author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Robert FRANKLIN, Defendant-Appellant.
    No. 36179.
    Missouri Court of Appeals, St. Louis District, Division One.
    July 22, 1975.

      Charles D. Kitehin, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Clarence Thomas, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., J. Paul Allred, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

By its verdict, a jury found defendant, Robert Franklin, guilty of robbery in the first degree by means of a dangerous and deadly weapon. § 560.135, RSMo 1969, V.A.M.S. Upon determining the defendant had committed a prior felony, the court sentenced him to forty-five years imprisonment.

On August 17, 1973, defendant and another black male, both wearing yellow hard hats, entered Little Bit’s Tavern at 923 South Grand in St. Louis. Soon after ordering a beer, the defendant pulled a gun on the tavern owner, Mrs. Carrol Reason, and announced, “ ‘This is a stick-up.’ ” The robbers directed all nine occupants of the tavern, including the owner, her husband, the bartender, and customers, into a back room. After ordering everyone to lie down and demanding their wallets, the two men locked the door and left. Mrs. Reason immediately cheeked the cash register and another drawer which held money for cashing checks, and discovered $5,200.00 was missing. Mr. Reason and a customer attempted to chase the men, without success. The police accompanied Mrs. Reason through a nearby factory to look at the personnel since an unidentified man stated he had seen two black men wearing yellow hard hats enter the factory. Upon leaving the factory, the tavern owner identified a Mr. Brewster as one of the men who had just robbed her tavern. Later that same day Brewster was identified by four other victims of the robbery.

The following Monday, August 20, 1973, the defendant was stopped by police officers for driving a car without a properly illuminated license plate. He gave a false name and driver’s license to the police officer. The officers “padded down” the defendant-driver and another male passenger for weapons, and requested that a female passenger, Brenda Cook, empty her purse. The defendant and the male passenger were allowed to go after fixing the license plate light, but Brenda Cook was arrested. In her purse were three men’s wallets belonging to three victims of the Little Bit’s robbery. Brenda Cook initially lied, telling the police she had loaned her purse to a friend, but later admitted to having found the wallets on the car floor of the automobile belonging to defendant’s mother. Defendant was arrested on August 23, 1973, and identified in a line-up that day by Mrs. Reason and four of the other robbery victims. All conceded their earlier identification of Brewster was incorrect.

Defendant’s first point on appeal alleges the trial court erred in overruling counsel’s objections to numerous comments in the prosecutor’s closing argument which he charges were irrelevant, immaterial, prejudicial, lacking in probative value, and referred to facts not in evidence.

Prior to a search for error upon such a charge, we recite another generalization. Questions of propriety of oral argument are addressed to the discretion of the trial court and reversal occurs only upon abuse of such discretion. State v. Jewell, 473 S.W.2d 734, 741[8] (Mo.1971); State v. McCreary, 504 S.W.2d 132, 136[12] (Mo.App.1973).

Initially, defendant contends the assistant circuit attorney’s recommendation to the jury to consider the testimony by a method outlined in a book authored by Dr. Marshall Rosenburg should not have been permitted because the book was not in evidence. We find no prejudicial error in the mere mentioning of this book. The assistant circuit attorney was merely crediting Dr. Rosenburg for a “common-sense” approach of sifting through data in order to make a reasoned decision.

Defendant further argues that the prosecutor, as was here done, cannot instruct the jury on how to weigh the evidence in any manner. This argument is not properly before the court since it was not raised in defendant’s objection at trial, nor in his motion for new trial. State v. Stevens, 467 S.W.2d 10, 19-20[7] (Mo.1971), cert. denied, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546 (1971); Rule 27.20(a).

Defendant next asserts that the prosecutor’s comment, that Brenda Cook’s reason for lying to the police about where she got the wallets belonging to the three robbery victims was to “protect” the defendant, was improper argument on facts not in evidence, and not a permissible inference. We disagree. The prosecutor has the right to comment on the evidence and credibility of witnesses from the state’s viewpoint. State v. Cage, 452 S.W.2d 125, 130[6] (Mo.1970). The evidence demonstrated that Brenda Cook accompanied the defendant to the robbery and that she “liked the defendant” and subsequently had visited him in jail. Thus, the inference by the assistant circuit attorney that Brenda Cook’s lie was to protect the defendant was not unreasonable. In addition, establishing Brenda Cook’s credibility was crucial to the state. Therefore, allowing the prosecutor to thus infer in order to explain her original lie to the police was not error. State v. Sallee, 436 S.W.2d 246, 254[18] (Mo.1969).

Defendant also alleges trial court error for permitting the prosecutor to read from an alleged police report not in evidence. Here, in an effort to rebut defense counsel’s statement in his closing argument that only Brenda Cook had mentioned a parking lot in the vicinity of the tavern, the assistant circuit attorney reminded the jury that one of the robbery witnesses, who had attempted to chase the robbers, had also mentioned the lot. The defendant objected for the reason that the prosecutor was reading from a police report not in evidence. The objection was overruled. No proof was made that the prosecutor was reading from any paper. The record shows a “lot” was mentioned in the testimony of two witnesses. The assistant circuit attorney, therefore, was within the limits of permissible comment on the evidence.

Defendant contends prejudicial error also occurred when the prosecutor commented on Brenda Cook’s possession of the wallets. He said, “You can figure out for yourself why people like to keep wallets like — by the way, they are a false form of identification for many purposes.” This comment, however, was supported by the evidence since the defendant had used false identification when stopped by police for the improperly illuminated license plate. It therefore was a legitimate inference from the evidence.

The fifth statement by the circuit attorney, which defendant contends was prejudicial error, was that Brenda Cook lied to visit the defendant in jail and “he [the defendant] knows he’s only supposed to see relatives.” The objection which followed was sustained and the remark was ordered stricken. But defendant’s motion for a mistrial on this point was denied. Although, concededly, this comment was not relevant or within the scope of the evidence, neither does it appear so prejudicial as to require the drastic remedy of a mistrial.

The declaration of a mistrial necessarily and properly rests largely in the discretion of the trial court who observed the incident giving rise to the request. The trial court weighs the prejudicial effect and determines, in the exercise of a sound discretion, whether to grant or deny the request. An appellate court will not reverse on such a ground unless it finds this discretion was abused. State v. Duncan, 499 S.W.2d 476, 479[6-9] (Mo.1973); State v. Schlagel, 490 S.W.2d 81, 85[5, 6] (Mo.1973).

Defendant’s sixth ground to sustain his first point is that the trial court erred in overruling defendant’s objection to an allegedly “disparaging remark” directed toward the defense attorney. We find this argument to be without merit since the prosecutor’s statement was retaliatory and without prejudice. The disputed statement, “Well, you know people — defense lawyers discuss these cases like eveybody in the world is the same”, was a logical and harmless comment considered within the context of his entire argument that all persons do not have the same recollection of an occurrence. Moreover, since the defense counsel, in his closing argument, emphasized the misidentification and inconsistencies among the witnesses present during the robbery, the remark was in retaliation to this attack on the state’s witnesses. As such, it was not manifestly prejudicial. State v. Swing, 391 S.W.2d 262, 264[2] (Mo.1965).

The final comment defendant attacks was the assistant circuit attorney’s remark that, “The victims of eighty-five per cent of crime in the City are the people who have to live in the black areas or do live there.” The prosecuting attorney may argue for the necessity of law enforcement due to the prevalence of crime in a community, even in the absence of evidence of the crime rate in the named area. State v. Gordon, 499 S.W.2d 512, 515[6] (Mo.1978). We find no merit in defendant’s contention that this plea was not merely one for strict law enforcement but rather an “incitement to racial prejudice.”

Defendant cites numerous cases to support his proposition that counsels’ closing arguments must be confined to the record and a deviation by the prosecutor will result in a reversal. Without negating this proposition we merely note the precedents defendant cites for support are not apposite to the circumstances of this case. In defendant’s authorities, the courts found the prosecutors’ statements to be “deliberate efforts” to “inflame the passions of the jury.” See State v. Spencer, 307 S.W.2d 440, 445 (Mo.1957); State v. Mayberry, 360 Mo. 35, 226 S.W.2d 725, 729 (1950); State v. Snow, 306 Mo. 509, 252 S.W. 629, 632 (1923); State v. Hyde, 234 Mo. 200, 136 S.W. 316, 333 (1911). Although we must not commend the assistant circuit attorney’s variance from the evidence in his closing statements, we cannot find his statements to be imflammatory. Prejudice must occur to justify a reversal and in the case presently before us, the minor deviations cannot be said to be prejudicial. State v. Barron, 465 S.W.2d 523, 528[7] (Mo.1971).

Defendant’s second point on appeal alleges that the trial court erred in overruling defendant’s objections and in failing to declare a mistrial in regard to numerous questions asked of Brenda Cook by the prosecution. Defendant asserts the questions assumed facts not in evidence, impeached the state’s own witness without a proper foundation, were highly prejudicial, and denied the defendant his right of confrontation and cross-examination. Contrary to defendant’s contention, that which transpired was not impeachment; rather the witness was being treated as a reluctant witness. There is little doubt that Brenda Cook was reluctant to testify against the defendant. She did not appear at trial willingly, but had to be taken into custody after avoiding her subpoena. Under such circumstances the trial court judge did not err in permitting the state to ask leading questions of its own witness. State v. Kinne, 372 S.W.2d 62, 66[2] (Mo.1963). Furthermore, as the state points out, it certainly did not want to impeach its key witness by attacking her credibility, but instead wished the jury to believe her.

Defendant relies on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965) and State v. Rogers, 473 S.W.2d 710 (Mo.1971), in charging that the prosecutor’s questions, which referred to prior conversations with the witness but not admitted by the witness, denied the defendant his constitutional right to confrontation and cross-examination. These cases can be readily distinguished from the situation before us. In Douglas the witness did not deny prior statements but refused to answer the questions entirely, relying on his Fifth Amendment privilege against self-incrimination. Also, the witness’ prior testimony in Douglas “constituted the only direct evidence” of an important element the state had to prove. That is not the situation in this case. Rogers is also distinguished by the amount of detail which the prosecutor in that case disclosed about the witness’ prior conversation. Unlike the prosecutor in Rogers, the assistant circuit attorney in this case did not reveal the substantive details of the witness’ prior conversations so as to deny the defendant’s right of cross-examination. Additionally, the record demonstrates a thorough cross-examination was conducted by defense counsel. Again we note that a mistrial only results from grievous error with prejudice to the defendant. It has not been shown that the prosecutor’s use of leading questions here reached that point.

The defendant also challenges the colloquy between the assistant circuit attorney and Brenda Cook in which questions were directed to her awareness of a duty to tell the truth and her knowledge of perjury charges. Even if such testimony was irrelevant and immaterial as defendant contends, the general rule is that a judgment cannot be reversed because of the admission of irrelevant and immaterial evidence which is clearly not prejudicial. State v. Talbert, 454 S.W.2d 1, 3[4] (Mo.1970). For this same reason we find defendant’s third point on appeal lacking in merit. Here defendant submits that the court erred in allowing the assistant circuit attorney to question Brenda Cook regarding conversations she had with the defendant’s mother and Mrs. Carrol Reason, the tavern owner. Defendant, however, offers no explanation about how he was prejudiced by this testimony.

The final point on appeal alleges error in allowing testimony with regard to police procedures in printing identification photographs of arrested persons because it indicated the defendant had a prior criminal record. Due to the initial misidentification of the first suspect, identity was an especially significant issue in this case. It was therefore crucial to the state’s case to explain the misidentification by showing the resemblance between the defendant and the first suspect. However, due to the pictures introduced of the two men, the defendant’s skin appeared lighter than that of the misidentified man. Thus, a police officer was called on to explain that the photographic process used to make a picture from an old photograph accounted for what appeared to be a difference in skin color. Clearly the testimony was relevant and material in explaining the early misidentification and the later accurate identification of the defendant. State v. Crossman, 464 S.W.2d 36, 41[3] (Mo.1971); State v. Holmes, 389 S.W.2d 30, 34[5] (Mo.1965). It is also recognized that there was no direct testimony given about the defendant having committed a prior crime.

Defendant also contends that the police officer was not an expert in photography and should not have been permitted to testify about the processing of photographs. This contention was not raised at trial nor in defendant’s motion for a new trial and therefore cannot be raised for the first time on appeal. Rule 27.20(a); State v. Goff, 496 S.W.2d 820, 821[1] (Mo.1973).

Finding no prejudicial error occurred in defendant’s trial, we affirm the defendant’s conviction.

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Clyde Henry BERRY, Defendant-Appellant.
    No. 9444.
    Missouri Court of Appeals, Springfield District.
    July 30, 1975.

      Clyde R. Allemann, White, Dickey & Al-lemann, Springfield, for defendant-appellant.
    John C. Danforth, Atty. Gen., Scott A. Raisher, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Defendant Clyde Henry Berry, charged as a second offender, § 556.280 V.A.M.S., was found guilty by a jury of the offense of manslaughter, § 559.070, and was sentenced to a prison term of eight years, § 559.140. Defendant appeals.

The information, in addition to alleging the prior conviction, charged the defendant with the first degree murder of Mildred L. Moody by use of a knife.

The first of defendant’s four contentions is that the evidence is insufficient to support the conviction. In determining the validity of that contention, this court must view the evidence in the light most favorable to the state, accept all substantial evidence and all legitimate inferences fairly deducible therefrom tending to support the verdict, and reject contrary and contradictory evidence. State v. Petrechko, 486 S.W.2d 217 (Mo.1972). This court must disregard all evidence unfavorable to the state and reject all inferences unfavorable to the state. State v. Summers, 506 S.W.2d 67, 69 (Mo.App.1974). The defendant offered the testimony of himself and other witnesses and thus the submissibility of the case will be determined upon all of the evidence. State v. Sykes, 372 S.W.2d 24, 25[2] (Mo.1963); State v. Chester, 445 S.W.2d 393 (Mo.App.1969).

It is not the function of this court to determine the credibility of the witnesses or to weigh the evidence. State v. Small, 423 S.W.2d 750, 751[2] (Mo.1968). The effects of conflicts or inconsistencies in any testimony are questions for the jury. State v. Turnbough, 497 S.W.2d 856, 858[5] (Mo.App.1973). The jury may believe all or none of the testimony of a witness, or may accept it in part or reject it in part, just as they may find it to be true or false when considered in relation to other testimony and the facts and circumstances of the case. State v. Wynn, 391 S.W.2d 245 (Mo.1965).

In a circumstantial evidence case, the state is required to prove facts and circumstances consistent with the guilt of the defendant and inconsistent with any reasonable theory of his innocence, State v. Keller, 471 S.W.2d 196, 198[1] (Mo.1971), but the circumstances need not demonstrate an absolute impossibility of innocence. State v. Phillips, 452 S.W.2d 187, 189[2] (Mo.1970).

The victim of the offense was Mildred L. (Mickey) Moody, a former wife of the defendant. The principal events took place on May 15, 1972, at defendant’s home in Springfield, Missouri. At the time of her death, Mickey was the wife of Junior Moody and they lived at 1426 Ethyl, “about 10 minutes from defendant’s home.”

After divorcing Mickey, defendant married Anna. Although defendant was divorced from Anna prior to the date of the offense, he and Anna continued to live together in the four and one-half room house located at 2041 N. Marion. The house faces east and is located at the northwest corner of the intersection of West Lee and North Marion.

During the afternoon of May 15 Mickey, Junior, Anna and the defendant were in the kitchen of defendant’s home, drinking wine. Three months earlier Anna had heard Mickey tell the defendant “Don’t you ever hit Anna in my presence or I will whip you.”

Anna testified that Junior, when he drank, was a pleasant person and did not get violent. The same was true of Mickey and Anna. However, when the defendant drank, according to Anna, he was “an entirely different person . . . he is violent.” During the afternoon, while the four people were together, defendant and Anna had an argument about a pepper plant and defendant struck Anna. This caused her mouth to bleed and she also received an injury to her forehead.

Junior left the defendant’s house and he never saw Mickey alive thereafter. After Junior left, the defendant kept “cussing” and “raving.” Anna was struck again by the defendant. This time he hit her with his fist and knocked her through a door into a room on the west side of the defendant’s house. Defendant’s second assault upon Anna caused injuries to her head and “broken ribs on both sides.”

The defendant’s height was 6'2" and he weighed about 230 pounds.

Anna got up off the floor, after the defendant’s second attack, and went out the back door. Witness Jack Watson saw her departure. She entered a house located west of that of the defendant and went to sleep upon a bed. The next thing she remembers was being awakened by the police.

When Anna left the defendant’s house the only two people there were the defendant and Mickey. Mickey was alive and uninjured, sitting in a chair in the kitchen, and the defendant was in the kitchen. A paring knife and a butcher knife were in the kitchen. No curtain was torn down while Anna was in the defendant’s house and the kitchen curtain was still in proper position when she left.

Junior testified that after he had been home about an hour he returned to defendant’s house about 5:30 p. m., and parked his automobile on Lee Street, south of the house, and entered the front door. He was only a step or two into the house when he was met by the defendant. For reasons unknown to Junior, the defendant attacked Junior with a knife and Junior was cut in the upper arm. Junior drove home and called the police.

Rev. Thomas Boaz was mowing a nearby lawn, about 5:30 p. m., and saw Junior park his car and walk to the front door of defendant’s house. A fist came “through the door” at Junior and Junior left the premises immediately and drove away.

Jack Watson testified that he lived in a house located at the southwest corner of the intersection of West Lee and North Marion. Watson’s house faces north and is about 75 feet from the defendant’s house. Between 5:32 p. m. and 5:37 p. m. Watson, from his porch, saw Junior depart in Junior’s 1966 Plymouth. After Watson saw Junior leave, and while Junior’s car was no longer in the area, Watson heard some banging noises emanating from the defendant’s kitchen and saw a curtain being pulled down.

Mickey weighed about 200 pounds and was 5'10" tall. She was larger than Junior or Anna, both of whom denied killing her. About 25 minutes after Watson heard the banging noise, the defendant came out the back door of his house, went to the front yard and then came across to the Watson house. Defendant told Mr. and Mrs. Watson that there was a murdered woman in his house and that Anna had left with Junior. Mrs. Watson told the defendant that Anna had not left with Junior but had gone down the street to another house. The defendant said “No, she went with Mr. Moody, don’t argue with me.” The defendant had blood across the knuckles of both of his hands. He told Mrs. Watson “Well, I guess I got it off of her.” The police arrived twenty minutes later.

Photographs of the victim showed her lying on the kitchen floor, the upper portion of her body in a pool of blood. The butcher knife had penetrated the body almost to its hilt and its direction of entry was toward the front of the body.

Dr. E. B. Hanon, a pathologist, conducted an autopsy of Mickey’s body on May 16. His examination disclosed multiple stab wounds. The knife was sticking out of the back just to the left of the spinal cord about the level of the fifth and sixth thoracic vertebrae. Just above the knife was a stab wound about PA inches long in the same line and just to the left of the spinal column about the level of the second and third thoracic vertebrae. This wound had deviated to the right, cut across the posterior layer of the spinal column, entered the spinal canal and severed the spinal cord. The wound was apparently made by the same knife which was sticking in the body. The knife blade measured 7½ inches in length and had penetrated the body a distance of 6¾ inches. There was another stab wound, about four inches across, just below the axilla. There were knife point bruises on the shoulder. Death would have occurred “within a period of a few minutes.” There was a palm wound which was consistent with the deceased attempting to fend off a knife. Dr. Hanon also testified that it would not have been possible for the wounds to have been self-inflicted.

After the police officers arrived, sometime after 6 p. m., Officer Allen entered the house and discovered the dead body. The officers observed blood on the defendant’s shirt and pants and on the knuckles and palms of his hands. The defendant also had a faint scratch across his mid-abdomen. The defendant’s handkerchief was bloodstained as were his shoes. His shirt was disarranged.

Police photographs of the kitchen showed evidence of a struggle. Mickey’s watch was lying on the floor near the body and the curtain, normally attached to the kitchen window, was lying across the breakfast table and the curtain rod itself was out of position.

During the ride to the police station the defendant threatened the officers. The defendant previously had been given the Miranda warnings.

The defendant told one of the police officers that he had been asleep, heard a noise, went to a window and saw Junior speeding away. Officer Charles Ritter heard the defendant say that Anna had left with Junior. He was the officer who found Anna in the bedroom asleep. Defendant told the Wat-sons that he guessed “I would be blamed for this.” He told a police officer that Junior had done the killing.

At the police station the defendant told Anna “to keep her damn mouth shut.” Defendant admitted the two assaults on Anna and said that he had “bloodied her up” on prior occasions. He also stated that he did not know how long Anna stayed around after the second assault upon her but she did not leave immediately.

The defendant admitted that he had seen the butcher knife in his home many times and had used it the night before. He also admitted it was possible that three or four days previously he had told Mickey to shut her mouth or he would shut it for her. Another witness testified that a few days before May 15, he had heard the defendant make that statement to Mickey.

“Every killing of a human being by the act, procurement or culpable negligence of another, not herein declared to be murder or excusable or justifiable homicide, shall be deemed manslaughter.” § 559.070 V.A.M.S.

Although the offenses of murder in the first degree and murder in the second degree were also submitted to the jury, the propriety of those submissions is not in issue. The jury found the defendant guilty of manslaughter.

The following findings were justified by the evidence and, collectively, they support that conviction. The defendant had a violent temperament; Mickey had warned him not to strike Anna or she would whip him; the defendant struck Anna and, after Junior had gone, struck her again in Mickey’s presence; Anna left the house, leaving the defendant alone with Mickey in the kitchen; Mickey was uninjured when Anna left and the kitchen curtain was in proper position; Junior returned and was the recipient of an unexplained knife attack by the defendant; after Junior had gone, the kitchen was the scene of a struggle and the curtain was pulled down; Mickey’s wounds were not self-inflicted and the defendant was powerful and large enough to inflict them; the butcher knife was accessible to the defendant and he was familiar with it; the defendant had blood on his hands and clothes and gave the Watsons false information concerning the departures of Junior and Anna; the defendant told the Watsons he would be blamed for this; the defendant three or four days prior to Mickey’s death had threatened her.

In State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975) in affirming a manslaughter conviction, the court held that there was sufficient circumstantial evidence to warrant a second degree murder submission. The defendant asserted that there was no evidence to support a manslaughter instruction for the reason that there was no evidence of provocation by the deceased and thus no evidence to support a reduction of the homicide from murder to manslaughter. The court rejected that contention.

In this case, as in Stapleton, there was no evidence of provocation by Mickey, but that is no bar to a manslaughter submission. There is no claim of self-defense nor any evidence to support such a claim. The circumstances shown by the evidence are “consistent with each other and wholly inconsistent with the innocence of the accused, and incapable of explanation upon any other reasonable theory except that of his guilt.” State v. Stapleton, supra, at p. 296.

The evidence is sufficient to support the conviction. State v. Stapleton, supra; State v. Paige, 446 S.W.2d 798 (Mo.1969); State v. Bayless, 362 Mo. 109, 240 S.W.2d 114 (1951).

Defendant’s second contention is that the trial court erred in admitting into evidence certain items obtained by police officers from the interior of defendant’s house. Defendant relies on the Fourth and Fourteenth Amendments to the Constitution of the United States and § 15 of Article I of the Constitution of the State of Missouri, V.A.M.S. It is conceded that the officers had no search warrant when they entered the premises. Defendant made his objection by a pre-trial motion to suppress and renewed it at the trial.

The ban of the Fourth Amendment against unreasonable searches and seizures applies to the state through the due process clause of the Fourteenth Amendment. State v. Witherspoon, 460 S.W.2d 281, 283[1] (Mo.1970), but a search may be made without a warrant under one of the few, specific, well-recognized exceptions to the ban. State v. Rush, 497 S.W.2d 213, 215 (Mo.App.1973). A search conducted pursuant to a valid consent is constitutionally permitted and is “wholly valid.” Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973). In relying upon consent to justify the lawfulness of a search, the state has the burden of proving that the consent was, in fact, “freely and voluntarily given.” Schneckloth, supra, 93 S.Ct. 2041, 2045.

Whether a consent to search was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined from the “totality of all the surrounding circumstances.” Schneckloth, supra, at 2047. In situations where the police have some evidence of illicit activities, but lack probable cause to arrest or search, the search authorized by a valid consent may be the only means of obtaining important and reliable evidence. Schneckloth, supra, 93 S.Ct. at 2048.

To show consent the state must show more than mere acquiescence to a claim of lawful authority. State v. Rush, supra, at 215. While a person’s knowledge of the right to refuse consent is a factor to be taken into account, as part of the circumstances, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent. Sehneckloth, supra, 93 S.Ct. at 2059.

In determining whether there is a voluntary consent to search, the court may consider such factors as the number of officers present, the degree to which they emphasized their authority, whether weapons were displayed, whether the person was already in police custody, whether there was any fraud on the part of the officers, the acts and statements of the consenter, and other matters comprising “the totality of the circumstances.” State v. Rush, supra, at 215.

The state seeks to justify the warrantless entry on several grounds, including that of consent. Since this court finds that consent is disclosed by the totality of the circumstances, the other grounds require no consideration.

The evidentiary background to the war-rantless entry is contained in the testimony of Jack Watson, Mrs. Jack Watson, Officer Dale Wagner, Officer Michael Allen and the defendant.

Defendant testified that late in the afternoon he went to the nearby home of Jack Watson and asked Watson to call the police. He told Watson “There was some trouble at my house.” He said there was a body on the floor and somebody was hurt bad, and that “I needed help bad.”

The defendant said that Mrs. Watson did call the police and the two officers came. Officer Wagner asked the defendant where the trouble was and the defendant answered “In the house; I pointed to the house, the house I was living in.” The defendant said he did not know if any other person was in the house at that time. The defendant was in his yard when the police arrived and remained there while the entry was made by Officer Allen. The defendant admitted that it was possible that he said to the officer “She’s in the house.”

Jack Watson testified that when the defendant came to Watson’s house the defendant said there was a murdered woman or a dead woman at his house. The defendant said that Anna and Junior had previously left the house together.

Officer Wagner testified that at approximately 6:10 p. m. he and Allen, in a patrol car, received a radio message dispatching them to 2041 N. Marion “in regard to a disturbance at that location.” The officers were in uniform. As Allen was parking the patrol car in front of the Berry home, the defendant, who was in the yard, came up to the officers. The defendant told Wagner “The man you want is Junior Moody.” Wagner asked him why and the defendant said “He is driving,” and gave a description of a car. The officer asked what the trouble was and the defendant raised his right hand and pointed toward the front door of the Berry house and said “She’s in there.”

Wagner stayed with the defendant while Officer Allen went to the front door and entered the Berry home. Allen returned shortly and said “Dale, I think we have a stabbing.” When Allen crossed the yard and entered the house, the defendant voiced no objection. Wagner testified that “I took it as implied consent after I asked him what the trouble was and he pointed to the house and said ‘she’s inside,’ taking it that maybe whoever was inside was the one creating the trouble.”

The front door of the defendant’s house opened into the living room. The house faces east, and the living room is on the southeast corner. Immediately west of the living room is the kitchen. The prone body of the victim was on the kitchen floor, with its feet extending slightly into the living room so that the victim was visible to Officer Allen as he entered the front door.

The photographs mentioned in Footnote 2, taken by a police photographer, showed various views of the kitchen, the body, and the back room which was immediately to the west of the kitchen. The other items mentioned in Footnote 2 were in the kitchen, all in plain view of a person standing at the kitchen entrance.

The following factors support the conclusion that the defendant consented to the search: The defendant himself, through Mrs. Watson, summoned the police to his premises. The defendant knew that Mickey was dead and also knew that Anna and Junior had previously departed and that no other person was in the house. The defendant “needed help bad.” When the two uniformed officers arrived, they made no “emphasis of their authority” and displayed no weapons, although they were wearing sidearms. The defendant was not then under arrest, and the officers did not solicit an invitation to enter the home. The defendant, standing in his yard, pointed to his front door and told the officers “She’s inside.” Though the officers did not then know to what person the defendant was referring, the defendant knew that he was referring to the deceased. In the mind of the defendant, his message to the officers translated into “A dead woman is in there.” This statement, made while the defendant pointed his hand toward the door, reasonably caused the officers to believe, and they testified they did believe, that they were being asked to enter the premises to investigate the situation. That invitation was accepted. The defendant made no objection to the entry.

The defendant’s consent to the entry was in fact voluntary and was not the product of duress, express or implied. The search was conducted pursuant to a valid consent.

Appellant’s brief, in discussing the “consent” issue, states but does not stress that appellant was intoxicated when Officers Allen and Wagner arrived. There was testimony to that effect. Intoxication, though a factor to be considered, is not determinative “of the voluntariness of waiver of rights issues.” State v. Heather, 498 S.W.2d 300, 304 (Mo.App.1973). In State v. Smith, 342 S.W.2d 940, 941[3] (Mo.1961) our Supreme Court held that the fact that a defendant was “more or less” intoxicated when he confessed did not render the confession inadmissible if he had sufficient mental capacity to know what he was saying.

In United States v. Leland, 376 F.Supp. 1193, 1199 (D.C.1974) the court held that the intoxication of a consenter to a search, as bearing upon the validity of the consent, is to be judged by the same standard as that used for determining whether a confession, given while intoxicated, was voluntary.

The fact that the defendant was intoxicated, at least to some extent, when he consented to the search is only one of the circumstances, the totality of which must be considered in determining whether the consent was voluntary.

In Heather, supra, a statement by the defendant was held to be admissible, although in the opinion of the officers he was intoxicated. ' The court held that the evidence reflected that the defendant “had sufficient capacity to waive his Miranda rights and to make a voluntary statement.”

The evidence in this case fails to show that Berry’s intoxication was “so extreme” that the court was compelled to conclude his consent “was not the product of a rational intellect and a free will.” Heather, supra, at p. 304.

Defendant’s second contention has no merit.

Defendant’s third contention is that the trial court erred in admitting into evidence certain statements made by the defendant to police officers and to Anna.

Officers Allen and Wagner had arrived at defendant’s home at approximately 6:15 p. m. Shortly thereafter Officer James Newton arrived for the purpose of supervising the investigation. Newton arrested the defendant and gave him the Miranda warnings. Then Officers Allen and Wagner took the defendant and Anna in the police car to the police station.

On the way to the station the defendant threatened Wagner by saying “You goddamn sonofabitch, I will get you whenever I get out of this.” At the police station the defendant told Officer Ray Benton that he knew he was going to die in jail but “he was going to take a bunch of us with him.” The following morning the defendant said to Anna “Keep your damn mouth shut.”

The foregoing evidence was admissible. In State v. Cade, 326 Mo. 1132, 34 S.W.2d 82 (1930) witnesses were permitted to testify to threats made against them by defendant while he was being taken to jail. In State v. Mason, 394 S.W.2d 343, the defendant, following his preliminary hearing, told a state’s witness “I will get you before they try me.” The court said that evidence of threats of the defendant against witnesses against him is admissible “to establish his guilt on the original charge,” and that evidence showing that the accused has attempted to destroy evidence against himself “is always admissible as showing a consciousness of guilt.” To similar effect see State v. Corlew, 463 S.W.2d 836, 840[5].

“The general rule is that acts, conduct, and declarations of the accused occurring after the commission of an alleged offense which are relevant and tend to show a consciousness of guilt, or a desire or disposition to conceal the crime, are admissible in evidence.” State v. Walker, 357 Mo. 394, 208 S.W.2d 233, 236[1] (Mo.1948).

Defendant’s third contention has no merit.

Defendant’s fourth contention is that the trial court erred in overruling defendant’s motion for a mistrial based on remarks in the prosecutor’s opening statement to the jury.

At the outset of his remarks, the prosecutor told the jury that he was going “to present to you what the evidence will be from my witnesses.” After outlining certain evidence, he stated that a police officer would testify that he took Junior into custody.

The following then transpired:

Prosecutor: “He (Junior) was arrested for investigation of murder on probable cause, that is correct, and that Junior Moody did not resist, that he gave a written statement to the police immediately after-wards, that he fully cooperated with them, and later testified in open court at a preliminary hearing, at which he was subject to cross-examination by the defense counsel. Secondly, Anna Berry was also arrested for investigation of murder on probable cause, was taken into custody, she gave an oral statement to the police officers and in her oral statement she stated to the police officers that Clyde Berry had killed—

Mr. Yocom: Now, I object to this. May we approach the Bench on this?

The Court: You may.

Mr. Yocom: I want to ask for a mistrial on this, too.”

Outside the hearing of the jury, counsel for defendant told the court that the transcript of the testimony at the preliminary hearing showed that Anna testified that she did not see Clyde Berry kill anybody. The prosecutor agreed that such was Anna’s testimony at the preliminary hearing but told the court the state’s evidence would be that Anna, shortly after her arrival at the police station on the day of the offense, told the officers that she saw the defendant strike Mickey with a knife, that Anna then talked to a defense attorney on the telephone and “immediately changed her story.” The prosecutor also informed the court that he intended to request permission to cross-examine Anna “because she is going to be a hostile witness.” During this colloquy at the bench, counsel for defendant stated that any statement made by Anna to the police was objectionable on the ground of hearsay.

The court then denied the motion for mistrial.

The defense attorney then requested the court “to admonish the jury to completely disregard that statement about what evidence is going to be put in on the statement from Anna . . .We are asking the Court to, at this time, before the damage is done, before the jury goes out all night long hearing what he said.” Defense counsel then moved, in the alternative, for a mistrial or for an instruction to disregard.

When the jury returned to the court room the court instructed them “to disregard and set out of your minds and it is stricken from the record the statement made by Mr. Wampler to the Jury to the effect that Anna Berry had made a certain statement to one of the officers.”

The next morning, counsel for both sides conferred with the court in chambers. The prosecutor requested the court to make the following statement to the jury: “Any statements made by the prosecutor in his opening statement with regard to anything Anna Berry might have said to police after being taken into custody is to be disregarded and the prosecutor is admonished not to refer to this.”

Defense counsel were shown this admonition in chambers but did not then request that the statement not be given. The jury was brought in and it was given.

The prosecutor then stated that he had concluded his opening statement and told the bailiff to call Junior as the first witness. Defense counsel then stepped to the bench and renewed the motion for mistrial, stating with reference to the second admonition “Further damage has been done by emphasizing it at the request of the prosecutor.”

The purpose of the opening statement is to advise the jury of the facts which the state expects to prove. State v. Feger, 340 S.W.2d 716, 724 (Mo.1960). It is improper for a prosecuting attorney, in his opening statement, to indicate that certain evidence will be adduced if he knows that such evidence will be inadmissible upon objection. State v. Stillman, 310 S.W.2d 886, 888[2] (Mo.1958). The prosecuting attorney is charged with the duty to see that a person on trial is afforded a fair trial. State v. Fenton, 499 S.W.2d 813, 815 (Mo.App.1973). See also 63 Am.Jur.2d Prosecuting Attorneys § 27, p. 355.

Whether or not remarks of counsel are improper, and whether or not improper remarks are prejudicial under the particular facts of the case and necessitate a reprimand of counsel or discharge of the jury are matters resting very largely within the trial court’s discretion and an appellate court will not interfere unless the record shows an abuse of such discretion to appellant’s prejudice. State v. Chester, 445 S.W.2d 393, 899[11, 12] (Mo.App.1969). See also State v. Stapleton, 518 S.W.2d 292, 301 (Mo. banc 1975).

The most significant portion of the opening statement was “In her oral statement she stated to the police that Clyde Berry had killed — ”

Anna Berry testified at the preliminary hearing, and this court has reviewed that transcript, as did the able and experienced trial judge. It does not contain testimony by Anna that she saw Clyde Berry kill anyone or that Clyde Berry did kill anyone.

The statement was hearsay and there is nothing in the record to show that Anna Berry’s statement was admissible under any of the exceptions to the hearsay rule. The defendant was not present when Anna was interviewed by the police.

Thus, the prosecuting attorney was in error in making his remark. During the first bench conference, capable counsel for the defendant, after his initial motion for mistrial was overruled, asked the court to admonish the jury to disregard the statement “before the damage is done.”

The next morning the prosecutor himself, conscious that he had exceeded the limits of tolerable zeal, asked the court to renew the instruction to disregard and to append to it an admonition to the prosecutor to make no additional reference. Though defense counsel stated, after the second admonition had been given, that further damage had been done, defense counsel had the opportunity in chambers to have protested the giving of the second admonition but made no such protest.

Although this court condemns the conduct of the prosecutor in making the improper remark, there is no claim or showing of bad faith on his part. Although the discretion of the trial court is not absolute, this court does not feel that there has been an abuse of the discretion in failing to apply the drastic remedy of declaring a mistrial. State v. Levy, 262 Mo. 181, 170 S.W. 1114; State v. Heather, 498 S.W.2d 300, 303[1, 2] (Mo.App.1973); State v. Raspberry, 452 S.W.2d 169, 173; State v. Dennison, 428 S.W .2d 573, 577 (Mo.1968).

Defendant’s fourth contention, the resolution of which was not free of difficulty, is overruled.

There is no error in the matters of record reviewed pursuant to Rule 28.02 V.A.M.R.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMo 1969, V.A.M.S.

      . The butcher knife which inflicted the fatal injury, pieces of a broken dish, a curtain and curtain rod, deceased’s purse, a paring knife, a dish towel and a wrist watch. The police also took photographs of the interior and made measurements from which a floor plan was prepared.

      . “[0]ne may not impeach the witness he has called when he well knows in advance that the witness’ evidence is going to be unfavorable and adverse, as, for example, when the witness’ deposition has been previously taken and his evidence was then adverse to the party calling him. In that event there is no surprise to the party calling him and no unexpected benefit to the adverse party. And, of course, in that event the party is not misled or entrapped by the witness.” Crabtree v. Kum, 351 Mo. 628, 173 S.W.2d 851, 859[11, 12] (1943).


author: HENRY, Justice. BROCK, Justice

text:
    Reece L. SMITH, Jr., Petitioner, v. STATE of Tennessee, DEPARTMENT OF TRANSPORTATION, Robert F. Smith, Commissioner, Respondent.
    Supreme Court of Tennessee.
    Nov. 25, 1974.
    Gail P. Pigg, Nashville, for petitioner.
    David M. Pack, Atty. Gen., Russell G. Lazenby, Jr., Asst. Atty. Gen., of Tenn., Steven North, Nashville, for respondent.
   OPINION

HENRY, Justice.

This is a condemnation suit wherein the State of Tennessee acquired title to a small tract of land (ten [10] feet wide and one hundred, eighty-seven and one-half [187.5] feet long) running along the western margin of Iris Drive just north of its intersection with Thompson Lane in Davidson County. The rear boundary runs parallel to the front for a distance of one hundred fifty and six-tenths (150.6) feet. Petitioner and seven others, who are not parties to this appeal, own this seventeen hundred and ten (1710) square foot tract as tenants in common.

Across Iris Drive is located the 12 Oaks Motel owned by the petitioner in fee simple.

On the circuit court trial the jury awarded petitioner and his co-owners compensation for the value of the land taken, but did not award incidental damages.

The remaining tenants in common accepted the award of the jury.

The petitioner prayed an appeal to the Court of Appeals predicated upon the propositions (1) that he should have been awarded incidental damages to his motel property by reason of the loss of the use of the condemned strip as a parking area for the motel, and (2) that the trial court should have permitted testimony as to the special use of the condemned tract and its peculiar value to his motel operation.

The Court of Appeals affirmed the trial court, holding that the case is governed by Tillman v. Lewisburg & Northern Railroad Company, 133 Tenn. 554, 182 S.W. 597 (1915).

This Court granted certiorari and has heard oral argument.

The Court of Appeals, in an opinion by Judge Puryear, commented on Tillman as follows:

In that case the Railroad Company instituted a proceeding to condemn a strip of land through a larger tract as a right of way. Mrs. Tillman and her husband owned this larger tract of 105 acres as tenants by the entireties. Mrs. Tillman also owned, individually, a tract of 25 acres lying opposite the 105 acre tract and separated from it by a turnpike. Their residence was located on the smaller tract and the two tracts were and had been continuously operated together as one farm. Mrs. Tillman insisted that she was entitled to recover for incidental damages sustained to the 25 acre tract. In that case the Supreme Court rejected the insistence of Mrs. Tillman and said: “Assume that the plaintiff, Mrs. Tillman, were the owner, as tenant in common, of a one-tenth undivided interest in the larger tract. May it be held that a condemnation affecting that small interest would support the claim here urged for damages to the entire tract solely owned by her? If so, other tenants in common owning contiguous tracts individually could do so in like manner, and it is conceivable that if the right of way were taken out of a small boundary so owned in common, surrounded by large tracts severally owned by the tenants in common, enormous damages could be collected from the condemnor under the rule contended for by the appellant.
“Let the attitude of the case be reversed, by supposing that plaintiff’s individually owned tract had been specially benefited by the construction of the railway over the adjoining tract, but that the balance of the larger tract was incidentally damaged. Would it be either fair or sound to hold that this incidental damage should be offset by the benefits accruing to the smaller tract? Would it not be an abundant reply that mutuality of parties or ownership was lacking to justify such a setoff? We think so.”
We concur with the Court of Appeals.

While the authorities are not in complete accord, the general rule is that in order to allow severance damages where a portion of a parcel or parcels of land is taken by condemnation, there must be unity of title, unity of use and contiguity. 29A C.J.S. Eminent Domain § 140; 95 A.L.R.2d 890; 27 Am.Jur.2d § 320.

Petitioner’s rights in the condemned property rest on a fragile foundation. He had no written agreement with his co-tenants and, at best, his use of the premises was by their acquiescence, sufferance or tacit permission. This permissive use by eondemnee, almost on a day-to-day basis, constitutes an insufficient interest to form the basis for an award of incidental or severance damages. At most, his was a mere expectancy of continuing possession and use.

Moreover, the record reflects that when used for normal parking (as opposed to parallel) a conventional automobile per force of necessity extends beyond the ten foot strip and protrudes onto the right-of-way of Iris Drive. Thus, it is that at any time, with or without notice, the City of Berry Hill could have terminated petitioner’s enjoyment of the condemned strip.

Any damages whether severance, incidental, consequential or for special or peculiar use would be speculative or conjectural and impossible to determine.

We expressly restrict this opinion to the peculiar facts and circumstances of this particular case, involving multiple tenants in common, permissive use and an insubstantial interest.

Affirmed.

FONES, C. J., and COOPER and HARBI-SON, JJ., concur.

BROCK, J., dissents.

BROCK, Justice

(dissenting).

I must respectfully dissent.

Although the majority opinion recognizes the injustice of the decision in Tillman v. Lewisburg & N. Railroad Co., 133 Tenn. 554, 182 S.W. 597 (1915), it nevertheless applies the rule there announced that “unity of title” must exist in order for the citizen to recover incidental or consequential damages to the property remaining after the taking of a contiguous tract in which the citizen has an ownership interest as a tenant in common. The property taken is the parking lot for a motel located on the property not taken but which is contiguous to that taken and with respect to which there exists “unity of use.” Obviously, the motel property must be substantially damaged by the taking of the parking lot, a very essential part of a motel business.

Tillman speaks too much of “unity” of title, use, etc., and not enough of the mandate of the Constitution and statutes that no person’s property be taken without just compensation. Constitution of Tennessee, Art. I, Sec. 21; T.C.A. Sec. 23-1414. Tillman is typical of jurisprudence in the latter part of the nineteenth century and the early part of the twentieth when courts sometimes showed more interest in the apparent “logical symmetry” of their decisions than in assuring that the law achieved justice. Accordingly, I would overrule Tillman.

The majority opinion states that “Petitioner’s rights in the condemned property rest on a fragile foundation.” I cannot agree. Tenants in common in Tennessee enjoy a rather substantial estate. They are jointly seized of the entire estate; each has an equal right of entry and possession, and the possession of one is the possession of all. Story v. Saunders, 27 Tenn. 663. Any tenant in common has the right to enter upon the common estate and take possession of the whole thereof subject only to the equal right of his cotenants. Garland v. Holston Oil Co., 53 Tenn.App. 703, 386 S.W.2d 914. In my view petitioner, as a tenant in common, had a sufficiently substantial interest or “title” in the property taken to entitle him to seek damages to the remainder. See: Barnes v. North Carolina State Highway Commission, 250 N.C. 378, 109 S.E.2d 219; 95 A.L.R.2d 894.

I would reverse the judgment of the Court of Appeals and remand to the trial court for a determination of the incidental or consequential damages to the motel tract.


author: COOPER, Justice.

text:
    Cherry Sue BARNHART v. Mark Roger MADVIG.
    Supreme Court of Tennessee.
    May 12, 1975.

      James W. Surprise, Barnhart & Surprise, P. C., Memphis, for appellant.
    Carl H. Langschmidt, Jr., Boone, Well-ford, Clark, Langschmidt & Pemberton, Memphis, for appellee.
   OPINION

COOPER, Justice.

This appeal is from an order of the Juvenile Court of Shelby County dismissing a paternity suit for lack of in personam jurisdiction over the alleged father.

Cherry Sue Barnhart filed a sworn petition naming Mark Robert Madvig as the father of her child and sought a decree of paternity and support against Mr. Madvig. The factual allegations of the petition in their entirety are as follows:

“1. Petitioner is a resident of Memphis, Shelby County, Tennessee. Defendant is a non-resident of the State of Tennessee and a resident of the State of Minnesota.
“2. The petitioner hereby represents to this Court that the defendant is the natural father of Michael Robert Barnhart, born out of wedlock to petitioner on August 15,1972, in Memphis, Shelby County, Tennessee, petitioner being the natural mother of said child.”

The appellee was served with copies of the petition and summons in the State of Minnesota pursuant to the Tennessee long-arm statute, Tennessee Code Annotated, Section 20-235 et seq. On service, appellee made a special appearance to contest jurisdiction. For the purpose of the motion, the parties stipulated that “the petitioner has never been in the company of the defendant in the State of Tennessee.” The trial court determined from the pleadings and the stipulation that it did not have personal jurisdiction over the defendant and dismissed the petition.

The question on appeal is whether in a paternity action instituted by the mother who is a resident of Tennessee, a Tennessee court may obtain personal jurisdiction over a nonresident alleged father, who has never been in Tennessee, by service in a foreign state pursuant to the long-arm statute.

Appellant insists that jurisdiction of the person of appellee was properly acquired under sections (b) and (f) of T.C.A. § 20-235, citing Gentry v. Davis, 512 S.W.2d 4 (Tenn.1974).

Tennessee Code Annotated Section 20-235 provides in part as follows:

“Jurisdiction of persons unavailable to personal service in state — Classes of action to which applicable. — Persons who are nonresidents of Tennessee and residents of Tennessee who are outside the state and cannot be personally served with process within the state are subject to the jurisdiction of the courts of this state as to any action or claim for relief arising from:
* * * * * *
(b) Any tortious act or omission within this state:
(f) Any basis not inconsistent with the constitution of this state or of the United States.”

In the Gentry case, supra, this court held that a nonresident defendant in a paternity suit is subject to service under the long-arm statute, where it was charged that “during the time biologically certain to have been the instant of conception, your Petitioner had sexual intercourse with your Defendant in Roane County, Tennessee, and with no other person.” In doing so, the court assumed without deciding that jurisdiction must be founded on sections (b) and (f) of T.C.A. § 20-235 and held that:

“[T]he allegation in appellant’s complaint, that appellee committed an act in Tennessee which would render him liable for the support of their off-spring, is sufficient to confer upon Tennessee courts personal jurisdiction of the appellee, and that the method of service of process provided by T.C.A. § 20-236.”

Now, faced with the proposition of deciding whether a paternity action is an action in tort so as to subject a nonresident defendant to service under the long-arm statute as contended by appellant, we have concluded as did the court in A. R. B. v. G. L. P., 507 P.2d 468 (Colo.1973), that:

“[B]y the application of the most liberal rules of construction (none of the numerous definitions of a ‘tort’ and ‘a tortious act’), would tolerate the inclusion of an act of sexual intercourse between consenting adult [parties], which, in the absence of allegations showing otherwise, is the nature of the act involved in this paternity case.”

See also Anonymous v. Anonymous, 49 Misc.2d 675, 268 N.Y.S.2d 710 (1966). Cf. Poindexter v. Willis, 87 Ill.App.2d 213, 231 N.E.2d 1 (1967).

Section (f) of the long-arm statute grants to Tennessee courts the broadest possible jurisdiction over nonresident defendants by expressly providing that in personam jurisdiction can be asserted on any basis not inconsistent with the constitution of this state or of the United States. In International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), the Court pointed out that:

. . [D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ”

In the course of its opinion in International Shoe the Court also said:

“Whether due process is satisfied must depend rather upon the quality and nature of the activity in relation to the fair and orderly administration of the laws which it was the purpose of the due process clause to insure. That clause does not contemplate that a state may make a binding judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations.”

In the instant case appellant set out no facts in her petition which would indicate that appellee engaged in any activity in Tennessee or had any contact with Tennessee which could confer upon the Tennessee courts in personam jurisdiction over him in a paternity suit. To the contrary appellant stipulated that she and appellee were never together in Tennessee, which means, of course, that sexual intercourse took place in a state other than Tennessee. Tennessee came into the picture only because the appellant, having conceived a child in a sister state, elected to come to Tennessee to have her child. She could have just as easily have picked any one of the other forty-nine states as the birthplace of her child and her place of residence.

In Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), the Court pointed out that:

“The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws. International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S.Ct. 154, 159, 90 L.Ed. 95. (Emphasis added.)

Certainly the unilateral act of the appellant in coming to Tennessee from the state where she had sexual intercourse with the appellee does not satisfy the due process requirement of minimum contact with the forum state so as to permit Tennessee Courts to take in personam jurisdiction of the appellee. To hold otherwise would allow the appellant to select the forum most favorable for her purpose by the simple expedient of establishing residence for her and her child.

Judgment affirmed. Costs incident to the appeal are adjudged against appellant.

HENRY, BROCK and HARBISON, JJ., concur.

FONES, C. J., not participating.


author: HARBISON, Justice.

text:
    STATE of Tennessee ex rel. Ray BLANTON et al. v. J. M. DURHAM, d/b/a Battlefield Liquor Store, et al.
    Supreme Court of Tennessee.
    Aug. 11, 1975.
    William C. Koch, Jr., Asst. Atty. Gen., Nashville, for appellants; R. A. Ashley, Atty. Gen., Nashville, of counsel.

      James W. Lincoln, III, Nashville, for ap-pellees; Thomas A. Wiseman, Jr., Nashville, of counsel.
   OPINION

HARBISON, Justice.

This case involves the constitutionality of Chapter 31 of the Public Acts of 1975, the purpose of which was to repeal earlier statutes dealing with price regulations on alcoholic beverages.

The action was instituted by a number of retail liquor dealers, alleging that Chapter 31 failed to meet the requirements of Article 2, Section 17, of the Tennessee Constitution, on the ground that the body of the Act was broader than its caption.

The Chancellor held that since the caption of the Act shows that it is a repealing statute only, and since the body of the Act contains language amending certain code sections rather than repealing them, the statute is unconstitutional. He cited and relied upon the case of Bell v. Pulaski, 179 Tenn. 542, 167 S.W.2d 985 (1943).

Prom the action of the Chancellor the State officials who were made parties defendant have duly perfected an appeal to this Court.

The constitutional provision involved is as follows:

“Bills may originate in either House; but may be amended, altered or rejected by the other. No bill shall become a law which embraces more than one subject, that subject to be expressed in the title. All acts which repeal, revive or amend former laws, shall recite in their caption, or otherwise, the title or substance of the law repealed, revived or amended.”

The caption of Chapter 31 of the Public Acts of 1975 is entitled:

“AN ACT to repeal Tennessee Code Annotated, Sections 57-701 through 57-707, relative to price regulations on alcoholic beverages.”

The code sections referred to in the caption had their origin in Chapter 278 of the Public Acts of 1959 and have been the subject of some amending legislation in later years. They are properly referred to as the “fair trade” liquor laws, and generally regulate the price of retail sales of alcoholic beverages. The first five code sections deal with price regulations and provide penalties for violations. The sixth section, T.C.A. § 57-706, imposes a tax upon the wholesale sale of alcoholic beverages, the proceeds of which were directed to be spent by the Alcoholic Beverage Commission for the enforcement of the price regulation statutes. The last section, T.C.A. § 57-707, provides for regular audits of wholesalers and retailers, and deals with their record keeping and the examination of their books and records.

The legislation now under consideration, Chapter 31 of the Public Acts of 1975, is a very brief statute, consisting of two sections, the last section simply making the Act effective on July 1, 1975.

The first sentence of Section 1 repeals T.C.A. §§ 57-701 through 57-705 and the second subsection of T.C.A. § 57-707 (which requires duplicate invoices of sales to wholesalers to be furnished to the Commissioner of Revenue).

Section 1 of Chapter 31, however, goes further and amends a portion of T.C.A. § 57-706 (referred to in the statute as T.C.A. § 57-705 by typographical error, which is apparent on the face of the statute). The amendment leaves standing the former tax imposed on wholesale sales, and simply deletes from the previous statute the provision that the proceeds of the tax should be used by the Alcoholic Beverage Commission for the enforcement of the price regulation statutes. T.C.A. § 57-707 is also amended so as to delete any references to the enforcement of the price regulation statutes.

The result of Chapter 31, as enacted, was to repeal the price regulation statutes entirely, and to retain the tax on sales at wholesale, with the proceeds of the tax going generally to the Alcoholic Beverage Commission, rather than being devoted to enforcement of the now-repealed pricing statutes.

The constitutional attack on Chapter 31 is predicated upon the proposition that there is no reference in the caption to the amendments to the taxing provisions of the former statutes. It is accordingly contended that the text or body of the Act is broader than its caption, and that, in effect, the text deals with two subjects while only a single subject is dealt with in the caption.

The history of Article 2, Section 17, of the Tennessee Constitution and the salutary purposes which it is designed to serve have been noted in a great number of previous decisions of this Court, and we do not believe it necessary to discuss them in detail here. Essentially, the constitutional provision requires that the title, or caption, of an act state the subject of the act, and that in the case of laws which repeal, revive or amend former laws, proper reference shall be made, in the caption or otherwise, to the title or substance of such former laws.

Basically, the purpose of this constitutional provision was to prohibit so-called “omnibus bills” and bills containing hidden provisions of which legislators and other interested persons might not have appropriate or fair notice. See Armistead v. Karsch, 192 Tenn. 137, 237 S.W.2d 960 (1951); Haynes v. Sanford, 185 Tenn. 576, 206 S.W.2d 796 (1947); Palmer v. Southern Express Company, 129 Tenn. 116, 165 S.W. 236 (1914); State v. Hayes, 116 Tenn. 40, 93 S.W. 98 (1905).

In the ease relied upon by the Chancellor, Bell v. Pulaski, 179 Tenn. 542, 167 S.W.2d 985 (1943), the caption of a Private Act stated that the purpose of the Act was to repeal a number of previous acts dealing with the charter of the City of Pulaski. The text of the Act went further than a repeal, however, and undertook to set forth and define new corporate limits of the city. This Court held that the “one subject” provisions of the state constitution were violated and that the body of the Act was broader than its caption. The entire Act was held unconstitutional.

It is apparent from an examination of the statute involved in the Bell case that the primary purpose of the legislature in enacting it was not to repeal previous statutes but to provide new boundaries for the municipality. In other words, the legislature affirmatively undertook to pass an entirely new and different statute under a caption which made no reference thereto, and under a caption which merely provided for a repeal of earlier private acts. The Court correctly concluded in that case that the statute under consideration did in fact involve two subjects and was in contravention of the constitutional provisions. There was no logical basis or method for eliding the offending part of the private act, since merely to give effect to the repealing portions and to elide the sections redefining the boundaries would have been to leave the city without any boundaries whatever. The Court could not rationally have concluded that the General Assembly would have passed the repealing provisions absent the other sections which were really the heart of the legislation.

We do not have such a situation in the present case. It is perfectly clear that the primary and overriding purpose of Chapter 31 of the Public Acts of 1975 was to repeal former pricing statutes on alcoholic beverages. This the Act did in no uncertain terms. Coupled with the original pricing statutes, however, as they had been codified, was the wholesale liquor tax, which the legislature obviously intended to leave in force and effect. Since the earlier statutes, however, had directed that all of the proceeds of the tax on wholesale sales be used for the purpose of enforcing the pricing statutes, and since the latter statutes had now been repealed, the General Assembly as a necessary and integral part of the repeal removed from the tax sections all language concerning expenditure of the proceeds. Had this not been done, there would have been left a taxing statute, directing expenditure of the tax proceeds for a nonexistent purpose.

Upon consideration, therefore, it seems to us that Chapter 81 had only a single purpose, and dealt with only a single subject. It is clear from the caption of the Act that only those portions of the previous statutes “relative to price regulations” were intended to be repealed. This repeal was clearly accomplished. Incident to and as a necessary part of the repeal was the deletion of all language from the taxing statutes directing the expenditure of the tax proceeds to enforce the now repealed pricing laws.

We find no inconsistency in the provisions of Chapter 31, nor do we believe that the statute, taken as a whole, dealt with two different or separate subjects as contemplated by the State Constitution. None of the legislative practices sought to be prohibited by Article 2, Section 17 of the State Constitution are present here. There is no claim made, nor could there logically be a claim, that anyone interested in the subject matter of this legislation was or could have been misled by the caption. The code sections sought to be affected by Chapter 31 themselves actually embraced two subjects — that of the regulation of retail sales prices and a wholesale tax to provide proceeds for enforcement. The legislature clearly intended to repeal one of those two subjects, the pricing provisions, and to leave in force the wholesale tax. This it accomplished, and it left the tax in force, with the proceeds going generally to the uses of the Alcoholic Beverage Commission, rather than to the now non-existent purpose of enforcing retail pricing regulations.

Finding that there is only a single subject dealt with in Chapter 31, and that subject is adequately identified in the caption, we find no constitutional infirmity in Chapter 31. Accordingly we do not reach the question of whether portions of the chapter logically could be or should be elided therefrom. As stated, all that Chapter 31 purported to do, after accomplishing its primary purpose of repealing the pricing statutes, was to make such minor changes as were consistent with the repeal and leave the wholesale liquor tax intact. The nature, amount and incidence of that tax were not changed in any manner, and its proceeds were simply diverted to the general purposes of the Alcoholic Beverage Commission, rather than being designated for a purpose no longer existing.

Although the appeal in this ease was perfected and allowed as an interlocutory appeal under the provisions of T.C.A. § 27-305, the decree of the Chancellor provided that the decision of this Court should serve as the final judgment in the case. It accordingly results that the judgment of the Court below is reversed and the cause is dismissed at the cost of the appellees.

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


text:
    James COLLARD, alias, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Aug. 18, 1975.

      Eric D. Christiansen, Greeneville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

James Collard was convicted of selling Lysergic Acid. Diethylamide (LSD) to an undercover agent of the Tennessee Bureau of Investigation and was sentenced to serve not less than five nor more than seven years in the state penitentiary and was fined $1,000.00. The Court of Criminal Appeals, by a split decision affirmed the conviction. The disagreement in the Court of Criminal Appeals was limited to the action of the trial court in allowing the state to cross-examine defendant as to the use of drugs and defense witnesses as to their knowledge of the use of drugs in defendant’s dormitory room at a time prior to the date of the offense for which defendant was being tried. Certiorari was granted to determine if the cross-examination was proper and, if not, was it prejudicial to defendant.

The sale for which defendant was indicted and convicted allegedly took place at about 6:45 p. m. on October 20, 1972, in defendant’s dormitory room at Tusculum College. The defendant relied on an alibi defense and produced several witnesses who placed defendant on the basketball court at Tusculum College at the time the alleged sale took place.

The record shows that the district attorney general concluded his cross-examination of the defendant with the question:

“Q. You’ve used drugs?
“Mr. Christiansen: I object.
“The Court: Overruled. His knowledge of these matters. Overruled.
“Mr. Christiansen: I’m sorry. I didn’t hear your Honor.
“The Court: I said he may ask him about that as to his knowledge of drugs. Go ahead.
“A. Yes.”

Jeff LaSalle, the roommate of the defendant, was asked “[if he were] aware of the fact that drugs were used in his room,” to which he answered, “yes.” The trial court then instructed the jury “you will consider that not on the guilt or innocence on this occasion but if it gives you any . of the state of mind with which the parties acted on that occasion you may consider that and for no other purpose.”

The defendant’s girlfriend, Karen Malzan was asked, “You’ve been in Mr. Collard’s room when drugs were being used?” She replied, “Yes sir.” The trial court said, “Same explanation, gentlemen, as before. You’ll not consider that on the issue of guilt or innocence, but on knowledge of drugs and for no other purpose.” Similar questions were asked of defense witnesses, Bob Sweeney and Jeff Reeves, always over objection of defense counsel.

Proof in a criminal prosecution which tends to show that the accused is guilty of the commission of other crimes and offenses generally is inadmissible for the purpose of proving the commission of the particular crime charged. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963); Harris v. State, 189 Tenn. 635, 227 S.W.2d 8 (1950). There are numerous exceptions to this rule, for instance evidence may be introduced of other crimes or acts of misconduct to show (1) motive, (2) intent, (3) guilty knowledge, (4) identity of the defendant, (5) absence of mistake or accident, and (6) a common scheme'or plan for commission of two or more crimes so related to each other that proof of one tends to establish the other. McGowen v. State, 221 Tenn. 442, 427 S.W.2d 555 (1968); Carroll v. State, supra; Wrather v. State, 179 Tenn. 666, 169 S.W.2d 854 (1943). See also McCormick on Evidence (1954), Section 157. Also, defendant and his witnesses can be cross-examined as to specific acts which involve moral turpitude or as to any misconduct which tends to show the witnesses lack of veracity or that he is untrustworthy. The latter basis for admission of evidence of acts of misconduct of a witness, approved by this court in State v. Fowler, 213 Tenn. 239, 373 S.W.2d 460 (1962) and State v. Manning, Tenn., 490 S.W.2d 512 (1973), is not to be taken as an open door to admission of every act of misconduct of the defendant or the witness on the assertion the evidence is offered to test credibility or to prove untrustworthiness, but must be limited to specific acts of misconduct which have a direct bearing on the issue of truthfulness or trustworthiness, such as an act of dishonesty, or the making of a false statement, or the continued and flagrant violation of the laws of the state. See Davis v. Wicker, 206 Tenn. 403, 333 S.W.2d 921 (1960).

The cross-examination of the defendant and his witnesses set out above does not fall within any of the exceptions to the general rule that excludes evidence of crimes or misconduct other than the offense for which the defendant is being tried. All that is revealed by the cross-examination is that the defendant used an unspecified drug at an unspecified time in defendant’s dormitory room. The term “drug” is a generic term embracing literally thousands of substances and compounds, some of which are legal and some of which are illegal. The implication to be drawn from the cross-examination complained of, coming as it did when defendant was charged with selling a controlled substance or drug, was that the drugs used by the defendant and used in his room were illegal. This is what made the cross-examination devastating to the defense. To limit the chance of error to be drawn from evidence of other offenses, the state is restricted to cross-examining witnesses as to “specific acts” of misconduct, when the misconduct is not relevant to prove an element of the offense for which the defendant is on trial. The state having failed to limit its cross-examination to specific acts of misconduct at a specific time in this case, the cross-examination was improper and the testimony elicited over the objection of the defendant was inadmissible.

The state insists, and a majority of the Court of Criminal Appeals concluded, that the cross-examination of defendant and his witnesses tends to show lack of veracity or trustworthiness on the part of the witnesses and was thus admissible. Apart from the fact that the witnesses were not examined as to specific acts of misconduct, we see no direct connection between the use of an unspecified drug at an unspecified time, or knowledge of the use of drugs in defendant’s dormitory room, and the veracity of the witnesses.

The judgment of conviction in this case is reversed, and the case is remanded to the Criminal Court of Greene County for retrial.


author: CARNEY, Presiding Judge.

text:
    Neils Whitney ROBINSON and wife, Alberta Robinson, Plaintiffs-Appellants, v. Raymond S. KENNEY and wife, Opal S. Kenney, Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    Oct. 1, 1973.
    Certiorari Denied by Supreme Court Jan. 21, 1974.

      William A. Largen, Dresden, for plaintiffs-appellants.
    Harold T. Brundige, Martin, for defendants-appellees.
   CARNEY, Presiding Judge.

The plaintiffs below, appellants herein, Dr. and Mrs. N. W. Robinson, brought suit for specific performance to enforce an option to purchase 36 acres of land near the City of Martin, Tennessee. Dr. Robinson is the professor of Animal Science at the College of Agriculture at the University of Tennessee at Martin. He also serves as pastor of the First Christian Church in Martin.

The defendant, Raymond Kenney, is the owner of approximately 350 acres of farm land adjoining the southeast limits of the City of Martin. Mr. and Mrs. Kenney were close personal friends of Dr. and Mrs. Robinson for several years prior to the present litigation. Mr. Kenney has been a school teacher. He holds a master’s degree and lacks only a little more work on his doctorate degree. Mrs. Kenney is also a school teacher.

There is very little dispute as to the facts of the case. Mr. Kenney admits that he signed the written option to sell the 36 acres of land to Dr. Robinson but contended that he did not read the written option and did not understand the contents of it and that he, in fact, meant only to give Dr. and Mrs. Robinson the refusal of the land if and when he ever decided to sell it.

His Honor the Chancellor found adversely to the contention of Mr. and Mrs. Kenney that they did not intend to enter into an option contract with Dr. and Mrs. Robinson. However, the Chancellor sustained the position of the defendants that there was no consideration paid for the option and “the same is unenforceable.” Dr. and Mrs. Robinson have appealed and assigned error.

We concur in the finding of the Chancellor that the defendants Kenney and wife did understand that they were granting to Dr. and Mrs. Robinson a written option to purchase the 36 acres of land described in the written option but we find from the preponderance of the evidence that there was a consideration for the execution of the option and that His Honor was in error in refusing to enforce the option. An elaboration of the facts leading up to the execution of the option is in order.

About six years ago when Dr. Robinson came to U. T. at Martin, Dr. and Mrs. Robinson met and formed a close association and friendship with Mr. and Mrs. Ken-ney. Dr. Robinson owned a home and ten or eleven acres of land adjoining the city limits of Martin but not adjoining the lands of the defendant Kenney. They were separated by about two miles. Dr. Robinson helped Mr. Kenney dehorn and castrate his livestock and in turn, Mr. Kenney loaned Dr. Robinson a tractor to plow his garden and mow his ten or eleven acres of ground. They exchanged work frequently without any money passing between them.

Over a period of four or five years Mr. Kenney often suggested to Dr. Robinson and wife that they sell their home in Martin and build a home on a 50-acre tract of the Kenney land so that they could be closer together. In May or June, 1972, Dr. Robinson began giving serious consideration to the idea of selling his home and ten acres of land and buying the 50 acres from Mr. Kenney and building a home thereon. They agreed at a price of $500.00 per acre or $25,000.00 for the purchase price of the 50 acres of ground. The deal was dependent upon Dr. Robinson being able to find a buyer for his home and ten or eleven acres.

Dr. Robinson told the local real estate agent, Mr. Mickey Moore, to be looking for somebody that might buy his house. Sometime about July 15,1972, Mr. Moore located a Dr. Muncie, who was coming to U. T. at Martin, and was interested in Dr. Robinson’s four-bedroom ten-acre tract of land. Dr. Robinson then communicated with Mr. Kenney about buying the 50 acres of ground and Mr. Kenney was agreeable to financing the purchase price nearly any way Dr. Robinson wished. The new purchaser, Dr. Muncie, would not have his money readily available because he had to sell his house in New Mexico. Dr. Robinson was required to build a new home for occupancy by September 1,1972, when Dr. Mun-cie was to get possession of the Robinson home.

As a precautionary measure Dr. Robinson asked Mr. Kenney about buying 14 acres for $7,000.00 and an option for the remaining 36 acres for one year. The defendant Ken-ney first agreed to this arrangement, then later suggested to Dr. Robinson that if Dr. Robinson should fail to exercise his option, Mr. Kenney would have been damaged to some extent by virtue of Dr. Robinson having taken considerable road frontage in the 14-acre tract that he was purchasing; that the 14 acres on the front was worth more per acre then the back 36 acres. The defendant Kenney suggested that it would be fair for Dr. Robinson to pay him $10,000.00 for the 14 acres of land and get the option on the remaining 36 acres at only $15,000.00 which, if and when he exercised the option, would make the total purchase price $25,-000.00 which the parties had already agreed upon. The reason Dr. Robinson didn’t go on and purchase the entire 50 acres at the time was that he was not sure just exactly in what amounts his money was going to come and just how much his new house would cost.

On or about July 18, 1972, Mr. and Mrs. Kenney executed a warranty deed to the 14 acres of ground which recited a consideration of $10,000.00 cash but in reality Dr. and Mrs. Robinson only paid $500.00 down and gave their two notes: one for $4,500.00 due in 60 days and the other for $5,000.00 due in 10 years at 6% interest. However, Dr. and Mrs. Robinson shortly thereafter had to pay the full $10,000.00 to get the 14.2 acres released from trusts on the Kenney land to Federal Land Bank and one of the Martin banks.

The real estate agent, Mr. Mickey Moore, also prepared, contemporaneously with the deed, the written option to the 36-acre tract of land reciting a purchase price of $15,-000.00 to be paid in cash “or other terms agreed upon at the time option is exercised.” The description of the 36 acres was comprised of a description of the 50-acre tract of land with the exclusion of the 14.2 acres sold to Dr. Robinson leaving the remainder of 36 acres more or less. The concluding paragraph of the option is as follows:

“It is understood and agreed that this instrument is intended to create an option contract, binding the parties of the first part to convey said property to the parties of the second part, or to their successors, assigns, or beneficiaries in trust, in the event the party or parties for whose benefit this contract is made shall exercise said option to purchase said land thereof on or before July 17, 1973, said option to expire if not entirely exercised at or before twelve o’clock, noon, of said day, Central Standard Time.
IN WITNESS WHEREOF the said parties of the first part have hereunto set their hand and seal the day and year first above mentioned and written.
/s/ Raymond S. Kennev RAYMOND S. KENNEY
/s/ Opal S. Kennev OPAL S. KENNEY”

The option was acknowledged before the real estate agent, Mr. Mickey W. Moore.

Mr. Kenney’s statement that he did not know he had signed an option is contradicted, not only by the testimony of Dr. Robinson, but by the testimony of the real estate agent, Mickey Moore, and by one of his neighbors, Mrs. Audrey Fay Evans. Mr. Kenney rents land from Mrs. Evans. Mrs. Evans testified that Mr. Kenney often came by her home and talked to her and that shortly after the deal with Dr. Robinson was consummated, Mr. Kenney told her that they were going to have new neighbors; that he had sold Dr. and Mrs. Robinson a part of the land and that they were going to start a house immediately; that he had given them an option to buy the rest within a year.

Relations between Dr. and Mrs. Robinson and Mr. and Mrs. Kenney continued good until after Dr. Robinson’s home was built and they had moved in. One night shortly after he had moved in, Mr. Kenney came over and told Dr. Robinson that he and his wife had been talking and that they thought that they sold the property too cheap. Dr. Robinson reminded him that he had a written option to purchase the rest of that property and that he expected to complete it. Dr. Robinson testified that Mr. Kenney left his home somewhat upset and relations between the friends steadily worsened. In December, 1972, Dr. Robinson wrote Mr. Kenney a letter notifying him that he expected to exercise his right to purchase the land under the option and that even though he had until July 17, 1973, to exercise the option, in order that Mr. Ken-ney might make his farming plans for another year, he thought he should purchase immediately. He closed the letter with this statement: “If you have any questions regarding this matter, please contact me at your earliest convenience.” Mr. Kenney refused to sell the 36 acres and plaintiffs filed the present suit on January 2, 1973.

Upon the trial the defendant Kenney testified that he did not get the $1.00 consideration recited in the option and that if he had, he would have honored the option. He said that he was still willing to and intended to give Dr. and Mrs. Robinson the refusal of the land if and when he offered it for sale but he had not offered it for sale and did not expect to do so in the foreseeable future.

The determinative question on appeal before this Court is whether there was consideration for the written option. As a general rule a consideration for a contract may be either a benefit to the promisor or a detriment to or an obligation upon the promisee. University of Chattanooga v. Stansberry, 9 Tenn.App. 341. It is not necessary that something concrete and tangible move from one to the other, and any benefit to one and/or detriment to the other may be a sufficient consideration. Palmer v. Dehn, 29 Tenn.App. 597, 198 S.W.2d 827; Haun v. Corkland, 55 Tenn.App. 292, 399 S.W.2d 518.

In our opinion there was ample consideration to make the option binding on Mr. Kenney. Dr. Robinson was interested in obtaining a larger farm than the ten or eleven acres which he owned prior to dealing with Mr. Kenney. He wanted about 50 acres of ground so that he could run some cows. Admittedly, Mr. Kenney and wife would have been glad in June, 1972, to sell Dr. Robinson the entire 50 acres of land for $25,000.00 on nearly any terms that Dr. Robinson wanted to make. The entire transaction was a hurryup deal. Dr. Robinson was about to leave for army camp and his wife was to supervise the building of the new home.

Dr. Robinson was somewhat cautious about over-extending his credit so he decided that he would prefer to buy only a portion of the ground that he knew he could pay for along with the home which he was building and the cost of which he did not know the exact amount and to take an option on the remainder to make sure that he would be able to get it if and when his financial situation permitted him to do so. We think it is clear from this record that Dr. Robinson would not have entertained the idea of buying the 14 acres unless an option to purchase the additional 36 acres was a part of the contract. Therefore, we hold that the execution of the written option to purchase was a part of and inseparable from the contract to sell the 14 acres of land to Dr. Robinson. The $10,000.00 paid by Dr. Robinson, along with the sale of his own home and ten acres to his detriment, was the consideration both for the 14 acres of land and for the execution of the written option.

Dr. Robinson had no incentive whatsoever to move from his comfortable four-bedroom home with ten or eleven acres partly inside the city limits of Martin out into the country some two miles away and to build a new home and just get three or four additional acres of land. The incentive for him to sell his home and ten or eleven acres of ground was to obtain a larger tract of 50 acres of land so he could run some cows. He relied upon Mr. Kenney’s written signed option to his detriment.

The right to specific performance in any particular case is governed by the ordinary principles of equity. Moss Tie Co. v. Hill, 191 Tenn. 582, 235 S.W.2d 587.

Where the award of damages is practicable and would be adequate, the court, as a rule, will not compel specific performance but will leave the complainant to his remedies at law or will itself award damages. Gilson v. Gillia, 45 Tenn.App. 193, 321 S.W.2d 855.

In the case at bar it is not practicable to determine the amount of damages to which plaintiffs would be entitled nor do we think it feasible to compensate adequately Dr. and Mrs. Robinson with an award of damages without imposing a harsh and oppressive penalty upon Mr. and Mrs. Kenney. The 36 acres of land are probably worth more to Dr. and Mrs. Robinson than to Mr. and Mrs. Kenney. We find the written option signed by Mr. and Mrs. Kenney to be fair and equitable, free from fraud and mistake, based upon a valid consideration, capable of being enforced without hardship to either party and specific performance should be enforced. The fact that Mr. and Mrs. Kenney have changed their minds or can get more money for the land is not just reason to deny specific performance. Saunders v. Davis, 31 Tenn.App. 674, 220 S.W.2d 883.

Therefore, the decree of the lower Court must be reversed. A decree will be entered in this Court adjudging the plaintiffs to be entitled to specific performance of the option to purchase the 36 acres in accordance with the terms of the written contract. The cause will be remanded for the enforcement of said decree. The costs in the Court below and in this Court are taxed to the appellees, Mr. and Mrs. Kenney.

MATHERNE and NEARN, JJ., concur.