text:
    Joseph C. LaVOIE et ux., Appellants, v. Max M. KAPLAN, d/b/a Barcelona Apartments, Appellee.
    No. 5784.
    Court of Civil Appeals of Texas, Waco.
    Oct. 6, 1977.
    Rehearing Denied Oct. 27, 1977.

      John E. Hawtrey, Seymour & Hawtrey, Bryan, for appellants.
    Elmer McVey, MeVey, Gandy, Mauro & Caperton, Bryan, for appellee.
   HALL, Justice.

Joseph C. LaVoie and wife brought this suit against Max M. Kaplan, d/b/a Barcelona Apartments, under the provisions of Article 5236e, Vernon’s Ann.Civ.St., alleging that they were former tenants of defendant; that they had made security deposits totaling $200.00 with defendant; and that defendant, acting in bad faith, failed to refund the deposits within 30 days after they surrendered the leased premises. Plaintiffs prayed for the recovery of $100.00 plus treble the amount of the deposits, and reasonable attorney’s fees in the sum of $500.00. After trial without a jury, judgment was rendered that plaintiffs take nothing. Costs of the trial were assessed against plaintiffs. We reform the judgment to allow plaintiffs a recovery of $90.00.

In pertinent parts, Article 5236e provides that the landlord shall return to the tenant the balance of any security deposit, together with a written description and itemized list of all deductions (which may include deductions for damages to the premises), within 30 days after the tenant surrenders the premises; that the tenant shall furnish the landlord with a written copy of the tenant’s forwarding address for purposes of security deposit refunding; that a tenant’s right to security deposit refund and description of damages and charges is never forfeited for mere failure to furnish a forwarding address to the landlord; that a landlord who in bad faith retains a security deposit is liable for $100.00 plus treble the amount of that portion of the deposit which was wrongfully withheld from the tenant, and shall be liable for reasonable attorneys fees; that failure to return a security deposit within 30 days or failure to provide a written description and itemization of deductions within 30 days is prima facie evidence and a presumption that the landlord acted in bad faith; and that, “notwithstanding any other provision of this Act, a landlord is not obligated to return the security deposit or furnish a written description of damages and charges until the tenant has furnished the forwarding address.”

The record shows without contradiction that plaintiffs made a security deposit of $100.00 with defendant. Two primary questions are raised under plaintiffs’ points of error: does the evidence conclusively establish (1) that plaintiffs in fact made security deposits totaling $200.00 with defendant, and (2) that plaintiffs furnished defendant with a written copy of their forwarding address? A related problem is whether the court ruled correctly in excluding exhibits offered into evidence by plaintiffs.

Excepting witnesses who testified to attorneys fees, the only witness was the plaintiff Joseph C. LaVoie. He testified that plaintiffs leased the apartment in question from defendant from March 15, 1976, through May 15,1976, at a rental of $175.00 per month; that before moving in they paid an “apartment placement service” $187.50; that this payment included a security deposit of $100.00 and one-half month’s rent of $87.50; that after they moved into the apartment they acquired a dog and were required to make an additional “pet” deposit of $100.00; that they paid additional rent of $175.00 for the month of April, plus $87.50 for the period from May 1st through May 15th; that he gave defendant written notice on April 6th that they intended to vacate the apartment on May 16th; that they moved out on May 17th; that plaintiffs did not give defendant a writing prepared by them setting forth their forwarding address, but that on April 7th he orally gave their forwarding address to “the secretary working there”; that the secretary wrote the forwarding address on defendant’s apartment ledger sheet; that he saw the secretary write the forwarding address on the ledger sheet, and saw the ledger sheet again when he turned in his key on May 17th, and the forwarding address was correctly transcribed on the sheet; that plaintiffs did not receive a tender of deposit refund from defendant until sometime in July, 1976; that the tender was by defendant’s check in the amount of $90.00; that the check itemized a deduction of $10.00 damages to the apartment for “one hole in the wall”; that they returned the check to defendant; and that they have made unsuccessful demands on defendant for return of their deposits.

Although plaintiffs sued for $200.00 deposits, no issue was made in plaintiffs’ pleadings or on the trial over defendant’s charge of $10.00 for damage to the apartment or the reasonableness of that charge. The case was prosecuted on the theory that defendant did not refund plaintiffs’ deposits within 30 days after they had furnished defendant with .a written copy of their forwarding address. The “written copy” they relied upon was the asserted transcription on the ledger card by defendant’s apartment secretary.

On the trial, a copy of defendant’s ledger sheet, and the original ledger sheet, were tendered into evidence by plaintiffs, but both were excluded by the court on defendant’s objections. Plaintiffs assign error to the court’s rulings. Neither exhibit is a part of the statement of facts. We need not detail the state of the record when the exhibits were offered and the objections were made, but considered in the light of it and especially without the exhibits properly before us we cannot say the court’s rulings were incorrect. In oral argument before us plaintiffs referred to a copy of the ledger sheet which is contained in the transcript as part of defendant’s answers to written interrogatories. The interrogatories and answers were not offered nor admitted into evidence. Accordingly, they may not be considered as proof in the case. Richards v. Boettcher, 518 S.W.2d 286, 288 (Tex.Civ.App.—Texarkana 1974, writ ref’d n. r. e.). Even so, if considered, the exhibit contains notations which could be construed to mean that defendant received plaintiffs’ forwarding address on August 11, 1976.

Mr. LaVoie’s testimony is the only evidence that plaintiffs’ forwarding address was written on the ledger sheet by defendant’s secretary. The testimony of a party, even though unrebutted, does not conclusively establish a fact upon which he relies. The trial judge, who was the fact-finder, was not required to believe Mr. LaVoie’s testimony.

Plaintiffs say that certain conclusions expressly made by the trial court indicate the judgment was based on a finding that plaintiffs failed to give defendant an independently prepared written copy of their forwarding address, and not merely on a finding that the forwarding address was not reduced to writing by defendant's secretary. We have reviewed the conclusions and they are equally compatible with the latter finding. We therefore do not rule on plaintiffs’ contention that orally giving defendant’s secretary their forwarding address, watching it reduced to writing by the secretary, and then seeing that it was correctly transcribed, was substantial compliance with the statute.

Three instruments evidencing payments to defendant by plaintiffs are part of the proof. All were introduced by plaintiffs. The first is the receipt to plaintiffs from the apartment placement service, dated March 13, 1976, for $187.50. It recites that it is “For Rent,” and says nothing about a deposit. The second is plaintiffs’ “Apartment Lease Agreement” with defendant, dated March 31, 1976. It states, “Resident has deposited with Lessor the total sum of $100.00, this being, (a) the apartment deposit $100.00, (b) pet deposit $ — 0—, (c) furniture deposit $ — 0—, all of which is hereinafter referred to as ‘the deposit.’ ” The third instrument is a receipt from defendant to plaintiffs dated April 1, 1976, for $275.00. It recites that it is for “$155.00 apartment rental, $20.00 furniture, $100.00 deposit.” A space was provided beside the amount stated for deposit for the person writing this receipt to designate either the letter “s” or the letter “p”. The receipt contains the letter “s” in this space.

The trial court was justified in believing that the designations “s” or “p” meant “security” or “pet” deposit, that the receipt dated April 1st was for a security deposit and not, as Mr. LaVoie testified, a pet deposit; and that the receipt was made in connection with the execution of the lease agreement. The court was entitled to believe that the March 13th receipt from the placement service was only for rent, as stated on the face of the instrument. Other than Mr. LaVoie’s testimony, there was no direct proof that $100.00 of the $187.50 receipted went to defendant as a deposit.

Again, it was the trial judge’s prerogative and duty as trier of the facts to consider the interest of the witness, weigh all the proof and ferret out what he believed to be its most credible parts, and make his determinations accordingly. The evidence does not conclusively establish that plaintiffs deposited $200.00 with defendant. Neither does the record establish as a matter of law that defendant acted in bad faith under the statute in question.

As we have previously stated, Article 5236e, provides that a tenant’s right to security deposit refund is never forfeited for mere failure to furnish a forwarding address to the landlord. Accordingly, judgment should have been rendered in favor of plaintiffs for the $90.00 which defendant admitted he owed and tendered to plaintiffs on the trial. Nevertheless because defendant was the successful party on the trial, costs were properly taxed against plaintiffs. Rule 131, Vernon’s Tex.Rules Civ.Proc.; Siepert v. Brewer, 433 S.W.2d 773, 775 (Tex.Civ.App.—Texarkana 1968, writ ref’d n. r. e.); Stewart v. Group Health & Life Insurance Company, 555 S.W.2d 531 (Tex.Civ.App.—Waco 1977, no writ).

The judgment is reformed to provide that plaintiffs shall recover the sum of $90.00 from defendant. As so reformed, the judgment is affirmed.

Costs of this appeal are taxed against plaintiffs. Rule 435, Vernon’s Tex.Rules Civ.Proc.; Stewart v. Group Health & Life Insurance Company, supra.

Reformed and affirmed.


source: Caselaw Access Project

author: McKAY, Justice.

license: Public Domain

text:
    Louise CRAIG, Appellant, v. Lee ALLEN et al., Appellees.
    No. 1042.
    Court of Civil Appeals of Texas, Tyler.
    Oct. 6, 1977.
    Rehearing Denied Oct. 27, 1977.

      Bill D. Rosenstein, Stephens, Corn & Ro-senstein, Tyler, for appellant.
    Rex A. Nichols, Nichols & Parker, Long-view, for appellees.
   McKAY, Justice.

This is a personal injury case involving an alleged “whiplash” type injury resulting from a rear end collision. Appellant filed suit against appellees, Lee Allen and Donna Childs, alleging various counts of negligence in the operation of an automobile by the former, and negligent entrustment of the automobile to the former by the latter. Appellees answered by general denial and a specific allegation that appellant’s injury or disability, if any, was caused by accidents or occurrences “which occurred either prior to or subsequent to the accident forming the basis of this lawsuit.” The evidence was submitted to a jury which found on two special issues that plaintiff was entitled to $300.00 as reasonable and necessary medical and hospital expenses, but made a finding of zero for physical pain and mental anguish suffered by appellant in the past and which in reasonable probability she would suffer in the future from her injuries which resulted from the occurrence in question. On the basis of these findings the court rendered judgment that appellant take $300.00 from appellees. Appellant perfected her appeal from this judgment.

Appellant brings three points of error. Points one and two complain that the trial court erred in failing to grant appellant’s motion for new trial for the reason that the jury’s answers to special issues one and two were so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Point three complains that the trial court erred in admitting into evidence “a portion of an un-sworn medical report which medical report constituted hearsay.” This report will be discussed more fully at a later point.

The record shows that the collision in question occurred on May 30,1975, at about 5:30 p.m. at the intersection of Front and Bonner Streets in the City of Tyler, Texas. Both vehicles were located in the outside westbound lane of Front Street at the time of the collision. Appellant testified that she was stopped at a red light at the intersection involved when her vehicle was struck from the rear by a vehicle driven by appellee Allen. She described the impact as a “good jolt.” Allen testified that he was stopped at the intersection immediately behind appellant’s vehicle; that when the light turned green both drivers proceeded forward and Allen “bumped” the rear of appellant’s car as appellant took off “a little bit slower” than Allen. Photographs of the two vehicles introduced into evidence show little, if any, discernible damage to either vehicle.

As a result of the collision, appellant allegedly sustained a cervical sprain or so-called “whiplash” type injury. She testified that she had suffered neck and shoulder pains, having “a dull ache in my neck at all times.” She further testified that she had previously incurred the same type injury resulting from another rear-end collision “seven or eight years back,” but that it hadn’t bothered her for “at least five years.” She did not miss any work because of the injury although a fellow worker, Eunice Stanford, testified that appellant “couldn’t turn her neck, she couldn’t reach for packages on the shelves up high, had difficulty bending.” Appellant for two weeks following the accident was under the care and treatment of her family physician, Dr. Donald Knarr, who then referred her to Dr. Van Garrett, an orthopedic surgeon, who treated her through January, 1976. According to his deposition read into evidence, Dr. Garrett’s examination on June 25, 1975, revealed some “tenderness in the left side of the neck and on top of the left shoulder blade,” and “limitation of flexion and extension, that is, bending forward and bending back of the neck.” He indicated that appellant was experiencing some muscle spasm, but that there were no outward signs of injury in the area. He concluded that she had sustained a sprained neck and that she had “either contused or slightly pinched one of the nerves in the neck,” producing a loss of sensation in her left hand. However, appellant had told Dr. Garrett that she had not had any prior neck or shoulder injuries. Dr. Garrett recommended that she “undergo physical therapy, take muscle relaxants and pain medication as needed.” He testified that an injury of this type would normally have a maximum convalescent period of about six months. Dr. Knarr did not testify at the trial.

Dr. P. M. DeCharles, an orthopedic surgeon who examined appellant on September 23, 1975, at the request of appellees’ attorney, also testified by way of deposition at the trial. Dr. DeCharles testified that upon his examination appellant had “normal motion” in the cervical area and that any muscle spasms she had were “markedly voluntary” which meant that “the mechanism of pain is not present.” Upon neurological examination Dr. DeCharles found that “the reflexes were all present and equal and the sensation was rather bizarre and by that I mean, that it just did not follow the anatomical lines that — as we know them.” He testified that appellant’s subjective complaints during the course of the examination “were not real” and that certain sensations appellant described were “medically impossible.” Upon examining an x-ray of appellant’s neck he noted some “minimal arthritic hypertrophic changes” resulting from “the usual wear and tear that you would expect to find in a woman or a man of that age.” He indicated that if appellant had been his regular patient he “wouldn’t have prescribed anything.”

Appellant introduced into evidence doctor bills from Dr. Knarr of $151.00, from Dr. Garrett of $147.00, from Dr. Richard F. Ulrich, a neurologist who performed tests at the request of Dr. Garrett of $60.00, for physical therapy of about $700.00, and various pharmaceutical receipts. Appellee stipulated that such bills were reasonable but took issue with appellant on the necessity of such. Appellee introduced for impeachment purposes a letter from Dr. Knarr to appellant’s attorney, a portion of which stated that he had given appellant injections intermittently since January of 1970 for a whiplash injury sustained in November of 1968. Appellant’s point three complains of the admission of this letter.

The only special issues submitted or requested were the two on damages. Nowhere in the record is there any objection to the submitted charge. The issue of whether appellant sustained an injury was controverted in the evidence, but no issue on injury was submitted or requested. The trial court found as a matter of law that appellee’s actions constituted negligence and such negligence was the proximate cause of any injury appellant might have received. However, where a ground of recovery consists of more than one issue, and one or more of the issues necessary to sustain such ground of recovery are submitted to and answered by the jury, and one or more of such issues are omitted, without request, or objection, and there is evidence to support a finding thereon, such omitted issue or issues shall be deemed as found by the court in such manner as to support the judgment. Hopkins v. Standard Fire Ins. Co., 554 S.W.2d 270 (Tex.Civ.App.-Houston [1st Dist.] 1977, no writ); McAllister v. Gardner, 373 S.W.2d 316, 320 (Tex.Civ.App.-Dallas 1963, writ ref’d n.r.e.); Rule 279, T.R.C.P. Therefore, it is deemed as found that appellant was injured as the result of appellee’s negligence.

The finding of injury notwithstanding, after a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding that the finding of the jury in regard to special issue two was so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point one is overruled.

Point two complains that the finding of the jury on special issue one of $300.00 as reasonable and necessary expenses for medical and hospital care was so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. After a review of the entire record and after having weighed and balanced all the evidence, both that in favor and against the verdict and judgment, we are of the opinion that we would not be justified in concluding the finding of the jury in regard to special issue one was so clearly against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust. Point two is overruled.

Point three complains of the admission into evidence of the above mentioned portion of the letter from Dr. Knarr to appellant’s attorney concerning Dr. Knarr’s treatment of appellant for a prior “whiplash” injury, appellant contending that such constituted hearsay. It appears from the record that appellant herself had previously testified as to such prior injury. In addition, appellant's counsel subsequently introduced the letter in its entirety. The trial court’s admission of evidence over objection is deemed to be harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. Slayden v. Palmo, 108 Tex. 413, 194 S.W. 1103, 1104 (1917); Missouri-Kansas-Texas RR. Co. v. Shelton, 383 S.W.2d 842 (Tex.Civ.App.-Dallas 1964, writ ref’d n.r.e.); Medina Electric Cooperative, Inc. v. Ball, 368 S.W.2d 227 (Tex.Civ.App.-San Antonio 1963, no writ). The admission of such letter, if error, was harmless error. Rule 434, T.R.C.P. Point three is overruled.

The judgment of the trial court is affirmed.


author: RALEIGH BROWN, Justice.

text:
    AMARILLO CIVIL SERVICE COMMISSION v. Shelby VITATOE.
    No. 5074.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 6, 1977.
    Robert Don Cheatham, City Atty., Amarillo, for appellant.
    Buddy Wright, Fort Worth, Law Office of Tom J. Upchurch, Jr., Amarillo, for ap-pellee.
   RALEIGH BROWN, Justice.

This is a writ of mandamus case. Shelby Vitatoe sought to compel the Amarillo Civil Service Commission to issue a final order allegedly concerning his employment status with the Amarillo City Police Department. Vitatoe contended no final order was entered following a hearing before the Commission and that such an order was a prerequisite to an appeal to the District Court.

The Commission contended that the hearing from which the complaint arose concerned a charge of alleged discrimination against Vitatoe brought by him under the provisions of Section 123-A, Rule XXII of the Personnel Rules of the City of Amarillo; that his employment status, per se, was not at issue; that neither Section 124 of the Personnel Rules of the City of Amarillo, nor Article 1269m, V.A.T.S., had any application to such a hearing or to this case. Further answering, the Commission alleged that Section 123-A does not require a formal written order and it had issued a final order at the conclusion of its hearing. By supplemental answer, the Commission contended that Vitatoe had an adequate remedy at law and that his request should be barred by the equitable doctrine of laches.

Trial to the court resulted in the granting of the writ of mandamus ordering the Commission to issue a final order as to Vitatoe’s employment status with the Amarillo City Police Department. The Commission appeals. We reverse and render.

Vitatoe must establish a clear right to such relief and must establish a clear duty on the part of the Commission to act before being entitled to the issuance of the writ. As stated by the Supreme Court in Jessen Associates, Inc. v. Bullock, 531 S.W.2d 593 (Tex.1975):

“Generally speaking, mandamus will lie only where the duty to act is clear and there is no disputed question of fact. Cobra Oil & Gas Corporation v. Sadler, 447 S.W.2d 887 (Tex.1970); Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138 (1939) ...”

In Cobra Oil & Gas Corporation, supra, the court said:

“. . . ‘It is elementary law that mandamus will not issue to compel a public official to perform an official act unless it is made to appear to the court that the relator’s right to have the act performed is clear.’ Williams v. Pitts, 151 Tex. 408, 251 S.W.2d 148 (1952); City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944 (1948); Stanford v. Butler, 142 Tex. 692, 181 S.W.2d 269, 153 A.L.R. 1054 (1944); City of Galveston v. Mann, 135 Tex. 319, 143 S.W.2d 1028 (1940); Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939); Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627 (1939); Denison v. Sheppard, 122 Tex. 445, 60 S.W.2d 1031 (1933); Holcomb v. Robinson, 118 Tex. 395, 15 S.W.2d 1027 (1929); Common School District v. Keeling, 113 Tex. 523, 261 S.W. 364 (1924); Kemp v. Wilkinson, 113 Tex. 491, 259 S.W. 912 (1924); Trinity Life & Annuity Soc. v. Love, 102 Tex. 277, 115 S.W. 26, 116 S.W. 1139 (1909); Wortham v. Sullivan, 147 S.W. 702 (Tex.Civ.App. 1912, writ ref.).
‘Mandamus is a writ which issues to require the execution of a matter whose merit is beyond dispute and it may not be employed as scales in which to balance the weight of evidence or bridge the gap between broken or disconnected facts.’ Wortham v. Walker, 133 Tex. 255, 128 S.W.2d 1138, 1151 (1939) . . .’”

The Commission argues the trial court erred in granting the writ because Vitatoe failed to demonstrate a clear legal right to such relief under the Personnel Rules of the City of Amarillo or under the provisions of Article 1269m, V.A.T.S. It also contends the court erred in issuing the writ because the uncontroverted evidence showed that Vitatoe had an adequate remedy at law and was guilty of laches. Finally, the Commission urges the court erred in holding that it failed to enter a final order subsequent to its hearing on May 12, 1976.

Vitatoe, through his attorney, requested a hearing before the Civil Service Commission. The request stated:

“In regard to the above styled cause, Mr. Vitatoe is filing an appeal under Section 123(a) of the Personnel Rules of the City of Amarillo for discrimination. This appeal is in addition to any other notices of appeal that Mr. Vitatoe has given since he was notified by the City that he would be transferred out of the Amarillo Police Department.
It is the contention of Mr. Vitatoe that he is being discriminated against by the City of Amarillo because of the removal from his position as a city police officer to another alleged position within the framework of City personnel.
It is his contention that he is being discriminated against by the City of Amarillo because of his sworn testimony made in the Civil Service Commission hearing on Officer Arthur Tupin and that his mental and physical condition has no bearing on his removal from his position as a police officer.
I would like to hear from you immediately with regard to a hearing date before the Civil Service Commission based upon the discrimination of the complainant with respect to Section 123(a).”

Section 123-A of the Personnel Rules of the City of Amarillo provides:

“Appeal from Discrimination. Employees, applicants, competitors and eligibles have rights of appeal to the Civil Service Commission in cases of alleged discrimination in any personnel action. Such complaints will be submitted to the Civil Service Commission in writing within ten (10) days from the date of the alleged discrimination. The appellant will be notified within ten (10) days, after a receipt of the appeal, whether a formal hearing shall be granted. If a formal hearing is granted, it will be held within 30 days after the receipt of the appeal. In no case shall an appeal be accepted from an employee until he has exhausted all administrative remedies available to him. The Civil Service Commission shall have authority to order remedial action in the event such action is warranted.”

On May 12,1976, the Commission, in compliance with the request, held an extended hearing which was attended by Vitatoe and his counsel. Following the hearing, the Commission announced its decision which, although reduced to written form, was never signed by the members of the Commission. The decision contained three basic parts:

“1. No grounds for alleged discrimination were found against Shelby Vi-tatoe.
2. The Chief of Police, L. W. Spradlin, acted within his authority in accordance with law with the information provided.
3. It is requested that Shelby Vitatoe submit, as soon as possible, to a complete physical examination at the City’s expense by a qualified physician selected by the Civil Service Commission who shall have full power and authority to direct any additional medical tests or consult with any other physicians of his choosing and to report his findings directly to the Chief of Police of Amarillo in accordance with § 9 the last sentence, which states that the chief of each respective department shall be the sole judge as to whether or not such fireman or policeman is able to continue his duties.”

Subsequent to the hearing and decision, Vitatoe was informed by letter to his attorney that the Commission’s order was considered to be final and not appealable.

Vitatoe then brought the instant action alleging that the hearing on May 12, 1976, was to determine whether he had been terminated from his employment with the Amarillo Police Department and whether such termination was discriminatory. He also contended that the Commission refused to issue a final order concerning his employment status.

Vitatoe testified that the Commission had, in fact, afforded him a hearing as requested by his attorney under Section 123-A of the Personnel Rules of the City of Amarillo.

Vitatoe also testified that prior to his requested hearing, he had never been served with any paper alleging that he had been demoted, nor had he been served with any papers by any officer or employee of the City claiming that he had been suspended for disciplinary reasons. There is no testimony that any action was taken against Vitatoe of a disciplinary nature resulting in his suspension, demotion or dismissal.

Bill Nielson, Chairman of the Commission, testified that at the conclusion of the hearing on May 12, 1976, the Commission offered what they felt was a final decision in the matter.

The evidence establishes that the proceeding brought by Vitatoe was as provided by Section 123-A of the Personnel Rules of the City of Amarillo. The trial court in an unchallenged finding of fact found:

“1. The court finds that on May 12, 1976, a hearing was held by the Amarillo Civil Service Commission on the discrimination charges filed by the Petitioner in the above styled and numbered cause of action.”

Section 123-A in providing for an appeal from alleged discrimination does not require the issuance of any order at the conclusion of such a hearing. Without such a requirement, Vitatoe failed to establish a clear legal right to a final order or a clear duty on the part of the Commission to issue such an order. He, therefore, failed to establish a right to mandamus relief.

The court in Allen v. Crane, 257 S.W.2d 357 (Tex.Civ.App.—San Antonio 1953, writ ref. n. r. e.), said:

“. . . ‘Final decision’ means a decision which leaves nothing open to dispute. So long as matters remain open, unfinished or inconclusive, there is no final decision. See Holdsworth v. U. S., 1 Cir., 179 F.2d 933, 935.”

See also: City of Houston v. Turner, 355 S.W.2d 263 (Tex.Civ.App.—Houston 1962, no writ).

The Commission disposed of the alleged discrimination charge. It also found Chief of Police Spradlin acted within his authority. Such order, under this record, left nothing open for disposition with respect to the charges brought by Vitatoe. The request for Vitatoe to take a physical examination was surplusage to that order. No right was contingent upon whether or not Vitatoe responded to the Commission’s request. Massey v. Farnsworth, 353 S.W.2d 262 (Tex.Civ.App.—Houston 1961), rev’d on other grounds, 365 S.W.2d 1 (Tex.1963); and Davis v. Hemphill, 243 S.W. 691 (Tex.Civ.App.—Fort Worth 1922, no writ). Therefore, the Commission’s order of May 12, 1976 was a final order.

Article VI, § 8 of the Charter of the City of Amarillo provides:

“Rights of appeal to city commission; procedure.
Any employee who has appealed to the personnel board and is then dissatisfied with the final ruling of said personnel board, is given express right to appeal to the city commission by filing notice of his intent, in writing, with the city secretary within ten days after the final ruling of said personnel board, and thereupon, the city commission will hear such appeal at a definite time to be set by the city commission, not to exceed fifteen days.”

Vitatoe did not exercise that right of appeal.

The court in Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709 (1945) said:

“. . . Mandamus is an extraordinary writ and, like injunction, will not issue when the relator has another adequate legal remedy for the enforcement of his right. Arkansas Building & Loan Association v. Madden, 91 Tex. 461, 44 S.W. 823; Palmer Publishing Co. v. Smith, 130 Tex. 346, 109 S.W.2d 158; Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793.”

In considering the issue of whether a writ of mandamus should issue, the court in Iley v. Hughes, 311 S.W.2d 648 (Tex.1958) said:

“. . . Relator has an adequate remedy by appeal, and writs of mandamus will not issue to forestall or to correct errors of a trial court committed in the course of a trial when the parties have an adequate remedy by appeal. Aycock v. Clark, 94 Tex. 375, 60 S.W. 665, 666; Robertson v. Work, 114 Tex. 461, 270 S.W. 1006; Matthaei v. Clark, 110 Tex. 114, 216 S.W. 856; Coke v. Pottorff, Tex.Civ.App., 140 S.W.2d 586. The foregoing rule was recognized by this Court in Aycock v. Clark, supra, when we said (94 Tex. 375, 60 S.W. 666): ‘. . . In the second place, it is elementary law that a mandamus is never awarded where the law has provided another plain, adequate, and complete remedy.’ The Court went on to hold that an adequate remedy existed through appeal.”

Vitatoe has failed to discharge his burden which would entitle him to the writ of mandamus. Southwestern Bell Telephone Co. v. Shell, 266 S.W.2d 476 (Tex.Civ.App.—Fort Worth 1954, no writ); Harmon v. Dallas, 229 S.W.2d 825 (Tex.Civ.App.—Dallas 1950, writ ref. n. r. e.); and, King v. Guerra, 1 S.W.2d 373 (Tex.Civ.App.—San Antonio 1929), dism’d on other grounds, 13 S.W.2d 908 (Tex.Civ.App.1929).

Article 1269m, Section 18, V.A.C.S., and Rule XXII, Section 124 of the Personnel Rules of the City of Amarillo provide for an appeal to District Court from an order of suspension or dismissal and additionally, Article 1269m provides for an appeal from an order of demotion.

Section 124 states:

“Appeal to District Court.
In the event any fireman or policeman is dissatisfied with the decision of the Commission, he may, within ten (10) days, after the rendition of such final decision, file a petition in the District Court asking that his order of suspension or dismissal be set aside, that he be reinstated in the classified service and such case shall be tried de novo.” (Emphasis ours)

Section 18 of Article 1269m, V.A.C.S., provides:

“In the event any Fireman or Policeman is dissatisfied with the decision of the Commission, he may, within ten (10) days after the rendition of such final decision, file a petition in the District Court, asking that his order of suspension or dismissal or demotion be set aside, that he be reinstated in the Fire Department or Police Department, and such case shall be tried de novo. Such cases shall be advanced on the docket of the District Court, and shall be given a preference setting over all other cases. The court may award reasonable attorney’s fees to the prevailing party and assess court costs against the nonprevailing party. If the court finds for the fireman or policeman, the court shall order the city to pay lost wages to the fireman or policeman.” (Emphasis ours)

The record of the hearing held by the Commission is not before this court. Vita-toe, in the instant case, contends the hearing was as to his status of employment. However, his request for the hearing was under the provisions of Section 123-A, Rule XXII of the Personnel Rules of the City, on a charge of alleged discrimination against him. His testimony presents no issue of any action taken against him resulting in his suspension, demotion or dismissal. The court found “a hearing was held by the Amarillo Civil Service Commission on the discrimination charges filed by the Petitioner.”

The order of the Commission disposed of the alleged discrimination charge brought by Vitatoe from which a legal remedy was available. He did not challenge an order of suspension, dismissal or demotion. Therefore, Article 1269m, Section 18, V.A.C.S., and Rule XXII, Section 124 are inapplicable in the instant case.

Judgment is reversed and judgment rendered dissolving the writ of mandamus.


author: JONES, Justice.

text:
    CITY OF LOUISVILLE, Appellant, v. Sam HABEEB and Catherine Habeeb et al., Appellees.
    Supreme Court of Kentucky.
    June 10, 1977.
    Rehearing Denied Nov. 18, 1977.
    Joseph H. Eckert, Asst. Director of Law, Carson Porter, Louisville, for appellant.
    Malcolm Y. Marshall, Wesley P. Adams, Jr., Stephen F. Schuster, Louisville, for ap-pellees.
   JONES, Justice.

This litigation arises out of riots and tumultuous disturbances which occurred in Louisville in the latter part of May, 1968.

The Habeebs, Handmaker and Schneider filed an action in the circuit court. The complaint alleged that on or about May 27, and continuing through May 30, 1968, the property of the Habeebs, Handmaker and Schneider was damaged and/or taken away by a riotous and tumultuous assemblage of people. Their action was predicated upon the provisions of KRS 411.100 which provides:

“If, within any city, any church, convent, chapel, dwelling house, house used or designed for the transaction of lawful business, vessel or shipyard, railroad or property of any kind belonging to any street or other railroad company, or any article of personal property is damaged, or if any property is taken away or damaged by any riotous or tumultuous assemblage of people, the full amount of the damage done may be recovered by the person injured (emphasis added) by action against the city, if the city authorities themselves, or with the aid of their own citizens, could have prevented the damage. However, no such liability shall be incurred by the city unless the city authorities had notice or good reason to believe that a riot or tumultuous assemblage was about to take place in time to prevent the destruction, either by their own force or by aid of the citizens of the city. No person may maintain an action under this section if he has unlawfully contributed by word or deed toward exciting or inflaming the tumult or riot, or if he failed to do what he reasonably could toward preventing, allaying or suppressing it.”

At a pretrial conference, with consent of counsel, the trial court permitted the parties to file stipulation of facts and briefs and ordered the cause to be decided without a jury.

On October 8, 1973, the trial court found for the Habeebs, Handmaker and Schneider. Whereupon, the City of Louisville prosecutes this appeal.

The City of Louisville presents three claims of error in support of reversal of the judgment; namely, (1) the right of recovery by way of subrogation will not lie against it under KRS 411.100; (2) the Habeebs, Hand-maker and Schneider failed to present an action for negligence in failing to prevent destruction of property damages by mob violence; (3) it had insufficient notice to believe that a riot or tumultuous assembly was about to occur.

In order to separate the chaff from the wheat and place the issues in the clear light of day, a recitation of the stipulations by the parties is necessary.

The facts as stipulated and as found by the court from depositions are summarized as follows:

“During the last week of May, 1968, civil disturbances erupted in the City of Louisville. Detailed herein is a chronological reconstruction of the events as they relate to the issues before the Court.

“I. On Friday, May 24, 1968, the Louisville Policy (sic) Department received a copy of a ‘flyer’ stating that a rally was to be held at 6 P.M. Monday, May 27,1968, at 28th and Greenwood. Police agencies within the area, the Director of Safety, Kenneth Newman, and the Federal Bureau of Investigation were notified that the rally was scheduled. The speakers, according to the ‘flyer’ were to be Stokeley Carmichael and James Cortez.

Upon notification of this meeting, plans were made by the Louisville Police Department to have extra patrol cars standing nearby, out of sight, yet available, and to have those officers necessary to direct traffic in the immediate vicinity.

II. On Monday, May 27, the extra patrol cars Stationed were standing by and close to 28th and Greenwood, but were not in view. At 6 P.M. on the 27th, Captain John Hampton, was in immediate control of the police force in the area. At about 5 P.M. Chief Hyde had received a phone call indicating that there might be some trouble at 28th and Greenwood. Two police districts were s,et up for overtime duty. Information channels were then set up. Plainclothes police were positioned in the area.

At about 7 P.M. a crowd estimated at 200 persons was at 28th and Greenwood. This number steadily increased to an estimated 600 or 700. Calls reached Chief Hyde’s office at approximately 8:30 P.M. relating to crowds milling, bottles and rocks being thrown, and then the attacking of police that had come into the area to restore order. Captain Hampton, who was in charge of the particular police district, ordered the cars stationed nearby to go into the area. Chief Hyde, through Colonel Hawkins, called the County and State Police, the National Guard, and the Governor. At 8:30 P.M. Mayor Schmied called General Buster, Commander of the Kentucky National Guard. In response to this call, General Buster, in order to initiate troop response and availability, called a practice alert pending action by the Governor. At 9:00 P.M., the Governor ordered the National Guard to Louisville, Kentucky. At 10:20 P.M. General Buster arrived in Louisville. After a command post was established at Brandéis School, located in the area, the General went to the Chief’s office for consultation, where he remained during the night. By daylight, 1,200 troops were at Brandéis School or in reserve at the Fairgrounds Armory. In light of developments, the Mayor imposed a curfew covering the hours from 11:00 P.M. to 5:00 A.M.

It was Monday night, May 27, 1968, that Lucky Morris Pawn Shop was first broken into. Forcible entry was gained into the store at its rear door, at a time when the police were in front confronting the crowd there situated. At approximately 8:30 P.M., shortly after the break-in the police discovered the looting; stopped the looters; confiscated materials, and piled the recovered goods on the floor of the store. At 9:00 P.M., Mr. Handmaker and Mr. Schneider, owners of the Lucky Morris Store business, arrived at the store. They remained the night. Police stayed with them in the area.

III. Tuesday, May 28. By 10:00, troops of National Guard were deployed at 28th and Greenwood with police. The National Guard did not have the power to arrest, and their function was to ‘back up’ the police and provide protection for fire fighters who were called into the area to combat the many fires which had been started. At this time an establishment on or nearby the corner of 28th and Greenwood, Moon Cleaners, was occupied as a command post.

The morning of the 28th, was relatively quiet. By noon on this date, there were 75 to 100 men in a crowd which congregated at 28th and Greenwood. Large groups of persons began roaming different adjacent streets. At approximately 2:00 P.M., a group of ministers and leaders of the black community met with the Mayor relative to withdrawing the National Guard. At about the same time, 2:45 P.M., on the streets in the area, groups increasing in size were being moved by the National Guard into dispersal patterns. The National Guard and Police were beset at many locations. At this time, Farley Printers, an establishment in the west end area, was burned and the National Guard had to move the crowd back — 400 troops were at 28th and Greenwood, 300-400 at 28th and Dumesnil. The troops were under attack from crowds. The removal of the National Guard was vetoed since uncontrollable groups were still roving about. On the evening of the 28th, Gatton’s Grocery, situated next to Lucky Morris, was looted. By nightfall the groups had been broken up but isolated incidents were occurring, and order had not been restored. The pattern of looting and burning and violence was spreading out and away from its general initial point.

IV. Wednesday, May 29. On Wednesday morning at a meeting in the Chief’s office the decision was made to withdraw the National Guard to the nearby Brandéis School, and to leave the police in the area. The National Guard Troops began withdrawal at about 5:00 P.M. At about the same time, an attempt to de-emphasize or ‘cool’ the area was made by allowing black ‘marshals’ to enter the area. These ‘marshals’ were not trained in police work, but rather they were ordinary black lay men.

While the troops were still in the area on Wednesday afternoon, the plaintiffs’ store was looted from the rear. Ten to fifteen police were called in to stop the looting. When Farley’s Printing was again burned, National Guard units came into the area with the fire equipment dispatched.

At 8:30 P.M., after the guards had been withdrawn, the plaintiffs’ store was looted again and burned. Most of the damage of which the plaintiffs complain occurred at this point. Police cars were dispatched to the scene. The National Guard came back into the area until the stores closed. Troops continued to guard fire fighters, but restrained from using full force, as it was believed that such re-action (sic) would have been a catalyst for further renewed uproar. Police were on the scene.

V. By Thursday, May 30, order was restored to the point that no large crowds were roaming the area. Sporadic, diverse incidents occurred throughout the city to which police were dispatched. The City Police, backed up by State and County Police, continued performance of their duties. The black ‘marshals’ were still on the streets. National Guard units were standing by at Brandéis School for crowd control functions and units were guarding fire fighters, as the function of the National Guard was for crowd control, not arresting. The police were in the area, and the maintaining of troops in masses at Brandéis School continued. Troops continued to protect firemen in a discretionary operating procedure.

On the evening of Thursday, May 30, sporadic incidents occurred. Once again Lucky Morris was burned.

On Friday, May 31, the outbreaks of sporadic incidents gradually declined. Order was restored by June 2, 1968, thus terminating the situation which had lasted from Monday, May 27 until such date.”

“As a supplement to the chronological reconstruction several points of policy and procedure dealing with the handling of civic disorder follow below:

A. Prior to May, 1968, certain members of the Louisville Police Department including Police Chief Hyde and Colonel Austin had had riot control and crowd control training. General Butler (sic) his officers and National Guard troops also had prior training in the suppression of civil disorders:

B. Prior to May, 1968, there were meetings with representatives of the Louisville Police Department, Jefferson County Police, St. Matthews and Shively Police Departments, National Guard, and various service organizations and utility companies to discuss operational plans in the event of civil disorders. The agreed procedural policy which was in existence during the May disturbances was the ‘Operational Plan for the Civil Disturbance, Louisville Division of Police.’

C. The coordination of the various police units, the National Guard and the service organizations was centered during the disturbance in the office of Police Chief Hyde.

D. The function of the National Guard was to effect crowd control in support of the City of Louisville Police. As the National Guard does not have the power to arrest they worked in conjunction with members of the police and fire departments.

E. The deployment of troops was a discretionary matter in support of the police.

F. The use of citizens of the community to aid in the restoration of order was an effort based on advice given the Mayor and Police by members of the Black Community and the Human Relations Council. These ‘black marshals’ were on the street while the National Guard was still deployed in the 28th and Greenwood area on Wednesday.”

The Habeebs, Handmaker and Schneider base their cause of action on removal of the National Guardsmen, and the addition of “Black Marshals” constituted failure of the city to comply with the statute. (KRS 411.-100). That argument ignores the fact that city, county, and state police were left in the area where the damage occurred. The city may have erred in its judgment. However, its act was free from negligence. The city officials took the action they reasonably deemed necessary to quell the riots.

Where a city is sought to be held liable, the rationale for denying liability is:

“Where the act affects all members of the general public alike, it would be unreasonable to apply to it the broad principles of tort liability . . City of Louisville v. Louisville Seed Company, Ky., 433 S.W.2d 638, 643 (1968).

The record reveals that the City of Louisville did not have notice of the imminent danger to the property of the Habeebs, Handmaker and Schneider on May 29,1968, the date the mob formed and committed damages about which they complain. KRS 411.100. It is true they knew of tumultuous riots by the mob. On May 27, 1968, police discovered the looting. They stopped the looting and confiscated materials and piled the recovered goods on the floor of the Lucky Morris Pawn Shop, after which they kept guard in the area. It is doubtful that the archangel Gabriel and 1,000 of his cohorts standing guard could have prevented the riotous, tumultuous assemblage or could have prevented the pillage of May 29, 1968, when the damages complained of occurred. Certainly, the removal of the National Guard, who had no power of arrest could not have prevented it.

Because this court finds no negligence on the part of the City of Louisville, and that it complied with the provisions of KRS 411.-100, it is unnecessary to discuss other issues raised by the city.

This court is of the opinion that the trial court erred in holding the City of Louisville liable.

The judgment is reversed with directions that the complaint of the Habeebs, Hand-maker and Schneider be dismissed.

All concur.


author: CLAYTON, Justice.

text:
    Alvin HARRIS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    Pamela M. Greenwell, Asst. Dist. Defender, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., Sam E. Isaacs, II, Asst. Atty. Gen., Frankfort, for appellee.
   CLAYTON, Justice.

On March 11, 1976, the Jefferson County Grand Jury returned two separate indictments charging the appellant, Alvin Manuel Harris, with four counts of robbery in the first degree, KRS 515.020. The first indictment, No. 156342, accused him of robbing a Gulf service station located at 2007 South Seventh Street, Louisville, on December 28, 1975, and a grocery store, the Itty Bitty Food Market, also located in Louisville, on January 14, 1976. The second indictment, No. 156343, charged appellant with robbing a Gulf service station located at 2701 Broadway in Louisville twice, once on December 31, 1975, and again on January 15, 1976. The charges were consolidated for trial. Harris was acquitted of the December 28, 1975, robbery of the service station, but convicted of the three remaining charges. He was sentenced to twenty years’ imprisonment for the grocery store robbery, and ten years each for the other offenses, all of which were to run concurrently. Three assignments of error are raised by his appeal.

Appellant initially alleges the trial court committed reversible error by consolidating the four charged offenses for trial. We disagree. Under RCr 6.18, 9.12 and 9.16, offenses which are similar in character or are based on the same acts connected together or constituting parts of a common scheme or plan may, within the discretion of the trial court, be joined for trial. Edwards v. Commonwealth, Ky., 500 S.W.2d 396 (1973); Cargill v. Commonwealth, Ky., 528 S.W.2d 735 (1975). A conviction resulting from a trial in which a motion for separation of the charged offenses has been denied will be reversed on appeal only if the refusal of the trial court to grant such a severance is found to amount to a clear abuse of discretion and prejudice to the defendant is positively shown. Spencer v. Commonwealth, Ky., 554 S.W.2d 355 (1977); Russell v. Commonwealth, Ky., 482 S.W.2d 584 (1972). From our review of the record and briefs in the present case, we find the evidence relative to the four criminal occurrences shows them to be closely related in character, circumstances and time. We further find the failure by the appellant to relate to this court the manner in which he perceives himself prejudiced by the alleged misjoinder of offenses for trial. In these circumstances, we must reject appellant’s claim of error.

Appellant next argues the trial court erred by failing to conduct an eviden-tiary hearing outside the presence of the jury to determine whether an in-court identification of him by an employe of one of the service stations appellant was accused of robbing was tainted by a pretrial photographic identification of him by this same witness. As in our recent decision of Ray v. Commonwealth, Ky., 550 S.W.2d 482 (1977), however, although we would prefer that such a hearing be held prior to the introduction of the witness’ testimony, we are not persuaded the failure to do so warrants reversal of the conviction. Here the witness testified on both direct and cross-examination regarding the facts of the occurrence and her ability to identify the appellant as the perpetrator of the crime solely from her observation of him during the robbery. There being nothing in her testimony to indicate her in-court identification was in any way affected by the prior photographic identification (the occurrence of which was only briefly discussed, and then only on cross-examination), we cannot consider that an error of reversible magnitude was committed by the witness’ identification of the appellant within the jury’s presence.

Appellant’s final claim of error concerns the trial court’s refusal to submit to the jury precautionary instructions concerning the use it could make of evidence of appellant’s prior conviction for forgery, which evidence was presented on direct examination of the appellant by his trial counsel. In accordance with our decision in Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970), a hearing was held outside the presence of the jury prior to the introduction of this evidence, at which time its admissibility, under the factors cited as relevant in Cotton, was considered. Immediately following its introduction, at the request of the Commonwealth, the trial judge admonished the jury that the evidence must be considered only for the purpose of affecting the appellant’s credibility as a witness, and not as evidence of guilt of the crimes with which he was charged.

The judgment is affirmed.

All concur.


author: STERNBERG, Justice. PALMORE, Justice,

text:
    Charlie “Cat” SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    Rehearing Denied Nov. 18, 1977.

      Jack E. Farley, Public Defender, Thomas R. Lewis, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   STERNBERG, Justice.

Appellant was indicted by the Jackson County Grand Jury on a charge of murder (KRS 507.020) in the death of his wife on July 13, 1976. He was tried and convicted on October 27, 1976, and sentenced to 20 years’ imprisonment. Hence, this appeal.

It appears to be the theory of the Commonwealth that appellant and his wife went to the old Smith farm, where he killed his wife in the hopes of recovering $10,000 in insurance with which he could repurchase his ancestral farm, which had recently been sold.

Appellant contends that the trial court erred, (1) in not directing a verdict of “not guilty” at the conclusion of all the evidence; (2) in permitting á material witness to remain in the courtroom and listen to other witnesses before himself testifying; (3) in permitting the introduction into evidence of a plaster of paris cast of an automobile tire impression and photographs of the tire tracks; (4) in permitting testimony relating to an out-of-court experiment; and (5) in permitting photographs of the deceased to be introduced into evidence. Additionally, he charges that the cumulative effect of these alleged errors deprived him of a fair trial.

By reason of the unusual circumstances surrounding this case, we deem it necessary to make an in-depth analysis of the evidence. Although the appellant was the last witness to testify, we feel that a better understanding of all of the facts will be had if we discuss first his testimony and relate the remaining evidence to his version of what happened.

Appellant delineates the fateful event in this manner. He would have us believe that on July 13, 1976, he and his wife, Mary Lee, left their trailer home at Bear Wallow, in Madison County, Kentucky, at about 7:00 p. m. to go visit Laura Howard, who lived in Clay County. Enroute to her home the brakes on his 1968 Chevrolet stationwagon gave way, and he attempted to remedy the condition by pouring motor oil in the master cylinder. After doing so, he put the can in the car and drove slowly without brakes. At about 3:00 a. m. in the morning, while going pretty fast downgrade on Leeger Fork road, a gravel road, the car hit a log about six inches in diameter and ran off the right side of the road. Appellant received a bump on his head. Mary Lee was thrown against the dashboard and out of the car, landing beside the right front door. Appellant then dragged the deceased down the road from the car, which had ignited and was burning. He rested her head on his shoulder for awhile and tried for about an hour to revive her. Mary Lee’s head was bleeding so he left her to go get assistance. Appellant first went to Vester Allen’s home. He had no telephone, but he took appellant to Orville Evans’ home, where there was a telephone, and the coroner was called.

Appellant denied that he killed his wife; denied that he was at the old Smith home place that night, therefore, he could not have built a fire, nor could his car tire have made an impression in the ground at that place, nor could his car have made an oil-drop spot there. Appellant denied that he ran his car over his wife, but he could not say whether the wheels hit her when she was thrown from the car. He said that he did not know what caused Mary Lee’s death, that she was all right immediately before the wreck and that she lived for about an hour after the wreck, but did not speak. He denied having life insurance on his wife, but said he did have a policy of liability insurance on his automobile and may have said something to Mr. and Mrs. Metcalf about having liability insurance coverage. He also denied having any knowledge of how the oil can got into a ditch among some pine brush, and he denied setting fire to the car.

Dr. James T. McClellan, a pathologist with many years of training and experience, performed an autopsy on the body of Mrs. Smith about 9:30 p. m. on the same day as the wreck and the burning of the automobile. The body had been undressed, washed and embalmed prior to its delivery to the doctor for examination. The examination revealed extensive lacerations in her scalp, hemorrhage and hematoma of the scalp, multiple fractures of the ribs, anteri-orly extensive pelvic fractures, hemorrhage behind the intestines and in the tissues of the back, hemorrhage in the lower lobe of the right lung which appeared to be due to a depressed fracture of the rib poling into the lung, fracture of the right leg bone where it is attached to the pelvis, fracture of the pelvis, fracture of the upper and lower pubic rami, and fracture of the sacrum. The doctor was of the opinion that Mary Lee’s death was due to multiple traumatic injuries to the body and that the injuries were not the kind people ordinarily receive when they are killed inside of a car crash. The doctor gave as his opinion that the injuries to Mary Lee’s body were consistent with injuries a person might be expected to receive if run over by an automobile.

Harry Justice, the coroner of Jackson County, testified that, pursuant to a telephone call, he arrived at the scene of the wreck at about 4:00 a. m. He said the car was in flames and he found the victim’s dead body lying about 75 to 80 feet left of the automobile in some weeds, where the appellant had dragged it. He noticed very little blood around the body.

Tommy Sloane, a state trooper, testified that he arrived at the wreck shortly after 8:00 a. m. and found the burned station-wagon off the gravel road, on the right shoulder. The car’s left rear wheel was about two feet out on the road. It had run over a log about six inches in diameter and had come to rest in a brush pile, with no structural damage.

Vester Allen testified that appellant, whom he had known all of his life, came to his home around 4:00 a. m. to use the telephone. He stated that appellant said he had wrecked his car and that his wife was dead. Allen did not have a telephone, but he took appellant to the home of Orville Evans, who did have one, and appellant telephoned for assistance. Allen also testified that appellant told him that he had worked and worked with his wife and had gotten blood all over himself. The witness said, however, that he saw no blood on the appellant. Allen stated that the appellant said he had insurance but was not sure it would pay off. Allen visited the scene of the wreck two times, once in the dark and the other time after daylight. He did not, on either occasion, see any blood around the grounds.

Howard Metcalf testified that appellant came to his home about daybreak and said he had wrecked his car and killed his wife; that appellant was worried about losing his glasses; and that appellant talked of the $10,000 worth of insurance he would get from his wife’s death and of using part of it to buy back the old Smith home and farm which he had recently sold. This witness found a quart oil can some 25 to 30 feet below the front of the car and, after several days, gave the can to Detective Ronnie Gay.

Ronnie Gay, a detective and general investigator for the Kentucky State Police, arrived at the scene of the accident about 9:30 a. m. He described the remains of the vehicle as did Tommy Sloane. He took pictures of the vehicle, both prior to and subsequent to its removal from the scene, and at about 10:00 or 10:30 a. m., while at the old Smith farm, he also took pictures of some tire tracks, a picture of a wet oil spot, pictures of weeds showing marks as if something had been dragged through the weeds, and also took pictures of the deceased’s body on the same day as the wreck. He testified that he had retrieved a piece of the tread from one of the tires on the stationwagon, which, during the fire, was mashed in the mud and had not burned. He compared it with a plaster of paris cast of a tire track made at the old Smith farm and stated the partial tread from the car matched the tread in the mold made at the farm. Gay also produced the oil can and verified that the fingerprints on the can matched those of the appellant. He stated also that there was only a very small amount of blood where the body was picked up, but that there was none near the car.

Detective Gay and Trooper Sloane, in their official vehicle, drove the latter part of the route taken by appellant. Gay stated that they drove, without the use of brakes, down Leeger Fork road to where the wreck occurred. He said, however, that at another point in the route they could not have made one of the curves without applying the brakes. Gay exhibited the blouse and white shorts which were worn by Mary Lee. The shorts had a grass stain on the right rear side and the blouse had blood on it.

Raymond Allen, son of Vestor Allen, testified that he saw the appellant during the morning and later on in the day. At the latter time he took appellant to Howard Metcalf’s house and on this trip the appellant said he had $10,000 worth of insurance on his wife.

Christine Smith Vandever, daughter of appellant and his wife and who lived in Ozark, Alabama, testified that her mother and father had been having marital difficulties and were separated for a few weeks earlier in the year.

Counsel for appellant, at the conclusion of the Commonwealth’s evidence and again at the close of all of the evidence, moved the court to direct a verdict of acquittal because, allegedly, the evidence was insufficient to establish that the appellant was guilty of any criminal offense. He now commences his argument by challenging the sufficiency of the proof to establish corpus delicti, which we have more recently referred to as “the body of the crime.”

In Perry v. Commonwealth, Ky., 514 S.W.2d 202 (1974), in speaking on the subject, we defined the principle “as the requiring of the prosecution in a homicide case to show (1) a death and (2) that the death resulted from the criminal agency of another.” We went on to say that the body of the crime may be shown by circumstantial evidence. In Trowel v. Commonwealth, Ky., 550 S.W.2d 530 (1977), this court said:

“If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal. * * *”

Measured by these standards, we must determine the sufficiency of the evidence to justify a submission of the subject case to the jury. In doing so, we must separate the sheep from the goat or fact from fiction. The evidence establishes the following facts:

1. Mary Lee Smith is dead.

2. The physical impossibility of wrecking a stationwagon going pretty fast on a gravel road without scuffing up the road. The road was not scuffed up.

3. A plaster of paris cast of a tire track taken from the old Smith farm matched the tread of one of the tires on appellant’s wrecked car.

4. Appellant’s numerous comments after the wreck of receiving insurance money from the death of his wife and using it to buy back the old Smith farm. These comments are not without evidentiary value.

5. Death was caused by trauma so great as to be consistent with the body having been run over by a motor vehicle, possibly more than once.

6. Several months prior to her death, Mary Lee and appellant had marital difficulties, but had reconciled.

7. An 8-hour trip to traverse a distance of about 41 miles.

8. Appellant denied being at the farm.

9. A large patch of grass at the farm that had been pressed down.

10. Warm ashes from a fire at the Smith farm.

11. The automobile came to rest just off the right side of the road, with about two feet of it still on the roadway.

12. A small splotch of blood was found where the deceased was lying alongside the road.

13. An oil can found about 25 feet in front of the car in a pine thicket.

14. Appellant’s fingerprints on an oil can, which he identified as belonging to him.

15. Appellant’s claim to have had blood on him, but none was seen by any witness.

16. No bruises, cuts or abrasions on the face of the deceased.

17. The wrecked car sustained no bent fenders or other structural damage.

18. The car, from some unknown cause, ignited and burned from end to end.

19. After the wreck the body of the deceased was lying on the ground just a little way from the front door on the passenger’s side of the car.

It is difficult to arrive at a clear picture of just what did happen. Did appellant and his wife go to the farm, where he killed her, run the car over her body several times, stuff her body in the car, run off the road so as to make it appear that there was a wreck, take the body from the car, and then saturate the car with oil and burn it? If so, it is not overwhelmingly proven by the preponderance of the evidence. We cannot, however, say that it would be clearly unreasonable for a jury to find the appellant guilty. The jurors had the right to disagree with appellant’s version of what happened, especially in light of the conflicting testimony. The conflict in the testimony goes deeper and indicates that appellant did not tell the truth. It constitutes an attempted coverup of the killing of his wife, having in mind the objective of collecting insurance money with which to purchase the old Smith home place. We are of the opinion that the evidence was sufficient to justify the submission of the case to the jury.

Officer Gay was the sixth witness for the Commonwealth to testify. Counsel for appellant objected to the officer being permitted to testify because he had been permitted to remain in the courtroom and hear the testimony of other witnesses, after they had been sequestered. RCr 9.48 provides:

“If either a defendant or the commonwealth requests it, the judge may exclude from the hearing or trial any witness of the adverse party not at the time under examination, so that he may not hear the testimony of the other witnesses. * * ”

The trial judge considered the witness as an officer of the court, overruled appellant’s objection, and permitted the of-' ficer to testify. Being an officer of the court does not in and of itself permit the officer to remain in the courtroom and hear the testimony of other witnesses before testifying himself. The better practice is to cause all witnesses to leave the courtroom and remain out of the hearing of witnesses until after each has been called to testify. Nevertheless, the trial judge has a discretion in matters of this nature, and we cannot say that there was an abuse of that discretion in the present case.

The plaster of paris cast of the automobile tire print made at the Smith farm conformed to the tread taken from the tire of the wrecked vehicle. Even though the quality of the cast may not have been the best, it was certainly competent to tie the appellant to the farm and to contradict his denial of having been there at all. The photographs revealing the tire prints in the ground, although of poor quality, reflect the character of the tire tread, and the supportive effect of the photographs was to place appellant not only at the farm but being there at sometime between the time appellant left home the prior evening and the time of the wreck. Any evidence, albeit circumstantial, which tends to connect the person charged with the commission of a crime is admissible. We think there was sufficient evidence of similarity of the plaster of paris cast to the tire tread to justify admission into evidence. Peters v. Commonwealth, Ky., 477 S.W.2d 154 (1972).

Officer Gay testified at length about the out-of-court experiment which he made in driving his police vehicle over the same route which appellant had allegedly driven. He stated that he drove his car at a slow speed and had no difficulty in negotiating the curve at the point where the wreck occurred. Appellant charges that such evidence was incompetent. The Commonwealth concurs, as do we. There was no showing that the condition of the highway was the same on the day of the experiment as it was on the day of the wreck. The vehicle used in the experiment was all together different than that driven by the appellant. As a matter of fact, there was a total lack of proper foundation laid to authorize testimony relative to such an experiment. Although the admission of this testimony was erroneous, we do not believe it was prejudicial to the substantial rights of the appellant.

The black and white photographs taken of the deceased clearly demonstrate the character, location and extent of the cuts, bruises and abrasions which she sustained. There is nothing gruesome about them. They tend to support the testimony of the coroner and the pathologist.

As a final catchall argument, appellant contends that the cumulative effect of the alleged errors warrants a reversal. The only issue pointed out by appellant that was erroneous is that the court permitted testimony relative to the out-of-court experiment. Consequently, there were no cumulative errors which could prejudice the appellant’s right to a .fair trial.

The judgment is affirmed.

CLAYTON, JONES, STEPHENSON and STERNBERG, JJ., concur.

PALMORE, J., files a dissenting opinion in which REED, C. J., and LUKOWSKY, J., join.

PALMORE, Justice,

dissenting.

The principal basis for my dissent is that I do not think the evidence was sufficient to justify a finding of guilt, nor can I accede to the proposition that the evidence consisting of the trooper’s experiment was not prejudicial. The Chief Justice and Justice Lukowsky concur in this dissenting opinion.


author: STEPHENSON, Justice.

text:
    J. Ted MISHLER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. David L. SKAGGS, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    Rehearing Denied Nov. 18, 1977.

      Jack Emory Farley, Public Defender, William M. Radigan, J. Vincent Aprile II, Edward C. Monahan, Asst. Public Defenders, Frankfort, for appellants.
    Robert F. Stephens, Atty. Gen., Mark F. Armstrong, Asst. Atty. Gen., Frankfort, for appellee.
   STEPHENSON, Justice.

David L. Skaggs was indicted, tried and convicted on two counts of robbery in the first degree, KRS 515.020(1)(b). The first count concerned a robbery of the Foodette Market in Bowling Green, committed on January 2, 1976; the second count concerned a robbery of Moore’s IGA Market in Bowling Green on January 7,1976. Skaggs was sentenced to 20 years’ imprisonment on each count, the sentences to run concurrently-

J. Ted Mishler and Leland Henderson were indicted for the offense of “being accomplice to first degree robbery,” KRS 502.020(l)(a). Mishler was tried with Skaggs, convicted on the charge and sentenced to 20 years’ imprisonment. Henderson was not tried with Skaggs and Mishler.

The Commonwealth introduced witnesses who identified Skaggs as the person who used a pistol to rob the Foodette Market on January 2, 1976. In this appeal, the issues presented by Skaggs and Mishler concern the robbery which took place at Moore’s IGA Market.

According to the evidence for the Commonwealth, a clerk at Moore’s IGA saw Skaggs and another man enter the store. Skaggs picked up a bag of fritos and walked to the cash register. At the cash register, he pointed a pistol at the clerk, ordered her to “bag it up” and robbed her of cash including a $50 bill and some torn $1 bills. Skaggs was wearing a brown windbreaker and a pair of dark glasses. The owner of the store testified $297 was missing, including a $50 bill and about twenty torn $1 bills. Skaggs and the other man left the store and fled in a purple automobile.

The arresting officers testified they received a radio description of the purple automobile with out-of-state license plates used by the robbers. Five to ten minutes later, the two officers saw an automobile matching the description heard over the radio. They stopped the car which was being driven by Mishler. Money was seen in Mishler’s shirt pocket. Skaggs was seated on the passenger side of the front seat; Henderson was seated in the back seat. The officers found a loaded .22-caliber pistol under the seat occupied by Skaggs. The officers also found a loaded automatic in the back seat occupied by Henderson. One hundred and fifty dollars was found on Mishler’s person, including twenty $1 bills in his shirt pocket. Ninety-five dollars was found on Skaggs including several old and torn $1 bills.

A police officer testified Skaggs stated that on the day of the Moore’s IGA robbery he was high on drugs, that Mishler and Henderson sent him in to rob the store, and that “he wouldn’t have done it if it hadn’t been for drugs.”

A neighbor testified that on the day of the robbery, she observed a purple automobile. It was driven past Moore’s IGA and then returned to the store. She saw a man run from the store carrying a paper bag and gave a description of Skaggs’ clothing and the dark glasses. The neighbor’s daughter identified Mishler as the driver of the automobile, and testified that on the afternoon of the day before the robbery she saw a purple car in the vicinity driven by Mishler with two other occupants.

A statement to the police given by Henderson was introduced. In the statement, Henderson confessed that he, Mishler and Skaggs planned the robbery. At the trial, Henderson recanted the statement explaining that he made the statement implicating Skaggs and Mishler for the reason that his father was on his death bed, that under these circumstances, he would have signed anything and that through a deal with the prosecutor he did sign a voluntary statement relating what the prosecutor wanted to hear. At the trial, Henderson testified that he, Mishler and Skaggs stopped at Moore’s IGA to get something to eat, that while in the store, Skaggs without any warning pulled a gun. Henderson testified that he ran from the store and told Mishler “Skaggs done robbed that store”; that Mishler said, “ ‘What?’ that he (Henderson) said, “Skaggs just robbed that store — ■ let’s get going.” He testified that upon entering the automobile, Skaggs put money into Mishler’s pocket. Henderson testified he was not aware of Skaggs having a pistol and that he, Mishler and Skaggs had not arrived in Bowling Green until dark on the night before the robbery. He denied any plan to commit the robbery.

Henderson’s sister testified that Henderson, Mishler and Skaggs left Rising Sun, Indiana, between one and two in the afternoon on the day before the robbery.

Mishler testified substantially the same as did Henderson as to the time of leaving Indiana, denied any plan to commit the robbery, related Henderson’s telling him of the robbery, and testified that “I really didn’t know what to do, you know. I couldn’t very well put him out of the car. I couldn’t drive alone. I just couldn’t walk away from my own automobile. I didn’t really know that there was any robbery supposed to be taking place.” He testified he was unaware of weapons being in his car.

Skaggs testified as to leaving Indiana the afternoon before the robbery and arriving in Bowling Green the night before, the purpose of the trip being to paint signs. He testified that he was taking speed and smoking pot the day of the robbery, his memory of events was cloudy, and he did not remember the robbery. He testified as to driving up to Moore’s IGA to get something to eat, going into the store, and taking a bag of fritos from a stand and then going to the cash register. He testified he did not remember what happened. His memory returned when he got into the car and he remembered the arrest. He testified Mishler did not know of the pistol he carried, which he said was for self-protection from an individual as a result of an unrelated incident. Henderson testified Skaggs was “all doped up, under these drugs.” Mishler testified Skaggs was taking pills on the day of the robbery of Moore’s IGA, but did not know the kind of pills.

Skaggs and Mishler appeal with numerous assertions of error on the part of the trial court.

I.

On Skaggs’ appeal, we find reversible error in the trial court’s refusal to give an instruction on intoxication. KRS 501.-080 provides that “[ijntoxication is a defense to a criminal charge” if such condition “[njegatives the existence of an element of the offense.” An essential element of robbery in the first degree is the element of intent. The trial court erroneously concluded that an instruction on intoxication was not required for the reason the intoxication was voluntary.

If the posture of the evidence is such that an issue of fact is raised showing intoxication to such a degree that the defendant was unable to form the requisite intent where the charge is for a specific intent crime, then the defendant is entitled to an instruction on this defense, this without regard to whether the intoxication was voluntary.

Here the evidence of use of drugs was substantial. The testimony of Skaggs, Henderson and Mishler on the use of drugs would not, in light of the evidence, be sufficient to justify an instruction on intoxication save for that testimony of Skaggs that at the very moment of the robbery he lost his memory and did not know what he was doing. No matter how preposterous Skaggs’ convenient loss of memory may appear, it raises an issue for the jury. It is not for us to decide this issue. In light of Skaggs’ detailed narration of the events leading up to his entry into Moore’s IGA, his narration of his actions in selecting the desired item and proceeding to the cash register, then his memory of events afterward, it is a preposterous story. Nevertheless, it is the privilege of the jury to believe the unbelievable if the jury so wishes.

We observe that on cross-examination of his actions in the store, Skaggs almost stepped over the brink and did himself out of his entitlement to an intoxication instruction; however, he recovered himself and stoutly maintained his fortuitous blackout. In a new trial, Skaggs, if he tells the same story, will be entitled to an instruction on intoxication.

Turning to Skaggs’ other assertions of error, he complains of the trial court’s not conducting an evidentiary hearing on his competency to stand trial.

Skaggs filed a motion for a mental examination for the purpose of determining his mental competency to stand trial. This motion was granted and Skaggs was sent to a center for evaluation. A psychiatric evaluation and report was made to the trial court before trial but was not made a part of this record. No issue with regard to an eviden-tiary hearing was presented to the trial court.

The public defender attaches great significance to this. We are not advised of any factor that would indicate an evidentiary hearing. If the report concluded Skaggs was not competent, we are confident, since the report is extant, we would be favored with a motion to supplement the record. There is no suggestion of any conduct on the part of Skaggs that he was not competent, only a ridiculous assertion that failure to conduct an unnecessary hearing deprived Skaggs of due process. We observe that any sensible person of ordinary understanding perusing Skaggs’ testimony would have no doubt about his competency to stand trial. Caught red-handed, he seized on the only factor — loss of memory — which would extricate him from the charge.

Skaggs next complains that the Commonwealth failed to prove he used a deadly weapon. He argues there is no evidence the pistol was loaded or capable of firing. We answered this tired argument in Kennedy v. Commonwealth, Ky., 544 S.W.2d 219 (1976), and are not disposed to belabor this question further. Mishler makes the same argument.

Next Skaggs’ assertion that he was entitled to an instruction on robbery in the second degree is frivolous. No request for such an instruction was made at trial, RCr 9.54(2), and had there been such a request, it was not required by any test that we can think of in light of the evidence.

Skaggs asserts that the trial court should have, on its own motion, made an inquiry of Henderson’s competency as a witness. There is not even a suggestion in this record that Henderson might not be competent to testify as a prosecution witness. We are at a loss to comprehend the reasoning of the public defender in this respect. Henderson testified for Skaggs and Mishler in recanting the statement given to the police. The public defender characterizes him as a major prosecution witness. The statement may have been helpful to the prosecution, it was not vital. His testimony was helpful to Skaggs and Mish-ler.

Four days after the trial, Henderson’s attorney filed a motion requesting a mental examination based on counsel’s belief that Henderson at the time of the commission of the crime was incompetent. The trial court ordered the observation. The public defender seems to rationalize that since Henderson’s lawyer filed the motion four days after the trial, the court at the time of the trial could have had notice of the lawyer’s opinion. We wonder why the public defender spends time in advancing such a meritless argument. This same argument is presented by Mishler.

Skaggs’ argument regarding the propriety of the closing argument of the Commonwealth is without merit. There was no objection to the argument. We have reviewed that portion complained of and are of the opinion that it consists of reasonable inferences drawn from the evidence and is within the bounds of propriety.

It is apparent that the trial court failed to follow the mandatory presentenc-ing and sentencing procedures set out in KRS 532.050 and KRS 532.010. This assertion of error by Skaggs is well taken and requires remand for the purpose of compliance with the statute. Brewer v. Commonwealth, Ky., 550 S.W.2d 474 (1977).

II.

The thrust of Mishler’s assertion that he was entitled to a directed verdict is his testimony that he was unaware of the commission of the offense and was not aware that Skaggs possessed a pistol. The argument is pursued on the basis that driving the car merely points the finger of suspicion and is not enough to take the case to the jury. We are of the opinion that the jury was not compelled to believe Mishler’s story, and under the facts and circumstances of this case, a jury issue was raised. The jury found Mishler guilty, and we are of the opinion this finding was based on sufficient evidence.

Next Mishler argues that by virtue of a material variance with the charge in the indictment and the instructions he was prejudiced. There was no objection to the instructions. Even had there been an objection, we do not see how Mishler could possibly have been prejudiced. The indictment charged the robbery “by using and displaying a .22-caliber pistol, a dangerous instrument.” The instructions used the language “threatened the use of immediate force ... by pointing a pistol . . .” We are not advised by the public defender just how Mishler was prejudiced and reject the intellectual gymnastics in the public defender’s brief attempting to characterize this as prejudicial error. The commentary to KRS 515.020, cited by Mishler, stands for the proposition that a pistol is a deadly weapon, other objects may or may not be “dangerous instruments” depending upon the circumstances of use. It would only have been necessary for the indictment to refer to “a pistol,” the use of the term “dangerous instrument” was superfluous but in our opinion not prejudicial to Mish-ler. Nor did this language put the Commonwealth to any further proof with regard to the pistol.

Next Mishler asserts error in that his silence at the time of his arrest was used for purposes of impeachment. There was no objection to this line of questioning for the simple reason that Mishler did not remain silent. According to the testimony of the police officer, Mishler when questioned after his arrest did not remain silent, but told the police officers “they were from out of town and were just driving around,” and “driving around looking for work,” and “would not admit to any knowledge of the robbery.” Mishler did not deny these statements. Thus, the argument of the Commonwealth that he was telling his story at trial for the first time is not using a defendant’s silence to be used to impeach an explanation subsequently offered at trial. Had Mishler exercised his right to remain silent at the time of his arrest, then the argument of the Commonwealth would have been improper. Cf. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976).

The trial court gave an accomplice instruction, RCr 9.62, reciting that Henderson was an accomplice. This instruction was not objected to by Mishler, who now complains that the question of whether Henderson was an accomplice should have been submitted to the jury. We are of the opinion an accomplice instruction should not have been given at all. The accomplice rule, RCr 9.62, is for the protection of the defendant. Ordinarily the instruction is given when the evidence for the Commonwealth is primarily that testimony given by the accomplice and other evidence of guilt is sparse. Here there was sufficient evidence to convict without the testimony of Henderson, which obviates the necessity for the accomplice instruction.

We note the trial court commented upon the instruction by way of explaining it to the jury. We are of the opinion Mishler, in view of this situation, was not prejudiced by the instruction. Cf. Mouser v. Commonwealth, 491 S.W.2d 821 (1973).

Mishler next asserts the trial court did not follow the mandatory sentencing procedures of KRS 532.020 and KRS 533.-010. The record does not disclose that these procedures were followed by the trial court; thus, remand is required for proper sentencing. Brewer v. Commonwealth, supra.

We turn now to a vexing problem which requires, in our view, further admonishment to the trial bench. Both Skaggs and Mishler were represented by the same lawyer, both now assert they were denied effective assistance of counsel in view of conflicting interests.

Skaggs and Mishler both argue the proposition in the abstract. They do not point to any conflicting interest which would have rendered their counsel ineffective. On the contrary, a careful perusal of the record reveals no conflict at all. We are not inclined to reverse this case on abstract arguments. Cf. Ware v. Commonwealth, Ky., 537 S.W.2d 174 (1976).

We recognize the dangers of multiple representation of defendants by one lawyer and the ever present possibility that unforeseen conflicts of interest between the defendants may arise at trial necessitating reversal. For this reason, we strongly suggest that the trial bench insist on separate representation for each defendant, particularly where counsel is appointed.

The judgment as to Mishler is remanded for proper sentencing procedures; in all other respects, it is affirmed.

The judgment as to Skaggs for robbery of the Foodette Market is remanded for proper sentencing procedures; in all other respects, it is affirmed.

The judgment as to Skaggs for robbery of Moore’s IGA is reversed for a new trial with directions to give an instruction on intoxication should the evidence on the new trial be substantially the same.

All concur.


author: LUKOWSKY, Justice.

text:
    Jack BLONDELL, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Sept. 16, 1977.
    Rehearing Denied Nov. 18, 1977.

      Jack E. Farley, Public Defender, Linda K. West, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., James L. Dickinson, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

The only question presented by this appeal that is worthy of discussion is whether KRS 533.060(1) operates as an ex post facto law when it is applied to Blondell. We answer the question in the affirmative.

On September 30, 1976 Blondell was found guilty of raping and sodomizing a female on May 22, 1976 through the use of forcible compulsion, contrary to KRS 510.-040 and 510.070. Both offenses are Class B felonies. The forcible compulsion consisted of the use of a pistol. On November 4,1976 he was sentenced to twenty years in prison for each offense. The sentences were to run concurrently. On December 13,1976 he applied to the trial court for shock probation. On January 5, 1977 the trial court denied his application on the basis that KRS 533.060(1) revoked its authority to consider or grant such an application.

KRS 533.060(1) provides:

“When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of such offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, such person shall not be eligible for probation, shock probation or conditional discharge.”

The trial court found that the pistol used by Blondell was a weapon from which a shot or projectile could be discharged that was readily capable of producing death or other serious physical injury. This statute was passed by the General Assembly at its regular 1976 session. It was signed and approved by the Governor on March 29, 1976. It became effective on June 19, 1976. Chapter 180, Acts of 1976.

Blondell contends that this statute is an ex post facto law when it is applied to him because the offenses of which he stands convicted were committed on May 22, 1976, the statute did not take effect until June 19, 1976, and the statute changes preexisting law to his detriment or disadvantage.

In Calder v. Bull, 3 Dall. 386, 390, 3 U.S. 386, 390, 1 L.Ed. 648 (1798), the Supreme Court of the United States gave this much quoted list of ex post facto laws:

“1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action.
2d. Every law that aggravates a crime, or makes it greater than it was, when committed.
3rd. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed.
4th. Every law that alters the legal rules of evidence, and receives less, or different testimony, than the law required at the time of the commission of the offense, in order to convict the offender.”

It seems to us that items 2 and 3 are really no more than different ways of expressing a single idea and that it is upon this fulcrum that Blondell breaks the back of the statute.

The conclusion can not be avoided that the statute increases the punishment for the offense after its commission. For the confined prisoner, shock probation — even with its legal constraints — is a long step toward regaining lost freedom. See Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Only an unusual prisoner could be expected to think that he was not suffering a penalty when he was denied opportunity for consideration for shock probation. See Warden v. Marrero, 417 U.S. 653, 662, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974).

The Commonwealth raises the spectre that shock probation is merely a matter of legislative grace which may be granted or withheld as a matter of judicial discretion and therefore is not within the ambit of constitutional protection. The short answer to this is that it fails to distinguish between the availability of shock probation as a rehabilitative technique and the wisdom of its use in regard to a particular prisoner. It may be “legislative grace” for the General Assembly to provide for shock probation but when it expressly removes all hope of shock probation upon conviction and sentence for certain offenses this is in the nature of an additional penalty. See Durant v. United States, 410 F.2d 689, 691 (1st Cir. 1969). Blondell was entitled to have the trial court consider his application for shock probation on its merits.

The conviction and sentence are affirmed. The refusal of the trial court to consider the application for shock probation on its merits is reversed. The cause is remanded with directions to consider the application without reference to KRS 533.060(1).

All concur.