author: BROWN, Commissioner.

text:
    Essie D. THOMPSON, Appellant, v. The STATE of Texas, Appellee.
    No. 47560.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Tom H. Beard, Court-appointed, Hills-boro, for appellant.
    Frank B. McGregor, Dist. Atty., Hills-boro, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

BROWN, Commissioner.

Appellant was tried before a jury for the offense of assault to murder with malice. The punishment, assessed by the jury, was three years, probated.

On November 7, 1973, this Court by Per Curiam Opinion abated this appeal for further proceedings in accordance with Art. 40.09, V.A.C.C.P. Again by Per Curiam Opinion dated February 13,1974, this Court stated:

“The appeal is once again abated, and we hereby instruct the trial court to take the necessary steps under Art. 40.09, V.A.C. C.P., to see that appellant’s right to an appeal is preserved, and a brief filed on his behalf.”

Appellant’s brief was filed in the trial court on March 14, 1975 and the State’s brief was filed on April 2,1975. The briefs were received by this Court on August 20, 1975. The instructions of this Court’s prior Per Curiam Opinions having been carried out, the appeal is reinstated.

The sufficiency of the evidence is not challenged.

Appellant’s sole ground of error is that the trial court erred in failing to sustain the defendant’s plea of former acquittal.

The appellant was brought to trial on an indictment returned on the 12th of February, 1971. Trial was had on April 20, 1971, before a jury, and the appellant was acquitted. It must be noted that at the April 20, 1971 proceeding the appellant’s defense counsel objected to the indictment, pointing out that the indictment dated February 12, 1971 alleged that the offense was committed on December 31, 1971, an impossible date. The trial court without the introduction of any evidence instructed the jury to acquit the appellant.

Appellant was again indicted on July 30, 1971 for the same offense which actually took place on December 31, 1970. On February 27, 1973, a pre-trial hearing was held on appellant’s plea of former acquittal. The trial court overruled the plea of former acquittal.

Appellant contends that his second prosecution is barred by Art. 1, Sec. 14 of this State’s Constitution, and Art. 1.11 of the Code of Criminal Procedure, which read as follows:

“See. 14. No person, for the same offense, shall be twice put in jeopardy of life or liberty, nor shall a person be again put upon trial for the same offense, after a verdict of not guilty in a court of competent jurisdiction.” Vernon’s Ann. Tex.Const., Art. 1, Sec. 14.
“An acquittal of the defendant exempts him from a second trial or second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon a trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.” Art. 1.11, V.A.C.C.P.

Appellant relies primarily on the case of Mixon v. State, 35 Tex.Cr.R. 458, 34 S.W. 290. In Mixon, the appellant had been indicted for murder, tried and found guilty of manslaughter. He appealed and this Court held that the indictment was defective and reversed the case. Mixon was then rein-dicted for murder, tried, over his plea of prior acquittal of murder and second degree murder. On appeal from his second conviction this Court held that his plea of prior acquittal was proper. Since the jury in his first trial had acquitted him of the higher offenses by the finding of manslaughter, he could after reversal of the manslaughter conviction only be reindicted for manslaughter. The Court stated, referring to his first trial:

“The court trying this case unquestionably was a court of competent jurisdiction to try it (although this jurisdiction may not have been properly invoked), and it makes an acquittal for the same offense a bar to any subsequent prosecution thereof, regardless of the validity of the indictment.”

The Mixon case is still the law today, applied to its own facts, where the jurisdiction of the court is properly invoked and an actual trial on the merits takes place and the jury reaches a verdict based on the evidence presented.

The facts of this appeal are not the same as in the Mixon case and that rule does not apply. As far as the record indicates there was no trial on the merits in the proceeding of April 20, 1971. The record indicates that the appellant was arraigned, the jury selected and sworn, at which point the appellant’s counsel called the attention of the court to the defective indictment. The trial court realized that no conviction was possible on the indictment and instructed the jury to return a verdict of acquittal. No evidence of the appellant’s guilt or innocence was presented to the jury; since the indictment alleged an impossible date, the jurisdiction of the court was not even properly invoked.

The general rule in the United States is that “an acquittal on an indictment so defective that, ... it would not have supported a conviction or sentence (is) . . . insufficient to support a plea of former acquittal.” 22 C.J.S. Criminal Law § 246; accord, 21 Am.Jur.2d, Criminal Law, Sec. 172; 16 Tex.Jur.2d Criminal Law, Sec. 121.

In 1885, the predecessor of this Court held that when an indictment is so defective that the defendant, if found guilty, would be entitled to have any judgment against him reversed, he had not been put in jeopardy, and if he was acquitted he could be tried again on a new and valid indictment. Grisham v. State, 19 Tex.App. 504 (1885).

In 1901 this Court held that where the indictment was void because the grand jury was improperly constituted the jurisdiction of the trial court did not attach and that the appellant had not been placed in jeopardy by his first trial. Ogle v. State, 43 Tex.Cr.R. 219, 63 S.W. 1009. Just ten years later this Court again held “jeopardy will not attach unless there is a valid bill of indictment.” Shoemaker v. State, 58 Tex. Cr.R. 518, 126 S.W. 887. As recently as 1963, this Court stated that “[jjeopardy will attach only upon a good and sufficient accusatory pleading. Jurisdiction of the court trying the prior cause is an essential prerequisite where jeopardy is pleaded.” McAfee v. State, 363 S.W.2d 941 (Tex.Cr.App.1963).

The fact that appellant’s first trial ended with an instructed verdict of acquittal rather than a dismissal is not determinative of his plea. In Smotherman v. State, 415 S.W.2d 430 (Tex.Cr.App.1967) this Court held that an instructed verdict of acquittal resulting from a defective information did not bar a retrial on a new information.

The case of Johnson v. State, 73 Tex. Cr.R. 133, 164 S.W. 833, provides an especially clear interpretation of Art. 1, Sec. 14 of our Constitution. In that case this Court stated:

“Our courts have been very liberal in construing this article of the Constitution. In many jurisdictions it is held that this plea is not a good plea until the verdict has been rendered by the jury, but our court, when this question first came before it, held to the more liberal interpretation that, when a person is arraigned in a court of competent jurisdiction upon a valid indictment or information, a jury impaneled and sworn, and a valid plea entered, jeopardy attaches.”

(Emphasis added)

The case of Spicer v. State, 78 Tex.Cr.R. 57, 179 S.W. 712, cited by the State is squarely contrary to the appellant’s position. In Spicer the first complaint alleged an impossible date and the defendant was acquitted and a new complaint was filed and the defendant brought to trial, over his plea of prior acquittal. This Court held that since a conviction under the first complaint would have been nullity there was no prior acquittal for purposes of Art. 1, Sec. 14, of the Constitution or what is now Art. 1.11 of the Code of Criminal Procedure. Cf. Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425.

The appellant in this case does not raise the issue of double jeopardy under the United States Constitution. We note, however, the case of Duncan v. Tennessee, 405 U.S. 127, 92 S.Ct. 785, 31 L.Ed.2d 86, which appears to be in point. In Duncan v. Tennessee, the United States Supreme Court granted certiorari to consider the petitioner’s claim that his rights under the double jeopardy clause had been violated by his reindictment and trial after a directed verdict of acquittal. The acquittal was entered because the indictment, under Tennessee law, was defective in that it alleged the offense was committed with a pistol instead of a rifle. The Supreme Court held that since the questions raised by the petitioner were so interrelated with Tennessee’s rules of criminal pleading, the constitutionality of which had not been challenged, the writ was dismissed as having been improvidently granted. Justice Brennan, joined by Justices Douglas and Marshall, dissented, contending that although the procedure was correct under Tennessee law it was improper under the double jeopardy clause.

Since the indictment under which the appellant was first tried was fatally defective in that it alleged an impossible date, an acquittal instructed by the trial court does not bar a second prosecution on a new and valid indictment.

Appellant’s ground of error is overruled.

The judgment is affirmed.

Opinion approved by the Court.

      . The court could have and should have treated this as a motion to quash and should have dismissed rather than instructing a verdict of acquittal.


source: Caselaw Access Project

author: ONION, Presiding Judge.

license: Public Domain

text:
    Jerry Joe BIRD, Appellant, v. The STATE of Texas, Appellee.
    No. 50213.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.

      Douglas Tinker and Richard Bradshaw, Corpus Christi, for appellant.
    Fred Galindo, Dist. Atty., Peter C. Gil-man and Joe Hendley, Asst. Dist. Attys., Brownsville, Jim D. Vollers, State’s Atty., David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for the offense of capital murder. The punishment assessed is death.

The sufficiency of the evidence is not challenged. It is not necessary to detail all facts. Jo Ellen Trammell, wife of the deceased, Vic Trammell, a gun collector, testified that on the evening of January 11, 1974, the appellant Bird and his companion, Korges, appeared at the Trammell house and said they had guns to sell. Trammell said he did not desire to purchase any guns but would look at the same. At this point, Bird pulled a pistol with a silencer attached. Subsequently, he gave the weapon to Korg-es. The Trammells were placed in different rooms, handcuffed, and their feet and eyes were taped. Later, Mrs. Trammell heard shots from the other room and a groan. She slipped one hand out of the handcuffs, untaped herself, and crawled out a window and hid in a drainage ditch. After some time elapsed, she smelled smoke, but did not leave her hiding place until she heard fire engines approaching. The Trammell house was on fire. After the fire was extinguished, Vic Trammell’s body, badly burned, was found inside the house. Among other things, his very valuable gun collection was missing. The doctor who performed the autopsy was unable to say whether Trammell’s death was due to the two bullet wounds in his body or resulted from the fire, but theorized that he had been shot first and that such wounds would have been fatal. At the scene a pistol with a silencer was found. The appellant did not testify, but called Kenneth Ross, Special Agent for the United States Treasury, Bureau of Alcohol, Tobacco, and Firearms, who related he had traced the pistol to a gun dealer in Lake Charles, Louisiana, whose records of dates and disposition had been stolen. On cross-examination he expressed the opinion that the silencer was crudely made, perhaps in a machine shop, and was not commercially made.

We are confronted at the outset with the most serious question in the case. Appellant contends the trial court erred in failing to grant a mistrial when the assistant district attorney commented in argument on his failure to testify, in violation of his State and Federal constitutional privilege against self-incrimination and in violation of Article 38.08, Vernon’s Ann.C.C.P.

The assistant district attorney in his opening argument at the guilt stage of the trial stated:

“MR. GAVITO: ... Do you have to be a'J. Edgar Hoover to know the purpose of this thing? Do I have to be a Philadelphia lawyer to tell you what this is and why it is constructed? When they left Corpus Christi, they intended to kill and, that is the only logical conclusion you can draw, because they didn’t want the neighbors to hear the shots. And that is another target that the defense can take a potshot at.
Why go through the trouble of manufacturing a silencer? Is it common occurrence? Have you ever done it? This, in itself, is a violation of the law. As his own witness told us, the firearms expert, it takes skill, it takes knowledge to manufacture a thing of this kind. Jerry Joe Bird is a machinist and well capable of manufacturing such a thing. And if he didn’t manufacture it, where did you get it?
“MR. TINKER: Excuse me. That is certainly a comment on my client’s failure to testify. I object to it and I ask that the jury be instructed to disregard it.
“THE COURT: Objection sustained. The jury—
“MR. TINKER: I would like the record to reflect that, as he made that statement, he turned and looked at my client and I ask for a mistrial at this time.
“THE COURT: Mistrial denied. The Court was—
“MR. TINKER: I would like to have an opportunity to make a bill on that.
“THE COURT: You will.”

(Emphasis Supplied)

Appellant subsequently developed his informal bill of exception. His attorney, Douglas Tinker, was sworn and testified that during the argument the prosecutor made reference to the silencer and then, in the presence of the jury, turned, leaned over and looked directly at the appellant and stated, “ . . . where did you get it?” The prosecution neither at the time of the original objection nor at the time the bill of exception was developed made an effort to dispute or refute the statement of defense counsel or his subsequent testimony. The court did not qualify the informal bill of exception. In fact, the court stated it would make no findings and would let the record speak for itself. The record was subsequently approved without objection. See Article 40.09, Vernon’s Ann.C.C.P.

This, then is the record by which this court must test appellant’s contention — a record which reflects that defense counsel’s statement and testimony as to the prosecutor’s argument and physical actions are unchallenged by the State and unqualified by the court. See and cf. Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975).

It is basic and fundamental law in this State that the failure of an accused to testify may not be the subject of comment by the prosecution. Such comment is in violation of the privilege against self-incrimination contained in Article I, Sec. 10 of the Texas Constitution, and in express violation of Article 38.08, Vernon’s Ann.C.C.P., which provides in part that “ . . . the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.” See also McDaniel v. State, 524 S.W.2d 68 (Tex.Cr.App.1975); Anderson v. State, 525 S.W.2d 20 (Tex.Cr.App.1975); Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975); Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); Cherry v. State, 507 S.W.2d 549 (Tex.Cr.App.1974); Watson v. State, 171 Tex.Cr.R. 526, 352 S.W.2d 120 (1961); Griggs v. State, 166 Tex.Cr.R. 56, 311 S.W.2d 418 (1958); Lee v. State, 162 Tex. Cr.R. 489, 286 S.W.2d 633 (1956).

Further, a comment on an accused’s failure to testify also presents a federal constitutional question as the same has been held violative of the self-incrimination clause of the Fifth Amendment, which is made applicable to the States by virtue of the Fourteenth Amendment. See Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Fontaine v. California, 390 U.S. 593, 88 S.Ct. 1229, 20 L.Ed.2d 154 (1968).

The prohibition against such comment on the accused’s failure to testify is mandatory and the adverse effect of any reference to the accused’s failure to testify is not generally cured by instruction. Overstreet v. State, 470 S.W.2d 653 (Tex.Cr.App.1971); 56 Tex.Jur.2d, Trial, Secs. 266 and 336; Branch’s Ann.P.C., 2d ed., Sec. 395.

It is well settled in this State that for the argument or comment to offend against the statute (Article 38.08, supra) the language used must be looked to from the standpoint of the jury, and the implication that the language used had reference to the accused’s failure to testify must be a necessary one. It is not sufficient that the language might be construed as an implied or indirect allusion thereto. Ramos v. State, 419 S.W.2d 359, 367 (Tex.Cr.App.1967), and cases there cited; Overstreet v. State, supra; Roller v. State, 518 S.W.2d 373 (Tex.Cr.App.1975); McDaniel v. State, supra; Hicks v. State, supra.

The test employed is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the accused’s failure to testify. See McDaniel v. State, supra; Roller v. State, supra; Chapman v. State, 504 S.W.2d 912 (Tex.Cr.App.1974). In applying this test, the facts and circumstances of each case must be analyzed to determine whether the language used was of such character. Overstreet v. State, supra; Ramos v. State, supra.

Lee v. State, 162 Tex.Cr.R. 489, 286 S.W.2d 633 (1956), involved a murder case where the accused was charged with killing her husband. The investigating officer testified that when he arrived on the scene the accused told him she shot her husband but other than her name did not give him any information. During argument, the prosecutor argued:

“What are you hiding Martin (defense counsel)? What are you hiding Barr (defense counsel)? If it was an accident? Why didn’t you tell the officers out yonder on November 8th, 1954, it was an accident? And it would have stopped all this trouble here.”

In reversing the cause for violation of the statute prohibiting comment on the defendant’s failure to testify the court noted that the fact that the allusion or comment was put in indirect language does not obviate the harm.

Only recently in Hicks v. State, 525 S.W.2d 177 (Tex.Cr.App.1975), we were confronted with a prosecutor’s comment on the defendant’s failure to testify. During argument, the prosecutor stated:

“But there is somebody that we haven’t heard from in this case. And I think you all know who it is.”

The defense counsel then requested the record reflect the prosecutor stood behind the defendant and raised his voice when he made his statement. The majority concluded the record was sufficient to show the prosecutor’s action and reversed for the comment on the defendant’s failure to testify-

The argument was made at the guilt stage of the trial. We cannot, however, close our eyes to the crucial issues submitted to the jury in the determination of penalty. See Article 37.071, Secs, (b)(1), (b)(2), and (b)(3), Vernon’s Ann.C.C.P. We must conclude that the language used (plus the undisputed physical action established) was of such a character that the jury would naturally and necessarily take it to be a comment on the appellant’s failure to testify-

The State argues that any error in argument was harmless. It is true that on occasion this court has held that the prosecutor’s comment on the defendant’s failure to testify was harmless error. See, e. g., Ramos v. State, supra; Ford v. State, 477 S.W.2d 27 (Tex.Cr.App.1972); Armstrong v. State, 502 S.W.2d 731 (Tex.Cr.App.1973). The test adopted is that of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), where the United States Supreme Court held that before a federal constitutional error can be held harmless it must be determined beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.

In the present case the appellant received the most extreme punishment authorized by law — death. The constitutional error in commenting on appellant’s failure to testify cannot be said in the setting of this particular case to be so unimportant and insignificant that it may be deemed harmless. We cannot conclude beyond a reasonable doubt that the improper comment did not contribute to the conviction and the penalty assessed. The judgment must be reversed.

In view of our disposition we need not reach the question of whether reversible error occurred when the court reporter inadvertently sent certain exhibits into the jury room which had not been introduced into evidence, some of which contained hearsay evidence prejudicial to the appellant.

Further, in the event of a retrial, we must express our deep concern over appellant’s contention he was denied due process when the trial court refused to grant a mistrial when objections were made and it was called to the court’s attention that on repeated occasions television cameramen and news media people were photographing the jurors coming to and from the courtroom and in the courtroom itself.

The appellant made a motion to sequester the jurors, which motion was denied. Early in the trial the appellant called the court’s attention to the fact that prior to the convening of the court on that day a television cameraman had entered the courtroom and photographed the jury in the box and made his statement as to what occurred in accordance with Article 40.09, Sec. 6(a), Vernon’s Ann.C.C.P. His motion for a mistrial was denied, as well as his renewed motion to sequester the jury and his motion to enter an order to prevent the news media from photographing the jurors. The appellant pointed out to the court that the jurors were aware of the fact that they were being photographed by television cameras and noted the obvious pressure on them even if they followed the court’s instructions not to listen to or watch television reports concerning the case.

The record further reflects that on numerous occasions the appellant objected that the news media were photographing the unsequestered jurors in the corridors coming to and from the courtroom. All motions for mistrial were overruled. The record reflects that at least on two other occasions the television cameras photographed the proceedings through the glass windows of the courtroom doors while the court was in session and the jury was in the box. Here again, objections were made and overruled. At the hearing on the motion for new trial the films taken were introduced into evidence and it was established that the films were shown on local television while the trial was in progress.

The Texas Code of Judicial Conduct, Canon 3.A(7), provides:

“A judge should prohibit broadcasting, televising, recording, or taking photographs in the courtroom and areas adjacent thereto during sessions of court or recesses between sessions, except that a judge may authorize:
“(a) . . .
“(b) • • .
“(c) . . . ,”

The American Bar Association Code of Judicial Conduct is to the same effect.

In Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), the United States Supreme Court in noting the potential impact of television on the jurors stated: “The conscious or unconscious effect that this may have on the juror’s judgment cannot be evaluated, but experience indicates that it is not only possible but highly probable that it will have a direct bearing on his vote as to guilt or innocence.” Id. at 381 U.S., p. 545, 85 S.Ct., p. 1634. Reversal resulted in Estes, although there the jurors were sequestered while in the instant case they were not. See also Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507,16 L.Ed.2d 600 (1966).

In Estes the court held that isolatable prejudice did not have to be shown to reach a conclusion that Estes was deprived of due process by the televising of his highly publicized criminal trial.

In the event of a retrial the court will surely take steps to remove any basis for this due process question to again be raised.

The judgment is reversed and remanded.

      . Article 37.071, supra, provides that at the penalty stage of the trial the court shall submit the following issues:
      “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;
      “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

        “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.”

      . The commentaries accompanying the showing of the film are not in the record before us.

      . None of these exceptions are here relevant. In fairness, it should be noted that the said Canon 3.A(7) was promulgated by the Supreme Court of Texas, effective September 1, 1974, almost two months after the date of the instant trial. A similar provision in the Code of Judicial Conduct had been approved in September, 1973, by the Judicial Section, State Bar of Texas.


author: ODOM, Judge.

text:
    Gene Arthur SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 50417.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    Delmar L. Cain, Court-appointed, Austin, for appellant.
    Robert 0. Smith, Dist. Atty. and David A. Sheppard, Asst. Dist. Atty., Austin, Jim D. Vollers, State’s Atty., and David S. McAn-gus, Asst. State’s Atty., Austin, for the State.
   OPINION

ODOM, Judge.

This appeal is from an order revoking probation.

Appellant was convicted of burglary and punishment was assessed at ten years. Imposition of sentence was suspended and appellant was placed on probation. Subsequently probation was revoked, punishment was reduced to three years (Art. 42.12, Sec. 8, V.A.C.C.P.), and sentence was pronounced. This appeal is from that order revoking probation.

The State filed a motion to revoke probation alleging appellant:

“ . . . violated his probation by failing to report and submit urine specimens, failing to work and failing to pay court costs, restitution and supervision fees as directed by the court and his supervising officer and failure to avoid injurious and vicious habits in that this person has had three positive urine specimens within the last month.”

The trial court in its order revoking probation found appellant guilty of each of the foregoing allegations.

Appellant in his brief contends, the trial court abused its discretion in revoking the probation because the evidence was insufficient to support any of the findings of violations of the conditions of probation. The State in its brief argues only that the evidence is sufficient to support the finding that appellant violated his probation by failing to report to the probation officer. The State concedes that the evidence is insufficient to support the findings of other violations, and an examination of the record reveals that the evidence in fact is insufficient to support those other findings. The issue before this Court, then, is whether the trial court abused its discretion when it found appellant failed to report to the probation officer in violation of the conditions of his probation, and revoked appellant’s probation upon that finding.

Upon conviction, the order of the court granting the terms of probation stated the following condition:

“Report to the Probation Officer as directed.” The State’s motion to revoke probation recited the same condition, and the State’s only witness, appellant’s probation officer, testified that this was a condition of appellant’s probation. This condition of probation was an improper delegation of authority to the probation officer and as such was unenforceable. Parsons v. State, Tex.Cr.App., 513 S.W.2d 554; Brown v. State, 508 S.W.2d 366; DeLeon v. State, Tex.Cr.App., 466 S.W.2d 573. See also Cox v. State, Tex.Cr.App., 445 S.W.2d 200; McDonald v. State, Tex.Cr.App., 442 S.W.2d 386. The trial court was not authorized to revoke probation upon a finding of a violation thereof.

For the reasons stated, the revocation of appellant’s probation upon the findings in the order constituted an abuse of discretion. Accordingly, the judgment is reversed and the cause remanded.

      . But see Brown v. State, Tex.Cr.App., 508 S.W.2d 366 at 368, where we stated, “The exercise of improperly delegated authority by a probation officer cannot make the delegation effective, although on different facts, where parties over a period of time have accepted such a delegation of authority as shown by the course of conduct between them, a probationer may be estopped from objecting to being held to the duty assumed.” No such facts are present in this case.


author: GREEN, Commissioner.

text:
    John COOPER, Appellant, v. The STATE of Texas, Appellee.
    No. 50835.
    Court of Criminal Appeals of Texas.
    Oct. 8, 1975.
    David R. Rosado, El Paso, for appellant.
    Steve W. Simmons, Dist. Atty. and William J. Ellis, Asst. Dist. Atty., El Paso, Jim D. Vollers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

GREEN, Commissioner.

This appeal is from a conviction for delivery of heroin. Punishment was assessed at five years.

The record reflects that on January 31, 1975, appellant waived a jury, entered a plea of guilty, and was convicted of the felony offense of delivery of heroin. Punishment was on that date assessed by the court at four years. The record further reflects that on that date appellant waived time and was sentenced to serve four years, and was given credit for time spent in jail since December 5, 1974. Thereafter, on February 3, 1975, at a hearing with appellant and his counsel present, the court announced that it had discovered that the minimum punishment fixed by the applicable law for delivery of heroin is five years, and, accordingly, over appellant’s objection, set aside the punishment and sentence, assessed punishment at five years, entered judgment accordingly and, as appellant again waived time, pronounced sentence. See Adams v. State, Tex.Cr.App., 440 S.W.2d 844. Appellant gave notice of appeal from this judgment and sentence.

In his sole ground of error, appellant contends that the trial court erred in resen-tencing appellant to serve a five year term after he had already been confined in jail under the four year sentence. He argues that such resentencing violated his right to protection under the double jeopardy clauses of the Texas and the United States Constitutions.

The offense of delivery of heroin is a felony of the first class under the provisions of the Texas Controlled Substances Act, Art. 4476-15, Secs. 4.03(b)(1) and 4.02(b)(2)(J), V.A.Civ.Stats. of Texas. The punishment for a felony of the first class is confinement for life, or for a term of years of not more than 99 years or less than 5 years. Sec. 4.01(b)(1). Thus, the minimum term for such offense is 5 years.

Since the trial court was not authorized to assess the punishment at 4 years because such period is not within the range set forth in the statutes, the original punishment set by the court and the sentence based thereon were void. Ex parte Hill, Tex.Cr.App., 528 S.W.2d 125 (1975); Saunders v. State, Tex.Cr.App., 511 S.W.2d 281, 283.

The only error assigned by appellant concerns punishment. The original punishment and sentence being void, the trial court acted properly and within his authority in assessing a lawful punishment at the subsequent hearing, and in pronouncing sentence based on such punishment. See Miller v. State, Tex.Cr.App., 472 S.W.2d 269. The fact that the punishment of five years, being the minimum authorized by law, exceeds the unauthorized, void punishment of four years does not present a double jeopardy problem. See Saunders v. State, supra, where, on appeal from a judgment in which the punishment was assessed at less than the statutory minimum, this Court remanded the case to the trial court for re-assessment of punishment under the appropriate statute. See also Ex parte Hill, supra.

The judgment is affirmed.

Opinion approved by the Court.

      . The evidence reflects that the offense was committed August 5, 1974.


author: SMITH, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Larry Arlington WILLIAMS, Defendant-Appellant.
    No. 35798.
    Missouri Court of Appeals, St. Louis District, Division Four.
    July 29, 1975.
    Charles D. Kitchin, Public Defender, James E. Wynne, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SMITH, Chief Judge.

Defendant was found guilty by a jury of three counts of armed robbery and punishment was set at five years on each count, to run concurrently. He appeals.

Defendant does not attack the sufficiency of the evidence so a brief statement of the facts will suffice. Larry Williams was a participant in a crap game with the victims. He had been playing for between 45 minutes to an hour, when he pulled a gun, ordered the victims to lie on the floor and, with another participant, robbed them. During the course of the robbery, he struck one of the victims with the gun. Williams was arrested in less than an hour after the robbery. In the vehicle he was driving when arrested, were found a gun resembling that used in the robbery, and clothing of the victims taken during the robbery. Certain of defendant’s clothing was rather distinctive, and the clothing in which he was arrested resembled that described by the victims. Defendant raises two points: (1) “The Court erred in overruling defendant’s motion to suppress the identification testimony without holding a preliminary hearing outside the presence of the jury” and (2) “The trial court erred in overruling defendant’s motion to suppress the State’s identification testimony because it was based on an unnecessarily suggestive lineup.”

While it has been suggested that a preliminary hearing on identification testimony suppression is preferable, it is not error to have such hearings during the trial and in taking the motion with the case. State v. Taylor, 456 S.W.2d 9 (Mo.1970). Here the motion to suppress was filed on the day of trial although it had been prepared some months beforehand and no prior notice that it would be filed was accorded the court or circuit attorney. The court concluded the filing was not timely under a local court rule. Additionally, the motion was general and conclusory in terms, containing no factual allegations to support it. The record shows the trial court considered and heard evidence on the matters of identification throughout the trial, and conducted a brief hearing out of the presence of the jury during the trial. Under the circumstances we can find neither error nor prejudice in the court’s actions. See State v. Jordan, 506 S.W.2d 74 (Mo.App.1974).

Defendant’s second point is limited to the court’s failure to suppress all evidence of identification because the identifications were based upon a suggestive lineup. This allegation of error does not attack the admission of the lineup identifications themselves into evidence. At no time in the pretrial motion, the trial, or the post-trial motion was an objection to the admission of the lineup identification made. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) have been with us long enough to expect counsel to specifically challenge the identification he seeks to suppress or object to. We find it unnecessary and improper for us to consider each possible objection which could have been made to the identification; we will deal instead only with that actually made. The objection raised here is solely one of irreparable mistaken identity under Stovall.

The lineup was conducted within an hour of the robbery. Defendant had been in the presence of the witnesses for at least an hour under both relaxed and stress conditions. One witness, who made a positive identification at trial, did not view a lineup. There was an adequate independent basis for the identifications at trial other than the allegedly suggestive lineup.

Judgment affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


author: KELLY, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. John Kent GRAHAM, Defendant-Appellant.
    No. 35445.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 9, 1975.

      Wolff & Todt, Donald L. Wolff, Clayton, Alan G. Kimbrell, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Gene McNary, Pros. Atty., George R. West-fall, Asst. Pros. Atty., Clayton, for plaintiff-respondent.
   KELLY, Judge.

John Kent Graham appeals from a conviction of rape of a female child under the age of sixteen years in violation of § 559.-260 RSMo 1969, and a sentence to a term of two years in the custody of the Missouri Department of Corrections in accord with a jury verdict in the Circuit Court of St. Louis County. We affirm.

Appellant, hereinafter the defendant, while he does not directly challenge the sufficiency of the evidence in his Points Relied On portion of his brief in this court does so indirectly as we shall hereinafter more fully develop. The thrust of defendant’s contentions on appeal is that during the course of the trial of this cause certain evidence came in which was so prejudicial that despite the fact the trial court sustained his objections and instructed the jury on two of the three occasions to disregard the evidence, the only way the prejudice engendered thereby could be removed so that defendant could enjoy the fair trial guaranteed to him by law was for the declaration of a mistrial as he requested, and discharge of the jury so that he could enjoy a trial before another jury freed of these prejudicial impacts.

The primary issue at trial was the identity of the rapist. On the one side was the victim, a 13 year old girl at the time of the offense, who identified the defendant as her attacker at a voice identification and visual confrontation in a show-up at the St. Louis County Police Headquarters some almost five months following the incident. She had also, on an occasion shortly after the attack selected from a group of photos one as a photo of her attacker and which was a photo of the defendant. A month or two after the attack she also recognized the defendant as her attacker on two occasions when he was visiting or passing-by a neighbor’s home. At trial she identified the defendant as the rapist.

Defendant testified in his own behalf and denied that he was the culprit. He, together with four other defense witnesses, testified to alibi. The gist of their testimony was that defendant together with five of his friends — four of whom testified, and one of whom was defendant’s brother — attended a drive-in theatre on the night of the attack — April 23, 1971 — until midnight — an hour after the attack according to the victim’s testimony.

While there were, understandably, some inconsistencies in both the state’s and the defendant’s evidence, the jury resolved the inconsistencies in the state’s case and found the defendant guilty.

The evidence which defendant contends was so prejudicial as to entitle him to a mistrial in the trial court and a reversal and remand in this court consists of the following:

(1) testimony of a detective that while not under arrest three days following the rape — April 26, 1971 — defendant initially agreed to accompany the police officers to the headquarters of the St. Louis County Police for a “voluntary line-up” but, after leaving his home he changed his mind and was then arrested and conveyed to headquarters nonetheless;
(2) testimony of the victim that after the defendant was taken to police headquarters his father got him out on bail five minutes before she arrived there; and
(3) cross-examination of the defendant relative to his insistence that he have an attorney present at a subsequent line-up at police headquarters on September 10, 1971, at which time the victim identified him as her attacker.

Defendant also contends that the cumulative effect of the aforesaid prejudicial evidence deprived him of a fair trial.

The thrust of defendant’s argument is that in each instance the state offered the evidence of which he complains for the purpose of chilling the constitutional rights guaranteed to him by both the federal and state constitutions and thereby caused the jurors to infer from the exercise of these constitutional rights a “consciousness of guilt.”

The state, wisely we believe, does not undertake to defend the admissibility of this evidence, but rather responds that defendant has failed to preserve anything for this court to review by reason of the objection presented to the trial court at the time the evidence was adduced and also because the requirements of State v. Brookshire, 325 S.W.2d 497, 500[3] (Mo.1959) for the preservation of alleged constitutional error have not been satisfied. The state further argues that the errors alleged were cured by. the action of the trial court in sustaining defendant’s objections and instructing the jurors to disregard the testimony in the first two instances, and that in each instance a mistrial was not necessary. Defendant requests that this court consider the alleged errors under the “plain error” Rule — Rule 27.20(c) — but the state contends that we should not invoke the Rule because of the strength of the state’s case and the alleged errors did not result in manifest injustice or a miscarriage of justice.

In response to these arguments the defendant retorts that the victim’s identification testimony is unreliable because of the lighting conditions at the time and place of the attack; that the state has failed to make any defense of the prosecutor’s development of the evidence and therefore confesses its erroneous nature; and that the “consciousness of guilt” effect of the testimony is particularly harmful in a case where there is only one eyewitness upon whose testimony the state was required to depend to obtain a conviction, as was the case here.

Defense counsel on appeal is to be commended for the excellent presentation of his position both in the brief filed in this court and in oral argument. His task was made more burdensome by the failure to properly preserve in the trial court the constitutional issues he attempts to raise in this court for the first time in an effort to obtain for his client a new trial. These inadequacies shall be more fully pointed out as we consider the Points raised by counsel on appeal.

To better understand the contention of the state that there is a failure to properly preserve the errors alleged by the defendant it is essential that the manner in which trial counsel presented his objection to the trial court for a ruling be set out.

At the time the detective testified about the defendant’s change of mind to voluntarily accompany the police officers to headquarters for a line-up on April 26, 1971, defense counsel’s objection was that the evidence was inadmissible because he had, prior to trial, filed a motion to suppress and exclude any confessions or statements against the defendant’s interest which the state had in its files, that the state had confessed this motion and advised him that it had no statements against interest. This evidence, defense counsel argued, was either a statement against interest or was a violation of the hearsay rule. The objection did not direct the trial court’s attention to any constitutional grounds. The trial court was requested to grant defendant a mistrial, or, in the alternative, to admonish the jury to disregard the statement. The trial court proceeded to deny the motion for mistrial, sustained that part of the objection requesting that the jury be instructed to disregard the statement and proceeded to instruct the jury to disregard that portion of the witness’ testimony that stated that the defendant did or did not accompany the police voluntarily. This point was not raised in the motion for new trial filed by trial counsel nor in the supplemental motion for new trial filed by counsel on appeal. The first time any constitutional basis for this objection was put forward was in this court when defendant filed his brief.

The testimony of the victim with respect to defendant’s release on bail prior to the time she could arrive at police headquarters was given in an unresponsive answer to a question propounded to her by the prosecuting attorney. The question was: when was the next time, after her initial visit to police headquarters in the early morning hours of April 24, 1971, she returned to police headquarters. She replied: “They had me there — I was supposed to look at a line-up and somehow he wasn’t there when we got there. He had left like five minutes before we got there. His father got him out on bail or something.” The objection of trial counsel was:

“I am going to ask that the jury be discharged and a mistrial declared because of this girl saying that he left before I could look at him; his father got him out on bail. This is not proper; none of this stuff he is doing is proper. He is not supposed to say what did you do next; what she does is not evidence against the defendant. This letting him go through — ”

“THE COURT: She has no personal knowledge what happened.”

Defense counsel thereupon requested that the testimony be stricken and the jury be admonished. The trial court then instructed the jury that they were to disregard any statement by the witness as to what may or may not have happened about any bail or release, or any such statement. The motion to strike and the motion for mistrial were not definitively ruled on and defendant’s counsel did not insist that they be. Further, this point was not raised in either defendant’s original motion for new trial nor the Supplemental Motion for New Trial thereafter filed. This point too appeared for the first time in defendant’s brief filed in this court and then on the basis of a violation of defendant’s right to bail.

The third basis for reversal espoused by defendant came about in the following manner during cross-examination of the defendant:

“Q. Were you arrested a second time in September on this charge?
A. Yes, I was.
Q. Do you remember how you got to the police station?
A. I think I gave myself up. I am not sure.
Q. And was there an attorney there at your request?
A. Yes.
Q. Who was that; do you recall?
A. Jerry Flanagan.
Q. From Mr. Shaw’s office?
A. Yes.
Q. He was there for the line-up?
A. Yes, he was.”

At this point in the cross-examination trial counsel approached the Bench and, out of the hearing of the jury, made a request for the discharge of the jury and the declaration of a mistrial because the prosecutor mentioned that a lawyer was present with the defendant, because the defendant had a right to have a lawyer present, and this could not be mentioned at trial unless the defendant himself waived it by mentioning it. Although offered an opportunity to expand upon his request for other curative action by the trial court, defense counsel reiterated that his only request was for a mistrial — “no alternatives.” The trial court then denied defendant’s motion to discharge the jury and declare a mistrial. This latter ruling was preserved by trial counsel in his motion for new trial and has been briefed in this court as a violation or chilling of defendant’s Sixth Amendment rights of the United States Constitution as made applicable to the several states by the Fourteenth Amendment thereof and by Article I, Section 18(a) of the Constitution of Missouri.

The granting of a mistrial is a remedy so drastic that it is reserved for only those cases where the error committed during the course of the trial is so grievous and prejudicial that its effect cannot be removed in any other way. Kansas City v. LaRose, 524 S.W.2d 112, 120[19] (Mo. banc 1975). For that reason the granting of a mistrial rests largely in the discretion of the trial court who observed the incident giving rise to the request and who can better gauge its effect upon the jury. State v. Pruitt, 479 S.W.2d 785, 790[11] (Mo. banc 1972). An appellate court is reluctant to disturb the ruling of the trial court denying a motion for mistrial except where the trial court has abused its discretion. State v. Seals, 515 S.W.2d 481, 486 (Mo.1974). The rule of the appellate courts of this state is that constitutional questions must 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. The defendant in a criminal case, if he proposes to raise a question pertaining to the violation of a constitutional right, must object to the introduction of evidence which he construes to be in violation of that right, and clearly and specifically state the constitutional grounds for the objection; otherwise, the introduction of the evidence in violation of his rights will not be sufficient basis for an assignment of error in his motion for new trial. His motion for new trial must also present and direct the trial court’s attention to the defendant’s trial objections by clearly stating with particularity his constitutional grounds. In short, defendant must preserve constitutional error from the earliest fair opportunity and he must continue to do so throughout the case both in the trial court and in the appellate court. State v. Meiers, 412 S.W.2d 478, 481[2, 3, 4] (Mo. 1967).

It was only with respect to the third incident — i. e., cross-examination of the defendant about the presence of his lawyer at the line-up of September 10,1971 —that the objection interposed approached what might be considered as raising constitutional grounds. Assuming arguendo that it does, the objection was not timely made, coming after the answer was already in, and the relief requested was for a mistrial alone. The general rule in this state is that the objection must be made before the answer is given to preserve anything for review, except in those instances where the answer is given before the trial counsel can determine its prejudicial nature or is caught by surprise. Even in either of these latter two situations, counsel is required to request that the answer be stricken to preserve the error for review. State v. Taylor, 408 S.W.2d 8,11[8] (Mo.1966); State v. Velanti, 331 S.W.2d 542, 547[7] (Mo.1960).

There are, however, other reasons why this evidence did not constitute error. The requirements of the presence of counsel at line-ups or a knowledgeable and voluntary waiver of counsel’s presence at a line-up enunciated in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) applies only to a line-up held after a charge has been filed against the defendant. State v. Hamilton, 490 S.W.2d 96, 97[1] (Mo.1973). Defendant in this case was not indicted until October 27, 1971, and there is no evidence that he was at the time of the September 10, 1971, line-up charged with this or any other offense. To dispose of this claim of error we do not have to decide whether that time between defendant’s arrest on April 26, 1971, and his release on bail and his appearance at the September 10, 1971, line-up constitutes a critical stage of the criminal prosecution as that phrase was used in Wade, which would entitle him to the presence of counsel. Regardless, he had counsel there.

Prior to trial, on June 19,1972, defendant filed a motion to suppress the voice identification and line-up identification of September 10, 1971. The grounds for this motion were stated in non-specific terms as violations of defendant’s rights guaranteed to him under Article I, Section 18(a) of the Constitution of the State of Missouri and the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. At the same time a “Memorandum by Agreement” was filed with the trial court signed by the prosecutor and defense counsel whereby it was agreed between the parties that the motion would be passed to be heard at the time of trial. By agreeing to so proceed on the motion and by failing to request a hearing on this motion out of the presence of the jury, defendant’s counsel consented to the trial court’s receiving evidence on the issues raised by the motion during the course of the trial and in the jury’s presence. The inherent dangers of this method of procedure, where the fairness of the conduct of a line-up is in issue, should be apparent to counsel if he seriously challenges the validity of the extra-judicial identification procedures for the purpose of eliminating any identification during the course of the trial on the grounds that the identification testimony has been tainted by the pre-trial confrontation and is not, therefore, admissible at trial. The fact of the presence of counsel for the defendant is some evidence for the trial court, who must initially decide the issues on this motion, to consider. The prosecuting attorney might well have pursued this line of inquiry to refute any contentions by the defendant that the conduct of the line-up was such as to taint the victim’s in-court identification, by reason of the presence of defendant’s counsel at the line-up.

Furthermore, during the course of the trial defendant’s counsel delved into the conduct of the September 10, 1971, line-up during his cross-examination of the victim on the composition of the line-up, the manner of defendant’s dress during the time he was before her in the line-up, the lighting conditions in the show-up room, the length of the defendant’s hair while he was in the line-up and whether the defendant was the only one in the line-up with long hair or with hair as long as that of her attacker, whether all of the persons in the line-up were of approximately the same height, whether all had mustaches, and whether they were all dressed in shirts and trousers. In the context of the foregoing, the cross-examination of defendant concerning whether he had counsel present at the lineup would be relevant on the issue of fairness.

Earlier in the trial and during the testimony of Detective Gilyon, the prosecutor inquired who was present at the line-up of September 10, 1971, and the witness was permitted without objection to reply: “I believe Detective Consolino from Identification Bureau, my partner, Detective Boyd, the defendant, three other County detectives, Gene Fahrenkrog from the Prosecuting Attorney’s Office, and a representative of Mr. Shaw’s Office.” This query was followed by: “An attorney?” and drew the response, “Yes, sir.”

It was made apparent to the jury early in the case during cross-examination of the prosecuting witness that Mr. Flanagan was an associate of Mr. Shaw, the trial counsel, because of references made to Mr. Flanagan as the defendant’s counsel at the taking of the deposition used for the purposes of attempting to impeach the testimony of the prosecuting witness at trial. Later, during the redirect examination of the defendant by his trial counsel it was again brought out that the defendant volunteered to go to the line-up of September 10, 1971, and that he was at that time accompanied by Mr. Flanagan. It would be speculative to conclude that the jury from this evidence would conclude other than that Mr. Flanagan was present at the line-up at the defendant’s request; no other reason for his being there was shown.

If, as defendant contends, this evidence tended to create in the minds of the jurors that the presence of a lawyer representing him at the September 10, 1971, line-up was introduced into the case for the purpose of demonstrating by the exercise of a constitutionally guaranteed right, to counsel he evidenced a “consciousness of guilt” we conclude that defendant’s trial counsel himself contributed to the drawing of such conclusion by agreeing to permit the motion to suppress to be taken with the case and by his own line of interrogation, and cannot, now, convict the trial court of error in this regard.

Defendant’s remaining Points were not preserved for review in this court because of the failure of trial counsel to incorporate them into his motion for new trial. Nor did the Supplemental Motion for New Trial filed within the time granted by the trial court—40 days—for the purpose of filing a motion for new trial pursuant to Rule 27.20(a) point out to the trial court these alleged trial errors. If we are to consider them we must do so pursuant to the provisions of Rule 27.20(c) as “Plain errors affecting substantial rights . when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”

Counsel on appeal, being cognizant that his remaining Points were not preserved for review, presents them on the basis of constitutional error, apparently in the hope that we will consider them despite the procedural infirmities with which he has been harnessed.

However, the standard against which to measure the decision to afford the defendant the review he seeks on the basis of Rule 27.20(c), even where constitutional errors are alleged, is whether there is a sound, substantial and clear showing that manifest injustice or miscarriage of justice will result if the rule is not invoked. The mere allegation of constitutional error, even if proven, does not automatically satisfy this standard. State v. Harms, 507 S.W.2d 29, 31[3] (Mo.App.1974); State v. Murphy, 521 S.W.2d 22, 25[3] (Mo.App.1975). The allegations of manifest injustice or miscarriage of justice must be supported by some kind of factual showing.

The primary weakness in defendant’s position is that in each of the two instances of evidentiary error remaining, his objection was sustained and the jury was instructed to disregard the testimony. The only relief requested which he did not obtain was a mistrial. What he forcefully contends here is that this evidence was so prejudicial that the only effective relief available to him was mistrial. The experienced trial judge observed the circumstances surrounding the advent of the testimony into the proceedings and determined that the appropriate relief to be granted at that time was to sustain the objection and instruct the jury to disregard it. He was in a better position to assess what prejudice, if any, defendant sustained as a result of these statements and what remedy was appropriate to cure it.

The trial jury was on two separate occasions instructed to disregard these statements: first, at the time the objection was made and, secondly, when the trial court instructed the jury prior to submission in Instruction No. 6. Thus, in effect, the evidence was stricken from the record and the jury was so advised. Welch v. Sheley, 443 S.W.2d 110, 117[4] (Mo.1969). Courts, both trial and appellate, operate on the assumption that jurors follow the instructions given to them either orally or in writing and we are shown no reason why we should deviate from that assumption in this case.

Defendant devotes a greater part of his brief to an in-depth citation of cases to support his contention that the state may not introduce evidence that a defendant exercised a constitutional right or privilege and thereby allow the jury to infer from the exercise of said right or privilege a consciousness of guilt.

The cases cited by defendant in support of these contentions are opinions where the question before the court was the admissibility of the prejudicial evidence and its effect when it was left in the case, and most of the others can be distinguished because they involve the refusal to submit to a search, or to a lie detector or blood alcohol test and where the prosecuting attorney, during the course of the trial or in summation, made frequent reference to the inadmissible evidence. Bargas v. State, 489 P.2d 130, 138[5] (Alaska, 1971); State v. Kolander, 236 Minn. 209, 52 N.W.2d 458, 465 — 6[7] (1952), and People v. Stratton, 1 N.Y.2d 664,150 N.Y.S.2d 29, 133 N.E.2d 516 (1956). Other cases cited by the defendant holding that where evidence of a defendant’s exercise of his constitutional rights called for reversal despite the failure of the defendant to object to the evidence, may be distinguished from the present case because in those situations the jury had not been instructed to disregard the evidence and it was logical to assume that in arriving at their verdict they did consider the prejudicial evidence along with the rest of the evidence in the case to the prejudice of the defendant. Thus, the only remedy available in those cases to remove prejudice was by reversal and remand in the appellate court.

Here the trial court took prompt action after the evidence came in prior to any objection. The evidence was not repeated nor emphasized at any other time during trial and the trial judge concluded that his instruction had removed any prejudice which might have resulted.

The decisive issue in this case is not whether it was error to introduce into the trial of the case evidence of those instances of which defendant complains, but rather whether the defendant is entitled to a new trial because the action taken by the trial court was not effective in curing the error and resulted in defendant being deprived of the fair trial he is entitled to under both federal and state constitutions.

Defendant at no time argues that these references are direct references to the defendant’s guilt of the crime for which he was on trial. It is his contention that from this evidence the jury “might infer” a consciousness of guilt. The Supreme Court of this state has held that in those cases where reference is made to the failure of a defendant in a criminal case to testify in the exercise of both constitutionally guaranteed rights and statutorily imposed restrictions it is only a direct and certain reference to his exercise of this right that is condemned. State v. Hutchinson, 458 S.W.2d 553, 555[3] (Mo. banc 1970).

Having concluded that defendant was not prejudiced by the testimony he raised as error in this court because of the court’s timely action on each separate occasion, we also conclude that their combined effect does not require that we reverse and remand this case for a new trial on those grounds.

Defendant also contends that he is the victim of a manifest injustice or miscarriage of justice and for that reason we should reverse the judgment of the trial court and remand the cause for a new trial. The bases for this contention is many-faceted, including arguments directed to evidence developed during the trial as well as post-trial evidence offered in support of defendant’s Supplemental Motion for New Trial on the. grounds. of newly discovered evidence.

The thrust of defendant’s arguments with reference to those matters which occurred during the course of the trial resulting in manifest injustice or miscarriage of justice are that the victim’s identification, unsupported by any corroborative evidence, is insufficient to support the verdict of the jury particularly in view of defendant’s alibi evidence. He cites in support of this argument the poor lighting conditions at the rape scene and the fact that it was four and a half months after the rape before the victim confronted the defendant in a lineup. He argues that the testimony of a 13 year old girl identifying a boy she had never seen before is subject to extremely close scrutiny under the other circumstances mentioned above, and asks us to give cognizance to “The vagaries of eyewitness identification . . . ”

In further support of his position the defendant notes that in arriving at its verdict the jury evidenced doubt of the defendant’s guilt despite the fact it ultimately rendered a guilty verdict. He refers to the fact that the jury spent a total of six hours in its deliberations. The cause was submitted to the jury at 7:20 p. m. and, on February 16, 1973, after it had deliberated for three hours and fifty minutes, the jury was returned to the courtroom and given the “hammer” instruction at 11:10 p. m. An hour later, 12:10 a. m., February 17th, the jury returned and announced that it had reached a verdict. This verdict found the defendant guilty as charged, assessed his punishment at two years and recommended “immediate parole for a period of not less than five years.” Defendant objected to that part of the verdict recommending parole and the jury was instructed by the trial judge to read Instruction No. 1 as to sentencing and directed the jury back to the jury room to continue its deliberations. At 12:40 a. m. the jury was again brought back to the courtroom and their previous verdict was accepted with the trial court treating the recommendation for probation as surplusage. State v. Keck, 389 S.W.2d 816, 819[8] (Mo.1965). However, when the jury was polled one of the jurors stated that the verdict was not his and the jury was again returned to the jury room to resume its deliberations. Ultimately, at 1:20 a. m. the returned its verdict finding the defendant guilty of statutory rape and assessing his punishment at two years in the custody of the Missouri Department of Corrections but continued its “recommendation for immediate parole in custody of the Missouri Department of Corrections.” The trial court, after polling the jury, received this verdict over the defendant’s objection.

Subsequent to the jury verdict and the filing of a motion for new trial by trial counsel, present counsel entered his appearance and filed a Supplemental Motion for New Trial. The bases for this Supplemental Motion for New Trial were two-fold, as shall hereinafter be set forth.

After the jury verdict the defendant submitted himself to polygraph tests on five separate occasions by two different operators, and it was the opinion of both that defendant “was answering the questions truthfully when he denied committing the act.” The “act” referred to was this rape. Post-verdict investigation conducted by a detective on one of the municipal police forces of St. Louis County, by and with the cooperation of the prosecutor’s office, for the purpose of developing evidence which might shed some light on the case followed. The detective, who was familiar with the details of both an attempted rape and a completed rape to which one “S.... F. ... ” had pled guilty in St. Louis County and in St. Charles County, respectively, concluded that the similarity of the crimes was significant. He was also aware of the fact that “S.. . . F.. . . ” lived within 8 to 10 blocks of the prosecuting witness’ home and fit the general description of her attacker. Accompanied by the assistant prosecuting attorney who tried this case and two other detectives, this detective travelled to the State Penitentiary in Jefferson City, Missouri, where he interviewed “S.. . . F....” in April, 1973. In the course of this interview an effort was made to determine whether “S.... P.... ” had been involved in any other crimes in the St. Louis area but he would not make any statement because he felt “he had got a raw deal from St. Charles County.” He was shown photographs of this defendant and when the conversation ended “he stood up and he took his finger and he pointed, he hit it several times on Mr. Graham’s mug shot, and he says, ‘One thing I can tell you is he is getting railroaded.’ ”

Evidence of the post-trial investigation was presented to the trial court at a hearing on the motions for new trial. The polygraph operators did not testify, but it was stipulated between the parties that had they testified at the hearing they would testify that “it is their opinion that the defendant told the truth when he denied raping D.... L.... ” The detective who conducted the interview of “S.... P.... ” did appear and testified to the results of his investigation set out supra.

Defendant’s motions were overruled, allo-cution granted and the defendant was sentenced to a term of two years in the custody of the Missouri Department of Corrections and placed on probation for a period of five years.

Defendant, in this court, candidly admits that he does not contend that the trial court erred in denying his Supplemental Motion for New Trial on the basis of the evidence offered at the hearing thereon. He does, however, argue that the evidence offered in support of the motion ought to be considered by this court in determining whether the defendant is the victim of manifest injustice or miscarriage of justice.

The thrust of his argument in this respect is the same as he has previously made concerning the weakness of the State’s case and the infusion into the minds of the jurors by means of the questions to which objections were interposed his “consciousness of guilt” by reason of the fact he exercised rights constitutionally guaranteed to him so that the doubt in the jurors’ minds as to his guilt were assuaged by their recommendation that he be immediately paroled. The jury’s verdict alone, he contends, is inconsistent with a crime of this nature, where a 13 year old virgin is introduced into not only sexual intercourse alone but also sodomy, and, if found guilty beyond a reasonable doubt by a jury, a two year sentence and recommendation for parole is not consistent with the evidence to support a finding of guilt. He infers that anyone guilty of this crime should be punished more severely. These matters, he argues, together with the polygraph results and the suspicions of the detective warrant a reversal of this conviction so as to avoid a manifest injustice or a miscarriage of justice.

A conviction of rape may be sustained on the uncorroborated evidence of the prosecutrix alone where the evidence was not contradictory in nature or unbelievable. State v. Gray, 423 S.W.2d 776, 781[5] (Mo.1968); State v. Davis, 497 S.W.2d 204, 207[2] (Mo.App.1973). Furthermore, the testimony of a single witness, if believed by the jury beyond a reasonable doubt, is sufficient to establish identity of a defendant in a criminal prosecution since the credibility of the witnesses and the weight of the evidence is for the jury. State v. Tucker, 451 S.W.2d 91, 95[5] (Mo.1970); State v. Williams, 376 S.W.2d 133, 136[9] (Mo.1964). A reviewing court does not undertake to determine the credibility of witnesses or weigh evidence in a criminal case. State v. Williams, supra, l.c. 136[11]..

Defendant overlooks that the prosecuting witness testified that she could see the features of her attacker from the light which was behind him, and that when he turned to the side she could see his face, that when she was at the County Police headquarters in the early morning hours following the rape she looked at 150 to 220 mug shots over a period of a couple of hours but she was unable to find the rapist among those, although some of them looked similar to the man who had assaulted her. Several days thereafter she did return to County Police headquarters and again viewed some mug shots (this time after the defendant had been arrested and photographed) and on this occasion she saw a picture of the man who attacked her although she had not seen him again in the intervening period. She identified the man in the photo as the one who attacked her. Sometime between a few weeks and a couple of months after the assault she caught a profile view of a man who was walking past while she was in the Catanzaro house from a distance of approximately 15 feet. Then again a couple of weeks later she saw the defendant at the Courtwright’s house while she was watering the lawn at her home. He came there in a van, went in the house, came out again a little later and left. In addition to identifying the defendant by voice on September 10, 1971, she visually identified him in the line-up of that date as her assailant. At trial she again identified the defendant as the rapist. She was thoroughly cross-examined on the issue of identification by the counsel for defendant but remained unshaken in her identification of the defendant as the man who raped her.

While we do not conclude that the evidence proffered by the defendant in support of his Supplemental Motion for New Trial constitutes, in the legal sense, “newly discovered evidence,” it is often said that in a criminal prosecution the “newly discovered” evidence to authorize a trial court to grant a new trial on that grounds alone must be of such a character as, on being considered with the rest of the testimony, is likely to lead to an acquittal on a new trial as by raising a reasonable doubt as to the guilt of the defendant. 58 Am.Jur.2d, New Trial § 172 (1971). A new trial is not automatically required whenever evidence disclosed after trial may be useful to the defendant but not likely to change the verdict. Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 768, 31 L.Ed.2d 104 (1972); State v. Flauaus, 515 S.W.2d 873, 880[16] (Mo.App.1974).

The courts of this state have not accepted polygraph evidence in the quest for truth in the trial of either civil or criminal cases. State v. Weindorf, 361 S.W.2d 806, 811[17] (Mo.1962); State v. Bibee, 496 S.W.2d 305, 315-316[21] (Mo.App.1973). In McCroskey v. United States, 339 F.2d 895, 897[4] (8th Cir. 1965) the results of a polygraph test given a defendant after his conviction did not qualify as evidence newly discovered since the trial of the defendant moving for new trial on grounds of newly discovered evidence. The polygraph evidence in this case would not be admissible in a new trial of the instant case and cannot therefore be the basis for the granting of same.

Nor are the suspicions of the results of the investigations at the Penitentiary evidence which would be admissible at trial were a new trial granted.

We would be less than candid if we did not recognize that this case is somewhat troublesome, but that fact alone does not justify the setting aside of this conviction. This defendant, like any other, is guaranteed a fair trial but not a perfect one. Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). This we conclude the trial judge afforded him despite some effort by the prosecutor to induce into the trial inadmissible evidence which, if not excluded by the ruling of the trial court and his instruction to the jury to disregard the evidence which came in prior to the objection, might have made it necessary for this court to reverse and remand. However, in view of the trial judge’s prompt rulings that has been obviated.

We have reviewed the sufficiency of the Information in Lieu of Indictment on which this cause proceeded to trial, the verdict, judgment and sentence as we are required by Rule 28.02 and find them to be in order.

The judgment of the trial court is affirmed.

SMITH, C. J., and STEWART, J., concur.

      . The detective also testified at the hearing on the motions for new trial that he had previously interviewed “S.... F....” in the St. Charles jail on October 24, 25 and 26, 1971, at which time he had light hippie-type hair with a bushy mustache, that he looked to be between 18 and 25 years of age, 5'6" to 5'10" in height, weighing 170 pounds, and medium build and complexion. On cross-examination the detective estimated that “S.... F. ... ” was 6' to 6'1" tall. This previous interview with “S.. . . F.. .. ” was relative to an attempted rape in St. Louis County to which “S. . . . F.... ” subsequently pleaded guilty and was in the custody of the Missouri Department of Corrections when the interview relative to this case took place.