author: FONES, Chief Justice. HENRY, Justice

text:
    Marie CORNPROPST et al., Appellants, v. Marcus SLOAN, Jr., et al., Appellees.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      Prank L. White, Paul, White, Hallman & Keolz, Memphis, for appellants,
    Thomas D. Yeaglin, Armstrong, Allen, Bradeili Goodman, McBride & Prewitt, Memphis, for appellees,
   OPINION

FONES, Chief Justice.

The question on this appeal is whether the complaint states a cause of action against merchants who are members of a shopping center association, for personal injuries to an invitee resulting from a sudden criminal assault by a third party, on a shopping center parking lot.

The trial judge dismissed the action pursuant to motion made under Rule 12.02(6), Tennessee Rules of Civil Procedure.

Named as parties defendant, in addition to plaintiff’s assailant, were the owners and managers of the Eastgate Shopping Center in Memphis and its lessees, the owners and operators of the various business establishments housed in the shopping center complex.

This appeal only involves one of these, viz., Top Value Enterprises. The trial judge treated Top Value’s motion to dismiss as a “pilot motion.” He directed the entry of final judgment as to it and, pursuant to Sec. 27-305 T.C.A., permitted an appeal and certified the existence of a controlling question of law. Judgment was withheld as to all remaining defendants. All requirements of the statute have been met and the case is before this Court for review.

I.

The record reflects that the trial judge conducted a hearing upon the motion to dismiss; the proceedings, consisting solely of argument of counsel and the dialogue among the court and counsel.

Top Value, the successful party, made application to the court for leave to file a Bill of Exceptions incorporating these matters into the record. The court, relying upon Anderson v. Carter, 512 S.W.2d 297 (Tenn.App.1974), and over the objection of counsel for plaintiff, entered an order granting permission to file this so-called bill of exceptions, and the same is physically a part of the record before us. We find nothing in Anderson v. Carter which would permit a non-appealing successful party to file a bill of exceptions.

Rule 12.02(6), Tennessee Rules of Civil Procedure permits a party to move to dismiss for “failure to state a claim upon which relief can be granted.” A motion grounded on this portion of the rule is the equivalent of a demurrer, under former practice, State v. Minimum Salary Department of A. M. E. Church, Inc., 477 S.W.2d 11 (Tenn.1972) and, as a demurrer, it is a test of the sufficiency of the leading pleading. Nothing said in argument on such a motion can add to or take from the complaint. It must stand or fall upon its allegations unaffected by the approbation of its author or the denunciations of the defense, as expressed in oral argument. Hence a bill of exceptions is neither necessary nor proper in such cases.

Appellant’s motion to strike appellee’s bill of exceptions is sustained.

II.

A Rule 12.02(6) motion, as a demurrer, admits the truth of all relevant and material averments contained in the complaint, Garrison v. Graybeel, 202 Tenn. 567, 308 S.W.2d 375 (1957); but asserts that such facts do not constitute a cause of action. Henderson v. Lawrence, 212 Tenn. 247, 369 S.W.2d 553 (1963).

The first four (4) Paragraphs of the complaint assert that the approximately thirty-seven (37) tenant-merchants comprising the shopping center are members of an association known as the Eastgate Shopping Center Association, designed to promote their respective businesses and protect their economic interests.

We quote the material portion of the complaint verbatim:

“5. On October 18, 1973, at or around 8:00 p. m. to 8:30 p. m., Plaintiff, Marie Cornpropst, came to the Eastgate Shopping Center for the purpose of shopping. Plaintiff was therefore an invitee. It was dark. Plaintiff parked her vehicle in front of Defendant Woolco store and went in there to shop. Having made her purchases, and after leaving said store, as the Plaintiff was preparing to re-enter her vehicle in order to depart from said shopping center, the Defendant, Marcus Sloan, Jr., suddenly drove up by the side of her car, jumped out, violently grabbed the Plaintiff, with whom he wrestled and fought and tried to force her from her vehicle into his vehicle. The Defendant Sloan viciously attacked the Plaintiff and beat her about the person as she resisted with all her might and screamed for help. When certain rescurers came running to the scene, Defendant Sloan jumped into his vehicle and sped away. Plaintiff had never before seen this Defendant and in no way provoked this malicious assault. Plaintiff was beaten and bruised by Defendant about her entire body and shocked and dazed by the suddenness and viciousness of his assault and attack upon her, injuring Plaintiff severely. The employees of Defendant Woolco refused to permit the rescurers of this Plaintiff from using Woolco’s phone in order to call the police for help.
6. Prior to this attack upon the Plaintiff there had been committed various crimes, assaults, and other acts of violence, either on the premises or in the immediate area of the Eastgate Shopping Center, which rendered said vicinity unsafe and potentially dangerous, particularly for the individual female shopper at nighttime. Throughout the times and afterwards of these criminal occurrences which preceded the incident complained of herein, there were no security guards posted, no precautions taken and no other protective measures used or installed in the East-gate Shopping Center premises for the safety of customers; nor did any employee of Woolco or other merchant Defendants herein offer to see Plaintiff safely to her car. Each and every member of the Eastgate Shopping Center Association, or other tenant in said shopping center owed a duty to the Plaintiff invitee to provide adequate measures to prevent harm to her from acts of violence.
7. Defendant Woolco was negligent in that it knew, or in the exercise of reasonable and ordinary care should have known in the aftermath of crimes or acts of violence abovementioned, that the Plaintiff invitee would be exposed to potential danger and personal harm, and unprotected against criminal acts especially if shopping at its store at night, and this Defendant took no precautions to protect customers and this Plaintiff from unlawful attacks and the harm that ensued to the Plaintiff. In addition, Defendant Woolco, through its agents and employees, was put on notice that the Plaintiff had been brutally assaulted and refused to assist her when the request for use of its telephone was made in order to call police.
8. Each and every one of the other named Defendants comprising the East-gate Shopping Center Association, and Defendants Union Realty Company and Cross-Country Realty Company, who are the landlords and/or lessors/lessees of said merchant Defendants, was negligent in that each one knew or in the exercise of reasonable and ordinary care should have known that the Plaintiff, an invitee, would be exposed to the likelihood of potential danger and personal harm and unprotected against criminal acts, especially at night while the stores were open, and that these Defendants, individually and collectively as a class, failed to take adequate precautions to protect its customers and this Plaintiff from personal harm from this assault and battery upon her person.
Defendants Union Realty Company and Cross-Country Realty Company, as well as Defendant Woolco and all others herein comprising the Eastgate Shopping Center Association were negligent in failing to provide security guards or some patrolling of the parking area or escort service or other high visibility security measures, or warning of potential danger, for the safety of this Plaintiff, when they knew or should have known of the likelihood of danger and harm under hazardous conditions of nighttime parking and shopping on a huge parking lot on premises and in a neighborhood where acts of violence and criminal activity had theretofore occurred.”

The trial judge was of the opinion that Thomas v. General Electric Company, 494 S.W.2d 493 (Tenn.1973), controlled this case and required its dismissal. While this Court is in disagreement as to the correct rule to be applied and the disposition of the case in its present posture, all agree that Thomas is not controlling and that we have no Tennessee case directly in point.

III.

At common law, a private person or corporation, as distinguished from governmental units, had no duty whatsoever to protect others from the criminal acts of third parties. That general rule has remained . steadfast in the tort law of this country, despite the exceptions that have appeared from time-to-time, where special relationships and special circumstances have combined to impose liability.

We are dealing with an act of nonfea-sance, the failure to take steps to protect another from harm, as distinguished from misfeasance, or active misconduct causing positive injury to others.

In view of what we regard as an unfortunate extension of tort law by the minority of this Court, we find the following comments of Professor Prosser discussing the evolution of acts of nonfeasance, are appropriate:

“ — The highly individualistic philosophy of the older common law had no great difficulty in working out restraints upon the commission of affirmative acts of harm, but shrank from converting the courts into an agency for forcing men to help one another.”
“Liability for nonfeasance was therefore slow to receive recognition in the law. It first appears in the case of those engaged in ‘public’ callings, who, by holding themselves out to the public, were regarded as having undertaken a duty to give service, for the breach of which they were liable. This idea still survives in the obligation of common carriers, innkeepers, public warehousemen, and public utilities to serve all comers. With the development of the action of assumpsit, this principle was extended to anyone who, for a consideration, has undertaken to perform a promise or what we now call a contract. During the last century, liability for ‘nonfeasance’ has been extended still further to a limited group of relations, in which custom, public sentiment and views of social policy have led the courts to find a duty of affirmative action. It is not likely that this process of extension has ended. For the most part such a duty has been imposed where the relation is of some actual or potential economic advantage to the defendant, and the expected benefit justifies the requirement of special obligations. The largest single group upon whom the duty of affirmative conduct has been imposed are the owners and occupiers of land, — ”
Prosser, Law of Torts,
4th Edition, Section 56, page 339.

As indicated, in some American jurisdictions, various special relationships combined with special conditions and circumstances have resulted in the imposition of liability for failure to take steps to protect another from harm as a result of criminal acts.

Common carriers, who owe a high degree of care to their passengers in all circumstances, have been held liable to passengers for the criminal acts of others, in special circumstances.

A passenger on a vessel where a bar was maintained was assaulted by a drunken passenger who had been involved in a disturbance earlier and defendant failed to restrain or watch the offender. Quigley v. Wilson Line of Massachusetts, 338 Mass. 125, 154 N.E.2d 77, 77 A.L.R.2d 499 (S.Jud.Ct.Mass.1958).

In Neering v. Illinois Central Railroad Company, 383 Ill. 366, 50 N.E.2d 497 (1943), a lady was criminally attacked while waiting for a train on the station platform at an early morning hour. She had expressly complained and the railroad had knowledge that hobos and tramps regularly loitered on the station premises and warmed therein. No steps whatever were taken to prevent the loitering or protect the passengers and the railroad was held liable.

In our own case of Railroad v. Hatch, 116 Tenn. 580, 94 S.W. 671 (1906), the Court stated the rule to be that absent reasonable grounds for an apprehension of danger, the railroad would not be liable for an attack on one passenger by another. A lady passenger was assaulted in a sleeper car around midnight and there was proof that the conductor and porter assigned to the car had been absent for about two (2) hours.

The Court pointed out that non-liability for the criminal acts perpetrated upon a passenger was a limitation upon the general liability of carriers and that in this case the absence of the conductor and porter from their posts of duty was negligence on the part of the railroad which directly contributed to the occurrence of the assault on the plaintiff. The significance of Hatch to our inquiry is that where the highest degree of care characterized the relationship, the criminal acts of third parties imposes no liability unless there are present special circumstances that create in the minds of reasonable men an apprehension of danger.

The cases involving liability for the criminal acts of third persons are most numerous involving the innkeeper guest relationship and the patron public amusement owners and operators, including lounges, beer parlors, rock and roll concerts, bowling alleys, etc. In the great majority of cases involving these relationships the offender that perpetrates the criminal act giving rise to the litigation is identified in advance, and liability is predicated on some action or course of conduct of the particular offender that gave notice of the imminent probability of danger.

In the instant case the offender was not, and under the allegations of the bill, could not have been identified in advance of the perpetration of the action (see allegations in paragraph five [5] of the complaint). The complaint relies entirely upon the vague allegation that various crimes, assaults and other acts of violence had been committed either on the premises or in the immediate area.

Vagueness is only one of the factors that have perplexed the courts in dealing with tort liability for criminal acts of third persons. In Goldberg v. Housing Authority, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962), an invitee on the Housing Authority premises was beaten and robbed. The plaintiff was delivering milk to a tenant at the housing project, and the offenders were unidentified prior to or subsequent to the .act. In a four-three decision, the New Jersey Supreme Court held that the owners of the apartment project were under no liability to provide protection from the criminal acts of third parties. The minority of the court substantially disagreed with respect to the facts shown in the record and the inferences to be drawn from the facts.

In Goldberg, the apartment project consisted of more than nineteen (19) acres with ten (10) apartment houses of twelve (12) stories, each offering accommodations for fourteen hundred fifty-eight (1458) families. The number of persons residing in the project at the time of the incident was between fifty-three hundred (5,300) and six thousand (6,000). A jury verdict in favor of the plaintiff was affirmed by the Intermediate Appellate Court, reversed and dismissed by the Supreme Court.

The majority and minority opinions discuss numerous leading cases involving most, if not all of the special relationships that have resulted in this character of suit and many special circumstances within such relationships.

In discussing the proposed scope of the duty sought to be imposed on a landlord to protect against criminal acts, (which are equally relevant to a merchant-shopper relationship) the majority of the Court observed:

“The second consideration is the inevitable vagueness of the proposed duty. Fairness ordinarily requires that a man be able to ascertain in advance of a jury’s verdict whether the duty is his and whether he has performed it. To which multi-family houses would the duty apply? Would it depend upon the number of tenancies? If so, can we now fix the number? And if the duty springs from a combination of tenancies and prior unlawful events, what kind of offenses will suffice, and in what number, and will crimes next door or around the corner or in the neighborhood, raise the obligation? And if a prescient owner concludes the duty is his, what measures will discharge it? It is an easy matter to know whether a stairway is defective and what repairs will put it in order. Again, it is fairly simple to decide how many ushers or guards suffice at a skating rink or a railroad platform to deal with the crush of a crowd and the risks of unintentional injury which the nature of the business creates, but how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? Must the owner prevent all crime? We doubt that any police force in the friendliest community has achieved that end.”
“ — We assume that advocates of liability do not intend an absolute obligation tó prevent all crime, but rather have in mind some unarticulated level of effectiveness short of that goal. Whatever may be that degree of safety, is there any standard of performance to which the owner may look for guidance? We know of none, and the record does not suggest one, and we are at a loss to understand what standard the jurors here employed. The charge to the jury was unrevealing; it simply left to 12 men and women the task of deciding whether a prudent owner would have done more, and whether, if defendant had, the robbers here would likely have been deterred.”
‡ * * sjc * *
“Not only would there be uncertainty as to when the duty to furnish police protection arises, and as to what measures will discharge the duty, there would also be exceptional uncertainty with respect to the issue of causation. This is so because of the extraordinary speculation inherent in the subject of deterrence of men bent upon criminal ventures. It would be quite a guessing game to determine whether some unknown thug of unknowable character and mentality would have been deterred if the owner had furnished some or some additional policement. It must be remembered that police protection does not, and cannot, provide assurance against all criminal attacks, and so the topic presupposes that inevitably crimes will be committed notwithstanding the sufficiency of the force. Hence the question of proximate cause is bound to be of exceptional difficulty.”
“Thus vagueness would here be conspicuous in all facets of the issue of negligence and causation.”

It is also significant that the minority of the New Jersey Supreme Court, in approving the jury verdict of liability to plaintiff, stated the applicable law to be that generally a property owner is not obligated to anticipate and guard against the criminal acts of others but none the less,

“ — where there are special conditions from which the owner or operator of the premises should recognize and foresee an unreasonable risk or likelihood of harm or danger to invitees from criminal or wrongful acts of others, he must take reasonable precautions which may, under the circumstances, fairly and justly entail the employment of special guards or police.” (emphasis supplied)

According to the minority opinion the record in the case contained evidence of numerous complaints of crimes and acts of violence at the project occurring in both daytime and nighttime, such as assaults and rapes or attempted rapes in the halls and elevators of the residential buildings; that minutes of the Housing Authority reflected that the Commission had discussed a killing in one project and a rape in another and the need for properly trained guards and other protective measures; that although these matters had been discussed at a number of meetings between June and October preceding the assault on plaintiff, no protective action had been taken. Weighing this factual situation and applying same to the legal principle stated above, the minority of the New Jersey Court observed as follows:

“It must be borne in mind that in the instant matter the court is not at all concerned with the ordinary private mul-ti-dwelling. or apartment house. There the owner’s customary reliance on the measure of protection afforded by the public police force against criminal acts by intruders may perhaps be viewed, as a matter of law, as not unreasonable in relation to the nature of the risk involved. Cf. Genovay v. Fox, supra, 50 N.J.Super. [538] at pp. 551-552, 143 A.2d [229] at pp. 235-236. Here, the court is concerned with a special situation in which the defendant has built a high-rise multi-unit housing project which, by virtue of its size, composition and mode of operation, presents special dangers requiring special precautions.”

One of the cases relied upon by plaintiffs in the instant suit is Kline v. 1500 Massa chusetts Avenue Apartment Corporation, 141 U.S.App.D.C. 370, 439 F.2d 477, 43 A.L.R.3d 311 (D.C.Cir.1970). Ms. Kline, a tenant in a Washington, D.C. apartment building located at 1500 Massachusetts Avenue was criminally assaulted and robbed at approximately 10:15 p. m. in a common hallway by an unidentified intruder. There was proof that the apartment building fronted on three (3) heavily traveled streets and had multiple entrances; also the record contained some twenty (20) police reports of crimes committed in the building in the year preceding the attack upon the plaintiff. Plaintiff had urged her landlord to take steps to secure the building and two (2) months prior to the attack a similar attack was made on another female tenant in the same hallway.

In a two-to-one decision the Circuit Court of Appeals found the landlord liable as a matter of law, reversing the District Court, and remanding to that Court for the sole purpose of assessing damages. The substance of the majority opinion is found in the following quote:

“As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. We recognize that this rule has sometimes in the past been applied in landlord-tenant law, even by this court. Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord-tenant relationship; the notion that the act of a third person is committing in intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.”
“But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants’ safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.”

Kline presents a different relationship and vastly different circumstances from that of the case at bar.

Every reason noted in the first paragraph of the quote from Kline is particularly relevant to this case and each strongly militates against the adoption of a rule requiring affirmative action of unknown type and extent by owners and operators of business premises. While it may not seem unfair in the light of public sentiment and social policy in Washington, D.C. to impose upon landlords the duty of protecting against criminal acts, in our opinion it is patently unfair and unjust to impose the vague duty of Section 344 Restatement of Torts (Second) on the shopkeepers and merchants of Tennessee, as the minority of this Court proposes, for the sudden criminal acts of unknown and unidentified persons.

Evidently the minority attempts to justify the “fairness” of the rule in a paragraph describing the modern phenomenon of community shopping centers. These so-called “cities within cities”, it is implied, create enormous potential for profit and at the same time enormous potential for crime and presumably the expected benefit justifies the requirement of special obligations, as suggested by Professor Prosser.

We are unable to find a factual basis in the allegations of the complaint from which these conclusions can justifiably be drawn nor do we embrace the social policy inherent therein as an acceptable basis for judicial rule making.

In Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966), the Supreme Court of California approved Section 344 of the Restatement of Torts (Second) and held that the proprietor of a bowling alley was negligent in failing to protect plaintiff from a criminal assault on its parking lot. Taylor involves a special relationship and special circumstances that distinguish it from the instant case. The particular individual, one Walters, who assaulted plaintiff had been making indecent proposals to her over a period of several hours. These events occurred in and around the cocktail lounge operated by defendant as a part of the premises known as the Woodley Lewis Sportsmen Bowl, containing thirty-two (32) bowling lanes, a coffee shop, a billiard room and a nursery, with parking lots to the front and rear. Plaintiff reported the actions of Walters to defendant’s bouncer. When she prepared to leave about 2:00 a. m. the bouncer told her that Walters was outside and to be careful but he did not escort her to her car. Upon reaching her car on defendant’s premises, she was attacked and viciously slashed with a knife by Walters sustaining serious and permanent injuries.

In our opinion, Taylor provides no justification for the application of Section 344 Restatement of Torts (Second) to shopping center merchants, particularly where the actor is unknown and unidentifiable prior to the commission of the criminal act.

O’Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205 (1970), is in our opinion, the only ease that lends any support to the appellants position. It was decided by the Intermediate Appellate Court, not the Supreme Court of Illinois. Because the complaint failed to allege facts sufficient to create a duty on the part of defendants to plaintiffs, the court was not called upon to state every element required to make out a cause of action for the criminal acts of third parties. In short, it was only necessary to point out that no notice to defendant of previous incidents or special circumstances having been alleged, no duty existed to anticipate danger. The case makes no pretense of stating the complete rule of law in Illinois upon which liability of shopkeepers in a shopping center for the criminal acts of third parties will be predicated.

In Murray v. Osenton, 126 So.2d 603 (Fla.1961), an employee of a service station operator sued his employer for personal injuries sustained as a result of being shot during a robbery at night when employee was the lone attendant at the station. The gravamen of the complaint was that employer had knowledge of the unusual danger presented by the likelihood and foreseeability of robberies and burglaries, peculiar to service stations in Orlando, Florida, and that employer negligently failed to take reasonable measures to protect employee. The District Court of Appeals of Florida held that the complaint failed to state a cause of action; that while employer had a duty to provide a safe place for his employee to work, the allegations were insufficient to give rise to a duty to protect him from the assault of criminals.

In McMillin v. Barton-Robison Convoy Company, 182 Okl. 553, 78 P.2d 789 (Okl.1938), plaintiff, as next of kin of a deceased employee of defendant, brought suit for the wrongful death of the employee. Plaintiff’s decedent was killed during a robbery on the premises of the employer-defendant. Liability was sought to be predicated upon contentions that defendant was engaged in handling automobiles which were stolen from his premises from time-to-time prior to the killing, at the time of the killing and subsequent thereto; that the business was located in a high crime area wherein eighty (80%) percent of the crime committed in the county occurred.

Responding to those contentions the Supreme Court of Oklahoma said:

“We are unable to see that an employer has a general duty to protect his employees from the assaults of criminals. We are likewise unable to see that there are any exceptional circumstances in this case which would give rise to such a duty. To so find would be tantamount to saying that the town of Picher is a condemned community. We would be saying, in legal effect, that those who live there and those who engage in business there are not exercising the prudence and judgment of ordinary people. To hold what the plaintiffs want us to hold would result in saying that every business man in the town of Picher is guilty of negligence toward those he employs and is answerable to them for their damages suffered as the result of the act of some criminal.”

As heretofore pointed out in the instant case the allegation is made that criminal acts have been committed, “either on the premises or in the immediate area”. We have found no case imposing any duty or liability arising from occurrences in the “area” or the “vicinity”. Where liability has been imposed .it is clear that an essential ingredient is what Professor Prosser calls “premises liability”. As relevant here premises liability is some mode of operation of, or condition upon the premises that lures, aids or abets the special danger. Conditions in the area are irrelevant.

Finally, we disagree that Corbitt v. Ringley Crockett, Inc., 496 S.W.2d 914 (Tenn.App.1973), supports plaintiff’s insistence that the complaint before us states a valid cause of action. The same observations made above with respect to O’Brien v. Colonial Village are applicable with equal force to Corbitt. In addition Corbitt deals with an entirely different relationship than that which exists between the parties to this lawsuit.

In Corbitt, plaintiff was assaulted in a restroom at the Civic Coliseum in Knoxville. The Court of Appeals announced the following rule in that case:

“We hold that if the owner is to be held liable for the sudden criminal acts of third persons there must be a showing that the owner was on notice in some manner of the imminent probability of the act. Otherwise, there can be no issue for jury determination . . . ”

In subjecting the brief rule stated in Cor-bitt to analysis for guidance in this case the question arises whether the rule requires notice of the imminent probability of an act by the particular offender who commits the act, or would the occurrence of various criminal acts at unspecified times prior to the act in suit suffice? If the latter, how many criminal acts are necessary to invoke the duty to warn and how many are necessary to impose the duty to hire a private police force? Is the Court to determine the number, or is the jury to be permitted to speculate upon the appropriate number of criminal acts to give rise to the duty? Is it not also appropriate to consider the time element? After a lapse of six months, one year or two years without an incident or a criminal act, can a merchant disband his private police force?

In our opinion it is a mistake to equate the duty of shopkeepers with respect to criminal acts with the duty of shopkeepers with respect to careless acts. Section 344 of the Restatement of Torts (Second) places both acts in exactly the same category in comment f.

We are concerned in this case with the liability of the business establishments in Eastgate Shopping Center for the sudden criminal act of a temporarily or permanently depraved person, who according to the affirmative allegations contained in the complaint gave no notice by word, act, dress or deed prior to the commission of the attack that would have indicated to anyone an intention of purpose to commit an assault.

We are not called upon, in this case, to draft a rule applicable to all of the many types of business and entertainment and service establishments or of every premises liability, or special relationship situation wherein a duty of protection of invitees might be asserted, and we do not propose to do so.

In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.

IV.

Assuming arguendo, that the complaint in this case states a cause of action upon which relief could be granted, we would dismiss the lawsuit for another reason. The facts alleged in paragraph five (5) of the complaint establish an efficient, intervening and unforeseeable cause for the injury sustained by Marie Cornpropst. The minds of reasonable men cannot differ but that the sudden act of Sloan, which could not have been prevented or deterred by the exercise of reasonable care on the part of the shopping center merchants, was the sole proximate legal cause of harm to Marie Cornpropst. Lancaster v. Montesi, 216 Tenn. 50, 390 S.W.2d 217 (1965).

We affirm the trial court. The costs are adjudged against plaintiffs.

COOPER, BROCK and HARBISON, JJ., concur.

HENRY, J., dissents.

HENRY, Justice

(dissenting).

I respectfully dissent from the major conclusions reached by my colleagues.

The Chief Justice has skillfully articulated the issues in Section I of the majority opinion and has disposed of the procedural questions in precise and flawless phraseology. With that section I am in full accord.

The Eastgate Shopping Center consists of an aggregation of approximately thirty-seven tenant-merchants with a parking area consisting of 1600 unrestricted parking spaces. The occupants of this shopping center have banded themselves together in an association known as the Eastgate Shopping Center Association, designed to promote their common welfare and protect their common interest.

On the night of 18 October 1973, plaintiff, Marie Cornpropst, came as a customer to the shopping center and parked her automobile in one of the spaces in the parking area. After completing her purchases she returned to her automobile where she was brutally attacked by the defendant, Sloan, a third party having no connection with the remaining defendants.

The pertinent parts of the complaint are quoted verbatim in the majority opinion, but the very length of the quotation tends to obscure the basis of the cause of action.

Plaintiff, in substance, charged:

a. That by virtue of other crimes, assaults, and acts of violence on or in the immediate vicinity of the East-gate Shopping Center, its parking area had become unsafe and particularly dangerous.
b. That the defendants knew or in the exercise of reasonable and proper care should have known that plaintiff-customer would be exposed to acts of violence and faced potential danger.
c. That defendants owed a duty to plaintiff-customer to take adequate precautions to guard against the known dangers.
d. That no security guards were posted, no patrols were established, and no other precautions were taken to guard against this known danger.
e. That no warning of the potential danger was given to plaintiff-customer.

The majority holds that these derelictions, breaches of duty and violations of standards of due care are not actionable. I am in violent disagreement.

The modern phenomenon of merchandising and marketing through community shopping centers has opened a new vista into the concept of tort liability of the owners, occupiers or possessors of public business premises. In such centers, aptly called “cities within cities”, virtually all the marketing demands of the general public can be met on a “one stop” basis. Central cities have suffered as a result of these decentralized mercantile conglomerations, and they have produced heretofore unknown legal problems. The primary incentive to the utilization of these shopping areas is the availability of adequate and free parking facilities, which the public, in general, is invited to use without let or hindrance, but always with the expectancy that the tradesmen in the market places will profit by such use. Having thus caused enormous congregations of potential and actual shoppers in relatively compact areas, certain duties devolve upon the invitors for the benefit and protection of the invitees. We have no Tennessee cases in point, and this area of the law has not fully developed in other jurisdictions; however, an emerging trend has been established.

We do not deal with an employer-employee relationship; with innkeepers and guests; with amusement park operators and their patrons; with landlord and tenant relationships; nor do we deal with public parking lots of the conventional variety, nor garages, nor any other relationship. Each of these situations presents different and differing rights and duties.

The trial judge, in sustaining the motion to dismiss, relied upon Thomas v. General Electric Company, 494 S.W.2d 493 (Tenn.1973) as the controlling authority. Evidently he was prompted by the following language from Thomas:

In order to sustain appellant’s contention this Court would have to conclude that as a matter of law anyone providing a guarded parking lot assumes the burden of insuring the safety of any invitee using the lot. (Emphasis supplied). 494 S.W.2d at 495.

The majority opinion concedes that Thomas is not controlling.

I wish to make it crystal clear that I would not impose upon the defendant merchants the duty of an insurer — just the duty of reasonable care — a duty to take reasonable and commensurate precautions in the face of a known danger.

In Corbitt v. Ringley-Crockett, Inc., 496 S.W.2d 914 (Tenn.App.1973), the Court applied a test of foreseeability, stating that

Even though the assault be sudden, if the owner could reasonably anticipate such an assault under the facts and fails to attempt to prevent it, he may be held liable. 496 S.W.2d at 917.

The complaint brings plaintiff squarely within this foreseeability exception to the general rule of non-liability.

In Corbitt “such an occurrence as complained of had never before happened.” The Court, on the facts of that case, concluded its opinion by saying:

We hold that if the owner is to be held liable for the sudden criminal acts of third persons there must be a showing that the owner was on notice in some manner of the imminent probability of the act. Otherwise, there can be no issue for jury determination. (Emphasis supplied).

This case tends to be supportive of plaintiff’s insistence that the complaint stated a valid cause of action.

Again in Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966) involving a parking lot injury, the Court recognized

the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom. 416 P.2d at 497.

The Court approved Section 344 of the Restatement of Torts (Second) infra, and held that the failure of a proprietor to secure the right of a patron to enter the parking lot without being attacked was a breach of duty.

Appellant also relies upon O’Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205 (1970). This was a suit against the owners and operators of a shopping center, and one of its tenants, by a patron who was assaulted, by a third party, in the parking area. Factually it is on all fours with the case at bar.

Initially the complaint charged prior incidents of criminal activity on the premises known to defendants. When defendants filed a motion for a bill of particulars, plaintiff was unable to support these allegations and the complaint was amended to delete them. Citing another Illinois ease the Court said:

(A) good complaint in a case similar to this must show not only danger of assault but that the defendant had notice of such danger and should reasonably have anticipated it. 255 N.E.2d at 207.

The Court held that the trial judge acted correctly in dismissing the complaint, saying:

We conclude that the common law duty of reasonable care owed to persons lawfully on premises cannot be extended to a duty to guard against the criminal acts of a third person, absent knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate it. Such circumstances are not alleged in the complaint, and it, therefore, failed to state a cause of action.

The present complaint meets the criteria established by O’Brien.

With utmost deference to my Brothers, the standard announced in the majority opinion affords virtually no protection to shopping center invitees, irrespective of the nature, character or extent of the known risk, and virtually immunizes the owner against liability for all except gross derelictions of duty. In my view such a standard is not in the best interests of the consuming public.

My investigation into the law and my search for a reasonable standard has led me to Restatement (Second) of Torts, Sec. 344, which reads as follows:

Sec. 344. Business Premises Open to Public: Acts of Third Persons or Animals.
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely to be done, or
(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

The Comments (b) make it clear that “third persons” include “other invitees or licensees upon the premises and also trespassers.” They likewise make it clear, under reasonable care (d) that the possessor is not an insurer against the acts of third persons; but he is under a duty to exercise reasonable care to give them protection A warning may be sufficient, however, the comment continues, there are:

(M)any situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons, or animals, may conduct themselves in a manner which will endanger the safety of the visitor.

As to the duty to police the premises, Comment f, specifies:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

I would adopt the rule of Restatement, as above set out.

I point out, however, that the standard of care is not fixed, rigid or inflexible and should, perforce of necessity be modified, adjusted and adopted to meet a standard of fairness and justice under the facts and circumstances of each particular case. It is evident that the degree of care must be commensurate with, and bear some relation to, the risk involved. It is evident that no proprietor is required to be an insurer. It is evident that any standard must be reasonably applied to the end that its application not work an undue hardship on any business activity. It is evident that no standard should require anything beyond protection against reasonable estimates of probabilities. It is evident that a proprietor is not required to protect his invitees against remote or conjectural possibilities nor to “waste his anxiety upon events that are barely possible”, and lastly it is evident that no proprietor has any responsibility for affirmative action against acts or occurrences on sidewalks or public ways adjacent to his business house, absent exceptional considerations. In summary, the guidelines should be given a reasonable, realistic and fair interpretation.

I would hold that, when tested by these standards and guidelines, and the rules governing pleading in Tennessee, the complaint states a good and valid cause of action or a claim upon which relief may be granted.

      . See also Twin City Amusement Company v. Salater, 372 S.W.2d 224 (Ark.1963), also involving an injury at a rock and roll concert, wherein the court, on a different factual situation, reversed a judgment for the injured plaintiff.


source: Caselaw Access Project

author: HENRY, Justice.

license: Public Domain

text:
    CITY OF MEMPHIS, Appellant, v. Robert R. ROBERTS, Appellee.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      Henry L. Klein, Memphis, for appellant.
    Allen S. Blair, Hanover, Walsh, Barnes & Jalenak, Memphis, for appellee.
   OPINION

HENRY, Justice.

This civil action arises under § 6-640, T.C.A. and presents the single issue of whether a city fireman must satisfy a judgment rendered against him as a condition precedent to being indemnified by the municipality.

The Chancellor answered in the negative.

We affirm.

I.

Final judgments, in the aggregate sum of $57,000.00, in an action at law, have been awarded against plaintiff-appellee, a fireman of the City of Memphis, in a suit for damages arising out of the performance of his official duties. Punitive damages were not involved. These judgments have not been satisfied, but demands have been made and the judgment creditors have threatened execution and garnishments. Plaintiff-appellee has made demand on the City of Memphis that these judgments be paid but the city has refused to do so. The Chancellor found that plaintiff-appellee was entitled to a judgment as a matter of law and ordered the city to pay all judgments.

Section 6-640, T.C.A. reads in pertinent part as follows:

Whenever any county sheriff and his deputies or any employee member of a fire or police department of a municipal corporation or other political subdivision of the state of Tennessee shall be sued for damages arising out of the performance of his official duties and while engaged in the course of his employment by such governmental agency, such governmental agency shall be authorized and required to provide defense counsel for such employee in such suit and to indemnify him from any judgment rendered against him in such suit; provided, however, that such indemnity shall not extend to any judgment for punitive damages or for damages arising out of any willful wrongdoing by said employee and; provided, further, that such municipal corporation or other political subdivision shall have notice of such suit.
Provided, however, that liability on behalf of any municipal corporation or political subdivision affected by §§ 6-640, 6-641 shall be limited to fifty thousand dollars ($50,000) for each person injured or property damaged from any one (1) accident and one hundred thousand dollars ($100,000) for all injuries and all property damage resulting from any one (1) accident.

It should be noted that this statute does not require a municipality to procure insurance coverage, although the ensuing section authorizes it to do so. The legislative scheme leaves it to the city to determine whether it will be insured or self-insured.

It is the position of the city that this city fireman may not recover until he has first paid the judgment rendered against him. It equates the statutory language, “to indemnify him from any judgment” with the indemnity provisions of insurance contracts and conventional agreements of indemnity, and would have us apply the general rule that where a contract contains provisions indemnifying against loss or damages, the indemnitee may not recover until he has paid the judgment.

The counter-insistence of appellee is that this is an indemnity against liability and a recovery may be had as soon as liability is legally imposed, i. e., when the judgment becomes final.

We do not accept either theory. We are dealing with a legislative enactment and our task is to determine the legislative intent.

This act came under the scrutiny of this Court in City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602 (1969). The Court upheld the constitutionality of the statute, which at that time only applied to policemen and firemen. The Court considered the statute as providing a fringe benefit, declaring:

In recognition of the necessity of providing such benefits, pension plans, tenure acts, retirement and vacation benefits have been adopted by individual cities by resolution, changes in charters, and often by acts of the Legislature. One method of approach in considering the instant statute is to consider it as providing another such fringe benefit. As it removes the burden from the individual of carrying insurance coverage for, and defending against, suits which arise out of his employment, it might even be said that it provides an indirect pay raise for such employee. At the very least it makes employment in these departments more attractive for both the veteran and the recruit, just as other “fringe benefits” do. 442 S.W.2d 606.

We are in accord with these views; however, the statute must also be viewed as providing a form of public insurance against theretofore immune activities. This statute unquestionably is a partial waiver of the traditional governmental immunity of cities and counties.

The closing portion of this case contains significant language. After recognizing the limitations on the use of public funds, the Court said:

The direct public purpose in this case is effectuated by means of the city directly furnishing counsel, and by directly appropriating money either to buy coverage to pay any judgment, or by its paying the judgment out of funds set aside for that purpose. (Emphasis ours) 442 S.W.2d at 607.

It was again considered by this Court in Cunningham v. Metropolitan Government of Nashville and Davidson County, 476 S.W.2d 641 (Tenn.1972). The suit was instituted by the coadministrator of the insolvent estate of a deceased policeman seeking to compel the city to either satisfy judgments or pay the amount of the judgments to the estate. The Court held, inter alia that the estate, by reason of its insolvency had not sustained any actual loss and was faced with no threat of loss by execution, or otherwise. The Court held, in substance, that the statute created an indemnity relationship for the sole benefit of policemen and firemen, and applied the conventional rules relating to contracts of indemnity. Since the estate had sustained no loss and anticipated none, the city was under no duty to indemnify.

For reasons already pointed out, and as further discussed hereafter, we cannot accept this narrow construction of the statute. Indeed the Court severely limited its own opinion by the following language:

The plaintiff, with some force and reason, in his brief states:
“Suppose we have a policeman under the circumstances in these cases and he owns a piece of property that he has bought for future increase in value. Does he, therefore have to sell, perhaps on a depressed market, or have said property levied on and sold under execution before he can expect the City to protect him. The City in such case would not take into consideration the future value of the property and offer him only what the property brought.” “If the policeman (still alive) had nothing out of which the judgment could be made, he would be subject to garnishment each month and make claim against the City.”
This could be a logical argument, had the deceased lived and been faced with these problems, but does not apply in the instant case where no loss was suffered or is imminent or threatened. We can only interpret the Statute under the facts as presented. We cannot adjudicate a hypothetical question or give an advisory opinion. When that question becomes real and is presented to this Court, it will be passed upon. 476 S.W.2d 643-644.

The question has now come.

What did the Legislature have in mind?

We have examined the tape recordings preserved in the State Library and Archives. Number S-196 contains the appropriate portions of the legislative debate conducted on this proposal on 18 May 1967, beginning at 2:35 P.M. State Senator Stanley Snodgrass, of Davidson County, the Senate Sponsor of this proposal, addressed his colleagues as follows:

Mr. Speaker and Lady Anderson, Gentlemen of the Senate, this is a bill which at the outset I must say affects the immunity of municipalities and other governmental organizations. As you know, practically since the beginning of what we know as the common law, municipalities and certain other governmental units have had immunity from suit as a result of their employees committing negligent acts in the course of a governmental function. (Emphasis supplied).

After certain other proceedings, Senator Snodgrass stated:

Mr. Speaker Gorrell, Lady Anderson, Members of the Senate: The amendment, in effect, simply makes applicable in this bill employees of the fire and police departments of municipalities and other governmental units. Quite frankly I ran into considerable opposition on this bill as originally drawn from municipal officials and various other people who are opposed to the removal of any immunity at all from municipalities or county governments so far as governmental function is concerned. It occurred to me that there is such a need for some sort of legislation in this field that I will take second best and not take any at all, and this will then resolve itself to whether or not this Senate feels that when an employee of the fire department or police department of a municipality is sued by a citizen for damages for his negligent acts which have occurred in the course of his employment — whether or not the city ought to have to pay damages to that person that’s so injured. Now, as the law now stands, the city doesn’t have to do that I can ask whether or not this ought not to be extended to state employees also but I submit to you there is a difference there. We do have a State Board of Claims, and you do have a right to file a petition before the State Board of Claims and seek compensation for injuries or other damages. But that isn’t true so far as municipal government is concerned, in acts committed while in the performance of a governmental function. Let me just give you an illustration and I’ll let each member of the Senate be the judge of what they want to do on this bill. If my little girl or your little boy or any other child or any adult walking down the street and from no negligence of his or her own, is run over by a fire engine— they have severe physical injuries, much expense; as the law now stands, there’s no way that they can bring suit against the municipality which controls that public agency, that fire engine. They can sue the driver of the vehicle. Suppose they have just enormous damages and enormous expenses. That driver is not in any financial position to make restitution for his negligence. We are assuming now that this fire engine driver was negligent in injuring this person. I merely say that that kind of law is just as archaic as it can be because when the philosophy of immunity, the King can do no wrong, was established back in the days when they didn’t know what a vehicle was; there was no great traffic and no great danger to human life crossing the street or doing any other act. But it’s different today. I say to you gentlemen that there ought to be some method by which the public can be protected against the negligent acts of these employees. There’s no reason why the municipality couldn’t acquire liability insurance to cover this if they want to. If they are not able to do it, they could possibly be put in assigned risks of some kind, but there are ways in which they can protect the public. I submit to you that while this will change the law substantially that it’s already been changed by court action in several jurisdictions, the sister state of Kentucky has abolished the idea of municipal immunity — governmental immunity. (Emphasis supplied).

We yield to this clear and unequivocal statement of the purpose of the law. We do not believe that the Legislature used the phraseology, “indemnify him from any judgment” in a technical, legalistic or esoteric sense, as opposed to its more mundane meaning of protecting against hurt, harm or loss.

We recoil at any suggestion that a policeman or fireman, or any other wage-earner during this era of inflation is required to submit to the hurt, humiliation and financial detriment of having his wages garnisheed, or of having to deplete his meager savings, or perhaps of having to sell his equity in his home in order to pay a judgment against him, and then, but only then, recover the money so paid. We cannot believe the Legislature intended any such absurd result. Section 6-640 T.C.A. was wholesome legislation, designed for the partial correction of a problem which exists without justification or excuse, and as Justice Harbison so eloquently stated in Johnson v. Oman Construction Co., 519 S.W.2d 782, 786 (1974), is “at variance with modern concepts of justice.”

We hold that it was the intent of § 6-640 T.C.A. that the governmental entity indemnify the employees enumerated therein by paying any judgment for compensatory damages awarded against them for any negligence committed in the performance of their official duties.

The judgment of the Chancellor is

Affirmed.

FONES, C. J., and COOPER, BROCK and HARBISON, JJ., concurring.

      . This is the section as it now appears, including the changes made by Chapter 78, Adj.S.1972, none of which have any bearing upon this action.


author: COOPER, Justice.

text:
    Carleen Anderson COCKRELL, Appellant, v. Mr. and Mrs. Earl WOODS, Appellees.
    Supreme Court of Tennessee.
    Oct. 6, 1975.
    Leech, Hardin & Knolton, Columbia, for appellant.
    Shelton, Lawwell & DuBois, Columbia, for appellees.
   OPINION

COOPER, Justice.

This is an appeal from a judgment entered in the County Court of Maury County appointing appellees, Mr. and Mrs. Earl Woods, custodial guardians of their granddaughter, Stacey Michelle Woods, age nine. Appellant, who is the natural mother of Stacey Woods insists that the county court does not have jurisdiction to appoint a custodial guardian for a minor child where, as in this case, there exists a previous award of custody of the child in a divorce action.

Appellees have moved- in this court to dismiss thevappeal on the ground that an appeal from a judgment of the county court is to the circuit court of the county and not to this court.

Generally, an appeal from the judgment of a county court goes to the circuit court of the county, unless otherwise expressly provided. T.C.A. 27-401. T.C.A. 27-402 provides for a direct appeal to the Court of Appeals or to this court, dependent upon the method of trial in the county court, in eases where “the jurisdiction of the county court is concurrent with the circuit or chancery courts,” or in cases where the parties consent. The controlling question then is: Does either the circuit or chancery court have concurrent jurisdiction with the county court over the appointment of guardians of the person of a minor child? If so, the appeal sub judice would be to this court. If not, the appeal is to the Circuit Court of Maury County.

T.C.A. 16-610, adopted in the Code of 1858 and subsequent codes, undertakes to grant to the chancery court jurisdiction concurrent with the county court “of the appointment and removal of guardians.” However, subsequent legislation has taken such jurisdiction from the chancery court and has granted concurrent jurisdiction of proceedings to appoint a guardian of the person of a minor to the county court and the juvenile court. T.C.A. 37-204 and T.C.A. 34-203. See chapter 177, Section 2(2) of the Public Acts of 1955, since repealed, which gave to the juvenile courts “original, exclusive jurisdiction of: . All cases to appoint a guardian of the person of a child in accordance with the Section 8476 (now T.C.A. 34-203) of the Code of Tennessee as amended by the Public Acts of 1951, Chapter 148, . . Also see, St. Peter’s Orphan Asylum Association v. Riley, 43 Tenn.App. 683, 311 S.W.2d 336 (1957), wherein it is pointed out that T.C.A. Section 16-610 was repealed to the extent that it was in conflict with any of the provisions of Chapter 177 of the Act of 1955.

Accordingly, appellees’ motion to dismiss the appeal to this court is sustained, and the case is transferred to the Circuit Court of Maury County for consideration of the appeal. Costs in this court are adjudged against appellant, Carleen Anderson Cock-rell, and her surety. Other costs will await the outcome of the appeal.

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

HENRY, J., not participating.


author: RUSSELL, Judge. GALBREATH, Judge

text:
    John LILLARD, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    April 30, 1975.
    Certiorari Denied by Supreme Court Sept. 8, 1975.

      Raymond P. Gibbs, Murfreesboro, for. plaintiff-in-error.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, Guy R. Dotson, Dist. Atty. Gen., Murfreesboro, for defendant-in-error.
   OPINION

RUSSELL, Judge.

John Lillard, represented by retained counsel, appeals in error his convictions for two separate rapes committed upon the same victim upon the same night, resulting in two consecutive twenty (20) year penitentiary sentences.

Error is assigned questioning the sufficiency of the evidence to support the jury’s verdict. In summarizing the evidence, it is noteworthy that as to the facts of the matter all that we have before us is the composite picture drawn by State’s witnesses, as the defendant did not testify or offer any contrary proof. Counsel’s argument seems mainly to attack what is said to be the harshness of consecutive twenty (20) year sentences.

The State’s proof is that two women, Mary Myers and Bernita Jenkins, were walking on Charlotte Avenue near their homes in Nashville after midnight when the accused, alone in an automobile, stopped and asked directions to a street in another part of town. He represented himself as being a deputy sheriff who had delivered a prisoner to the penitentiary and then gotten lost. The women were unable to give him directions, but when they indicated that they knew the way he offered to return them if they would accompany him and show him the way. They got in the car, and he simply drove on to a rural area in Rutherford County. He told the women that he intended to have them sexually. They asked to be let out of the car and once he let them out, but immediately came back and got them, saying that he’d kill them if they didn’t get back in the car. He claimed that he had a pistol, that he was out on bond for having killed a university professor and that killing them wouldn’t matter; and when he demanded of the first victim that she remove her pants, he told her that if she didn’t comply that he’d use a knife “and she wouldn’t have no trouble getting out of them at all”. He forced Bernita Jenkins onto the back seat and had intercourse with her. Mary Myers was upon the front seat feigning an asthma attack; and she got out of the car, on the pretext of getting more air, and looked for a rock. She found one and handed it to Bernita Jenkins, but apparently it was small and wasn’t used.

Lillard drove to another location and ordered Mary Myers onto the back seat and to disrobe. He was having intercourse with her when Bernita Jenkins dropped a larger rock onto his head, lacerating it. He terminated that rape, caught Bernita Jenkins and with multiple blows knocked her down twice, threatened to kill her by driving the car over her, and finally left her lying in the road or ditch as he drove away with Mary Myers. After driving a while Lillard parked at another location, advised Mary Myers that he was going to finish what he had started, and again had sexual intercourse with her. He then drove back to Nashville, where he let Mary Myers out of the car across town from her home.

Bernita Jenkins sounded the alarm by going first to a nearby residence, from whence she was carried to a telephone and then to a meeting with officers. Mary Myers went to her home in Nashville, procured a gun and three male friends, and returned to Rutherford County to try to find Bernita Jenkins and Lillard, whom she intended to execute. Upon being unable to find Bernita Jenkins, Mary Myers also contacted law enforcement officers. The information given by the victims, including the license number of the car, led to the arrest of Lillard, who was positively identified by both women as their assailant.

Only two areas of the evidence represent significant sufficiency questions. The first has to do with resistance to the rapes. Certainly the intercourse was against the wills of the women, but the requirement of force is only met by looking to the whole situation. Lillard never displayed a gun or knife, and apparently did not strike either woman until he was struck upon the head during the second rape. Mary Myers admitted that she did not fight him before either submission. The jury found that, in the total context of this transaction, that justifiable fear of force and violence was present, rendering the rapes “forcible”. The women, at the time of the rapes, were captives under the control of Lillard. His violent response to the one attempt at resistance supports their judgment that it would have been very dangerous, and Mary Myers’ not fighting him cannot reasonably be construed as consent, or as negating the coerced and forcible nature of the acts.

The second question has to do with whether two separate rapes of Mary Myers are supported by the proof. The record is not clear as to exactly how much time elapsed between the intercourse interrupted by the blow to Lillard’s head and the second act of intercourse with Mary Myers. It is clear that he drove away from the first' scene, “around the road and in a field”. How far Lillard drove is not clear. She testified that “[h]e drove the car around some more and then he finally came to this field and there was a gateway there and he drove the car in the gateway and up a little rise”. The second intercourse then occurred.

There apparently is little case law on the subject of whether multiple instances of forcible intercourse compose one crime of rape or several. Plaintiff-in-error does not contend that only one rape of Mary Myers occurred, but argues that the punishments should have been set to run concurrently. Certainly what happened on each of these occasions was found to be rape, and either would have been if the other incident had not occurred. It was in fact two separate rapes, and we believe that it also was as a matter of law. In 1 Wharton’s Criminal Law and Procedure, p. 635, § 304, Rape and Related Offenses, we find the statement:

“Each act of intercourse is a separate offense.”

Cited as authority for that proposition is the ease of Mikell v. State, 242 Ala. 298, 5 So.2d 825 (1941). Mikell only implicitly so holds, by dealing with a second prosecution without saying more than that an acquittal by a jury of the first offense barred prosecution for the subsequent offense in another county, where the female testified that she submitted upon the second occasion because of fear and mental apprehension aroused in her mind upon the first occasion. It could be taken that the Alabama court would have permitted the second prosecution if it had been the fruit of new or additional force or coercion. The two alleged rapes were upon the same evening, but in different counties.

Explicit contrary authority may be found in two 1969 cases from Oklahoma involving the same defendant in each case. He forced his victims in each instance into a laundromat rest room, committed one forcible rape with the victim standing, then required each to commit oral sex acts, and then committed the second act of intercourse upon the floor. Turnbow v. State, Okl.Cr., 451 P.2d 387 (1969); Turnbow v. State, Okl.Cr., 454 P.2d 674 (1969). The Court of Criminal Appeals of Oklahoma held, in that context, that only a single offense of rape was committed. In each case by footnote the court said:

“1. Although not raised as an issue in Ramos v. State, Okl.Cr., 445 P.2d 807, this Court treated several acts of intercourse between the prosecutrix and the defendant, Romas, occurring over a 26 hour period of time, as constituting but a single act of rape.”

We cannot agree with the Ramos approach. While requisite penetration may occur many times during a single episode of intercourse, there exists in that context the single basic intent to have sexual intercourse and the same force and/or coercion is common to the penetrations, even if they be momentarily interrupted.

But we do not agree that a man who has raped a woman once may again assault and ravish her with impunity, at another time and at another place, as was done here. An intent was formed to rape her again. The evidence of the second rape is entirely additional to that of the first. Additional orders were given to the captive female, an intent to have her again was formed and manifested, and the crime committed. Certainly there was separate and additional fear, humiliation and danger to the victim.

We hold that separate acts of rape, committed at different times and places and the product of several intents, are severally punishable.

T.C.A. § 40-2711 gives to the trial judge the function of exercising a sound discretion in deciding whether multiple sentences shall be concurrent or cumulative (consecutive). This discretion is reviewable on appeal by the terms of the same statute. We cannot say that the trial judge abused his discretion in this case. The defendant was totally unresponsive to the pleas of his one-time victim, and victimized her again. We have said that this was a new crime, and we will not now say that the trial judge erred in affixing a meaningful punishment.

Numerous other errors are assigned. It was not error to allow the State to introduce a witness subpoenaed by the defendant. Nor was it error to allow testimony about the rape of Bernita Jenkins, as that proof was inseparably intertwined into the whole episode and was germane to the issue of defendant’s intent, the threats and coercion resulting in the intimidation and submission of Mary Myers, etc. Nor was a bail bond set at $50,000 per case excessive or unconstitutional.

We cannot consider the assignment of error grounded upon alleged improper jury argument by the prosecuting attorney, because retained counsel submitted a proposed bill of exceptions over his signature that did not contain the argument. Nor does counsel say that the argument was objected to contemporaneously. A motion suggesting a diminution of the record to bring up this argument is merit-less, because such a motion reaches only items that are a part of the record. Jury argument does not become a part of the record until and unless it is incorporated into the bill of exceptions. We have had no motion to permit a late filing of this argument as an addition to the bill of exceptions, as might be done in a proper case under T.C.A. § 27-111.

Unmeritorious is the contention that the convictions cannot stand because the victim was never examined by a doctor. Nor was it improper to allow testimony about the finding of panties and a scarf at one of the crime scenes, or improper to disallow questioning of Mary Myers about her charging Bernita Jenkins with burglary or the charging by Bernita Jenkins of Mary Myers’ boyfriend with stealing $201.00 from her apartment.

The recall of Mary Myers to testify a second time was clearly within the discretion of the trial judge. Nor was error committed when Mary Myers testified, without objection, that Lillard had said that he was out on bond for killing a white man. An assignment that the defendant was brought into Court handcuffed has no support in the record.

It is said that the Court erred in not declaring a mistrial “when the defendant was able to secure only one Negro on the jury”, and “that Negroes did not compose a proportionate number on the jury panel in relation to their numbers in the population of Rutherford County”. This question was not raised until the motion for a new trial was filed. The jury was selected and accepted without any such question. Obviously, an attack upon the composition of the venire, made for the first time after a trial which might have resulted in an acquittal, came too late. State v. Cole, 28 Tenn. 626; McTigue v. State, 63 Tenn. 313; Turner v. State, 89 Tenn. 547, 15 S.W. 838; Ellis v. State, 92 Tenn. 85, 20 S.W. 500; State ex rel. Lawrence v. Henderson, 1 Tenn.Cr.App. 199, 433 S.W.2d 96; Burt v. State, 2 Tenn.Cr.App. 408, 454 S.W.2d 182.

Furthermore, a showing of a systematic exclusion of blacks would have been necessary to demonstrate a constitutional infirmity. No such showing is in this record; and, in fact, it appears from statements of counsel that blacks were included in the venire, and one actually served upon the trial jury.

We hold that the punishment fixed was not excessive, being well within the limits prescribed by law. No error was committed in letting the investigating officers testify as to what they were told by the recent rape victims and what they did as a result thereof. Klaver v. State, Tenn.Cr.App., 503 S.W.2d 946 (1973). No error was committed in permitting the victim to testify that she went home and got a gun. The fact that the gun was not introduced is not a violation of the “best evidence rule”, as alleged. That rule has no application to non-documentary evidence. Boshears v. State, Tenn.Cr.App., 500 S.W.2d 621 (1973). Other assignments of error also erroneously grounded upon the same rule are meritless.

We have carefully reviewed all of the assignments of error, many of which were not briefed, and find them to be without merit. Lillard makes no serious argument except to say, through counsel, that he has been harshly dealt with. Such a judgment is obviously influenced by one’s point of view. The victim apparently felt that he deserved death. The jury’s verdict represented society’s view of appropriate punishment.

Affirmed.

ANDREW T. TAYLOR, Special Judge, concurs.

GALBREATH, Judge

(dissenting).

I am unable to agree that under the facts of this case and the law of this State and the majority of other jurisdictions that the plaintiff in error may be punished twice for the forcible acts of intercourse resulting in his conviction. I must therefore respectfully dissent.

The general law in this State, it seems to me, was expressed by our Supreme Court after discussing the views pro and con on multiple convictions involving separate crimes committed in a single episode of criminality:

“While, in view of these authorities, we feel constrained to hold that in a case like this the jury may find the prisoner guilty upon each count, and ascertain the punishment separately, we are of opinion that the usual and better practice in such cases is to find a general verdict for the two cognate offenses charged.”
Even if it be conceded that two convictions and two punishments may be had in any case upon separate counts, the practice is not approved, and, certainly it must be clear that the offenses are wholly separate and distinct. Our own cases appear to prohibit the practice where the offenses grow out of one transaction and involve but one criminal intent. Patmore v. State, 152 Tenn. 281, 277 S.W. 892.

Albeit the majority does not agree, I am of the opinion there was but a single intent involved insofar as the victim in this case was concerned- — that was to rape her. The majority cites Turnbow v. State, in which the Oklahoma Court of Appeals held directly that “several acts of intercourse between the prosecutrix and the defendant . occurring over a twenty-six hour period of time” constituted but a single act of rape. Since there has never been a case involving the facts and the point of law in Tennessee, we must look to other jurisdictions for guidance.

In Peterson v. State, 116 Neb. 268, 216 N.W. 823, the Nebraska Supreme Court gave the following description of fact and conclusion of law which would fit this case:

[T]he defendant . . . secured the physical control and possession of the prosecutrix which thereafter was continuously maintained and exercised by him for a period of not to exceed two hours; that during this time, for the purpose mentioned, the prosecutrix was kept and carried about Morrill county, Nebraska, in an automobile, and finally taken to the home of the defendant; that, en route, the prosecutrix was twice compelled to submit to sexual intercourse with the defendant . . .; that, upon arrival at defendant’s home, prosecutrix was forcibly removed from the automobile, taken into the house, where the sexual act was repeated by the accused .
The jury, as triers of fact, who heard this evidence and saw the witnesses, were the sole judges of its truth. In connection with surrounding facts and circumstances appearing in the record, if believed, it established one indivisible, criminal transaction, initiated and carried out by the accused in person, all of which took place within a short period of time on a single night; and during which everything said and done was in furtherance of one continuous, criminal purpose not completed and entirely consummated on part of the accused until after his last sexual relations with prosecutrix at his home.

I concede that separate and distinct acts of rape may and can be susceptible to separate prosecutions and punishments. My point is that although the rape in this case took place over a period of an hour or so and involved different locations, it was one continuing transaction. A somewhat similar situation is described in another Oklahoma case. That case also involved a defendant of some fifty years of age as was the defendant here. The forcible act of intercourse in that case was also interrupted as in this case and later resumed and completed. But I will let the Oklahoma Court tell the story:

In the course of the act, especially where the female was an unwilling participant, the male organ might be inserted and removed any number of times before the male experienced an emission or got his satisfaction. When this would happen he would be unable to make further penetration at least for from a few minutes to a few hours, depending upon the age and physical well being of the male. Each penetration where position of parties changed numerous times could not be treated as a separate act of rape where they formed a part and parcel of a continuous performance.
The prosecutrix testified concerning the act, that the defendant got a knife out of the car pocket, held it near her and pressed a spring and the blade flew open, and that he demanded that she take off her clothing. That she protested, but that he forced her to take off her jeans and underclothing. Witness was asked on direct examination:
“Q. Did he have sexual intercourse there in the front seat? A. I guess that is what you call it.
“Q. Did he put his male organ inside your female organ? A. Yes.
“Q. How far? A. Clear in.
“Q. And then what happened? A. He told me to get in the back seat because he couldn’t do it in the front.” She further stated that she was crying and did not know what she was doing or how she got in the back seat, but got back there and that the same thing continued there as in the front seat; that he just forced his male organ in her and that when he finished that she was bleeding and that he told her to be careful not to get blood on the seat and that he took her underclothes and wiped the seat.
On cross-examination counsel made many attempts to show by the prosecu-trix that there were two separate acts of intercourse between witness and the defendant. In this he was unsuccessful. There was no evidence of any appreciable interval between the acts of penetration in the front seat and the continuance in the back seat. Witness stated that the defendant after five or ten minutes in the front seat made her get in the back seat because “he said he couldn’t do it in the front seat”. Clearly indicating that he was not having a satisfactory experience there due no doubt to the lack of room and the difficulty of penetration, because Dr. Arrendiell, who examined witness soon after the act, testified that although there were two distinct lacerations with oozing of blood, that he had some difficulty inserting his index finger in making the examination. Defendant therefore sought greater freedom in the rear seat and there continued the act until gratified. The record indicates that defendant was around fifty years of age and it would indeed have been a miracle if the defendant could have completed an act in the front seat of the car and then moved to the back seat and immediately commenced and completed a second act. That would be contrary to nature. The defendant did not testify. A study of the entire record compels the conclusion that but one act of sexual intercourse was had between defendant and prosecutrix and therefore but one crime was charged and the proof showed but one crime committed. Beasley v. State, 94 Okl.Cr. 353, 236 P.2d 263.

Making it even more unlikely that the fifty year old defendant in this case had successfully carried out, completed or consummated his unlawful intent in this case when he was interrupted by being hit in the head with a rock, is the rather remarkable fact that his matured virility had already been tested by the prior act of intercourse with the lady who wielded the rock.

This was not the most aggravated case of rape that has come before the Court. While all rape is bad and none should go unpunished the facts suggest that the pros-ecutrix and her friend were not as attentive to their own well being as women not wishing to attract unwanted sexual attention from strange men should be. While unattended on Charlotte Avenue (the Nashville counterpart of Memphis’ Beale Street and Chattanooga’s Ninth Street) they accepted a stranger’s late night invitation to get in his automobile and accompany him to a main thoroughfare that he could easily have been directed to by the simple instruction to make one right hand turn.

If nothing else it has become traditional in Tennessee in sexual assault cases, whether rape, carnal knowledge, crimes against nature, or incest, for the prosecution to seek and obtain only one conviction even though the course of the proscribed conduct involving a single victim may have (as in the case of incest for example) continued literally for years until exposed. Many of these cases have involved little children and other victims more helpless in their plights than the foolhardy actions of the two adult females in this case suggest they were. If we are to depart from the well established practice described in Patmore, supra, and the many other cases in which single convictions have resulted from repeated acts of sexual criminality, I would wait for a case in which the crime was of a more aggravated nature.


author:
DOUGLAS, Judge. ROBERTS, Judge MORRISON, Judge.
      ROBERTS, Judge

text:
    Mary Helen HALLIBURTON, Appellant, v. The STATE of Texas, Appellee.
    No. 49457.
    Court of Criminal Appeals of Texas.
    July 16, 1975.
    On Rehearing Oct. 15, 1975.
    Roland H. Hill, Jr. and Harry L. Williams, Fort Worth, for appellant.
    Tim Curry, Dist. Atty., and Tom E. Hill, William W. Chambers and Travis Young, Asst. Dist. Attys., Fort Worth, Jim D. Vol-lers, State’s Atty., and David S. McAngus, Asst. State’s Atty., Austin, for the State.
   OPINION

DOUGLAS, Judge.

This is an appeal from a conviction for murder. The jury assessed the punishment at life.

The appellant admitted shooting her common-law husband, Willie Lee Scott, in the front room of their home. No one else was present. She claimed self-defense and no intent to kill.

The sole question for review relates to the proof of her shooting another man.

The State introduced a portion of her confession. Appellant introduced the remainder of the confession and testified that she shot the deceased after he had threatened her with a gun. She related that the deceased had a pistol and while sitting there “pranking with his gun in his hand” he had said, “ ‘Bitch, you know I’ll kill you.’ ” She stated that she went and got her pistol and tried to calm him down. He put the pistol back in his pocket and she put hers back under the pillow on the couch. About five minutes later the argument was renewed. .According to the appellant, the deceased hit her with his pistol and knocked her down. She reached under the pillow on the couch, got her gun and came up shooting. She said that she was not trying to kill him but only to stop him. He grabbed her, they “tusseled,” he hit her on the side of the head again with his pistol and they fell to the floor. While wrestling, she shot him.

After the defense rested the State called Morris Myers who testified that the appellant, in her car, pulled up beside him while he was walking on South Calhoun Street in Fort Worth. She stopped the car and asked him for money that he owed her. He told her that he didn’t have any money and then the appellant picked up her pistol, got out of the car and shot him in the side as he ran. This happened some five weeks after the shooting in the present case.

The appellant complains that the court erred in admitting the testimony of Myers.

The issue of self-defense and no intent to kill was raised during appellant’s testimony when the following occurred:

“Q. (By defense attorney) When you reached up under the couch and got your gun and came up shooting, were you shooting at Scott, trying to kill him?
“A. (Appellant) No, sir, I wasn’t shooting at him or trying to kill him.
“Q. What were you trying to do?
“A. I was trying to stop him. I figured if I shot at him he would stop.
“Q. . . . Now, you were merely trying to stop him when you came up shooting?
“A. Yes, sir, I was.”

The above testimony concerned appellant’s initial shooting at the deceased and prior to the wrestling on the floor where she killed him. Then she testified as follows:

“Q. Now, Mary, at the time you shot him and at the time you went to the ground there and tusseled him, did he have his gun in his hand?
“A. Yes, sir, he did.
“Q. I’ll ask you, Mary, at that time, were you scared that he was going to do you bodily injury or kill you?
“A. Yes, sir, Mr. Williams, I was scared to death.
“Q. All right. Now, let me ask you this, Mary: At all times that this was going on out there, did you want to kill Scott?
“A. No, I loved him.
“Q. You did not want to kill him?
“A. I really did not want to kill him.
“Q. Why did you shoot him when you shot him there the last time?
“A. I was trying to stop him period. It was either him or me. Mr. Williams, that man was going to kill me.
“Q. You actually thought he was going to kill you from what he had done?
“A. I definitely knew he was, Mr. Williams.”

On cross-examination the following occurred:

“Q. Isn’t it a fact that you were just plain mad at him?
“A. No, it is not.
“Q. You didn’t ever intend to kill Scott, did you?
“A. No, sir, I didn’t. How can you kill something you love?”

The trial court in its charge to the jury instructed the jury to limit its consideration of the extraneous offense in passing upon the weight given to the appellant’s testimony and for no other purpose.

The issue in this case is whether the shooting of Myers was material and relevant to a contested issue on the case.

It has long been the rule in this jurisdiction that one on trial is to be tried for the offense charged and not for remote or disconnected crimes or for being a criminal generally. See 1 Branch’s Ann.P.C.2d, Section 188. Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972), outlines numerous situations in which evidence is admissible even though it tends to show an extraneous offense. The Court noted that an extraneous offense could be introduced “to refute a defensive theory raised by the accused.” See Ratcliff v. State, 504 S.W.2d 883 (Tex.Cr.App.1974), and the cases it cites.

The appellant testified to self-defense and that she had no intent to kill. She wanted the jury to believe her testimony. The State was authorized to show that she shot another man some time later to show her intent which tended to disprove her testimony. Appellant cites Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974). Lolmaugh shot and killed his wife’s lover. The appellant claimed self-defense. This Court held that a part of his confession in which he admitted to a prior shooting of a man who had been his wife’s lover was admissible. When the appellant raised the issue of self-defense, motive became an issue. The prior shooting tended to show Lolmaugh’s state of mind at the time he committed the offense for which he was charged.

In Lolmaugh there was the additional fact of the motive of the defendant. The fact that Lolmaugh is a stronger case for the admission of the extraneous offense does not make the testimony in the present case inadmissible.

In Blankenship v. State, 448 S.W.2d 476 (Tex.Cr.App.1969), the defendant there claimed the defenses of alibi and that he had been “framed.” Evidence of a subsequent robbery involving the appellant reasonably and logically tended to defeat the defenses urged and, therefore, was admissible.

The record contains no objection to the charge limiting Myers’ testimony, and nothing is presented for review.

There being no reversible error, the judgment is affirmed.

ODOM, J., dissents.

ROBERTS, Judge

(dissenting).

There is a clear distinction between this case and Lolmaugh v. State, 514 S.W.2d 758 (Tex.Cr.App.1974), upon which the majority so heavily relies.

In Lolmaugh, the appellant was convicted of the murder of his wife’s current lover. There the appellant took the stand and by his testimony raised the issue of self-defense, and hence of motive. The State then introduced a portion of appellant’s confession in which the appellant admitted shooting another man who had also been his wife’s lover. This Court held that the extraneous offense was admissible since:

“[Pjroof that [appellant] had shot another of his wife’s lovers would tend to prove his motive in the present case. This would tend to show his state of mind toward a class, lovers of his wife, and this state of mind or motive was such that he would shoot members of that class.” Lolmaugh v. State, supra, at 759. (Emphasis added)

In Lolmaugh, the Court relied on Dillard v. State, 477 S.W.2d 547, 551 (Tex.Cr.App.1972), where we said:

“Where the accused has threatened or shown a feeling of ill-will or animosity towards all parties of one class then these threats or offenses may be admitted into evidence even though they show extraneous offenses. (Emphasis added.)”

In the instant case, appellant was convicted for the murder of her common-law husband, Willie Lee Scott. The extraneous offense involved the shooting of Morris Myers some five weeks later. Myers testified that he had known appellant for “about four years.” At trial Myers specifically denied having lived with appellant during the five-week period after the death of Scott, although he admitted spending time at her house both before and after the death of Scott. According to Myers’s testimony, appellant shot him after he encountered her on the street and refused to pay her the money he owed her. In no way does Myers’s testimony reflect that he and the appellant were lovers or that they had any relationship comparable to that of husband and wife, or that any “intimate” relationship between them in any way brought about the extraneous offense.

On these facts, there is simply no “one class” of individuals into which both Scott and Myers fit, unless we consign them to the “class” of male human beings generally. Compare Ford v. State, 484 S.W.2d 727 (Tex.Cr.App.1972).

I would hold as we did on original submission in Alvarez v. State, 511 S.W.2d 493, 495 (Tex.Cr.App.1974), that:

“While the record does indicate that appellant offered some evidence to raise an issue of self defense, proof of an extraneous offense is in no way probative of appellant’s state of mind at the time of the killing in the instant case. Cf. Ford v. State, supra; Rodriguez v. State, [486 S.W.2d 355 (Tex.Cr.App.1972)].”

See also Jackel v. State, 506 S.W.2d 229 (Tex.Cr.App.1974).

The effect of the majority opinion is to destroy the well-established rule that “before extraneous offenses may be properly admitted into evidence, there must be some common distinguishing characteristics, or a series of distinguishing characteristics between the offense charged and the extraneous offense. In the absence of such a rule, remote and completely unrelated offenses might be recited to the court in order to show that defendant is simply a bad character, or a criminal generally.” Newman v. State, 485 S.W.2d 576, 577-578 (Tex.Cr.App.1972). See also Ford v. State, supra.

The judgment should be reversed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

It has been suggested that reliance upon Lolmaugh v. State, Tex.Cr.App., 514 S.W.2d 758, was misplaced. Even if this is correct, we remain convinced that the proper result was reached.

The ultimate question is whether the extraneous offense tends to disprove the appellant’s explanation of the primary offense. The presence or absence of similarity is not entirely determinative of the admissibility of the extraneous offense. If the extraneous offense is relevant in tending to disprove the defensive theory, it should be admissible. Albrecht v. State, Tex.Cr.App., 486 S.W.2d 97. See People v. Morehouse, 328 Mich. 689, 44 N.W.2d 830, 34 A.L.R.2d 676.

In the case at bar it should be borne in mind that the State’s case showed an unprovoked killing; the appellant stated that she had acted in self defense. Then, in order to refute or disprove this defense which she had injected in the case, it became relevant to prove that on another occasion she shot another man under circumstances which clearly showed that she had not acted in self defense. Once appellant raised the issue, the State could bring forward evidence, not otherwise admissible, that refuted her explanation of the shooting.

Having concluded that evidence of the second shooting was admissible, the appellant’s motion for rehearing is overruled.

ROBERTS, Judge

(dissenting).

While I adhere completely to my original dissenting opinion in this case, I must again express my disagreement with the position of the majority.

The effect of the court’s holding on rehearing is to allow in evidence any extraneous assault in any murder case where the defendant takes the stand and states that she acted in self-defense. Not all such assaults “have a direct tendency to prove guilty knowledge or intent.” 23 Tex.Jur.2d 308, Evidence, Sec. 198. Therefore, only those which do have such a “direct tendency” should be considered relevant and admissible. This is why we have previously required extraneous offenses to bear a substantial similarity to the main offense. Newman v. State, 485 S.W.2d 576 (Tex.Cr.App.1972).

Now, however, the rule is changed by simple judicial fiat. The majority states that the presence or absence of similar characteristics is one factor to be considered in determining whether an extraneous offense will be admitted. However, the majority then makes clear that it is, in fact, no factor at all. The majority has created a balancing test with all weights on one side of the scale. Not considered is the right of the accused not to be tried as a criminal generally, Seay v. State, 395 S.W.2d 40 (Tex.Cr.App.1965), or his right to testify in his own behalf, Art. I, Sec. 10, Vernon’s Ann.Tex.Const.

As it is, however, the majority is creating a rule — without guidelines or safeguards— which forces an accused to an unconstitutional choice between these two fundamental rights. If a defendant chooses to testify and urge that she acted in self-defense, as did the appellant here, she automatically waives her right to be free of evidence of her general criminal past. The converse is of course equally true: by choosing not to take the stand the accused prevents the State from using such evidence, but is thereby forced to forfeit the important right to put before the jury relevant, and perhaps exculpatory, facts.

I do not propose that an accused should never be forced to choose between these rights. There are many situations which allow the introduction of extraneous offenses. See Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App.1972).

In all of those situations, however, adequate guidelines and safeguards are present. This is not true in this case, or the ones which will inevitably follow its vague and prejudicial holding. Criminal defendants, clothed with the presumption of innocence, should not be required to make this unconstitutional choice between two fundamental rights. Compare Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

I would reverse and remand.

ODOM, J., joins in this dissent.

      . The extraneous offense in Dillard was admitted to show appellant’s hostility to blacks as a class.

      . Myers later testified that he had known appellant for “a year or more.”

      . Our former requirement of substantial similarity protects these important and valuable rights. E. g., Newman v. State, supra.