author: NEARN, Judge.

text:
    Mildred Elizabeth KEMP, Appellant, v. KNOX COUNTY, Tennessee, Knox County Board of Education, Appellees. Nancy Ann GODDARD, Appellant, v. KNOX COUNTY, Tennessee, Knox County Board of Education, Appellees.
    Court of Appeals of Tennessee, Western Section.
    Feb. 25, 1977.
    Certiorari Denied by Supreme Court Aug. 29, 1977.
    Sidney W. Gilreath, Knoxville, for appellants.
    Robert R. Campbell, Knoxville, for appel-lees.
   NEARN, Judge.

This appeal actually involves two cases. Walter Kemp and Kenneth Goddard were simultaneously killed in a work-related accident. Wrongful death actions were filed by the legal representatives of each and the cases were consolidated for the purpose of trial. The trial issue and appeal issue in both cases is the same. It is suggested by counsel that one Opinion will dispose of both cases. Therefore, the Opinion will treat the Kemp case only, but applies to both.

Plaintiff’s intestate was an employee of Cureton Plumbing and Heating Company and was killed on the job when the walls of a sewer pipe ditch in which he was working collapsed upon him.

On June 8, 1970, defendant Knox County Board of Education entered into a contract with Tipton and Reynolds Construction Company (T & R) for the construction of Gibbs Primary School on Tazewell Pike in Knox County. Cureton was the subcontractor of T & R for the laying of the sewer line on the school property.

Mildred E. Kemp brought a wrongful death suit against the Knox County Board of Education and the suit was tried on the theory that Knox County Board of Education was liable because it had a non-delega-ble duty to protect the plaintiff’s intestate from injury due to hazards created by unlawful work and work which is necessarily dangerous.

At the close of plaintiff’s proof, the Trial Judge directed a verdict for the defendant and plaintiff has appealed.

The facts, viewed in the light most favorable to the plaintiff, would warrant a finding that Knox County Board of Education was desirous of building a new school building. T & R was hired as general, independent contractor to perform the task. Cure-ton was hired by T & R on a subcontract basis to do the plumbing work which included digging a deep ditch for the sewer line. Cureton was negligent in the manner in which it was digging the ditch and violated certain safety rules, which negligence was the sole proximate cause of the death of plaintiff’s intestate. That is the gist of the proof.

The five Assignments of Error raise but one issue for our determination that is, was the Trial Judge correct in directing a verdict on the grounds that no non-delegable duty existed in this case which would make the defendant Knox County Board of Education vicariously liable?

Counsel for appellant relies heavily upon the case of International Harvester Co. v. Sartain (1948 W.S.) 32 Tenn.App. 425, 222 S.W.2d 854, in support of his argument for reversal of the Trial Judge. In our opinion the reliance is misplaced. First, we hold that unlike supplying electricity, ditch digging is not an activity so inherently dangerous that the responsibility for the performance thereof may not be delegated. Second, even if it were so considered, the Knox County Board of Education would not be considered a “supplier” of ditch digging. See Odum v. Haynes (1972 W.S.Tenn.App.) 494 S.W.2d 795, where the holding in International v. Sartain was explained and distinguished.

We affirm the Trial Judge.

The Assignments of Error are overruled and costs are adjudged against appellant.

Done at Knoxville in the two hundred and first year of our Independence and in the one hundred and eighty-second year of our Statehood.

CARNEY, P. J., and MATHERNE, J., concur.


source: Caselaw Access Project

author: RUSSELL, Presiding Judge.

license: Public Domain

text:
    David PEABODY & Bill Monroe Lofty, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    April 12, 1977.
    Supplemental Opinion Aug. 11, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.

      Alan L. Cates, Chattanooga, for Peabody.
    William B. Mitchell Carter, Chattanooga, for Lofty.
    Brooks McLemore, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Lawrence E. Young, Jerry S. Sloan, Asst. Dist. Attys. Gen., Chattanooga, for appellee.
   OPINION

RUSSELL, Presiding Judge.

The appellants, David Peabody and Bill Monroe Lofty, were, upon a joint trial, each convicted of the armed robbery and kidnapping of a service station attendant. Each was sentenced to ten years for the armed robbery and two years for the kidnapping, the sentences to run consecutively.

The victim positively identified Peabody and Lofty as the men who first robbed him by presenting a pistol and demanding the paper money from the station cash register; and then forced him to leave in their automobile with them, and carried him across the State line into Georgia before releasing him. After their arrest, Lofty gave a detailed confession also implicating Peabody. The officers who took Lofty’s confession tape recorded it, and reduced it to typewriting, but Lofty did not sign it. Peabody orally confessed to his implication in the robbery, but his confession was neither recorded nor set out in detail.

The root question in this case grows out of the fact that Lofty confessed to the use of a pistol in the robbery, but the calibre of the gun was not a part of what was recorded and written down. This confession was introduced through a Detective Cook, who testified to what was confessed, and said that Lofty admitted to the use of a .38 calibre pistol. This was the first time that the size of the weapon had been established. The victim had testified that one of the robbers had presented a pistol to perpetrate the robbery; and, on cross-examination, the victim had admitted that so far as he could say it could have been a toy pistol or a B.B. pistol.

When the calibre of the gun was testified to it precipitated a motion for a mistrial, on the grounds that the copy of Lofty’s confession furnished to the defense did not contain that information; nor, it was said, were the names of witnesses to the confession of that information furnished. The problem was complicated by the impression of the trial judge that the victim’s testimony had not made out a case of armed robbery, since the witness could not negate the possibility that the pistol was a toy. The trial judge deemed that the evidence of the calibre of the pistol was essential to making out a case of armed robbery.

The trial judge subsequently held that the statement of Lofty as to the calibre was admissible as to him, and that the names of the witnesses present had been furnished to the defense, and held that Lofty had no ground to complain. However, since Lofty’s confession was not admissible as to Peabody, and the trial judge was convinced that evidence of the calibre was essential to make out the case of armed robbery, the trial judge indicated that this Court should reduce Peabody’s armed robbery conviction to simple robbery, erroneously believing that a trial court could not make such a reduction in a proper ease.

The trial judge misconstrued the legal effect of the victim’s testimony, and the effect and importance of the evidence of the calibre of the pistol used. When the victim testified that he was robbed by two men, one of whom was brandishing a pistol, this was all that was necessary to make out a case of armed robbery. The fact that the gun might have been, or could have been, a toy does not undermine the prima facie armed robbery case made out. In Hemphill v. State, 532 S.W.2d 286 (Tenn.Cr.App.1975), this language is quoted with approval:

On this issue, ... we hold that when a robbery is committed by the use of a pistol, and nothing appears indicating affirmatively that it was a toy or would fire only blanks, and it appeared to be a real pistol and was used as a real pistol to put the victim in fear of being shot so as to accomplish a robber’s purpose, such a pistol is officially shown to be a deadly weapon to support a conviction for armed robbery. To put the burden upon the State to positively prove that a pistol so used was not a blank or a toy pistol is unrealistic and unreasonable. The fact that the pistol was displayed and appeared to be real and was thus used to effect a forcible robbery is strong and sufficient prima facie evidence of its deadliness. If the robber is to rely upon the theory that he robbed with a toy pistol, he must carry the burden of proving his theory.

The defendants introduced no proof at all. There was and is nothing to support speculation that this might have been a toy pistol.

Gun calibre is nothing more nor less than interior barrel size; or, to put it another way, a partial measure of the size of the projectile fired by the gun. Calibre is not an essential element of proof to make out a case of armed robbery. As a matter of fact, a pistol made to fire blanks, and even a toy pistol, has a barrel size or calibre; although neither would have a projectile size.

We hold that the evidence supports the convictions of both appellants of armed robbery. It is also apparent that the trial judge approved, as thirteenth juror, the conviction of Peabody; even though he erroneously concluded that the robbery by Peabody could not be classified as one committed with a deadly weapon, and expected us to reduce the conviction. We hold that proof that one of the robbers drew “a pistol” upon the victim is sufficient to support the armed robbery convictions of both defendants. There was no proof that the pistol was less than a deadly weapon, only the testimony of the victim that he was unable to negate the possibility that it might have been.

Appellant Lofty assigns as error the refusal of the trial court to suppress the confession, his contention being that he was under the influence of the drug valium when he gave it.

A statement is not rendered inadmissible by the mere fact that the relator was under the influence of drugs at that time, provided the accused was capable of making a narrative of past events or of stating his own participation in the crime. Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972).

The trial judge found that Lofty understandingly and voluntarily gave the statement. We will not disturb such a finding where, as here, the evidence does not preponderate against it. Janow v. State, 4 Tenn.Cr.App. 195, 470 S.W.2d 19 (1971). The transcript of Lofty’s statement clearly demonstrates his ability to at that time make a narrative of the past events in issue.

Error is assigned upon the Court’s giving a jury instruction defining the term “deadly weapon”. The appellant Lofty specifically objects to that part of the instruction which dealt with the right of a robbery victim to assume that a pistol is loaded. Looking to the entire charge, as we do (see Marshall v. State, 528 S.W.2d 823, Tenn.Cr.App.1975), we hold that the instruction clarified both the State’s theory and that of the appellant, and was not error. While it may have been a little broader than the factual theories called for, this resulted in no prejudice.

Appellant Peabody complains that the cases should have been severed. Obviously these cases should have been tried together, unless avoidable and illegal prejudice would thereby result. No such prejudice has been demonstrated on this appeal. See Gwin v. State, 523 S.W.2d 636 (Tenn.Cr.App.1975); Williams v. State, 491 S.W.2d 862 (Tenn.Cr.App.1972). The fact that Peabody would have accepted a plea bargain that was offered if both would accept, but Lofty refused, does not render the denial of a severance erroneous. Seaton v. State, 4 Tenn.Cr.App. 452, 472 S.W.2d 905 (1971).

Finally, both appellants assign as error the setting of consecutive sentences. The trial judge gave as his reason for so doing, “these are separate and distinct offenses committed at different times albeit at times in close proximity”. We hold that this is not a sufficient compliance with the requirement of Gray v. State, 538 S.W.2d 391 (Tenn.1976), that the trial judge indicate in the record his reasons for ordering consecutive sentences, and remand the case for the purpose of allowing the trial judge to supply this deficiency. Should the trial judge be unable to comply by recording Gray-sufficient reasons, this will be entered of record and the sentences made concurrent.

All assignments of error have been carefully considered and the judgments are affirmed, subject to the aforesaid record completion upon remand.

GALBREATH and DAUGHTREY, JJ., concur.

SUPPLEMENTAL OPINION

RUSSELL, Presiding Judge.

Both appellants assigned as error the setting of consecutive sentences. The trial judge gave as his reason for so doing, “these are separate and distinct offenses committed at different times albeit at times in close proximity”. We held that this was not a sufficient compliance with the requirements of Gray v. State, 538 S.W.2d 391 (Tenn.1976), which requires that a trial judge indicate in the record the reasons for ordering consecutive sentences; and we remanded the case to the trial court for the entry upon the record of Gray-sufficient reasons, or for a new order making the sentences concurrent.

Upon remand the learned trial judge did not choose to inquire into any additional grounds, but took the position that the fact of the armed robbery followed by the kidnapping composed “aggravating circumstances” that supported his judgment that Peabody and Lofty are “dangerous offenders” subject under Gray to consecutive sentences. The bill of exceptions reflects this relevant statement by the trial judge:

“I never really thought that these defendants were deliberately dangerous people. I thought they were just sort of accidentally dangerous offenders, nonetheless dangerous offenders. Armed robbery clearly is a dangerous offense, kidnapping clearly is a dangerous offense, and I think that putting the two together supplies the aggravating circumstance”.

The judge’s memorandum filed in support of the order for consecutive sentences contains this language:

“I am of the opinion that each of these defendants is a dangerous offender as defined in Gray v. State. Both robbery by use of a dangerous weapon and kidnapping are inherently dangerous crimes in which the risk of human life is high. While the two offenses in this instance are each a part of one continuing episode, they are and were two separate and distinct offenses involving separate acts and intents and each in a separate and distinct time frame even though in close proximity to each other. That is to say, these are not simultaneous offenses involving essentially the same acts and intents for which concurrent sentences would be appropriate.
“I am of the opinion that the kidnapping of hostages following an armed robbery is sufficient aggravating circumstances for consecutive sentences. To the best of my recollection, this was in my thinking at the time of the order for same.”

While the judgment and point of view of the trial judge are reasonable, his rationale for the ruling does not pass Gray muster. We find this language in that case:

“ A defendant may be classified as a dangerous offender if the crimes for which he is convicted indicate that he has little or no regard for human life, and no hesitation about committing a crime in which the risk to human life is high. This does not mean that all defendants convicted of several counts of a dangerous offense, such as armed robbery, should be consecutively sentenced. Even though armed robbery is a dangerous offense, there are increased penalties for that crime. The decision to impose consecutive sentences when crimes inherently dangerous are involved should be based upon the presence of aggravating circumstances and not merely on the fact that two or more dangerous crimes were committed. However, this does not preclude the trial court from imposing consecutive sentencing for the commission of dangerous offenses where no aggravating circumstances are present if evidence indicates that the defendant should be sentenced under one of the other classifications.” [Emphasis supplied.]

Here, the trial judge relied solely upon the dangerous offender classification. However, the only aggravating circumstances alluded to had to do with the dangerous nature of the offenses and the fact that two such offenses were perpetrated, and this judgment is clearly contrary to the holding in Gray.

The judgment of the trial court running the sentences consecutively is reversed.

GALBREATH and DAUGHTREY, JJ., concur.


author: DUNCAN, Judge.

text:
    STATE of Tennessee, Appellant, v. William Earl STACY, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 4, 1977.
    Certiorari Denied by Supreme Court Oct. 11, 1977.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., B. Rex McGee, Asst. Dist. Atty. Gen., Knoxville, for appellant.
    Walter C. Kurtz, Legal Aid Clinic, Knoxville, for appellee.
   OPINION

DUNCAN, Judge.

The appellant-State appeals from a ruling by the Knox County Criminal Court that the appellee, William Earl Stacy, is mentally incompetent to stand trial. At the present time, Stacy has several indictments pending in the Knox County Criminal Court, including one charging first degree murder. On October 4, 1976, Stacy, through court appointed counsel, filed a motion requesting the trial court to find him mentally incompetent to stand trial on the pending indictments. A hearing on this motion was held pursuant to T.C.A. §§ 33-604 and 33-708, and on October 5, the trial court ruled that Stacy was mentally incompetent to stand trial. In this appeal, the State argues that the expert testimony adduced at the hearing shows that Stacy is mentally competent to stand trial.

The issue to be decided is whether tranquilizing medication can be used to render a person competent to stand trial when, without the medication, that person would be mentally incompetent to stand trial under prevailing standards. We hold that such medication can be so utilized.

It is a fundamental principle of our system of criminal justice that one who is charged with a crime cannot be required to plead to the indictment, be put on trial, convicted, sentenced, or punished while insane or otherwise mentally incompetent. In a hearing to determine if a defendant is presently competent to stand trial, the inquiry does not focus on the defendant’s guilt or innocence, or even his mental condition at the time of the crime. Rather, a competency hearing is a very narrow inquiry aimed at determining whether one who is charged with a criminal offense is presently competent to stand trial. In this State, a defendant is considered competent to stand trial if “he has mind and discretion which would enable him to appreciate the charges against him, the proceedings thereon, and enable him to make a proper defense.” Jordan v. State, 124 Tenn. 81, 88, 135 S.W. 327, 329 (1911).

In Mackey v. State, 537 S.W.2d 704 (Tenn.Cr.App.1975), this Court recently restated the competency standard as follows:

Both Tennessee decisions and the federal constitution prohibit the trial of a defendant whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel and to assist in preparing his defense, (citations omitted). 537 S.W.2d at 707.

We find from this record that the appel-lee Stacy meets the foregoing tests of present mental competency so long as he is properly medicated with the tranquilizing drug, Haldol. It is equally clear that without the aid of this medication, he is not mentally competent to stand trial.

The only witness to testify at the competency hearing was Dr. Adolf F. Siegmann, a psychiatrist at the Central State Psychiatric Hospital. He testified that Stacy had undergone several examinations at the hospital and was diagnosed as suffering from a mental illness known to the psychiatric profession as “schizophrenia, chronic, undifferentiated type.” Dr. Siegmann described Stacy’s medication as follows:

At the time of his return through now, he has been on Haldol, twenty milligrams twice a day, and he has also been on Cogentin, two milligrams three times a day. The Haldol is a drug out of the group of tranquilizing anti-psychotic medication, most effective, but producing side reaction in the body muscle tones, what we would see in old people, what is called (indiscernible), extreme rigidity, and Cogentin is the antidote against the side reaction.

In describing the effect of this medication, Dr. Siegmann stated:

In general, these chemical entities which change in the brain, in connection within the nervous system, which, to say in limited terms, puts a damper on certain processes which help people to experience less distress, anxiety or panic, or depression, which, therefore, helps them to stay more composed, more aware truly of themselves and of the world and thereby able to function more appropriately to their own benefit.

Dr. Siegmann further testified that because of the medication, Stacy had for the prior four months been able to function well in the confines of the hospital, had “participated in many activities,” worked “regularly and quite diligently” in the kitchen, his thinking was “organized,” and he had “not shown any overt kind of psychotic behavior now since the end of May.”

Finally, Dr. Siegmann stated that it was his opinion that Stacy, while under medication, would understand the nature of the legal proceedings with which he would be involved and would be able to advise with counsel and participate in his own defense, but that without medication, Stacy’s ability to do these things would be impaired and he would not meet competency standards. In short, Dr. Siegmann’s testimony brings the issue into sharp focus. With medication, Stacy is competent to stand trial; without medication, he is incompetent to stand trial.

The issue in this case is one of first impression in Tennessee, but it has been addressed, either directly or as a collateral issue, in several other jurisdictions. Focusing on the narrow issue of competency to stand trial, we find no cases which expressly prohibit the use of tranquilizing medication to render a person competent to stand trial. On the other hand, there are several cases which have either expressly or impliedly approved the use of tranquilizing medication to induce “chemical competency,” or “synthetic sanity” as it has sometimes been characterized.

Our review of the case law in this area reveals that the cases which have considered this issue, and the far-reaching implications inherent in it, generally fall into two categories: first (I), cases arising from pre-trial competency hearings in which the sole issue is the propriety of giving tranquilizing medication to a defendant to render him competent to stand trial; second (II), cases involving either direct appeals of convictions or post conviction proceedings in which the issue of “synthetic sanity” or “chemical competency” has been considered along with other issues developed at trial.

I

In State v. Rand, 20 Ohio Misc. 98, 247 N.E.2d 342 (Ct.Com.Pl.1969), the court held that a defendant facing a charge of first degree murder was competent to stand trial after it was shown that he had been properly administered tranquilizing drugs — Thorazine and-Stelazine — which enabled him to communicate with his counsel in a reasonable and rational manner regarding the preparation and conduct of his defense. See also: 31 Ohio St.L.J. 617 (1970). Some of the expert testimony set out in Rand closely parallels Dr. Siegmann’s expert testimony regarding Stacy’s conduct with and without medication. The psychiatrist in Rand related how that defendant acted with and without drugs:

. Prior to stopping medication, he was assigned to clean at least ten rooms, keep them in order, make beds, he was to clean the floor and everything. He was a very good worker, cooperative, nothing wrong with him.
Then after his medication was stopped, he started to get too slow in his work performance, and finally he could not do his work in due time.
Then, gradually, his mental condition deteriorated. He would not reply to the answers. He will lay day and night on his mattress. He will urinate on the floor. Sometimes he will take food and other times he will not. He will not answer. And his mental condition is very bad.
He was a very good patient, cooperative, very good worker when on medication. Without medication he breaks down. (emphasis added) 247 N.E.2d at 346.

In the present case, Dr. Siegmann testified that before Stacy was placed on medication, he would “skip meals,” experienced “difficulty in sleeping,” saw “ghosts,” and “voided on the floor for no apparent reason.” However, after Stacy had been on medication for four months, he was able to work near complex and dangerous machinery and establish more normal relationships with fellow patients and the staff. Thus, when not taking medication, both Stacy and Rand exhibited similar symptoms and were similarly situated, and in that condition, under the prevailing competency standards, both were incompetent to stand trial. With medication, however, both could meet the standards for present mental competency.

The facts and issue in the present case are very similar to the problem which confronted the Louisiana Supreme Court in State v. Hampton, 253 La. 399, 218 So.2d 311 (1969). There the defendant was examined and found to be suffering from chronic paranoid schizophrenia, and upon a competency hearing she was found to be incompetent and was committed to a mental hospital for care and treatment. Following a period of treatment, the hospital reported that she had regained her mental competency, and a new hearing was held at which it was shown that her psychotic symptoms were in remission due to the use of a moderately high dosage of the tranquilizer Thorazine. The proof further showed that if the dosage was discontinued, she would probably have a relapse. The trial judge found from the testimony that she was only “synthetically sane” and ruled that she was still incompetent. The Louisiana Supreme Court reversed the trial judge and found the defendant competent to stand trial. The court said:

The members of the sanity commission were the only witnesses to testify at the hearing. In their opinion, the defendant can understand the nature of the proceedings and assist in her defense. The record contains no evidence to the contrary. The psychotic symptoms are in remission. That this condition has resulted from the use of a prescribed tranquilizing medication is of no legal consequence. Under the codal test, the court looks to the condition only. It does not look beyond existing competency and erase improvement produced by medical science. See Moseley, The Case of the Tranquilized Defendant, 28 La.L.Rev. 265 and Scrignar, Tranquilizers and the Psychotic Defendant, 53 A.B.A.J. 43. (emphasis added). 218 So.2d at 312.

In People v. Dalfonso, 24 Ill.App.3d 748, 321 N.E.2d 379 (1974), the court was faced with the same issue that had confronted the Louisiana Supreme Court in Hampton, supra, but in Dalfonso it was the defendant, not the State, who was appealing a ruling that he was incompetent to stand trial. Following precedent, the Illinois court adopted the reasoning of Hampton v. State, supra, and held that the defendant was competent to stand trial even though his continued competency might depend on taking the prescribed tranquilizer, Haldol; the same tranquilizer which the appellee Stacy is receiving. In support of its ruling, the Illinois court cited State v. Rand, supra; State v. Hancock, 247 Or. 21, 426 P.2d 872 (1967), (discussed below); and State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974), (discussed below).

A New York court was faced with the issue of “drug induced competency” in People v. Parsons, 82 Misc.2d 1090, 371 N.Y.S.2d 840 (1975). In that case, a defendant charged with murder was initially found competent, then found incompetent, and finally once more found competent to stand trial. He moved to controvert the psychiatrists’ latest findings that he was competent to stand trial, alleging in part that he had to be competent independent of medication before he could be put on trial. The court agreed with the State’s argument that “synthetic or pharmacologically induced competency is sufficient," and cited Potter, Hampton, Rand and Dalfonso, supra. In so holding, the court stated, “Any other holding would constitute an atavistic repudiation of the advances made in the treatment of the mentally ill during the past two decades.” 371 N.Y.S.2d at 842.

Thus, these cases involving pre-trial competency hearings wherein the specific issue of using tranquilizing medication to render a defendant competent to stand trial has been considered, have uniformly held that such a practice is permissible.

II

The second category of cases which have considered the issue of “synthetic sanity” or “chemical competency” consists of direct appeals of convictions or post conviction proceedings. The results reached in those cases have generally been consistent with the holdings of the four cases which arose from pre-trial competency hearings.

In State v. Arndt, 1 Or.App. 608, 465 P.2d 486 (1970), a case involving a direct appeal from rape and robbery convictions, the court held that where massive doses of Thorazine did not impair the defendant’s ability to understand or assist in his defense, he was competent to stand trial and his convictions were affirmed.

Prior to the Arndt decision, the Oregon Supreme Court had before it a case for consideration where a defendant, before and during his trial, was under the influence of a tranquilizer (Valium) which assisted him in controlling his emotions. State v. Hancock, 247 Or. 21, 426 P.2d 872 (1967). While the Hancock appeal followed the defendant’s trial and conviction, and did not involve the preliminary issue of competency to stand trial, the Oregon Supreme Court affirmed the trial judge’s findings that the defendant’s medication had not affected his mental functions, that he had been able to actively participate in his defense, and that he had received a fair trial.

In State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974), the North Carolina Supreme Court examined the case of a defendant who maintained that it was not proper to try him because his competency had been induced by the use of tranquilizers, one of them being Haldol. In Potter, the defendant raised the question of insanity at the time of the crime as well as the question of his competency to stand trial. After reviewing some of the same authorities which we have discussed in the present opinion, the court found no reason why the defendant could not be tried even though his competency had been induced by tranquilizing medication.

In State v. Plaisance, 252 La. 212, 210 So.2d 323 (1968), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21 L.Ed.2d 470 (1968), a case which was the forerunner of State v. Hampton, supra, the Louisiana Supreme Court had before it a direct appeal from a rape conviction. In one of the assignments of error, the defendant maintained that although at the time of trial he had been able to assist in his defense, this ability had been brought about by prescribed tranquilizing medication, and without the tranquilizers he would not have been competent to stand trial. The Louisiana court did not find this argument meritorious and brushed it aside, stating:

[Defendant is presently sane for he is able to understand the proceedings against him and assist in his defense being in a state of complete remission and will remain such by continued use of the prescribed medication. 210 So.2d at 325.

Counsel for the appellee Stacy insists that it is improper to induce competency by medication and cites in his brief the cases of In re Pray, 133 Vt. 253, 336 A.2d 174 (1975), and State v. Maryott, 6 Wash.App. 96, 492 P.2d 239 (1971).

In re Pray, supra, involved a post conviction proceeding following a conviction of first degree murder and affirmance of that conviction on direct appeal. Evidence introduced at the post conviction hearing indicated that the defendant had been heavily sedated during his trial, and this fact had not been disclosed to the jury. The trial court denied relief on the petition, but the Vermont Supreme Court set aside the conviction and remanded the case for a new trial, holding that because the defense of insanity had been interposed at trial, the jury should have been informed that Pray was under sedative medication during the trial. The court then stated:

In fact, it may well have been necessary, in view of the critical nature of the issue, to expose the jury to the undrugged, unsedated Gary Pray, at least, insofar as safety and trial progress might permit. 336 A.2d at 177.

It should be noted, however, that the court did not hold that the defendant was incompetent to stand trial because of his medication. In fact, it inferentially held that he was competent in spite of his medication. Regarding the defendant’s competency, the court said:

The question must arise as to the validity of a competency that rests on heavy medication. Yet we must agree with the lower court that the evidence as to awareness and ability to communicate to his counsel is sufficient to support the finding of competency, (emphasis added) 336 A.2d at 177.

We think that a fair reading of Pray indicates that the Vermont Supreme Court did not base its decision on the defendant’s drugged condition, per se. Rather, it appears that the court based its decision on the fact that the jury had not been informed of the defendant’s condition.

In State v. Maryott, supra, a direct appeal from convictions of robbery and assault, the Washington Court of Appeals held that the State could not, over the objection of the defendant, administer tranquilizing drugs to him which would affect his mental and/or physical ability at the time of trial. But here again the court related its findings to the question of mental responsibility for the crime, and not to the question of mental competency to stand trial. In fact, on this latter question the court found that the defendant was competent to stand trial despite his medicated condition. The court said: “The courts have not found the presence of drugs per se to render a defendant incompetent.” 492 P.2d at 244. (citing State v. Arndt, supra).

In Maryott, the court relied very heavily on State v. Murphy, 56 Wash.2d 761, 355 P.2d 323 (1960). In Murphy, the Washington Supreme Court held that where tranquilizer pills had been given to the defendant by a medical trusty under the supervision of the jail physician shortly before the defendant testified, the defendant was entitled to a new trial because it appeared that his attitude, appearance, and demeanor may have been influenced by drugs, and that his appearance and attitude may have influenced the jury in the death penalty imposed. However, the court went on to say:

We do not intend to suggest that a new trial must be granted in every criminal case — or even in every capital case— where the appearance of the accused before the jury is marred by some mental, physical, or emotional impairment, regardless of the nature of the impairment, or the means by which it was brought about. Each case of this type must be decided on its own facts. 355 P.2d at 327.

We note that the defendant’s competency to stand trial was not an issue in Murphy. And in Pray and Maryott, the court held either directly or inferentially that the defendants were competent to stand trial despite their medicated conditions.

Although Pray, Murphy, and Maryott held that the defendants were entitled to relief because they had been tried while medicated, those cases must be read in light of the facts and developments that occurred at the trial of those cases, and even those jurisdictions, by virtue of the language used in those cases, could well sustain convictions where the facts and developments at other trials were different.

Thus, the authorities abundantly support the proposition that a defendant can be considered competent to stand trial even though such competency has been induced by tranquilizing medication.

We point out that we are not involved at this pre-trial stage with the issues of whether the appellee’s due process rights or other rights would or would not be violated by requiring him to stand trial while taking tranquilizing medication. A resolution of those and other issues will have to await the trial of this case on its merits and could well depend upon the nature of the defense or defenses interposed, and the other developments that will take place in those trial proceedings. We might note that in State v. Jojola, 89 N.M. 489, 553 P.2d 1296 (N.M.App.1976), the defendant complained of a due process violation by being required to stand trial while under the influence of Thorazine. The New Mexico Court of Appeals rejected this contention, upheld the defendant’s conviction, and ruled that the defendant was not denied due process by being tried while medicated with Thorazine.

We find nothing offensive in allowing a defendant’s competency to stand trial to be induced by the use of tranquilizing medication. In this modern age, the administering of drugs under proper medical supervision has effectively restored many mentally ill citizens to a useful life in which they can function as normally as other citizens not so impaired. See: Buschman and Reed, Tranquilizers and Competency to Stand Trial, 54 A.B.A.J. 284 (1968). Dr. Siegmann amply illustrated this in his testimony by saying:

I might be helpful to the Court by indicating that today, in this nation, there are hundreds of thousands of people, who are maintained with the help of drugs, functioning normally in our society, which is a big advantage, which is not a cure, but without which our mental hospitals would probably be as full as they were thirty years ago.

An excellent article in the Journal of Forensic Sciences discusses the advances made in the treatment of mentally ill persons by the use of tranquilizing medication, and specifically addresses the issue of treating a defendant with tranquilizing medication in order to render him competent to stand trial. The article concludes by stating:

Psychopharmaceutical restoration to sanity for the mentally incompetent patient-defendant is a medical reality for the overwhelming majority of such individuals. The courts have recognized this advancement of science in their decisions. Although the judicial system should continue to be concerned with untoward influence of drugs upon the defendant’s mental competency to stand trial, nevertheless, many courts have recognized the advances in psychiatric treatment in their decisions on present sanity. The trend in trial courts is to require the drug-influenced normalized defendant to stand trial as early as possible even though he still requires continuing psychotropic medication to retain his mental competency to stand trial.
If the mentally ill patient-defendant demonstrates adequate sustained improvement in mental impairment and can be completely taken off drugs, so much the better; but the defendant need not be taken off his normalizing drugs in order to be returned to stand trial. Haddox and Pollack, Psychopharma-ceutical Restoration to Present Sanity (Mental Competency to Stand Trial), 17 J.For.Sci. 568, 576 (1972).

Certainly, if a defendant is not guilty of an offense by reason of past insanity or otherwise, then it is in his best interests for the matter to be expeditiously litigated. Likewise, if his defenses are not meritorious, then society’s best interests, represented by the State, are served by a speedy resolution of the matter. In this connection, there is some merit to the State’s insistence that unless it is allowed to proceed with the trial of the accused, then by virtue of the holding in Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the accused may ultimately be set free without the issue of his guilt or innocence of the crimes charged ever being resolved.

In Jackson, the defendant was found to be incompetent to stand trial and was committed to the state mental hospital until such time as he could be certified sane and competent to stand trial. The Indiana criminal procedure standards for commitment were not the same as the civil commitment procedure standards. Jackson maintained that since his mental condition would never improve, he was, in effect, being given a life sentence. The United States Supreme Court held that a state could not indefinitely commit an individual simply because he was incompetent to be tried. The Supreme Court concluded:

We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the ease, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. 92 S.Ct. at 1859.

In the present case, according to the testimony adduced at the hearing, the appellee Stacy, in the absence of medication, will in all likelihood never be competent to stand trial, and ultimately, under the dictates of the Jackson case, he will have to be civilly committed. Once he is in that status, then in the discretion of the hospital authorities, he could well be released back into society without the issue of his guilt or innocence ever being resolved. Also, after the lapse of time, even were an attempt made to place him on trial, the issue of a speedy trial denial would arise.

Our ruling in the present case will obviate the above dilemmas which this case would otherwise present.

The soundness of our ruling can best be illustrated by a reversal of the position of the parties. That is, if the State was alleging that Stacy was incompetent to stand trial, which it would have the right to do under existing law, but Stacy insisted that he be tried on the merits and could show that he would be competent by taking tranquilizing medication, then unquestionably we would hold that he would have the right to be tried at his insistence, and it would be error not to proceed with his trial. Thus, we think the State has the same right to insist that Stacy be tried on the merits of the case so long as it can be shown that the medication administered will render him mentally competent, will not affect his health, and does not preclude him from receiving a fair trial.

By virtue of the case holdings cited herein, and for the reasons set forth, we specifically hold that a defendant who is taking prescribed and controlled tranquilizing medication, and is able to understand the nature and object of the proceedings against him, rightly comprehends his own condition in reference to such proceedings, and is capable of advising with and assisting his counsel in preparing his defense, is competent to stand trial.

Based on the record before us, we conclude that the appellee Stacy meets the above tests. Thus, we hold that he is competent to stand trial. The ruling of the trial court is reversed, and this cause is remanded for a trial on the merits, or other proceedings not inconsistent with this opinion.

O’BRIEN and BYERS, JJ., concur.


author: TATUM, Judge.

text:
    James Theodore MONTGOMERY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 11, 1977.
    Certiorari Denied by Supreme Court Oct. 24, 1977.

      Richard H. Donnell, Jackson, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, George Hymers, Dist. Atty. Gen., Jackson, for appellee.
   OPINION

TATUM, Judge.

The defendant, James Theodore Montgomery, was sentenced to fifteen years in the State Penitentiary upon a conviction of rape. Affirmed.

On this appeal, the defendant tests the sufficiency of the evidence and questions the action of the Trial Judge in refusing him a new trial because one of the jurors based his vote finding the defendant guilty out of fear of being “locked up” for the weekend.

The accredited evidence was that the victim and the defendant were previously acquainted. The defendant was an employee of OIC School in Jackson, Tennessee; the victim was a student. The defendant had assisted the victim in her admission to the school.

On 7 May 1976, the victim met the defendant by happenstance in front of a Kroger store near the school. At the defendant’s request, the victim consented to drive the defendant to his residence for some school material and to talk about a job for her.

The victim accompanied the defendant into his apartment where the victim had a soft drink and the defendant had two alcoholic drinks. The defendant offered the victim $150.00 to go to bed with him. When she refused, he forced her into the bedroom and had sexual intercourse with her forcibly and against her will.

She left the apartment immediately, drove around Jackson, until about 4:00 o’clock P.M. She then went to a baby-sitter’s house to get her children. She went home and made an unsuccessful attempt to telephone her sister. Her boyfriend telephoned her and the victim told him of the rape. Her boyfriend took her to the Jackson-Madison County General Hospital, where she was examined by a doctor and the police were notified. She gave the doctor and the police officers an account of the rape.

The defendant did not testify but introduced two witnesses to establish an alibi.

In the first two assignments of error, the defendant says that the evidence preponderates against the verdict and that the verdict is not supported by any competent evidence. The defendant argues in support of these assignments that the testimony of the victim is uncorroborated. The rape statute, T.C.A. § 39-3701, does not require that the testimony of the violated female be corroborated. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); King v. State, 210 Tenn. 150, 357 S.W.2d 42 (1962). Unless the defendant shows that the evidence preponderates against the guilty verdict, we must overrule these assignments. Webster v. State, 1 Tenn.Cr.App. 1, 425 S.W.2d 799 (1967). The defendant has failed to bear this burden. We overrule these assignments.

After trial, one of the jurors swore that his decision to vote in favor of the guilty verdict was based on his understanding that he would be “locked up” for possibly a weekend if no verdict was reached. He said this motivated him to vote for the guilty verdict. The defendant’s third assignment is that this juror’s oath, given after trial, entitled him to a new trial. We disagree. The record reflects that after the jury reported its verdict, the Trial Judge polled each member of the jury and each of them affirmed the verdict.

This evidence could not be considered to render the verdict void. Batchelor v. State, 213 Tenn. 649, 378 S.W.2d 751 (1964); Lee v. State, 121 Tenn. 521, 116 S.W. 881 (1909); Wilson v. State, 2 Tenn.Cr.App. 138, 452 S.W.2d 355 (1969); Leach v. Leach, 52 Tenn.App. 606, 376 S.W.2d 739 (1963); Wilson v. Page, 45 Tenn.App. 475, 325 S.W.2d 294 (1958).

In 1869, the Tennessee Supreme Court was considering this same question. A juror made an affidavit very similar to the one before us. In that case, the Supreme Court reached the same result we have reached today. Galvin v. State, 46 Tenn. 283 (1869).

The rule and its supportive reasoning is stated by the United States Supreme Court in Mattox v. United States, 146 U.S. 140, 148-149, 13 S.Ct. 50, 52, 36 L.Ed. 917 (1892):

“There is, however, a recognized distinction between what may and what may not be established by the testimony of jurors to set aside a verdict.
This distinction is thus put by Mr. Justice Brewer, speaking for the Supreme Court of Kansas in Perry v. Bailey, 12 Kan. 539, 545: ‘Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow the verdict, because being personal it is not accessible to other testimony; it gives to the secret thought of one the power to disturb the expressed conclusions of twelve; its tendency is to produce bad faith on the part of a minority, to induce an apparent acquiescence with the purpose of subsequent dissent; to induce tampering with individual jurors subsequent to the verdict. But as to overt acts, they are accessible to the knowledge of all the jurors; if one affirms misconduct, the remaining eleven can deny; one cannot disturb the action of the twelve; it is useless to tamper with one, for the eleven may be heard. Under this view of the law the affidavits were properly received. They tended to prove something which did not essentially inhere in the verdict, — an overt act, open to the knowledge of all the jury, and not alone within the personal consciousness of one.’
The subject was much considered by Mr. Justice Gray, then a member of the Supreme Judicial Court of Massachusetts, in Woodward v. Leavitt, 107 Mass. 453, where numerous authorities were referred to and applied, and the conclusions announced, ‘that on a motion for a new trial on the ground of bias on the part of one of the jurors, the evidence of jurors as to the motives and influences which affected their deliberations, is inadmissible either to impeach or to support the verdict. But a juryman may testify to any facts bearing upon the question of the existence of any extraneous influence, although not as to how far that influence operated upon his mind. So a juryman may testify in denial or explanation of acts or declarations outside of the jury room, where evidence of such acts has been given as ground for a new trial.’ ”

We have examined the above and many other authorities and find that the rule in Tennessee is that adopted in the Federal Rules of Evidence, Rule 606(b):

“(b) Inquiry into validity of verdict or indictment. — Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about what he would be precluded from testifying be received for these purposes.”

The affidavit of the juror in the case before us does not come within the exception to the rule. • Examples of “extraneous prejudicial information” or “outside influence” would be the reading of prejudicial newspaper editorials by the jury during its deliberation, the imparting of prejudicial information to the jury by an officer having charge of it, or when a bailiff, who was a witness in the trial of the case is present in the jury room during the jury’s deliberation.

Finding no error, we affirm the judgment of conviction.

WALKER, P. J., and DWYER, J„ concur.


author: DENTON, Justice.

text:
    STATE of Texas, Petitioner, v. Dan TURNER, Respondent.
    No. B-6463.
    Supreme Court of Texas.
    Sept. 27, 1977.
    Rehearing Denied Oct. 26, 1977.
    Ned Granger, County Atty., Russell J. Bailey, Asst. County Atty., Austin, for petitioner.
    Sloan & Wise, Larry W. Wise, Austin, for respondent.
   DENTON, Justice.

This is an appeal from an indefinite commitment of the respondent under the provisions of the Texas Mental Health Code. The principal question to be decided is the proper standard of proof required in these proceedings. We hold that preponderance of the evidence is the proper standard.

Pursuant to jury findings that Dan Turner is a mentally ill person, and that he requires hospitalization in a mental hospital for his own protection or for the protection of others, the county judge has ordered Dan Turner committed to the Austin State Hospital for an indefinite period of time. The court of civil appeals has reversed, holding that the trial court erred in instructing the jury that the State’s burden was to prove each special issue by “clear and convincing evidence.” The court of civil appeals held the proper standard is “beyond a reasonable doubt.” 543 S.W.2d 453. The court of civil appeals conflicts with the prior decision of another court of civil appeals in Powers v. State, 543 S.W.2d 194 (Tex.Civ.App.—Waco 1977, writ granted). The Powers court held that the proper standard is “preponderance of the evidence.”

In Texas, a person becomes subject to temporary commitment to a mental hospital upon the application of any adult, supported by statements of two physicians that the person is mentally ill and requires observation and/or treatment in a mental hospital. Notice and hearing are required, and a jury is available upon demand. Upon conclusion of the hearing, the person will be ordered confined to a mental hospital for up to ninety days if it is determined that he (1) is mentally ill, and (2) requires observation and/or treatment for his own welfare and protection or the protection of others. The court may refuse to order commitment, otherwise permissible, if he finds that required observation or treatment can be accomplished without commitment to a mental hospital. An order of temporary commitment is appealable to a court of civil appeals. Mental Health Code §§ 31-39d.

Indefinite involuntary hospitalization is reserved only for those persons who have not responded to treatment during temporary hospitalization. Proceedings are initiated by the filing of a petition, which must include, among other things, statements on information and belief that the proposed patient is mentally ill and requires hospitalization for his or her own welfare or for the protection of others, and that he has recently been confined for at least sixty days pursuant to an order of temporary hospitalization. Within fifteen days prior to filing of the petition, the proposed patient must have been examined by a physician who certifies that he or she is mentally ill and requires hospitalization. The physician’s certification must accompany the petition. The proposed patient is entitled to counsel and statutory notice of hearing, and a jury trial in the absence of a written waiver in statutory form. The issues of fact to be determined are whether the proposed patient is (1) mentally ill, (2) in need of hospitalization for his own welfare and protection or for the protection of others, and (3) mentally incompetent. The answers to these issues must be based upon competent medical or psychiatric testimony. Affirmative answers to each issue warrant issuance of an order of indefinite commitment to a mental hospital. Mental Health Code §§ 40-57.

The principal issue as the case reaches this court concerns the proper standard of proof in indefinite civil commitment proceedings. As related above, the court of civil appeals has held' that due process requires that the criminal law standard, “beyond a reasonable doubt,” be applied. It is urged by the State that a lesser standard is not violative of the Due Process clause.

In a criminal proceeding, a person may not constitutionally be imprisoned in the absence of findings that, beyond a reasonable doubt, the prohibited acts were performed. The same is true in a juvenile delinquency proceeding, where an adjudication of delinquency would constitute adjudication of a crime if the defendant were an adult. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); Santana v. Texas, 397 U.S. 596, 90 S.Ct. 1350, 25 L.Ed.2d 594 (1970), reversing 444 S.W.2d 614 (Tex.1969). The respondent points out the similarities between juvenile delinquency proceedings and civil commitment proceedings; the stigma which attaches to an adjudication of delinquency compares with the stigma concomitant with the finding that one is mentally ill; indefinite confinement of a juvenile delinquent for rehabilitation compares with indefinite commitment for treatment. These similarities have prompted several courts to conclude that due process requires proof beyond a reasonable doubt in civil commitment cases. United States ex rel. Stachulak v. Coughlin, 520 F.2d 931 (7th Cir. 1975); In re Ballay, 157 U.S.App.D.C. 59, 482 F.2d 648 (1973); Suzuki v. Quisenberry, 411 F.Supp. 1113 (D.Hawaii 1976); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); In re Andrews, 334 N.E.2d 15 (Mass.1975). On the other hand, most of the more recent decisions hold that distinctions between civil commitment and criminal proceedings are sufficient to permit the somewhat lesser standard of clear and convincing evidence. United States v. Brown, 155 U.S.App.D.C. 402, 478 F.2d 606 (1973); Doremus v. Farrell, 407 F.Supp. 509 (D.Neb.1975); Bartley v. Kremens, 402 F.Supp. 1039 (E.D.Pa.1975); Dower v. Director, Patuxent Institution, 396 F.Supp. 1070 (D.Md.1975); In re Beverly, 342 So.2d 481 (Fla.1977); People v. Sansone, 18 Ill.App.3d 315, 309 N.E.2d 733 (1974); State v. Valdez, 88 N.M. 338, 540 P.2d 818 (1975); Moss v. State, 539 S.W.2d 936 (Tex.Civ.App.—Dallas 1976, no writ); In re Ward M., 533 P.2d 896 (Utah 1975); State ex rel. Hawks v. Lazaro, 202 S.E.2d 109 (W.Va.1974). In other cases the civil standard, preponderance of the evidence, has been applied. Tippett v. Maryland, 436 F.2d 1153, 1158-59 (4th Cir. 1971), cert. dism’d sub nom., Murel v. Baltimore City Crim. Ct., 407 U.S. 355, 92 S.Ct. 2091, 32 L.Ed.2d 791 (1972); In re Alexander, 125 U.S.App.D.C. 352, 372 F.2d 925 (1967).

The general rule in civil cases is that the party having the burden of proof must establish the case by a preponderance of the evidence. Nevertheless, in certain types of cases the courts seem inclined to impose a somewhat stricter standard, requiring that proof be clear and satisfactory or clear and convincing. These include charges of fraud and mistake when relied upon to justify reformation; rescission or cancellation of a written estimate; or an action to engraft a parol trust or conditions upon a written instrument. However, it has been held that it is error to instruct the jury that an issue requires a standard of proof greater than that of the preponderance of the evidence. Carl v. Settegast, 237 S.W. 238 (Tex.Comm’n App.1922, holding approved); Western Assur. Co. v. Hillyer-Deutsch-Jarratt Co., 167 S.W. 816 (Tex.Civ.App.1914, writ ref’d).

Some courts in other jurisdictions make a distinction between the standard of clear and convincing evidence and the usual civil standard of the preponderance of the evidence; however, Texas Courts review evidence by but two standards: factual sufficiency and legal sufficiency. The requirement of clear and convincing evidence is merely another method of requiring that a cause of action be supported by factually sufficient evidence. Meadows v. Green, 524 S.W.2d 509 (Tex.1975); Omohundro v. Matthews, 161 Tex. 367, 341 S.W.2d 401 (1960); In Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950), the Court said:

“In certain types of cases courts have frequently pointed out that the facts must be established by clear and convincing evidence. That rule, as said in Carl v. Settegast, Tex.Com.App., 237 S.W. 238, arose at a time when such suits were cognizable only in courts of chancery where matters of fact, as well as of law, were tried by the chancellor. Verdicts of juries in those courts were advisory only. In our blended system the field in which that rule operates is very narrow. In practical effect it is but an admonition to the judge to exercise great caution in weighing the evidence. No doctrine is more firmly established than that issues of fact are resolved from a preponderance of the evidence, and special issues requiring a higher degree of proof than a preponderance of the evidence may not be submitted to a jury. Carl v. Settegast, supra; McCormick and Ray on Evidence, Section 30. In ordinary civil cases trial courts and Courts of Civil Appeals may set aside jury verdicts and grant new trials when, in their opinion, those findings, though based upon some evidence, are against the great weight and preponderance of the evidence, but they may not render judgment contrary to such findings. In those cases in which the “clear and convincing” rule is applicable if, in the opinion of the trial judge, the evidence in support of the verdict does not meet the test of that rule, he may set it aside and order a new trial; but he should not render judgment contrary thereto.”

We see several distinctions between civil commitment proceedings and criminal proceedings which justify the lesser standard. The involuntary mental patient is entitled to treatment, to periodic and recurrent review of his mental condition, and to release at such time as he no longer presents a danger to himself or others. Mental Health Code §§ 70, 77, 86. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O’Conner, 493 F.2d 507 (5th Cir. 1974), jdgmt. vacated, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Note, Right to Treatment, 86 Harv.L.Rev. 1282 (1973). The mental patient’s loss of liberty therefore is less severe than that suffered by the convicted criminal. In addition, there is a significant difference between the retrospective assessment of conduct made by a jury in a criminal case, and the determination of future conduct and future need made by a jury in a civil commitment. This Court recently recognized in another context that rules of law are subject to alteration when problems inherent in methods of proof so require. Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977). Such is the case here. If the deprivation of liberty inherent in the civil commitment process were held to mandate application of the highest standard of proof, the beyond a reasonable doubt standard, we feel that the State’s ability to act as parens patriae for the mentally ill would be impaired. Medical science is not an exact art:

“[W]e disapprove the holding of . cases which require proof beyond a reasonable doubt. At this level of medical knowledge there may be many urgent cases in which it is impossible to exclude every reasonable doubt, and it appears that the likelihood of harm to individuals and society because of a standard of proof which makes commitment almost impossible greatly outweighs the likelihood of harm to the individual attributable to a less restrictive standard. Proof that is clear, cogent, and convincing is the highest standard of proof possible at the current state of the medical arts.” State ex. rel. Hawks v. Lazaro, 202 S.E.2d 109, 126-27 (W.Va.1974).

Due process does not require, ipso facto, the highest standard of proof, even though personal liberty is at stake. The State, as parens patriae undertakes the beneficent task of treating the mentally ill, and under its police power protects the public from harm. These are valid, necessary state objectives which should not be thwarted by application of a too strict burden of proof. And the situation would be an unfortunate one should a person in need of care be deprived of aid because he is mentally incapable of knowing his needs and the medical profession can not meet a too strict burden. We agree with the Supreme Court of Florida that:

“The difficulty in proving an individual state of mind combined with a stringent reasonable doubt standard, may work a hardship on the individual who has a right to treatment and to society which has a right to protection.” In re Beverly, 342 So.2d 481, 488 (Fla.1977).

We hold the proper standard of proof is by a preponderance of the evidence.

In future cases of civil commitment the jury should be instructed that the burden is upon the State to prove by a preponderance of the evidence the statutory prerequisites to commitment. Although the trial court’s charge here required proof by a clear and convincing evidence standard, the jury found respondent to be a mentally ill person. Since the jury found him to be mentally ill under a stricter standard than we here require, the instruction can not be said to be harmful; and therefore it does not constitute harmful error.

The judgment of the court of civil appeals is reversed and the judgment of the trial court is affirmed.

      . Tex.Rev.Civ.Stat.Ann. Art. 5547-1 et seq.


text:
    Dennis B. POWERS, Petitioner, v. STATE of Texas, Respondent.
    No. B-6429.
    Supreme Court of Texas.
    Sept. 27, 1977.
    Bergen & Crow, Jim Crow, Waco, for petitioner.
    Martin D. Eichelberger, Dist. Atty., Gary J. Coker, Jr., Asst. Dist. Atty., Waco, for respondent.
   DENTON, Justice.

This is a companion case to our Cause No. B-6463, State of Texas v. Turner, decided this date, 556 S.W.2d 563. The cases were submitted and argued together in this Court.

The trial court charged the jury to find from a preponderance of the evidence the statutory prerequisites of civil commitment. The court of civil appeals affirmed the order of commitment entered by the trial court in response to affirmative jury answers. 543 S.W.2d 194.

The question concerning the proper standard of proof required in the case is the same question presented in State v. Turner. The disposition of the question in that case controls the disposition of the question here.

The judgments of the trial court and the court of civil appeals are affirmed,


author: PER CURIAM.

text:
    Emil E. KMIEC, Petitioner, v. Doyle REAGAN et ux., Respondents.
    No. B-6873.
    Supreme Court of Texas.
    Sept. 27, 1977.
    Rehearing Denied Oct. 26, 1977.

      Harris & Norman, Dona E. Harris, Franklin, Miller, Gann & Perdue, W. Mac Gann, Houston, for petitioner.
    Edwards, Faulkner, Giles & Makowsky, John B. Faulkner, Waco, for respondents.
   PER CURIAM.

The question here is the adequacy of the description of land, in a contract of sale, to meet the requirement of the Statute of Frauds.

Emil E. Kmiec and Esidor J. Brounkow-ski purchased approximately 300 acres of land and obtained an option to purchase an additional 493.5 acres in Robertson County, Texas, from Doyle Reagan and his wife. It is the option that is the subject of this suit. The contract of sale gave Kmiec and Brounkowski, who assigned all of his interest to Kmiec, the option to purchase the 493.5 additional acres owned by the Reagans at a price of $200 per acre. The land covered by the option provision was described as follows:

It is understood and agreed that Sellers also own other lands in said Marquez 11 Leagues Grant in Robertson County, Texas, the same lying south of and across said gravel County Road from the premises above described [referring to the 300 acres], said premises being described as containing 493.5 acres of land, more or less, being 150 acres of land, more or less, lying in the southeast corner of Section Number 31 of said 11 Leagues; 168.25 acres of land, more or less, and 168.25 acres of land, more of less, situated in the northeast and southeast corners of Section Number 42 of said 11 Leagues; and a tract of approximately seven (7) acres lying adjacent to said County Road between Steel’s Creek and the west boundary line of Section Number 32 of said 11 Leagues.

Kmiec timely notified the Reagans of his desire to exercise the option to purchase the 493.5 acres. The Reagans, however, “disavowed” the option. Kmiec sued for specific performance. The trial court rendered judgment for Kmiec, ordering the Reagans to convey the 493.5 acres for $200 per acre, the price stated in the option provision.

The Court of Civil Appeals in Waco reversed and rendered a take nothing judgment. 551 S.W.2d 525. The Court held that since the option provision did not identify the land to be conveyed with reasonable certainty to satisfy the Statute of Frauds, Tex.Bus. & Comm.Code Ann. § 26.-01 (1968), the option to purchase was unenforceable.

While the Statute of Frauds provides that all contracts for the sale of real estate must be in writing, no requirements for the writing, other than it be signed by the grantor, are set out. It has been left to the courts to determine the substance and form the written instrument must satisfy before it is enforceable. Insofar as the description of the property to be conveyed is concerned, the writing must furnish within itself the means or data by which that particular land may be identified with reasonable certainty. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945).

One clear method by which property can be described with reasonable certainty is set out in Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1944).

The settled rule in this state is that such a description, by reason of the use in the memorandum or contract of such words as “my property”, “my land”, or “owned by me”, is sufficient when it is shown by extrinsic evidence that the party to be charged and who has signed the contract or memorandum owns a tract and only one tract of land answering the description in the memorandum. 223 S.W.2d at 223.

When the grantor is stated to be the owner of the property to be conveyed and it is proved that the grantor owns only a single tract answering the description, the land is identified with reasonable certainty.

In the case at bar, the 150 acre tract and two 168.25 acre tracts were each identified as being located in the corner of a particular section of the Marquez 11 Leagues Grant in Robertson County, Texas. The only deficiency in description is the shape of each of these corner tracts. However, extrinsic evidence is admissible under Pickett v. Bishop, supra, to cure this defect and satisfy the Statute of Frauds.

The first requirement of Pickett is satisfied by the statement in the option provision that the Reagans own the tracts to be conveyed. At trial evidence was introduced sufficiently identifying the property as required by the second part of the Pickett rule. Mr. Reagan testified that the land described by the' option provision at the time that Kmiec exercised the option was all the land he owned in Robertson County. Additionally, a title opinion, prepared from the public deed records by an abstract company, was admitted into evidence providing a metes and bounds description of a 150 acre tract and two 168.25 acre tracts, fitting the description given in the option, and stating that each was owned by the Reag-ans. Under the Pickett rule, the option provision described the three tracts so that each could be identified with reasonable certainty. The Statute of Frauds is satisfied.

The holding of the Court of Civil Appeals is in conflict with Pickett v. Bishop, supra. The application for writ of error of Emil E. Kmiec is granted and, without oral argument, the judgment of the Court of Civil Appeals is reversed in part. Rule 483, Texas Rules of Civil Procedure. The trial court’s judgment ordering specific performance of the option provision with respect to the 150 acre tract and two 168.25 acre tracts is affirmed. That portion of the cause by which Kmiec seeks to enforce the sale of a tract of seven acres is severed. The description of the seven acres being deficient, and no contention being made to the contrary, the judgment of the Court of Civil Appeals is in that respect affirmed.


author: AKIN, Justice.

text:
    Jim LINDSEY and Moja Lindsey, Appellants, v. SECURITY SAVINGS ASSOCIATION, Appellee.
    No. 19102.
    Court of Civil Appeals of Texas, Dallas.
    April 11, 1977.
    William B. Dawson, Carrington, Coleman, Sloman, Johnson & Blumenthal, Dallas, for appellants.
    Peter S. Chantilis, Coffee, Coffee & Chantilis, Dallas, for appellee.
   AKIN, Justice.

This is an appeal from an order overruling defendants’ pleas of privilege. Security Savings Association of Dallas sued Jim Lindsey, a former majority stockholder, director, and officer, for acts of alleged fraud, negligence, and conversion occurring in Dallas County. The association asserts that venue is, therefore, proper in Dallas County under Tex.Rev.Civ.Stat.Ann. art. 1995(7), (9), and (9a) (Vernon 1964). The association also sued Mrs. Lindsey for conversion and asserts that venue was proper under article 1995(9). The trial court denied both pleas of privilege. We hold that the association established a prima facie case of conversion against Mr. Lindsey; consequently, since the alleged actions with respect to negligence and fraud are independent causes of action properly joined, we affirm with respect to Mr. Lindsey. But because we also hold that the association failed to establish a prima facie case of conversion against Mrs. Lindsey, we reverse and order the cause against her transferred.

I. Mr. Lindsey

The association contends that Lindsey converted several items of personal property and that venue is, therefore, proper in Dallas County under subdivision (9). These items consisted of office decorations worth approximately $900. The decorations were located in Lindsey’s office at the association and were removed by him after he sold his stock in the association and resigned as an officer and director. Lindsey argues that he came into possession of the items lawfully and, absent a demand for and refusal of their return, no conversion has been shown. On the other hand, the association responds that any right Lindsey may have had to possession ceased when he terminated his relations with the association and that their removal after that time was a wrongful taking, and demand and refusal were, therefore, not necessary. We agree with the association. Lindsey testified that he thought he owned the items which he removed; however, he does not set out any facts which would show title in himself rather than the association. Nor does he dispute the fact that the association paid for them and carried them on its books as assets. The disputed office decorations were within the control of the association, by virtue of being located in their offices, until Lindsey removed them to Texarkana, at which time he was no longer an officer or director of the association. His mistake as to their ownership is not a defense to conversion. Ligon v. E. F. Hutton & Co., 428 S.W.2d 434, 438 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.). We hold, therefore, that the association has established a prima facie case of conversion within the purview of subdivision (9) of article 1995; consequently, venue may be maintained on this cause of action in Dallas County.

Where venue may be maintained as to one cause of action, venue may properly be maintained as to all causes of action against the defendant. Middlebrook v. David Bradley Mfg. Co., 86 Tex. 706, 26 S.W. 935 (1894). Lindsey asserts that this rule does not apply where the cause of action upon which venue is predicated is merely incidental to the main cause of action. In support of this position, he cites 1 McDonald, Texas Civil Practice, § 4.38 at 561, which relies on Auto Refinance Corp. v. Smith, 84 S.W.2d 296, 297 (Tex.Civ.App.—Fort Worth 1935, no writ) and Bateman v. McGee, 50 S.W.2d 374, 375 (Tex.Civ.App.—Dallas 1932, no writ). In Auto Refinance Corp., the court held that a $40 usury claim predicated on a car loan could not control the venue of an action in tort for the wrongful repossession of the car where the damages alleged in the wrongful reposses sion claim totaled $3,250. More recent cases hold, however, that the relative size of recovery sought in separate causes of action is not a factor to be considered in determining where venue is proper. Brazos Valley Harvestore Systems, Inc. v. Beavers, 535 S.W.2d 797, 800 (Tex.Civ.App.—Tyler 1976, writ dism'd); Burke v. Scott, 400 S.W.2d 385, 389 (Tex.Civ.App.—Austin 1966, writ dism’d). If venue as to one cause of action is proper in the county in which suit was brought, then all properly joined causes of action against the defendant should be maintained in that county to avoid a multiplicity of suits, regardless of the relative size of recovery sought in the various causes of action. In Bateman, this court held that allegations of fraud were incidental to the primary cause of action based on a contract. The alleged fraud concerned the defendant’s statements that he had authority to bind third parties to pay commissions under the contract. The court concluded that plaintiff’s suit was not one to cancel a contract because of fraud, but rather to recover on the contract that he undertook to make binding upon the defendants. Bate-man is not persuasive here because the term “incidental” as used in Bateman refers to allegations which support a cause of action, not the relationship between different causes of actions.

We conclude that since the association has established a cause of action for conversion under article 1995, subdivision (9), other causes of action between the same parties, if properly joined, are maintainable in the county in which the suit is brought. Texarkana Water Supply Corp. v. L. E. Farley, Inc., 353 S.W.2d 885, 889 (Tex.Civ.App.—Houston 1962, no writ). Thus, under the Middlebrook doctrine, all of the causes of action against Lindsey may be maintained in Dallas County.

II. Mrs. Moja Lindsey

At the outset of this section, we note that the association does not contend that Mrs. Lindsey is a necessary party to the action against Mr. Lindsey under article 1995, subdivision (29a). Consequently, the cause of action against her may be maintained in Dallas County only if one of the exceptions to article 1995 is applicable to her individually. In this respect, the association asserts that Mrs. Lindsey converted certain items belonging to the association in Dallas County and that venue is, therefore, properly maintainable against her in Dallas County. The association’s cause of action for conversion against Mrs. Lindsey is based upon her possession of four items: a candelabra valued at $680.12, two vases valued at $457.12, and a set of cast-iron cookware valued at $181.39. John Shoemaker, who was a vice-president of the association in 1974 when the Lindseys sold the association, testified that these items were carried on the books of the association at the time of the sale, but that they were not found on the premises when an inventory was taken. The only other testimony pertaining to these four items was that of Mrs. Lindsey. She stated that she purchased the vases and candelabra at the Trade Mart in Dallas and had them delivered to the association’s office for her convenience. She picked them up there and took them to her home in Texarkana. The Trade Mart billed Security Properties, a wholly owned subsidiary of Security Savings of Texarkana (also owned by the Lindseys), which handled purchases for the various savings and loan associations owned by the Lindseys, as well as their personal purchases. Purchases were made through Security Properties because of the substantial savings that could be obtained by purchasing from wholesalers rather than retailers. Mrs. Lindsey testified that she purchased these items for herself, not the Dallas association, and that the association in Dallas was erroneously billed by Security Properties. A similar situation exists with respect to the cookware. Mrs. Lindsey’s cookware was part of a shipment which included cookware for the association. The association was erroneously billed for the entire shipment and, accordingly, paid for it. Mrs. Lindsey concedes that she owes the association for these items, but contends that they were purchased for her personal use, that the association was billed for these items through an error committed by Security Properties, and that the association erroneously paid the bills.

The association argues that it is entitled to possession of these items by virtue of title and prior possession and that Mrs. Lindsey’s contention that the items were erroneously billed is not a defense to conversion, citing Ligon v. E. F. Hutton & Co., 428 S.W.2d 434, 438 (Tex.Civ.App.—Dallas 1968, writ ref’d n. r. e.), which holds that merely because wrongful possession is obtained innocently and as a result of a mistake on the part of the rightful owner, a cause of action for conversion is not defeated. Ligón is not in point here because the association never had title. In this respect, the association never challenged or contradicted Mrs. Lindsey’s assertion that the purchases were made on her behalf, for which she was indebted to Security Properties. Thus, when she received possession of the goods, she also received title. Tex.Bus. & Comm.Code Ann. § 2.401 (Vernon 1968). Mere payment of the debt of another does not, without a specific agreement, pass title to property for which the debt was incurred. Since the association failed to establish title to the four items, it failed to prove a prima facie cause of action for conversion under subdivision (9).

Accordingly, the order of the trial court with respect to the suit against Mrs. Lindsey is reversed and the cause transferred to Bowie County; with respect to Mr. Lindsey, the order is affirmed.


author: ROBERTSON, Justice.

text:
    Ex parte William Jackie ODEN.
    No. 19382.
    Court of Civil Appeals of Texas, Dallas.
    Sept. 7, 1977.
    J. S. Freels, Jr., Doss, Thompson, Freels & Hagood, Denison, for appellant.
    William G. Eyres, Kagay, Turner, Eyres & Robertson, Dallas, for appellee.
   ROBERTSON, Justice.

This is a habeas corpus proceeding under Texas Revised Civil Statutes Annotated, article 1824a (Vernon Supp.1976), by which the relator, William Jackie Oden, seeks his discharge from the custody of the sheriff of Collin County. He is in jail by virtue of a commitment issued by the Honorable Tom Ryan, Judge of the 199th Judicial District Court of Collin County, which found relator in contempt for failure to make child support payments as previously ordered by the 16th District Court of Denton County. We previously ordered relator released on bail pending a hearing in this court, and we now hold that the order of the district court of Collin County is void because that court had no jurisdiction to enforce the support order of the district court of Denton County. Consequently, the writ of habeas corpus is granted, and relator is ordered discharged from custody.

The support order in question is contained in a divorce decree of October 22, 1972, signed by the Honorable Will Boyd, Judge of the 16th District Court of Denton County. Subsequently, on July 14, 1977, relator’s former wife filed a “Motion for Contempt” in the 199th District Court of Collin County, seeking “enforcement of a prior order entered in this cause,” and alleging that the relator has willfully disobeyed the support order of the 16th District Court. The court overruled relator’s plea to the jurisdiction, proceeded to hear testimony, and found relator “in contempt for failure to obey a duly entered order of Court, which order appears of record in Volume 79, page 544, of the Civil Minutes, 16th District Court, Denton County, Texas,” (emphasis added), and assessed a fine of $100 and confinement in the Collin County jail for a period of ninety days and thereafter until he had paid child support arrear-age in the sum of $16,800 and $350 attorney’s fees for relator’s former wife.

In seeking to justify this commitment, Mrs. Oden argues that her motion for contempt was not a suit “affecting the parent-child relationship” within the meaning of Section 11.05 of the Texas Family Code Annotated (Vernon Supp.1976), but rather was an independent suit filed to enforce an order entered prior to the effective date of the Code. She urges that the concept of continuing jurisdiction does not apply to such pre-existing order. We disagree. The concept of continuing jurisdiction antedates the enactment of the Family Code. Before the Code, it was well settled that a divorce court had continuing jurisdiction over child support matters, including contempt proceedings instituted to enforce a court order. Boney v. Boney, 458 S.W.2d 907, 911 (Tex.1970); Ex parte Gonzalea, 111 Tex. 399, 238 S.W. 635 (1922). The continuity of this rule was expressly recognized in Curtis v. Gibbs, 511 S.W.2d 263, 266 (Tex.1974), in which our supreme court stated:

We assume the Legislature intended to use the phrase “continuing jurisdiction” in the same sense in which this court has heretofore used it in connection with child support orders, to mean that jurisdiction which continues after final judgment. [Emphasis added.]

Since the principle of continuing jurisdiction thus applies to decrees rendered both before and after the date of the Family Code, the sole remaining issue is whether this suit falls within the exception to continuing jurisdiction set forth in Title 2— Family Code, adopted by the 63rd Legislature, which provides:

Any action or suit commenced after January 1,1974, that has as its object the modification of an order, judgment, or decree entered prior to January 1, 1974, but which under this Act would be a suit affecting the parent-child relationship, is governed by the provisions of this Act, and shall be treated as the commencement of a suit affecting the parent-child relationship in which no court has continuing exclusive jurisdiction. [Emphasis added]

Acts 1973, 63rd Leg., Reg.Sess., Ch. 543, § 4(b), at 1459.

We cannot agree that this suit falls within this exception. By its terms, the section only precludes application of continuing jurisdiction to suits filed to modify orders entered prior to the effective date of the Code. The present suit does not seek to modify the support order, but to enforce it. Accordingly, this action is not an independent suit, and the original divorce court has continuing exclusive jurisdiction. Since the 16th District Court of Denton County entered the original decree, it is the court of continuing jurisdiction, and the commitment order of the Collin County court is void for lack of jurisdiction. Of course, our ruling here does not prejudice the former wife from pursuing an action for contempt in the Denton County district court.

Relator discharged.