the prosecuting attorney to argue that defendant never brought in any evidence that the lineup was unfair and that the other suspect (Charles Maxey) told the police where he was the night of the robbery. Defendant reasons that such an argument constituted a direct reference to defendant’s failure to testify.

These comments by the prosecutor were made at different times in the argument. We shall first consider the comment of the prosecutor that the defendant never brought in any evidence that the lineup was unfair. Defendants attorney objected on the stated ground “there was no burden of proof whatsoever for any matter at all on the defendant.” The trial judge promptly sustained the objection and ordered the jury to disregard the comment but refused to declare a mistrial. We find no error in the refusal to declare a mistrial.

A point raised on appeal must be based upon the theory of the objection as it was made at trial. State v. Lang, 515 S.W.2d 507, 511 (Mo.1974). The theory of the objection was that it was a reference to the burden of proof. The comment of the prosecutor was not objected to on the ground that it was a reference to the defendant’s failure to testify and was therefore not properly preserved because it differs from the point raised on appeal. State v. Lang, supra, 511.

Even assuming that the prosecutor’s comment was properly objected to it was not a direct and certain reference to the defendant’s failure to testify. State v. Maxwell, 376 S.W.2d 170, 174 (Mo.1964); State v. Rothaus, 530 S.W.2d 235, 237 (Mo. banc 1975).

Nor do we believe that the prosecutor’s comment that “he (Charles Maxey) told the police where he was that night” constituted a direct and certain reference to defendant’s failure to testify. It in no way refers to the failure of defendant to testify. The point is without merit.

In his last point defendant contends that the trial court erred in failing to sustain his motion to suppress identification because he did not have assistance of counsel at a pre-indictment lineup. The right to counsel granted in United States v. Wade, 388 U.S. 218, 237, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) extends only to a post-indictment lineup. Kirby v. Illinois, 406 U.S. 682, 690, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Hampton v. State, 495 S.W.2d 638, 642 (Mo.1973); State v. Richardson, 495 S.W.2d 435, 438 (Mo.1973); State v. Chavez, 483 S.W.2d 68, 69 (Mo.1972). The point is without merit.

We have reviewed the entire record in this case, read the briefs and authorities relied upon by the parties, and conclude there was no error, hence affirm the judgment of conviction.

The judgment is affirmed.

STOCKARD and SNYDER, JJ., concur.


author: FLANIGAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. David Lewis POGUE, Defendant-Appellant.
    No. 10550.
    Missouri Court of Appeals, Springfield District.
    March 8, 1978.

      David G. Neal, Eminence, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Neil MacFarlane, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

A jury found defendant David Lewis “Louie” Pogue guilty of manslaughter arising out of the shotgun slaying of his brother-in-law Scott Taylor. Defendant was sentenced to five years’ imprisonment and he appeals.

Defendant’s first “point relied on” is that his constitutional rights were violated when the prosecuting attorney, during the presentation of the state’s evidence, interrogated sheriff Jim Bolin concerning his conversation with defendant and the latter’s silence while under arrest at the scene of the shooting shortly after it happened. With commendable candor defendant’s brief states that “defense counsel did not properly object and did not properly preserve the matter for appellate review.” Defendant urges that he is entitled to relief under the “plain error rule,” Rule 27.20(c). After reviewing the whole record in this case this court has determined that manifest injustice has resulted from the alleged error. The point is well taken and requires reversal.

At approximately 7:30 p. m. on June 27, 1976, Jimalee Pogue, wife of the defendant, telephoned sheriff Bolin and told him, “Jim, get over here quick. Somebody has shot Scott Taylor.” Bolin, accompanied by police officer Eugene Nichols and deputy sheriff George Stearns, drove immediately to the scene. Upon their arrival approximately five minutes later, the three officers found the victim, Scott Taylor, lying in a ditch about 200 feet from defendant’s trailer home. The officers stopped to aid Taylor, who was still alive but mortally wounded. An ambulance arrived “in a few minutes.” Before the ambulance arrived Taylor told the officers, “Louie shot me five times.” Taylor died in the ambulance before it left the scene.

As a witness for the state, sheriff Bolin testified, on direct examination, that after he had checked the victim’s condition, he saw the defendant and his wife “standing up toward the trailer” so Bolin and deputy George Stearns went “up there.” The following then occurred:

Q. (By the prosecutor) And what happened up there that you know about?
A. George got out, he got out before I did and he said something to Louie. I don’t know, I can’t say what it was, what he said to him. But then whenever I got out, I walked up and told Louie that he was under arrest.
Q. And what did you do then?
A. George handcuffed him and Louie asked me, he said, “Can I get some more clothes?” And I said, “No, but your wife can get them for you.”
* * * * ⅜ *
Q. And what happened next?
A. I read him his rights and George or me one asked him what happened and he told me he’d rather not talk about it.
Q. Did he explain that at all?
A. Sir?
Q. Did he explain why he didn’t want to talk about it?
A. No, he didn’t say.
Q. Did he make any explanation of the shooting at that time?
A. Not
MR. NEAL: Objection, Your Honor. This gets into the defendant’s rights.
THE COURT: Sustained.
Q. (By the prosecutor) Did you question Mr. Pogue after giving him the rights other than what you’ve
A. No. No, I didn’t question him anymore.
* * ⅜ ⅜ * *
Q. When you received the call that Scott Taylor had died, did Mr. Pogue make any response?
A. He didn’t say anything.
On redirect examination of sheriff Bolin by the prosecutor, the following occurred:
Q. (By the prosecutor) Did he say anything else other than “I want to talk to a lawyer? ”
A. Only he said he hoped he didn’t die.
“The law is established in this state that the silence of an accused while under arrest is not admissible against him because he is under no duty to speak. . . We now hold that an accused’s failure to volunteer an exculpatory statement is not admissible as an admission; that it may not be shown that by his silence he failed to deny or explain while under arrest an incriminating fact as to which no question was asked. . The admission of such evidence constitutes an invasion of the accused’s constitutional rights.” State v. Stuart, 456 S.W.2d 19, 22[3, 4] (Mo. banc 1970). See also State v. Benfield, 522 S.W.2d 830, 834[9] (Mo.App.1975); State v. Halk, 524 S.W.2d 44, 48[7] (Mo.App.1975).

In Stuart, defendant failed to make a proper objection at the time testimony was offered concerning his silence while under arrest. The supreme court granted relief under the plain error rule, Rule 27.20(c), and reversed the conviction.

In Benfield, decided by this district of the court of appeals, there was an objection to evidence that the defendant, while under arrest and after being apprised of his right to remain silent, made no statement. The objection in Benfield, as in the case at bar, may not have been timely but this court, in dictum authored by this writer, said, “Had there been no objection, the result would be the same.”

In Halk, the court recognized the holding in Stuart that a failure on the part of a person under arrest to volunteer an exculpatory statement is inadmissible. Halk was to a 2-to-l decision. The majority held, under the facts in Halk, that there was no manifest injustice requiring invocation of the plain error rule. The majority pointed out that the testimony concerning the arrested person’s failure “was somewhat unresponsive” and that “there was no deliberate attempt by the prosecutor to elicit a reply that the defendant refused to make a statement.” The court also pointed out that there was no objection made to the testimony. The dissenting judge felt that Halk was entitled to a new trial.

Missouri procedure requires, in general, that constitutional questions be raised in the trial court at the earliest opportunity consistent with orderly procedure; they may not be raised for the first time in the appellate court. Objections based upon constitutional grounds must be clearly and specifically stated and these objections must be kept alive and preserved throughout the case. State v. Price, 422 S.W.2d 286, 289[3] (Mo.1967); State v. Evans, 439 S.W.2d 170, 173[4] (Mo.1969).

Contrary to the dictum in Benfield, violation by the state of the rule of evidence announced in Stuart does not automatically require reversal where there has been no timely objection. “It has been suggested that relief should always be given under Rule 27.20(c) when a ‘constitutional’ error is involved. We do not agree. Even a federal constitutional error may be considered harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). We will continue to ‘review all the facts and circumstances in each case and determine on a case-to-case basis whether manifest injustice has resulted from the alleged error.’ ” State v. Howard, 540 S.W.2d 86, 87[1] (Mo. banc 1976). The court, in Howard, pointed out that precedents are of little value in determining when relief should be granted under the plain error rule.

In the case at bar the state and the defendant, through their respective counsel, entered into a stipulation which the trial judge read to the jury immediately prior to the presentation of the evidence for the state. The court told the jury that the parties had stipulated to the effect that “Mr. Louie Pogue, the defendant, on June 27,1976, in Shannon County, shot Mr. Scott Taylor with a .12-gauge shotgun several times in and around the chest and as a result of these wounds Scott Taylor died on June 27, 1976. They further stipulate that the gun in question will hold six shells. They further stipulate that there is blood on a pick handle and a shovel.”

The evidence for the state was circumstantial. It showed that bad blood existed between the defendant and the victim. The state produced no eyewitness to the shooting, which occurred on land where the trailer home of the defendant and the trailer home of the victim were situated. It was the state’s theory that the defendant shot Taylor because Taylor was “digging up water pipes” near a well house which served both trailer homes. The victim’s purpose was to deprive the defendant of his water supply. The state’s evidence tended to show that the shooting took place a considerable distance from defendant’s trailer.

Defendant relied upon self-defense and the jury was instructed thereon. Defendant’s evidence showed that as he and his wife Jimalee were approaching their trailer a verbal exchange took place between defendant and Taylor. Jimalee reached the trailer and went inside. Jimalee said: “I started in the house and I sensed that someone was coming. I heard Scott say, ‘I’ll get you.’ ... I looked over my shoulder and I saw Scott coming up the hill pretty fast.”

The defendant said that as he was entering his home he say Taylor “running toward us pretty fast and it appeared to me that he had a knife in his right hand. I reached inside the door and grabbed a shotgun that was standing in the corner.” The defendant “hollered” at Scott to hold it and Scott “kept coming.” The shooting took place, according to the defendant, near his front steps.

The state’s evidence, ably presented by the prosecutor, tended to show that the shooting took place near the well house. The nature of the victim’s wounds, the location of the pick and shovel mentioned in the stipulation, and the location of a trail of blood, tended to support the state’s theory and to be at war with the defendant’s version.

The only eyewitnesses were the defendant and his wife, and her knowledge of the incident was somewhat limited. Manifestly any evidence which had a strong tendency to show that the defendant’s version was a fabrication, one not voiced at the scene, might well have influenced the verdict.

Prior to the trial the defendant’s counsel, pursuant to Rule 25.32(A)(2), filed a written request requiring the state to disclose “the substance of any oral statements made by the defendant [and] a list of all witnesses to the making.” The state’s response to that request, signed by the prosecuting attorney, was filed shortly before the trial. That response made no mention of sheriff Bolin or any statement allegedly made by the defendant to Bolin or in his presence. The only statement attributed to defendant and mentioned in the response was a telephone conversation which defendant had with a woman about ten hours prior to the shooting.

Scrutiny of the prosecutor’s examination of Bolin discloses that the following information was elicited on direct examination: after defendant had been handcuffed and placed under arrest, and after he had been given the Miranda warnings, defendant was asked what had happened and he said he would rather not talk about it; he did not “explain that at all” ; he did not explain why he did not want to talk about it” ; he did not “make any explanation of the shooting at that time.”

On redirect examination the prosecutor again asked Bolin if defendant said anything about the shooting “other than he wanted to see a lawyer.” The witness answered that defendant said he hoped the victim did not die.

After the state had rested the defendant took the stand in his own behalf. On cross-examination by the prosecutor the defendant was asked if he “told the police or anyone that it looked like Scott had a knife.” He replied, “No, I haven’t until today.” The prosecutor started to ask another question dealing with the same topic but, perhaps conscious of the impropriety, he informed the court that he was withdrawing the question.

Unlike the factual situation in Halk, supra, this record reflects deliberate and repeated attempts by the prosecutor to adduce testimony that the defendant, while under arrest, failed to volunteer an exculpatory statement. The prosecutor could not have been attempting to elicit the contents of a statement. The prosecutor had to know that defendant had made no statement to Sheriff Bolin or in his presence because the prosecutor himself, by his response to the request for disclosure, had said that the state had no evidence of such a statement. Silence, silence alone, was the fact so doggedly pursued.

In Doyle v. Ohio, 426 U.S. 610, 49 L.Ed.2d 91, 96 S.Ct. 2240 (1976), a 6-to-3 decision, the defendants, charged with selling marijuana, were arrested and given the Miranda warnings. They made no statement to the arresting officer but remained silent. At the trial, testifying on their own behalf, the defendants claimed that they had been “framed” and, for the first time, gave their exculpatory story. The court held that the prosecutor violated defendants’ constitutional rights in cross-examining them as to why they had not told the frame-up story at the time of the arrest. The court held that “use of the defendants’ post-arrest silence in this manner violates due process.” In Doyle defense counsel made timely objections.

The court rejected the state’s argument that the state had a right to cross-examine the defendants as to post-arrest silence “for the limited purpose of impeachment.” The court, at p. 2245, said: “[Wjhile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. . . .We hold that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda warnings, violated the Due Process Clause of the Fourteenth Amendment.

Even the three dissenting justices in Doyle pointed out “the distinction between the prosecution’s affirmative use of defendant’s prior silence and the use of prior silence for impeachment purposes.” The dissenters would have permitted the latter use under the facts in Doyle.

In the case at bar there was both “affirmative use of the defendant's prior silence” by the prosecution and “use of prior silence for impeachment purposes.” The use was a persistent one to which objections, perhaps somewhat untimely, were posed. Defendant’s motion for new trial raised the point.

A review of the whole record leads this court to the conclusion that manifest injustice has resulted from the violation of defendant’s constitutional rights. Defendant does not claim that the state failed to make a submissible case.

The judgment is reversed and the cause remanded for a new trial,

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . In Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), the court held that where defendant had failed to make an objection on constitutional grounds to the admission of his confession, federal habeas corpus review was barred absent a showing of “cause” and “prejudice.”
      The court discussed “the contemporaneous objection rule” of the state of Florida, which required motions to suppress evidence (including confessions) be made before commencement of a trial. The court mentioned several factors in support of that procedure. “A contemporaneous objection enables a record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. ... A contemporaneous objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. . An objection on the spot may force the prosecution to take a hard look at its whole (sic) card, and even if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a writ of federal habeas corpus based on the impropriety of the state court’s rejection of the federal constitutional claim. Any procedural rule which encourages the result that those proceedings [trial of a criminal case in state court] be as free of error as possible is thoroughly desirable, and the contemporaneous objection rule surely falls within this classification. . If a criminal defendant thinks that an action of the state trial court is about to deprive him of a federal constitutional right, there is every reason for his following state procedure in making known his objection.” Wainwright, supra, 97 S.Ct. pp. 2507-2508.

      . For cases where the appellate court refrained from invoking the plain error rule to relieve a defendant who asserted that his constitutional right to remain silent had been violated, see State v. Elmore, 467 S.W.2d 915 (Mo.1971) and State v. Johnson, 529 S.W.2d 166 (Mo.App.1975).

      . In State v. Roth, 549 S.W.2d 652 (Mo.App.1977) the court held that the prosecutor committed reversible error in referring, during his closing argument, to the post-arrest silence of the defendant. The court said: “Nor is there any contradiction between a claim of self-defense made for the first time at trial and silence on that claim at the time of arrest.” The court also said that the argument “allowed the inference that the claim of self-defense was a fabrication.”

      . The state claims that the question asked by the prosecutor on redirect examination was justified by a portion of the cross-examination of Bolin by defense counsel. In view of other testimony, including certain statements made by the defendant prior to the giving of the Miranda warnings and in view of the stipulated facts, this court finds no merit in that contention.

      . In State v. Dowling, 348 Mo. 589, 154 S.W.2d 749 (1941), defendant, while under arrest, told the officers he would not say anything until he had seen an attorney. He also said, “You have not got anything belonging to me”; and later declared he did not “know anything about it.” The court, at p. 755, said: “Were these statements admissible? Under the great weight of authority we think not. There are numerous cases holding that it cannot be proven that the defendant said he declined to answer on the advice of counsel; or refused to give a statement; or declared he had nothing to say . The [state] argues the foregoing rules do not apply because the State is entitled to prove the entire conversation where part of it is shown . This is true where part of the same conversation is incriminating and part is not. But here no part of the conversation between appellant and Chief Carroll was incriminating. In his first answer appellant refused to talk until he had consulted an attorney; in the second he refused to say anything; and in the third he denied the accusation.”

      . In footnote 11 on p. 2245 the court, in Doyle, said: “It goes almost without saying that the fact of post-arrest silence could be used by the prosecution to contradict a defendant who testifies to an exculpatory version of events and claims to have told the police the same version upon arrest. In that situation the fact of earlier silence would not be used to impeach the exculpatory story, but rather to challenge the defendant’s testimony as to his behavior following arrest.”


author: BROCK, Justice.

text:
    Hugh E. RULE and wife, Betty T. Rule, Petitioners, v. EMPIRE GAS CORPORATION, Empire Gas, Inc., of Clinton, Tennessee, Shelby H. Mounger and Ben Price, Respondents.
    Supreme Court of Tennessee.
    March 10, 1978.
    Rehearing Denied April 10, 1978.
    Ronald L. Grimm, John D. Lockridge, Knoxville, for petitioners; Ambrose, Wilson, Lockridge & Grimm, Knoxville, of counsel.
    Robert A. Finley, J. W. Baker, Knoxville, for respondents; Kennerly, Montgomery, Howard & Finley, Poore, Cox, Baker, McAuley, Ray & Byrne, Knoxville, of counsel.
   OPINION

BROCK, Justice.

This is an action for personal injuries in which we granted certiorari to review the judgment of the Court of Appeals reversing judgments obtained by the plaintiffs in the trial court.

The plaintiffs, Hugh Rule and his wife, Betty Rule, engaged the services of the defendant corporations to supply liquified petroleum gas (LP gas) for use at their residence. The Rules heated a swimming pool at their residence by means of a gas heater located in a small “pool house.” In August, 1974, co-defendants, Shelby H. Mounger and Ben Price, as agents and employees of the defendant corporations were dispatched by their employers to deliver LP gas to the home of the plaintiffs. After refilling the tank of the plaintiffs, these two servicemen, Mounger and Price, requested Mrs. Rule to light the pilot light. When she was unable to do so, they concluded that there was air in the line and proceeded to bleed the line in order to remove the air and allow a combustible mixture to flow. Following this operation, Mr. Rule, at their request, attempted to light the pilot light and when he struck a match for this purpose an explosion occurred which caused his body to become a mass of flame. Mr. Rule ran from the pool house and leaped into the swimming pool but he suffered very extensive, serious and disabling injuries by reason of burns sustained before the flames were extinguished.

Mr. Rule, suing for his personal injuries, and Mrs. Rule, suing for loss of consortium and incidental damages, brought action against the defendant corporations and their two servicemen employees based upon their negligence. The defendants answered the complaint of the plaintiffs and in addition filed a third party complaint against Cities Service Oil, Inc., from whom the corporate defendants had purchased the gas in question, alleging that the third party defendant had failed to properly odorize the gas so as to make it detectable by smell. The verdict of the jury exonerated the third party defendant but awarded damages to the plaintiffs and against the defendants in the amount of $1,750,000.00 compensatory damages to Mr. Rule, plus $500,000.00 punitive damages, and $250,000.00 compensatory damages to Mrs. Rule. Upon consideration of the motion for a new trial, the trial judge suggested a remittitur of $500,000.00 in the case of Mr. Rule and a further sum of $100,000.00 in the case of Mrs. Rule. The remittiturs were accepted under protest by the plaintiffs. Both the plaintiffs and the defendants appealed to the Court of Appeals, the plaintiffs contesting the remitti-turs and the defendants contesting their liability.

The Court of Appeals pretermitted all issues except an assignment of error in which the defendants insisted that the trial judge committed error in failing to instruct the jury respecting the law of contributory negligence and assumption of risk, even though no request for such instructions was made by the defendants at the trial, the first such insistence having been made in the motion for a new trial. The Court of Appeals concluded that reversible error was committed in this regard and reversed the judgment of the trial court for each of the plaintiffs and remanded for a new trial. The plaintiffs thereafter petitioned this Court for certiorari which we granted.

In their answer to the complaint of the plaintiffs, the defendants did plead contributory negligence as a defense but at the trial they offered no evidence to sustain such a plea, made no argument to the court and jury urging such a defense and, as above noted, at the trial did not request the trial judge to give any instruction upon the law of contributory negligence or assumption of risk and did not make any objection to the instructions as given, although the experienced trial judge specifically inquired of counsel before the jury retired whether they had any objections to the charge as given or had any request for further instructions. Accordingly, the plaintiffs insist that the defendants waived or abandoned the defense of contributory negligence or assumption of risk and that the trial judge committed no error in failing to give instructions to the jury respecting the law on this subject.

I

The decision of the Court of Appeals was based upon its conclusion that Rule 51.02, Tennessee Rules of Civil Procedure, permits a party to predicate error upon the failure of the trial judge to instruct the jury respecting certain aspects of the law so long as the omission is pointed out in the motion for a new trial although the complaining party failed to interpose any objection to the charge as given and failed to make any request for further instructions at the trial. In this, we conclude the Court of Appeals erred.

In its opinion, the Court of Appeals acknowledged that

“. . a majority of the cases hold that absent a special request appellate courts will not reverse because of meagerness, omissions or ambiguities in the charge.” (Citations omitted.)

However, that court concluded that this rule is no longer in effect since the adoption of the Tennessee Rules of Civil Procedure, Rule 51.02, which provides:

“51.02. Objection: Failure to Object. “After the judge has instructed the jury, the parties shall be given opportunity to object, out of hearing of the jury, to the content of an instruction given or to failure to give a requested instruction, but failure to make objection shall not prejudice the right of a party to assign the basis of the objection as error in support of a motion for a new trial.”

The Court of Appeals construed this rule as follows:

“It is apparent that it was intended to place the burden upon the court rather than the attorneys with regard to the sufficiency of the charge.”

With this construction of Rule 51.02 we cannot concur. Rule 51.02 does permit a party to allege error in his motion for a new trial based upon (1) inaccuracy of the charge as given or (2) failure to give a requested appropriate instruction, although no objection or exception in this respect was made at the trial; but we find nothing in the rule which relieves trial counsel of the burden of requesting an instruction to cover alleged omissions in the instructions as given.

Rule 51.02 does not constitute a departure from previous procedure in this State although, as the Advisory Committee Comment to the rule indicates, it does differ from the federal rule in some particulars. Although the precise issue before the Court in Henry County Board of Education v. Burton, Tenn., 538 S.W.2d 394 (1976), was substantially different from the one with which we are concerned in the instant case, the majority, speaking through Mr. Justice Harbison, made observations concerning the question whether Rule 51.02 represented a departure from the procedure obtaining pri- or to the adoption of the Tennessee Rules of Civil Procedure which we deem to be pertinent here. Hence, we quote:

“The second portion of Rule 51.02, to the effect that failure to object does not constitute waiver of errors in the instructions, is entirely consistent with and in fact preserves the pre-existing practice in this state, prior to the adoption of the Rules of Civil Procedure. It has long been the rule in this state that positive error in jury instructions could be assigned for the first time on motion for a new trial, regardless of whether objection had been made or a special request submitted. See McClard v. Reid, 190 Tenn. 337, 343, 229 S.W.2d 505 (1950); Caruthers History of a Lawsuit § 407 (8th ed., Gilreath, 1963). The comparable federal rule of civil procedure is to the contrary, but the Advisory Committee, in its comments on the Tennessee Rules, stated that it was deliberately not recommending adoption of the federal rule.
“The Court of Appeals, therefore, was in error, in our opinion, in undertaking to distinguish the Coffelt case [State ex rel. Coffelt v. Hartford Accident & Indemnity Co., 44 Tenn.App. 405, 314 S.W.2d 161 (1958)] on the basis of the adoption of Rule 51.02. Some changes in previous practice had been incorporated in Rule 51.01, with respect to the appropriate time for tendering special requests for jury instructions, but Rule 51.02 neither contemplated nor accomplished any change in previous practice with respect to assignments made on motion for new trial.
“This is not to suggest that the doctrine of waiver has no application in this and in other areas of trial practice. Counsel are expected to assist the trial court at all stages of litigation. Both the rules of waiver and considerations of harmless error, announced in cases decided prior to the adoption of the Rules of Civil Procedure, still obtain. We approve the following statement by this Court made many years ago:
“ ‘. . . counsel engaged in a trial should aid the court by calling his attention to an abstraction or an inadvertence in delivering his instructions to the jury, and, where they fail to do so, this court will not reverse unless convinced that the party complaining has [been] prejudiced by such instruction, or that justice is about to miscarry.’ Carney v. Cook, 158 Tenn. 333, 340, 13 S.W.2d 322, 325 (1929).” 538 S.W.2d at 397.

There can be no doubt, as conceded by the Court of Appeals, that prior to the adoption of Rule 51.02 a party was precluded from predicating error upon an alleged omission in the instructions of the trial judge unless he had pointed out such omission to the trial judge prior to submission of the case to the jury. Typical of opinions of the appellate courts announcing and enforcing this rule is the opinion of Mr. Justice Cooper, then a member of the Court of Appeals, in Provence v. Williams, 62 Tenn.App. 371, 462 S.W.2d 885, 887 (1970), from which we quote as follows:

“As a matter of practice, we think all instructions to the jury where contributory negligence is an issue should include an instruction defining remote contributory negligence and telling its effect, but are of the opinion the failure to include such an instruction is not reversible error, where, as in the present ease, the omission is not called to the trial judge’s attention and no request is submitted setting forth the correct remote negligence charge, and there is no showing the trial judge’s charge, as given, was incorrect or was couched in language which would mislead the jury on a material issue. . When a party is of the opinion the instructions given by the court do not cover all phases of the case, he should call the attention of the trial judge to that fact and tender other and fuller instructions; otherwise, he cannot predicate error upon omissions in or meagerness of the charge as given.”

See also McClard v. Reid, 190 Tenn. 337, 229 S.W.2d 505 (1950); Holmes v. American Bakeries Company, 62 Tenn.App. 601, 466 S.W.2d 502 (1970). In the Holmes case the plaintiff attacked the trial court’s charge of contributory negligence in light of his complaint which charged gross negligence. The court responded as follows:

“It is evident from the Court’s charge that the trial Judge was of the opinion that the case did not involve gross negligence, as gross negligence is not mentioned in the charge. It is also significant to note that none of the plaintiff’s special requests to charge seek to have the jury instructed as to the doctrine and effect of gross negligence. If the Court’s charge were merely incomplete, the duty was upon the aggrieved party to call the irfeompleteness to the attention of the Court, or the defect is waived.” Ibid, at 505.

In Channell v. Anthony, 58 Cal.App.3d 290, 129 Cal.Rptr. 704, 722 (1976), the California court construed the equivalent to our Rule 51.02 as follows:

“Under Code of Civil Procedure, section 647, if the instruction is erroneous, a party need not object to it at trial in order to raise the legal question on appeal. However, if the error was one of omission and the instruction could have been corrected by objection at trial, failure to do so would have constituted a waiver of the right to object on appeal.”

We hold that Rule 51.02 of the Tennessee Rules of Civil Procedure has not abolished or altered the rule announced in the Provence and Holmes cases, supra, that in order to predicate error upon an alleged omission in the instructions given to the jury by the trial judge he must have pointed out such omission to the trial judge at trial by an appropriate request for instruction.

The trial judge did not err in failing to instruct the jury respecting contributory negligence and assumption of risk, since the defendants made no request at trial for such instructions.

Our decision in Street v. Calvert, Tenn., 541 S.W.2d 576 (1976) is not contrary to the conclusion we have reached. We were not dealing in the Street case with an alleged omission in the instructions of the trial judge but with failure of the trial judge to give a requested proper instruction. Consequently, what was said in Street was in support of our conclusion that the trial judge had erred in failing to instruct as requested. In support of that conclusion in Street we cited Richards v. Parks, 19 Tenn.App. 615, 93 S.W.2d 639 (1935) and Tennessee Electric Power Company v. Van Dodson, 14 Tenn.App. 54 (1931). In both the Richards and Van Dodson cases, special requests had been made for instructions and refused by the trial judge; neither case involved any question of an alleged omission in the instructions to the jury which was not properly called to the trial judge’s attention by special request.

II

We are convinced from our review of the trial record in this case that although contributory negligence was alleged in the answer filed by the defendants, it was, in fact, abandoned at the trial in favor of the theory of the defendants that the explosion and injuries were solely caused by a failure of the third party defendant, Cities Service Oil, Inc., to properly odorize the gas which exploded. This is evidenced by the closing argument of defense counsel to the jury in which no mention of contributory negligence or assumption of risk was made and by their opening statement, portions of which we quote as follows:

“The two servicemen were in and around the pool house and nobody noticed an odor of gas which would warn them that it was dangerous to light that heater
“So the servicemen themselves did not have the benefit of the warning that the malordorant, ethel mercaptan, is supposed to give not only to the consumer, but the people who handle this dangerous substance .
“In the first place, the serviceman, himself, who was just as exposed as Mr. Rule, would have known it immediately and said ‘Wait a minute. We have got a problem.’ ”

Obviously, the theory which the defendants advanced to the jury and trial judge was that neither the plaintiffs nor the servicemen of the defendant were negligent but, instead, all were endangered by failure of the third party defendant to properly odorize the gas. Such being the real defense of the defendants at the trial, they cannot be heard now to complain of the failure of the trial judge to charge the jury with respect to contributory negligence and assumption of risk. McColgan v. Langford, 74 Tenn. 108 (1880); Winchester v. Meads, 372 Mich. 593, 127 N.W.2d 337, 6 A.L.R.3d 662 (1964); 75 Am.Jur.2d Trial § 649 (1974).

We reverse the judgment of the Court of Appeals and remand this ease to that court for consideration of the assignments of error made therein by both the plaintiffs and the defendants which assignments were pretermitted in its original opinion.

Costs accrued in this Court are adjudged against the defendants.

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


author: HARBISON, Justice.

text:
    Preston HUCKEBY, Petitioner-Plaintiff, v. Benton F. SPANGLER et al., Respondents-Defendants.
    Supreme Court of Tennessee.
    March 20, 1978.

      James W. Gentry, Jr., Michael W. Boehm, Gentry & Boehm, Chattanooga, for petitioner-plaintiff.
    John C. Curtis, Shattuck & Durby, Brown, Brown & Griffith, Chattanooga, for respondents-defendants.
   OPINION

HARBISON, Justice.

Petitioner, a member of the Tennessee Bureau of Criminal Identification, filed this suit for personal injuries sustained while he was engaged in a raid upon a gambling establishment near Chattanooga. Respondents are ten of the defendants to the action. A number of other persons were originally sued. Of these, some were never served with process, and they were dismissed. Five defendants failed to appear after service of process, and default judgment was taken against them. After a jury trial lasting several days, another defendant was acquitted. The jury awarded petitioner $30,000 compensatory damages against the ten respondents and the five defaulted defendants. In addition punitive damages in the amount of $60,000 were awarded against the defendants in default. On post-trial motion, however, the trial judge concluded that where several defendants are joined in a single action and are sued for punitive damages, the punitive award must be given against all or none of the defendants. Accordingly, he assessed the punitive damages against respondents, jointly and severally, as well as against the five defaulted defendants.

On appeal the Court of Appeals set aside the punitive award against respondents, holding that the jury acted within its prerogative in awarding exemplary damages against some defendants and not against others. It also reversed the verdict for compensatory damages against respondents, sustaining an assignment of error on jury instructions, and remanded the case for a new trial.

This Court granted certiorari to consider both the propriety of the jury instructions and the question of apportionment of punitive damages. We have concluded that there was no reversible error committed in the instructions given. Accordingly we reinstate the award of compensatory damages against the respondents but affirm the action of the Court of Appeals in setting aside the punitive award.

In a previous appeal of this case, the Court discussed the sufficiency of the allegations of the complaint and certain legal principles involving the joint liability of persons engaged in an unlawful activity. Huckeby v. Spangler, 521 S.W.2d 568 (Tenn. 1975). We do not deem it necessary to reiterate all of the facts or to discuss further the authorities cited in that opinion.

The trial record reveals many disputed issues of fact. There was, however, material evidence from which' the jury could have found that the respondents knowingly and deliberately engaged in unlawful gambling at a place where that activity was being openly conducted. There was evidence that an employee of the operators, Gus Richie, one of the persons against whom default judgment was taken, shot and injured petitioner as he and other police officers attempted to enter the premises in the discharge of their official duties and in possession of a lawful search warrant. Petitioner sustained serious personal injuries, and as the case comes before this Court there is no issue as to the amount of compensatory damages awarded to him.

The Court of Appeals held that the trial judge should have charged the jury on intervening cause and foreseeability as absolute defenses, inasmuch as the respondents are shown by the proof merely to be patrons of the establishment and not owners or operators.

In this regard, we are of the opinion that the Court of Appeals was in error. The instructions given by the trial court were consistent with the previous opinion of this Court. Respondents were engaged in an unlawful enterprise with the owners and operators of the establishment. They all engaged in an illegal activity, with the result that each respondent, even though a patron, is jointly and severally liable for the act of Richie in shooting petitioner, despite the fact that such conduct may not have been known or reasonably foreseeable prior to its occurrence. The jury verdict for compensatory damages against the respondents accordingly is reinstated.

A different question is presented with respect to the issue of punitive damages, and this appears to be an issue which has not been treated in depth in the case law of this state. There are many different and conflicting rules in the various jurisdictions of the United States as to whether, in an action for punitive damages, judgment must be imposed against all of the defendants, or whether the jury may exonerate some of them while making an award against others. For general references and discussions of the rules followed in various jurisdictions, see 25 C.J.S. Damages §§ 125(2) et seq. (1966); 22 Am.Jur.2d Damages § 262 (1965); Annot., 20 A.L.R.3d 666 (1968); Note, Apportionment of Punitive Damages, 38 Va.L.Rev. 71 (1952).

Several jurisdictions follow the rule applied by the trial judge in the present case, that punitive damages may not be apportioned among several defendants either by awarding different amounts of damages or by awarding damages against some of the defendants and not others. Under this rule, if the evidence justifies recovery of exemplary damages against some of the joint tortfeasors, but not others, plaintiff is not allowed recovery from any of the persons sued jointly in a single action. This view adopts for punitive damages the settled rule that compensatory awards against tortfeasors are indivisible and not subject to apportionment. Obviously it could lead to multiplicity of suits, in that a plaintiff might file several suits against different parties rather than risk loss of punitive damages entirely, if he should not prevail against all defendants to a single action.

One of the leading cases in which a statement of this rule is found, although in dictum, is Washington Gas Light Co. v. Lansden, 172 U.S. 534, 19 S.Ct. 296, 43 L.Ed. 543 (1899). The actual holding in that case was that it was improper in a tort action against several defendants for the plaintiff to introduce evidence of the wealth of one of the defendants as a basis for awarding punitive damages against others. In its opinion the Court indicated that the verdict must be “for one sum against all defendants who are guilty . . . and that “when a plaintiff voluntarily joins several parties as defendants, he must be held thereby to waive any right to recover punitive damages against all, founded upon the evidence of the ability of one of the several defendants to pay them.” 172 U.S. at 553, 19 S.Ct. at 303.

The United States Court of Appeals for the Sixth Circuit followed this holding in a case arising from Tennessee, Cunningham v. Underwood, 116 F. 803 (6th Cir. 1902), in which a plaintiff sued two defendants for libel and was awarded compensatory damages against both. In addition, a verdict for punitive damages was rendered against one of the defendants. The Court held that there could be no apportionment of punitive damages, and that a single verdict for a single sum was required. The Tennessee cases which were cited for this proposition, however, had to do only with compensatory awards, and did not involve punitive or exemplary damages.

In the recent case of Odom v. Gray, 508 S.W.2d 526 (Tenn.1974), this Court, adopting an opinion of the Court of Appeals, declined to follow the Washington Gas Light Co. case, supra, and took the opposite view on the evidentiary question decided therein. The Court expressly held that in an action against more than one defendant, in which punitive damages are claimed against all, it is permissible for the plaintiff to introduce evidence of the net worth or assets of one of the several defendants, and that a jury verdict based thereon is proper.

Also, earlier cases from this state have held that it is not mandatory for the jury to award punitive damages against all of the defendants joined. In the case of Price v. Clapp, 119 Tenn. 425, 105 S.W. 864 (1907), plaintiff brought a libel action against a married woman and joined her husband as a defendant as was then required under rules of practice and procedure. The Court stated that if the liability of the husband was shown to be technical or vicarious only, and he was not a participant in the actual tort committed by the wife, he should be held liable only for compensatory damages, and that it would be proper for him to be exonerated from punitive damages, even if they were imposed upon his wife. The Court said:

“This would, of course, not preclude a judgment against the wife herself of punitive damages, and there could be no objection to having the verdict show how much was assessed on this head.” 119 Tenn. at 434-435, 105 S.W. at 867.

As pointed out by the Court of Appeals in the instant case, punitive damages are not recoverable as a matter of right, but rest within the sound discretion of the trier of fact. Booth v. Kirk, 53 Tenn.App. 139, 381 S.W .2d 312 (1963); McDonald v. Stone, 45 Tenn.App. 172, 321 S.W.2d 845 (1958).

In this state, the theory of punitive damages is not to compensate an injured plaintiff for personal injury or property damage, but to punish a defendant, to deter him from committing acts of a similar nature, and to make a public example of him. See Inland Container Corp. v. March, 529 S.W.2d 43 (Tenn.1975); Liberty Mutual Ins. Co. v. Stevenson, 212 Tenn. 178, 368 S.W.2d 760 (1963); Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899).

While there is some apparent discrepancy in earlier cases as to whether an employer is automatically answerable in punitive damages for the tort of his servant, the general tenor of later cases seems to be that the principal may be held liable, but that such liability is not legally mandatory. In the case of Knoxville Traction Co. v. Lane, 103 Tenn. 376, 53 S.W. 557 (1899), the Court held that a common carrier could be held liable for both compensatory and punitive damages for the deliberate or gross misconduct of its servant. That case, however, was disposed of upon demurrer, and the Court simply was dealing with the legal sufficiency of the pleadings. In the case of State v. Hartford Accident & Indemnity Co., 44 Tenn.App. 405, 314 S.W.2d 161 (1958), there was a jury verdict for both compensatory and punitive damages against the servant and the principal. Affirming, the Court stated:

“. . . it is well settled in this state that where a principal is found to be liable for a wrongful act of his agent, ‘done with a bad motive and a disregard of social obligations’, the principal may be held for exemplary or punitive damages as well as the agent.” 44 Tenn.App. at 410, 314 S.W.2d at 163. (emphasis supplied).

In the earlier case of Pratt v. Duck, 28 Tenn.App. 502, 191 S.W.2d 562 (1945), there had been an award of both compensatory and punitive damages against a servant, but the jury awarded compensatory damages only against the master or principal. Although the propriety of this action was not explicitly discussed in the opinion, and the case turned on other issues, there appeared to be no question of the legal authority of the jury to return a verdict in that form.

A large number of states have adopted the rule that punitive damages may be apportioned either by awarding varying amounts of damages or awarding damages against some of the defendants but not others. Courts adopting this position have emphasized the penal and deterrent nature of exemplary damages and the avoidance of multiple actions which might be necessary under a different rule.

As stated by the Maryland Court of Appeals:

“Those jurisdictions favoring apportionment seem to rely on the reasonable view that a jury should be permitted to vary the damages depending upon the degree of culpability since punitive or exemplary damages are not compensation for injury; instead they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Cheek v. J.B.G. Properties, Inc., 28 Md.App. 29, 43, 344 A.2d 180, 190 (1975).

If there is no rule of substantive law prohibiting apportionment of punitive damages, then clearly Rule 20.01 of the Tennessee Rules of Civil Procedure would authorize such a verdict procedurally. The rule states:

“ . . All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.”

In some jurisdictions, punitive damages are not assessed and reported separately but are included in the total reported by the jury. Tennessee practice, however, has generally been to require separate itemization and reporting of punitive damages, distinct from compensatory awards.

Upon consideration, we are of the opinion that the rule permitting apportionment of punitive damages represents the better view of the subject, both from the standpoint of substantive law and of trial procedure, and that this rule is more consistent with the theory of punitive damages than is that requiring recovery against all or none of the persons sued.

Of course, the view has frequently been expressed that punitive damages are anachronistic and inconsistent with modern tort theory of reparation to an injured plaintiff. See Dougherty v. Shown, 48 Tenn. 302, 306 (1870); Klein v. Elliott, 59 Tenn.App. 1, 35, 436 S.W.2d 867, 882-83 (1968); W. Prosser, Law of Torts 11 (4th ed. 1971); W. Prosser and J. Wade, Cases and Materials on Torts 1076 (5th ed. 1971); Morris, Punitive Damages in Tort Cases, 44 Harv.L.Rev. 1173 (1931); Note, Exemplary Damages in the Law of Torts, 70 Harv.L. Rev. 517 (1957).

Nevertheless, as long as recovery of such damages is permitted as a part of the jurisprudence of this state, we are of the view that the trier of fact should have discretion to exonerate some of the defendants while imposing judgment upon others. Of course, there must be some factual basis for the exercise of this discretion, and the verdict must have evidentiary support in the trial record.

In the present case, the proof showed that all of the appealing defendants were patrons in the gambling establishment. None of them was an owner, operator or employee, and none was shown to have any financial interest in the conduct of the enterprise. None participated in the incident when petitioner was injured; all were in another part of the building. Under these circumstances, we are of the opinion that the jury, in its discretion, was justified in exonerating respondents from punitive damages, as by their verdict they clearly intended to do. As to those defendants against whom punitive damages were awarded, one was Richie, who actually fired the shot which injured plaintiff. The exact status of the other four is somewhat unclear in the record, the preponderance of the evidence indicating that they were patrons like respondents. As we have previously pointed out, however, they permitted default judgment to be entered against them, and ultimately there was a directed verdict against them as to both compensatory and punitive damages. Since they did not appear and defend the action, there is no issue on appeal as to the propriety of the punitive award against any of the defaulted defendants.

The judgment of the Court of Appeals is affirmed insofar as it set aside the punitive award against respondents. It is reversed and the jury verdict against the respondents for compensatory damages is reinstated. Costs incident to the appeal will be taxed one-half to petitioner and one-half to respondents; costs accrued in the trial court will remain as taxed there. The cause is remanded to the trial court for enforcement of the judgment.

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

      . A related question, not presented in the instant case, is whether the jury may assess different amounts against the defendants according to their relative culpability, or whether there must be an award of a single amount.

      . Accord: Beasley v. Hills, 1 Tenn.Civ.App. 285 (Higgins, 1910).

      . Compare Nashville and Chattanooga R.R. v. Starnes, 56 Tenn. 52 (1871) (master not liable without participation or ratification), with L & N R.R. v. Garrett, 76 Tenn. 438 (1881) (master liable for act done by servant in line of duty) and Springer Transp. Co. v. Smith, 84 Tenn. 498, 1 S.W. 280 (1866) (same).

      . Accord: Memphis St. Ry. v. Stratton, 131 Tenn. 620, 176 S.W. 105 (1915) (jury verdict).

      . See, e. g., Davidson v. Dixon, 386 F.Supp. 482 (D.Del.1974); Kim v. Chinn, 56 Cal.App.2d 857, 133 P.2d 677 (1943); L & N R.R. v. Roth, 130 Ky. 759, 114 S.W. 264 (1908); Cheek v. J.B.G. Properties, Inc., 28 Md.App. 29, 344 A.2d 180 (1975); Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912); State ex rel. Hall v. Cook, 400 S.W.2d 39 (Mo. 1966); Bowman v. Lewis, 110 Mont. 435, 102 P.2d 1 (1940); Edquest v. Tripp & Dragstedt Co., 93 Mont. 446, 19 P.2d 637 (1933) (dictum); Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964); Sierra Blanca Sales Co. v. Newco Industries, Inc., 88 N.M. 472, 542 P.2d 52 (1975); Latasa v. Aron, 59 Misc. 26, 109 N.Y.S. 744 (1908); McCurdy v. Hughes, 63 N.D. 435, 248 N.W. 512 (1933); Mauk v. Brundage, 68 Ohio St. 89, 67 N.E. 152 (1903); Fredeen v. Stride, 269 Or. 369, 525 P.2d 166 (1974); Fredericks v. Commercial Credit Co., 145 S.C. 380, 143 S.E. 179 (1928); St. Louis & S.W. Ry. v. Thompson, 102 Tex. 89, 113 S.W. 144 (1908); Freeman v. Sproles, 204 Va. 353, 131 S.E.2d 410 (1963) (dictum).


author: DAUGHTREY, Judge.

text:
    STATE of Tennessee, Appellant, v. Anthony BOUCHARD, Appellee.
    Court of Criminal Appeals of Tennessee.
    Sept. 1, 1977.
    Certiorari Denied by Supreme Court Jan. 16, 1978.

      Brooks McLemore, Jr., Atty. Gen., Michael E. Terry, Asst. Atty. Gen., Thomas H. Shriver, Dist. Atty. Gen., John E. Rodgers, Roger T. May, Asst. Dist. Attys. Gen.,Nashville, for appellant.
    William C. Wilson, Richardson R. Lynn, Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

This appeal by the State of Tennessee presents a single legal question for our determination: whether the trial court can modify its judgment of conviction more than thirty days after the entry of that order, in the absence of an intervening motion which has the effect of postponing finality of the court’s judgment, in order to provide for consecutive sentencing of a criminal defendant.

An examination of the unique procedural posture of this case is necessary to an understanding of our conclusion that the modification attempted below was a nullity.

The appellee-defendant, Anthony Bouch-ard, had been convicted of selling heroin in an unrelated ease and had been sentenced to serve ten to fifteen years in the penitentiary. Six months later, on October 1,1976, the defendant was convicted in this case of being an accessory before the fact of second degree murder, and the jury fixed his punishment at incarceration for thirteen years. After excusing the jury, the trial judge asked the defendant to stand, and then announced:

You have heard the verdict of the jury, Mr Bouchard. It’s contrary to your contention in this case. Based upon the verdict of the jury, the judgment of the Court is on a charge of accessory before the fact of murder in the second degree that you serve thirteen (13) years in the state penitentiary.

Immediately thereafter, in accordance with local practice, the defendant gave “notice of intent to file a motion for a new trial.” The trial court granted the defendant “[t]he usual thirty days” in which to file a written motion for a new trial.

The minute entry for October 1 recites the verdict returned by the jury and goes on to conclude:

It is, therefore, considered by the Court that the defendant for his offense of Accessory before the fact of Murder Second Degree shall be confined at hard labor in the State Penitentiary for a period of thirteen years, commencing on the date of his delivery to the keeper thereof, subject to the rules and regulations of said institution.

Despite the defendant’s declared intention, no motion for new trial was filed on his behalf. On November 19 the trial judge called the defendant back into court and noted the fact that no intervening motion had been filed. The trial court went on to say:

The final judgment of this Court, based upon the verdict of the jury is on a charge of accessory before the fact of murder in the second degree that you serve thirteen (13) years in the state penitentiary and that this run consecutive to your prior conviction in this Court.

The defendant immediately took exception to the ruling that the sentence be served consecutively to the one earlier imposed, and announced his intention to file a motion asking the court to reconsider. At that time the trial judge maintained that his announcement of “final judgment” was in no way an alteration of the verdict of October 1. Indeed, the minute entry of November 19 is, in its pertinent part, a verbatim copy of the October 1 entry, supra, with the following sentence added: “Said sentence shall run consecutive with sentence the defendant received in case number B-7164.”

On December 13, the trial court heard the defendant’s motion to reconsider, and following extensive argument took the motion under advisement. Finally, on February 1, 1977, the trial court granted the motion to reconsider, deciding to “go back to the original judgment,” and ordered the sentences to run concurrently. From this order the State appeals.

The controlling principles of law applicable in this case are well-established. To be valid and complete, an order of conviction must (1) reflect the trial judge’s approval of the jury’s verdict and (2) impose sentence upon the defendant. State v. McClain, 186 Tenn. 401, 210 S.W.2d 680 (1948). The trial court is under a duty to pronounce judgment immediately after return of the verdict, if the trial judge as thirteenth juror is satisfied with its propriety. Leek v. State, 216 Tenn. 337, 392 S.W.2d 456, 458 (1965). The court clerk is then required to enter the judgment on the court’s minutes. T.C.A. § 18-402(3). The judgment of conviction becomes final thirty days after its entry, in the absence of a pending motion for a new trial, a motion in arrest of judgment, or a motion for judgment notwithstanding the verdict. See generally, T.C.A. §§ 40-2701 and 40-2603; Leek v. State, supra; Hethcoat v. State, 213 Tenn. 563, 376 S.W.2d 478 (1964); Shuey v. Frierson, 193 Tenn. 318, 246 S.W.2d 28 (1952). The particular issue we here address is whether the order of the trial court, entered immediately following the return of the jury’s verdict, was a “judgment” under the controlling authority set out above. If it was, the order ripened into a final judgment thirty days after its entry, and the trial court’s purported modification of that judgment after the lapse of the thirty day period was void.

In the order granting the defendant’s motion to reconsider, the trial judge indicated that he felt that the decision of the Tennessee Supreme Court in Dewey Harrison v. State of Tennessee, (unpublished; Nashville, November 14, 1966) required a rescission of the consecutive sentencing order. In the Harrison case, the Supreme Court held that an order requiring sentences to run consecutively was improper after the lapse of thirty days from the entry of judgment, because “the trial court was without jurisdiction to supersede or modify” that judgment once it became final. In reaching this result, the Court specifically rejected the proposition that the defendant’s “notice of intent to file a motion for a new trial” could be treated as a motion for a new trial for purposes of determining when the trial court’s judgment became final.

In the present case, the State seeks to distinguish Harrison on the basis that the minutes fail to indicate that a “judgment” was entered prior to November 19, when the trial court ordered the sentences to run consecutively. Part and parcel of this argument is an assertion that the trial court’s role as thirteenth juror requires an interval between the return of the jury verdict and the entry of judgment, “without correspondingly allowing an extension of the time to file a motion for new trial.” Because we find that judgment was entered on October 1, the day the jury returned its verdict, it is unnecessary to reach this novel argument.

As previously noted, neither the minute entry for October 1 nor that for November 19 uses the word “judgment” in the text of the order signed by the trial judge. It is only in the clerk’s notation in the margin that the word “judgment” appears. (The marginal index for October 1 reads, “B-8260 VERDICT BOUCHARD GUILTY ACC. BEFORE FACT MURDER 2ND DEG. 13 YEARS PEN. MOTION.” The corresponding headnote for November 19 is, “B-8260 DEFT. FAILED TO FILE MOTION JUDGMENT ENTERED.”) However, in addition to the identical language of the two minute entries, the language used by the trial judge in his October 1 ruling from the bench must also be considered. The bill of exceptions, as quoted above, leaves no doubt that the trial judge pronounced judgment in open court on that date.

When there is a conflict between the bill of exceptions and the minute entries reproduced in the technical record, the bill of exceptions must control. Church v. State, 206 Tenn. 336, 333 S.W.2d 799 (1960); Teague v. State, 529 S.W.2d 734 (Tenn.Cr. App.1975). Certainly the exact words transcribed in the bill of exceptions and authenticated by the trial court should serve to clarify any ambiguity in the minute entries. Any confusion in the instant case from the use of the term “considered” in the minute entries rather than “ordered” or “adjudged” must be deemed to be clarified by the precise language in the bill of exceptions. It follows that the October 1 order was indeed a “judgment” for the purposes of the issue raised in this case.

We have examined the local practice rules for the Criminal Court of the Tenth Judicial District (Davidson County) requiring “[njotice of intent to file a motion for a new trial [to] be given to the Court immediately upon rendition of the verdict of the Jury . . .,” Rule 14, and requiring “[m]otions for a new trial [to] be entered not later than thirty (30) days after the rendition of the verdict of the Jury . .,” Rule 16. These rules are not in conflict with T.C.A. § 40-2603, which states that a “motion for new trial can only be applied for within thirty (30) days from the decree, verdict or judgment sought to be affected.” In the present case, “notice” of intent to file a motion for new trial was given on October 1, the day the jury returned its verdict and the trial court pronounced judgment. When thirty days expired without a motion for new trial being filed, the judgment of October 1 became final.

The trial court’s October 1 judgment, as it is stated both in the minutes and in the bill of exceptions, is silent as to whether the sentence imposed should run concurrently with or consecutively to the sentence imposed for the defendant’s prior conviction for selling heroin. In the face of such silence the law requires the sentences to be served concurrently. Howe v. State ex rel. Pyne, 170 Tenn. 571, 98 S.W.2d 93 (1936); Nash v. State, 524 S.W.2d 494 (Tenn.Cr.App.1975).

We hold that the trial court was without jurisdiction to modify or supersede the judgment of October 1 after the expiration of thirty days, and that the motion to reconsider the purported modification on November 19 was properly granted. We therefore affirm the judgment of the trial court.

RUSSELL, P. J., concurs.

JOE C. LOSER, Jr., Special Judge, dissents.


author: DAUGHTREY, Judge. DWYER, Presiding Judge,

text:
    Robert Charles SPARKS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 6, 1978.
    Certiorari Denied by Supreme Court April 3, 1978.

      Michael D. Noel, Nashville, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Nashville, Elmer Davies, Jr., Dist. Atty. Gen., Franklin, Douglas T. Bates, III, Asst. Dist. Atty. Gen., Centerville, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, Robert Charles Sparks, was indicted for first degree murder in the shooting death of his niece, Jeannie Lee Sanders. The jury found him guilty of second degree murder, and he was sentenced to twenty years in the state penitentiary. On appeal the defendant raises multiple assignments of error, the most serious of which concerns the prosecution’s closing argument to the jury. Because we find reversible error on this ground, the case must be remanded for a new trial on the second degree murder charge.

The tragic death involved in this case occurred at the end of a day-long family reunion held in Perry County following the local church’s “home coming.” The defendant’s niece, Ms. Sanders, borrowed her uncle’s car and took several other family members (including the defendant’s wife) for a ride. The defendant apparently became angered because the group was late returning his automobile. When they finally arrived, he slapped his wife, knocking her back into the car; he then hit the victim and again slapped his wife. With that, the defendant retrieved a shotgun from the trunk of his automobile, and, ignoring the pleas of a bystander, followed Ms. Sanders into the house. According to the defendant’s sister (and mother of the victim), who was allegedly in the house at the time, the defendant said to his niece, “I’m going to kill you, nigger.” The defendant fired once, the victim fell to the floor mortally wounded, and the defendant immediately cried out, “Lord have mercy, it was an accident, it was an accident.”

Ms. Sanders was rushed to a hospital where she was subsequently pronounced dead. When questioned by the local sheriff at the hospital later that same night, the defendant admitted that he had shot the victim and turned over the shotgun.

At trial the defense theory was that the shooting was an accident, or, at most, amounted to voluntary manslaughter. On appeal the defendant attacks the sufficiency of the evidence on the latter basis, arguing that the legal presumption of malice which normally arises from the use of a deadly weapon was rebutted by the evidence in this case, and that absent proof of malice the conviction for second degree murder cannot stand. This issue presents a question of fact, however, which has already been determined by the jury. Under normal circumstances, the jury’s determination will not be disturbed on appeal unless the evidence at trial clearly preponderates against their verdict. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). A review of the record in this case convinces us that the McBee standard has not been met. On the other hand, while the defendant conceded at trial that he shot the victim, the crucial evidence concerning malice and intent (and especially concerning the credibility of the eye-witness, the victim’s mother) was vigorously disputed, and given the inflammatory nature of the prosecutor’s closing argument, we are unable to say that the outcome was not affected by the improper argument.

That closing argument can best be characterized as being, in large part, unsworn testimony by the district attorney. Such argument is, of course, improper. See Russell v. State, 532 S.W.2d 268 (Tenn.1976); Judge v. State, 539 S.W.2d 340 (Tenn.Crim. App.1976); Bowling v. State, 3 Tenn.Cr.App. 176, 458 S.W.2d 639 (1970). The problem was compounded by the substance of the testimonial argument: the prosecutor injected, wholly gratuitously we think, several racial issues which had no place in the trial of this case.

Although a transcription of the jury’s selection is not included in the bill of exceptions, all twelve members of the jury were apparently white; all twelve were also apparently voir-dired on the basis of their ability to decide the case without reference to the race of the defendant or the deceased victim, both of whom were black. No objection to this procedure has been raised, and we find no legal impediment to it. See Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973). However, other racial considerations included in the closing argument clearly should have played no part in the trial of this lawsuit, unless they were directly related to issues fairly raised by the evidence in the record. We think this was not the case, and despite the defendant’s failure to enter a contemporaneous objection to the argument of the district attorney specifically addressed to these extraneous racial questions, we conclude that the resulting prejudice to the defendant was so serious that the trial judge should have intervened sua sponte. Watkins v. State, 140 Tenn. 1, 8-9, 203 S.W.2d 344, 346 (1918); Nashville Railway & Light Co. v. Owen, 11 Tenn.App. 19, 30-33 (1929). As it was put so well by the United States Supreme Court in New York Central Ry. Co. v. Johnson, 279 U.S. 310, 318, 49 S.Ct. 300, 303, 73 L.Ed. 706 (1929):

íhe state, whose interest it is the duty of court and counsel alike to uphold, is concerned that every litigation be fairly and impartially conducted and that verdicts of juries be rendered only on the issues made up by the pleadings and the evidence. The public interest requires that the court of its own motion, as is its power and duty, protect suitors in their right to a verdict uninfluenced by the appeals of counsel to passion or prejudice.

In his final argument, the prosecutor first raised the issue of race in connection with the defendant’s purported threat to the victim, delivered just prior to the shooting. The district attorney predicated his comments on his statement to the effect that the jurors should use common sense and their common experience in reaching their verdict. But we think his remarks are not clearly a matter of universal knowledge or experience. He told the jury:

You have had the experience in your life of being in association with black people; when black people are talking to each other but where there’s a white person present and one of them calls the other one a nigger that can mean several things but many times it has an element of jest in it, or joking. Most often I think it’s probably said to curry favor with the white person that’s listening to the conversation thinking that he or she would think it was sorta funny for one black person to call another black person a nigger. Not so when two black people are talking to each other and there are not any white people present, then when one of them calls the other one a nigger that’s different, that means the fur is about to fly.

There was no objection to this argument. It was followed by an even more serious breach of the rule requiring temperate argument based only on the evidence adduced at trial when the district attorney concluded his remarks with:

In the Military of all crimes when an execution is carried out by a firing squad the weapons are loaded such that some of the firearms have blanks and others of them have the live bullets and the purpose of that of course is that when the execution is carried out no one knows who it is that actually fired the shot that killed the man. The responsibility is tremendous and the idea is to spread the responsibility around. In much the same way the responsibility is shared in this situation where you all, as the Jury, are called on to perform a most important function. To begin with the responsibility started with the ninety-nine members of the House of Representatives of this State and the thirty-three Senators and they studied the matter and they passed a law that where a killing was done under such conditions that made it first degree murder that there was no further discretion, that the only applicable sentence was the death, they made that decision, they took on that responsibility, that is the law and the Judge will charge you that law. Then the Governor of the State had to approve that law so he took on his responsibility. Then down to the individual case, this case of Charles Robert Sparks, the first responsibility had to be the responsibility of Sheriff Charles Qualls, he had to make the first decision, the first decision to charge this man, so he shared the responsibility. And then after him the thirteen members of the Perry County Grand Jury, they had to take on their responsibility, they didn’t try the case, they didn’t hear the case as though they would try it, they only heard one side of it, I believe they heard practically all you heard, they didn’t hear that May Frances had written a bad check or that she had been publicly drunk but they heard about everything else and they decided that he should be charged with murder in the first degree.
Mr. Noel: May it please the Court, I’m going to object to this whole line of argument, as the Jury and the Court knows its the Jury that has to try these facts and not the responsibility of anybody else and I object to the whole line of argument and I think it’s improper.
The Court: Overruled.
Dist. Atty. Gen. Davies: So they shouldered their responsibility and they charged this man with murder in the first degree. Then the next person in line was the District Attorney, he had to meet his responsibility and in doing that and in determining whether or not this is a case that I should ask for the death penalty I had many thoughts and one of the things that disturbs me about the law is the misconception that people have about the law and you know that there is a common thing I don’t know that it’s really as widely believeed [sic] as someone would have you think but there is a common misconception that the only people that face the death penalty are poor people and blacks, you’ve heard that repeatedly. Well I don’t believe that that’s true but I know that the is widely talked about and it bothers me that this Court or any of the four Courts in this Circuit would have a reputation that that is the kind of thing that we did and because this defendant was a black my first thought was well, No because he’s black don’t ask for the death penalty and then I thought again well that’s not right because that’s really against what I’m trying to think about because the woman that he killed was also black and that changes the whole thing as far as I am concerned. When you all were selected I asked everybody the long involved question, if you would treat this case just as though these people were of the same race as you and every one said you would. This may be a very difficult thing to do, even though you said you would it still may be a very difficult thing to do but my thinking is that all of the evidence in this case is present, all of the elements have been proved, the defense is actually nothing. I would say that if these people back on August 31st in Perry County were white people and one of them just senselessly went out and shot a shotgun into his niece for no more reason than the fact that she had returned the car late that this would be a case where you would return the death penalty. Now I’m saying because they were black is no reason to do different.

The thrust of this argument is that the legislature “shouldered its responsibility” in passing a mandatory death penalty, that the governor “shouldered his responsibility” by approving it, that the sheriff did likewise by arresting the defendant, that the grand jury heard the evidence and discharged its responsibility by charging the defendant with murder, and that the district attorney “shouldered his responsibility” by seeking the death penalty. The momentum of this argument is almost palpable, even on the written record: that the jury’s resulting responsibility was to impose that penalty, and not merely to determine guilt or innocence based on the testimony in the case.

In delivering this argument, the prosecutor ranged widely outside the record, especially with regard to the evidence presented to the grand jury and the process he followed in deciding to seek a first degree conviction. It is true that the jury acquitted the defendant of first degree murder and thus avoided imposition of the then mandatory death penalty sought so passionately by the prosecution in its closing argument. It could be argued that this action by the jury mooted any question of prejudice arising from this obviously improper closing argument. But given the record, the fact that the sentence was twice the minimum penalty for the offense of second degree murder, the extent and nature of the district attorney’s argument, with its inflammatory racial overtones, the failure of the trial judge to intervene in response thereto, his subsequent error in refusing to sustain defense counsel’s timely objection to the argument, and the resulting lack of any cautionary instructions to the jury, we are unable to say that the outcome of the trial was not affected to the prejudice of the defendant by the State’s closing argument. See generally Judge v. State, supra.

We recognize that reasonable latitude must be given to counsel in expressing their views of the case to the jury. Because of this, trial judges have wide discretion in controlling the arguments of counsel, and their action will not be reversed absent an abuse of discretion. Nevertheless, we think it is clear in this case that the prosecutor did not meet the requirement under Tennessee law that his argument must be “temperate, must be predicated on evidence introduced during the trial of the case, and must be pertinent to the issues being tried.” Russell v. State, supra at 271. We conclude that the defendant is entitled to a trial which is not punctuated by a closing argument which so clearly violates this standard.

Because the case must be remanded, we find it advisable to deal with several other issues which may resurface upon retrial. The first concerns the trial judge’s refusal to sequester the local sheriff, over the objection of defense counsel, on the ground that the sheriff is “the constitutional officer of this county and anything that’s happened in the county I’m of the opinion that he’s privileged to it.” Thus the sheriff was not subjected to sequestration even though the State conceded its intent to call him as a witness after the production of other prosecution witnesses. (The State also conceded that the sheriff was not the official prosecuting witness in this case, because the grand jury returned a presentment, requiring no prosecutor. T.C.A. § 40-1705.)

We know of no authority to support the trial court’s broad ruling on this issue. However, we are aware that there have been some specific exceptions created to the general rule of total sequestration. T.C.A. § 24-106; Dougherty v. Shown, 48 Tenn. 302 (1870); Rainwater v. Elmore, 48 Tenn. 363 (1870); Smith v. State, 72 Tenn. 428 (1880); Lenoir Car Co. v. Smith, 100 Tenn. 127, 42 S.W. 879 (1897); Adolff v. Irby, 110 Tenn. 222, 75 S.W. 710 (1903); Hughes v. State, 126 Tenn. 40, 148 S.W. 543 (1912). In addition, it has always been prudently recognized (usually in the form of dicta) that the needs of justice and the public interest require that a certain amount of judicial discretion be maintained in the area. This does not mean, however, that the trial court is at liberty to make what are otherwise arbitrary exceptions (to the general rule) that are not based on some articulated demonstration of necessity. Pennington v. State, 136 Tenn. 533, 538, 190 S.W. 546, 547 (1916).

Therefore, upon timely motion to sequester, we think the better practice is to exclude all witnesses until they are called to testify or are otherwise, by necessity, excused from the rule. (The single recognized exception is, of course, the defendant, who is afforded a constitutional right to be present at all stages of his trial. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).) However, the defendant in this case concedes that there was no actual prejudice as a result of the trial court’s ruling, because the sheriff’s testimony was not directly related to the testimony of other prosecution witnesses who testified in his presence. While we conclude that the error here was thus harmless, we caution against its repetition on retrial.

Finally, the defendant assigns as error the introduction of certain medical x-rays as an exhibit to the testimony of the doctor who unsuccessfully treated the victim after she was rushed to the hospital emergency room. The defendant insists that these x-rays were cumulative to the doctor’s testimony and were, therefore, unnecessarily inflammatory. We disagree. The x-rays themselves, while probably cumulative, were apparently relevant to show the nature and extent of the victim’s wounds. Furthermore, we find nothing inherently inflammatory about x-rays. In point of fact, and when compared to photographs of a corpse, the reverse is probably true. As long as the trial judge is convinced of their relevancy (i. e. that the x-rays in question depict what they are purported to depict in such a fashion that they are helpful to the jury in the determination of a material issue at trial), there is no error in their introduction into evidence.

In closing, we note that retrial in this case will be made more difficult than usual because of the passage of more than two years since the date of the victim’s death on August 31, 1975. The defendant was arrested on the same date, he was indicted at the October 1975 term of court, and he was tried in March, 1976. The amended motion for a new trial was overruled in July, 1976; the defendant was given 90 days in which to prepare and file his bill of exceptions. The court reporter, however, did not submit a transcription until August, 1977, more than a year after the motion for a new trial was overruled. This delay occurred despite an order on November 1,1976, following the filing of the technical record in this court, directing the immediate filing of the transcript. This court has since been informally notified by certain of its officers that the delinquent court reporter has retired. For this reason, and no other, we decline to invoke Supplemental Rule 7 of this Court, allowing citation for contempt under circumstances such as those presented in this case. That rule, and the other rules promulgated by this Court, are designed to effect the efficient administration of justice, a goal which is undermined by delays such as have occurred here. In conclusion, we call attention to T.C.A. § 40-2032, authorizing a criminal court judge, with the approval of the Executive Secretary, to designate auxiliary court reporters when needed.

The judgment of conviction is reversed and the case is remanded for further proceedings not inconsistent with this opinion.

DWYER, P. J., and RUSSELL, J., concur.

DWYER, Presiding Judge,

dissenting.

When the prosecutor in his closing remarks argued that all officials associated with this case, legislature, governor, sheriff, grand jury and judge, had done their duty, I must concede that those remarks exceeded the bounds of legitimate argument. While it is true that this argument did not indicate all of these officials found the appellant guilty, I think an indirect implication of guilt was a direct inference that the jury could infer from the remarks. I would, however, and do differ from the majority in reversing and remanding this case for retrial.

With the jury finding the appellant guilty of a lesser offense than murder in the first degree, and with ample evidence to support premeditation found in this record, I would, in view of the overwhelming evidence of guilt, reduce the punishment from twenty years to ten years, if the State accedes. In short, I would invoke the thinking of our Supreme Court found in Smith v. State, 527 S.W.2d 737, 739 (Tenn.1975), and subject to the consent of the State, reduce the punishment to the statutory minimum of ten years. In all other assignments I concur in the views as expressed by the majority.