author: FINCH, Judge.

text:
    STATE of Missouri, Respondent, v. Edward Eugene COLLETT, Appellant.
    No. 59313.
    Supreme Court of Missouri, En Banc.
    Nov. 8, 1976.

      Edward J. Bippen, Asst. Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Paul R. Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   FINCH, Judge.

Defendant, found guilty on two counts charging robbery in the first degree with a dangerous and deadly weapon, was sentenced under the second offender act to two consecutive sentences of 27 years each in the custody of the Division of Corrections. On appeal the Missouri Court of Appeals, St. Louis District, affirmed. Thereafter, on application of defendant, the case was transferred to this court pursuant to Art. V, § 10, Mo.Const. We have reviewed the case as though here on direct appeal, and we affirm.

On the evening of March 31, 1973, Mary Osburg and Sandy Kempen were the employees operating a pizza parlor in St. Louis. A man came in and at gunpoint took money from the cash register and took the women’s purses plus a jacket belonging to Sandy Kempen. He then left, ordering Mary Osburg to accompany him. Outside the pizza parlor, the man placád the jacket over Mary’s head and then directed her to enter a truck and sit on the floor.

After driving for a while, the man stopped the truck and took Mary into a room, then he pulled her blouse, causing the buttons to come off. He tied her to the bed, later forced her into a small room, and finally returned her to the truck. He drove for a short time, releasing her on the side of a highway with her hands still tied and the jacket over her head. Mary succeeded in getting a car to stop and was then taken back to the pizza parlor in St. Louis.

On the morning of April 2, 1973, several Missouri officers went to Illinois in search of defendant on a charge of escape. They had information that he could be located at the Interstate Motor Inn on Collinsville Road. They had a warrant for his arrest which they took to an Illinois magistrate from whom they secured an arrest order for defendant. They did not seek or obtain a search warrant. At that time the officers did not know of any connection between defendant and the pizza parlor robbery.

Accompanied by Illinois deputy sheriffs, the officers then went to the Interstate Motor Inn. There the manager was shown several photographs. She picked out one of defendant, identifying him as a man registered in Room 102 of the motel under the name of Douglas Hurst. The officers then went to Room 102, the door of which was opened for them by the motel personnel. They proceeded immediately to search the room for defendant, looking in the bathroom, the shower area and under the bed. Upon entering the room, the officers had observed two women’s purses on the floor next to the dresser. When they did not find defendant, they went to the purses. Looking inside, they found identifications of Sandy Kempen and Mary Osburg. They had heard Mary Osburg’s name mentioned in radio dispatches on the pizza parlor robbery and also had read about it that morning in the police department summary of recent crimes.

Two of the officers were going to remain at the motel to await a possible return by Collett but after they learned over their radio that Collett had been arrested in Franklin County, Missouri, on an unrelated charge, all officers returned to St. Louis, bringing with them the two purses and their contents. They had not seized anything else in the room and took nothing else with them. Before leaving they asked the manager not to let anyone take anything from Room 102.

After the officers returned to St. Louis, the purses were identified by Mary Osburg and Sandy Kempen as those taken in the robbery. The officers also exhibited to each girl separately a group of 6 or 8 photographs which included defendant. In each instance the girl pointed out defendant as the one who had held up the pizza parlor.

The officers then took Mary Osburg and her mother to Illinois to the Interstate Motor Inn where Mary was shown Room 102. She identified it as the room to which she had been taken by defendant. While at the motel, she was shown four buttons and a set of keys which the motel manager had found in and removed from Room 102 after the police had left that morning. She identified the keys as hers and the buttons as those torn from her blouse by defendant.

The girls were then taken to Union, Missouri, where they observed separately a lineup of six persons including defendant. Each picked out defendant as the person who held up the pizza parlor.

Defendant filed a motion to suppress evidence obtained from the motel room including the two purses and the various identification cards contained therein. A hearing was held, after which the motion was overruled. At trial defendant objected to introduction of the purses, identification cards, the blouse buttons and the keys, the latter two both found by the motel manager. The objections were overruled.

At the outset, we note that a timely motion for new trial was not filed. The record on appeal does not show that the time for filing such a motion was extended by the trial court. However, even if the court had granted the maximum permissible extension to a total of 40 days, the motion filed still would have been out of time. Hence, whatever review is made of grounds asserted on appeal must be under Rule 27.20(c) which authorizes consideration of plain errors affecting substantial rights even though not properly preserved.

Defendant’s first such contention involves the admissibility of certain evidentiary items (the purses, identification cards, blouse buttons and keys) found in and taken from the motel room. He argues that a motel room rented by a suspect is to be accorded the same constitutional protection against unreasonable search and seizure as is the suspect’s home and that since the officers had no search warrant and the items were not seized incident to a lawful arrest, their seizure was violative of defendant’s rights under the fourth and fourteenth amendments to the Constitution of the United States and Art. I, § 15, Mo. Const.

In considering this issue, we recognize that defendant’s motel room was to be accorded fourth amendment protection against unreasonable search and seizure. Stoner v. California, 376 U.S. 483, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964). Even so, when the officers entered that room after motel personnel opened the door for them, the officers were where they had a right to be. They had a warrant issued in Missouri for defendant’s arrest on a charge of escape. They took that warrant to a magistrate in St. Clair County, Illinois, who then issued an order for defendant’s arrest. Accompanied by Illinois deputy sheriffs, they then proceeded to the Interstate Motor Inn for the purpose of arresting defendant. Under S.H.A., Ch. 38, § 107-5, Ill.Rev.Stat, these officers were authorized to use all necessary force to effect an entry into any building to make an authorized arrest. People v. Johnson, 45 Ill.2d 283, 259 N.E.2d 57 (1970). Illinois courts have held that an officer is authorized to use a door key to gain entry if the person to be arrested is there or reasonably believed to be there. People v. Scott, 13 Ill.App.3d 620, 301 N.E.2d 118 (1973). It follows that an officer could gain entry by means of having the door opened with a key by motel personnel. While there was no evidence introduced to show that the officers had information that defendant actually was in the room when they sought entry, it did show that they had information that he could be found at that motel and the manager informed them that he was registered in Room 102 under what appeared to be an assumed name. As soon as the door was opened, the officers searched the room for defendant, indicating an expectation that he was there. Under these circumstances, we conclude that the officers had reasonable cause to believe that defendant would be found in the room and that their action in having the motel personnel open the room to enable them to enter and arrest defendant was permissible.

After the officers were unable to locate defendant in the room, they turned their attention to the two women’s purses which they had seen on the floor at the time they entered the room. The officers then looked inside and found the various identifications of Mary Osburg and Sandy Kempen.

Under such circumstances, did the officers violate fourth amendment rights of defendant when they seized the two purses and then looked inside and discovered and seized the identification cards contained therein?

At the outset, it is apparent that the purses were not found as the result of a search. They were on the floor, not hidden or concealed in any way. They were in plain view of the officers and were observed by them as they rightfully entered the room for the purpose of executing the arrest warrant for defendant. The mere observation of what is in plain view does not constitute a search. Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968); State v. Engberg, 377 S.W.2d 282 (Mo.1964); State v. Harre, 280 S.W.2d 41 (Mo.1955). The question for resolution, therefore, is whether seizure of the purses, the examination of their contents and the seizure of the identification papers were reasonable and justifiable under the circumstances.

The plain view doctrine was considered again in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). That case, however, is authority for the proposition that plain view alone is not enough to justify a warrantless seizure. It is necessary that (1) the evidence be observed in plain view while the officer is in a place where he has a right to be, (2) the discovery of the evidence be inadvertent and (3) it is apparent to the police that they have evidence before them. Id. at 465 — 466, 91 S.Ct. 2022. In this case all three of those requirements are met. First, as previously noted, the officers were where they had a right to be for the purpose of making an arrest. Secondly, they had no knowledge that these purses might be found in the room. They had no information linking defendant with the pizza parlor robbery. Their discovery of the purses was inadvertent. Finally, the officers were looking for a known escapee and had a warrant for his arrest. When the officers did not find defendant in the room, they naturally were concerned with his whereabouts. He had registered in this motel under an assumed name. No woman or women were registered in the room. Women had not been observed by motel personnel visiting the room. The presence of two women’s purses in the room of this escapee was at least somewhat suspicious. It was reasonable for the officers to conclude that the purses might provide some evidence or clue as to where defendant might be located or with whom he might be found. They reasonably could anticipate that the purses might contain some incriminating evidence as to how defendant escaped or what person or persons might have participated in assisting defendant to escape. Hence, the officers would be justified in believing that the purses and their contents would be evidence relating to the offense for which they sought to arrest defendant. It thus was reasonable for these officers to examine such items which were in plain view and which could give some clue as to defendant’s whereabouts or be evidence concerning his escape.

The fourth amendment does not prohibit all governmental searches and seizures or invasions of privacy. It prohibits only unreasonable searches and seizures. “It merely requires a certain amount of justification for the activities.” Knox, supra, note 1, at 15. We find justification in the particular factual situation presented for the action of the officers in seizing the purses and examining their contents and in seizing these contents when they unexpectedly discovered identification papers containing the names of the girls involved in the pizza parlor robbery. Most certainly, the facts of this case do not call for application of the exclusionary rule as to the purses and their contents. This would be true if the question had been preserved for review as our rules require. It is particularly true when presented under the plain error rule.

Defendant also complains of the admission in evidence of Mary Osburg’s keys and the buttons which were torn from her blouse. We find no merit in this contention. These items were discovered and removed from the motel room by Sandra Patterson, the motel manager. She turned them over to the police. The evidence does not show that Sandra Patterson, in looking for and removing these items, was acting as the agent for the police. Consequently, no fourth amendment rights of defendant were violated. That amendment applies only to governmental action, not the acts of individuals. State v. Brasel, 538 S.W.2d 325, 330 (Mo. banc 1976).

We, therefore, overrule defendant’s entire contention involving the admission into evidence of the various items found in defendant’s motel room.

Defendant’s second contention is that the court erred in admitting evidence of escape while defendant was being held on this charge and erred in giving an instruction on flight. The basis of this contention is that multiple charges were pending against defendant and in such situation flight may not have been evidence of guilt on this particular charge. We overrule this contention. In the first place, a timely motion for new trial was not filed and this contention was not preserved for review. It is not plain error. Furthermore, the law does not support defendant’s position. State v. Hudson, 491 S.W.2d 1 (Mo.App. 1973). That case correctly noted that the case of State v. Green, 236 S.W.2d 298 (Mo.1951) did not hold otherwise. The same is true of State v. Sanders, 473 S.W.2d 700 (Mo.1971), the other case relied on by defendant. It held that the point as to admissibility of such evidence was not preserved for review.

Finally, defendant complains that the trial court erred in refusing to grant a mistrial when a witness answered a question as to whether defendant had been released to someone on a particular date by saying he was released or transferred to the Missouri State Penitentiary. The record shows that counsel for defendant declined to request that the answer be stricken and the jury instructed to disregard the answer. He limited his request to a mistrial.

Again, this issue is not preserved for review in a timely motion for new trial. Furthermore, no abuse of discretion is shown. We decline, on the answer in question, to find plain error.

Judgment affirmed.

All concur.

      . For detailed analysis of cases dealing with the plain view doctrine, see Annot. 29 L.Ed.2d 1067 (1972). See also pertinent discussion of the scope of the fourth amendment in Knox, Some Thoughts on the Scope of the Fourth Amendment and Standing to Challenge Searches and Seizures, 40 Mo.L.Rev. 1 (1975).

      . It should be noted that flight instructions are not now permissible. MAI-CR 5.40, adopted January 13, 1975, effective March 1, 1975. However, such direction was not retroactive. State v. Jones, 534 S.W.2d 556 (Mo.App. 1976); State v. Rutledge, 524 S.W.2d 449 (Mo.App. 1975).


source: Caselaw Access Project

author: TITUS, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Terry Joe GREENHAW, Defendant-Appellant.
    No. 10212.
    Missouri Court of Appeals, Springfield District.
    Oct. 13, 1976.
    John C. Danforth, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Ortrie D. Smith, Gerald D. McBeth, Ewing, Ewing, Carter & Woodfill, Nevada, for defendant-appellant.
   TITUS, Judge.

On 3 December 1975 defendant’s timely alternative after-trial motions were overruled, he was afforded allocution, and the court rendered the proper judgment and sentenced him to life imprisonment in accordance with the jury’s verdict. It is provided by Rules 28.03 and 81.04, V.A. M.R., that no appeal shall be effective “unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final.” Computed according to Rule 31.01, V.A.M.R., the notice of appeal should have been filed on or before 13 December 1975 as that date was neither a Sunday nor a legal holiday. However, the notice of appeal was not filed until the twelfth day after the rendition of the final judgment, i. e., on 15 December 1975. We have no authority to extend the period for taking an appeal (Rule 31.02, V.A.M.R.), and have not as yet been petitioned for a special order to file a notice of appeal out of time pursuant to Rule 28.07, V.A.M.R. Consequently, we have no jurisdiction to entertain the present appeal. Pearson v. State, 530 S.W.2d 49 (Mo.App. 1975).

The appeal is dismissed.

All concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. James L. BROWN, Defendant-Appellant.
    No. 10287.
    Missouri Court of Appeals, Springfield District.
    Oct. 13, 1976.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    James E. Spain, Briney, Welborn & Spain, Bloomfield, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   TITUS, Judge.

Defendant was convicted of attempted burglary with intent to steal from the Richmond house in Butler County. His points on appeal challenge the sufficiency of the evidence to connect him with the alleged crime and to show that an attempted burglary ever took place.

Richmond’s house is situate on the west side of north-south Highway AA. It is Vio th of a mile south of U.S. Highway 60 and 100 to 150 feet south of an east-west public graveled roadway. Some 20 feet to the rear or west of Richmond’s house is the home of Beck and 100 feet south of Richmond’s house is the Kellems residence. A 10-foot-high thicket of bushes and shrubs runs along the south edge of the east-west roadway west of its intersection with Highway AA. At the intersection and westward even with Richmond’s house, the thicket is said to be so thick that “a person could not run through” it. The windows at Richmond’s house were described as being chest high to a person standing on the ground and as being double windows with one a storm window. The record does not advise whether the storm windows were made to slide up and down or were hinged at the top to swing outward. A hydrant or “water spicket” was beneath one of these windows.

At 5 p. m. on the day in question, Richmond left his house unoccupied and he did not return until 10:30 p. m. Near 9 p. m. Beck was sitting on a porch at his home to the rear or west of Richmond’s house. No lights were burning in either residence and it was dark. Beck saw a man close by the Richmond house he thought “was looking for somebody” so he got up and “directly [the man] came around the house.” When asked what he “exactly saw,” Beck recounted the man was “[rjeaching up like he was going to go in . . . and he started to put his foot on [the hydrant] there to get up on it.” Beck inquired of the man “what he thought he was trying to do and he run.” Beck did not state in what direction the man ran or on which side of the Richmond house the encounter took place. In describing “the man,” Beck could not tell his age but said he was 5 feet 6 inches tall (Beck’s own height), “pretty heavy built,” with long hair “[n]ot quite shoulder length,” and was wearing “a light shirt and dark trousers.” Beck was not asked to nor did he identify defendant as being “the man.”

After “the man” departed, Beck went to the Kellems house for assistance. Arming himself with flashlight and pistol, and accompanied by Beck, Kellems started across his yard to Richmond’s yard when he saw a car traveling north on Highway AA that “blowed a horn two times and was blinking and flashing its lights.” As Kellems went through Richmond’s yard 5 or 6 minutes after Beck had accosted “the man,” no one was seen on the premises. Nevertheless, while shining his flashlight upon the thicket at the north edge of Richmond’s property, Kellems espied the feet of a person walking eastward along the east-west roadway. Moving to the intersection of the roadway with Highway AA, Kellems encountered the pedestrian whom he identified as being the defendant and described him as being 5 feet 11 inches tall, wearing a white shirt and blue pants, with hair trimmed so that “[e]ven his ears were not covered.” Defendant, when asked by Kellems, denied he had been at Richmond’s house and insisted he had been visiting a Mr. McGinty who lived two blocks west of the intersection. The reported McGinty visit was not refuted by any evidence adduced by the state. When Beck was invited to describe “that man that you saw out on the road” talking to Kellems, he replied: “Well, I couldn’t. He was so far from me that I couldn’t give you too much description of him.” Over defendant’s objection to the conclusionary nature of the question and answer, Beck was permitted to opine to the jury that the person he saw in the road talking with Kellems “appeared to me” to be the same one he had previously seen near a window at Richmond’s house.

Following Kellems’ and defendant’s conversation, defendant walked north on Highway AA to U.S. Highway 60 where, according to Kellems, he “went in behind Deer Run Cafe.” Thereafter, Kellems again saw the same car he had previously observed. This time it was traveling east on the east-west graveled road “blinking the lights still yet and it turned and went North on Double A back to 60 . . [a]nd then I seen the gentleman come back across from behind Deer Run and headed . . . the way that the car went.” Kellems stated the car had a “lady driver” and subsequent to the night in question he had “seen the defendant in the car with her.”

A deputy sheriff, summoned to Richmond’s house, inspected a window at “the Southwest side of the house” and said it was “[pjretty far open ... as far as it would go . [mjaybe ... a foot and a half.” Richmond testified that when he left his house before the alleged crime was committed, the “house window was partly up . less than a foot” and when he returned “I couldn’t tell whether it had been moved or not.” No one testified there were pry or other marks on any window at Richmond’s house. No burglary tools or similar paraphernalia were found on or near the premises. It is important to note that there was no evidence which disclosed that the window at which Beck said he saw “the man,” the window inspected by the deputy and the “house window” referred to by Richmond were all one and the same window. Additionally, the record does not indicate whether a hydrant or “water spicket” was adjacent or near the “house window” or the window observed by the deputy sheriff. In fine, the state’s case in this and other areas, consisted of jejune evidence.

The primary requirement in the trial of a man charged with a crime is that he must be shown to be the person who committed the offense. State v. Murphy, 508 S.W.2d 269, 274[2] (Mo.App.1974). In some respected jurisdictions the rule is followed that although questions of identity are generally for fact triers and identity evidence need not be positive and certain, there must be something more than testimony of resemblance to permit the question of identity to go to the jury. Alexander v. United States, 354 F.2d 59, 63[5] (5th Cir. 1965); Hendrix v. United States, 327 F.2d 971, 974[4] (5th Cir. 1964). Also said is that a conviction is not sustainable on appeal by evidence beyond a reasonable doubt if identification of the accused was vague, doubtful and uncertain [People v. Cullotta, 32 Ill.2d 502, 207 N.E.2d 444, 446[2] (1965)], or if the testimony was only that the accused “looks like” the person seen at the scene of the crime [Anderson v. State, 92 Fla. 477, 110 So. 250, 251[2] (1926)], and that in weighing evidence of identification, attendant circumstances along with probability or improbability or adequate opportunity for definite identification must be considered. People v. Donald, 29 Ill.2d 283, 194 N.E.2d 227, 229[1] (1963). If the law in Missouri were that as just recited, we would harbor grave doubts that defendant was properly identified as being the person Beck saw at some window of the Richmond house. There was no evidence that Beck had ever observed defendant before the occasion in question and then he had but the briefest encounter with “the man” in the dark. When Beck saw Kellems talking with a man at the intersection, Beck admitted his inability to describe that person because “[h]e was so far from me.” Under these circumstances, Beck’s later opinion that the man at the intersection “appeared to me” to be the same person seen near a window would be extremely suspect, if not totally incongruous to reason. Nonetheless, Missouri cases repeatedly enounce that “[i]n all instances the issue of identification is for the jury to decide and trial and appellate courts may not delve into a determination of the weight of the evidence in such circumstances” [State v. Maxwell, 502 S.W.2d 382, 390[9] (Mo.App.1974)], and testimony of witnesses upon their belief [e. g., “I believe”] that defendant “looked like,” looks “similar” to, or “resembled” the person observed at the scene of the crime, was held sufficient to permit the question of identity to go to the jury. State v. Linzia, 412 S.W.2d 116, 120[5] (Mo.1967); McMahon v. May Department Stores Company, 374 S.W.2d 82, 88[4] (Mo.1963); State v. Blackmore, 327 Mo. 708, 715, 38 S.W.2d 32, 34[2] (1931); State v. Franke, 159 Mo. 535, 542, 60 S.W. 1053, 1054[2] (1901). In keeping with Missouri authority, supra, we are constrained to hold Beck’s conclusion that defendant (identified by Kellems as being the person with whom he conversed at the intersection) “appeared to me” to be the same man he had seen at the window, made an issue of identity for the jury and that we may not delve into a determination of the weight of that evidence. Therefore, since defendant challenges the sufficiency of the evidence to connect him with the alleged crime because he was not identified as being the person seen near a window at the Richmond house and was only observed near the scene after the occurrence, we are required to rule this point against him.

Did the state prove that an attempted burglary took place? On the records before us, we think not. “An ‘attempt’ is an intent to do a particular thing which the law had declared to be a crime, ‘coupled with an act towards the doing, sufficient, both in magnitude and in proximity to the fact intended, to be taken cognizance of by the law, that does not concern itself with things trivial and small. Or, more briefly, an attempt is an intent to do a particular criminal thing, with an act towards it falling short of the thing intended.’ . To bo found guilty of an attempt to commit a crime there must be some overt act in part execution of the intent to commit the crime, which falls short of the completion of the crime, which overt act must move directly toward the consummation of the crime. . . Mere preparation is not sufficient to constitute an attempt to commit a crime. The defendant must have taken steps going beyond mere preparation, by doing something bringing him nearer the crime he intends to commit. The act need not, however, be the ultimate step toward, or the last proximate, or the last possible, act to the consummation of the crime attempted to be perpetrated.” State v. Thomas, 438 S.W.2d 441, 446[5-7 and 10-11] (Mo.1969). Thus, in fine, the “requisite elements of an attempt to commit a crime are an intent to commit it, an overt act toward its commission, failure of consummation and the apparent possibility of commission.” State v. Stewart, 537 S.W.2d 579, 580[2] (Mo.App.1976). The missing element here in our opinion is the “overt act.” See MAI-CR Comments, Attempts § B2 “An overt act towards a criminal offense”; 12 C.J.S. Burglary § 28, pp. 687-688.

One entering property of another by opening a closed door or window with the intent to commit a felony or to steal is guilty of burglary [State v. Rhodes, 408 S.W.2d 68, 70[3] (Mo.1966); State v. Stewart, 329 Mo. 265, 270-271, 44 S.W.2d 100, 103[5] (1931)], but actual entry is not a requisite element of the crime of attempted burglary. State v. Miles, 510 S.W.2d 787, 790[3] (Mo.App.1974). The overt act relied on by the state is the opening of a closed or partially closed window by the defendant. However, and as previously noted, no one saw the defendant commit or attempt to commit such an act. Beck, who saw a man by a window at the Richmond house, did not testify the man had opened or attempted to open that window and his observations of what he “actually saw” the man doing were, at best, accountings of mere preparations.

While several inferences properly may be drawn from the same proven facts provided each inference is supported thereby [State v. Feger, 340 S.W.2d 716, 722[4] (Mo. I960)], it is impermissible to draw an inference which is dependent upon another inference drawn from some other fact shown only by inference. State v. Ring, 346 Mo. 290, 304, 141 S.W.2d 57, 64-65[16] (banc 1940); State v. Gonzales, 533 S.W.2d 268, 272[4] (Mo.App.1976). To accommodate the testimony of the deputy sheriff and to bring it into a confluence with a conclusion that an attempted burglary had been committed, would necessitate the employment of inference-stacking. As already stated, there was no evidence that defendant was ever at or near “the Southwest” window inspected by the deputy (which he said was open as far as it would go) or that it was the same window referred to by Beck. Consequently, to show a crime had been committed or to demonstrate a substantial nexus between defendant and the alleged attempted burglary, it would first have to be inferred that defendant, at the time of the alleged crime, had been at “the Southwest” window or, in the alternative, that “the Southwest” window was one and the same as that referred to by Beck. Bottomed on either of the alternative inferences and assuming, but not deciding, the permissibility of either, it would have to be further inferred that the window had been closed or not nearly so open as when inspected by the deputy before defendant had been by the window. To this inference would need to be added the further inference that defendant had opened it to the extent testified to by the deputy plus the additional inference that he did so with the intent to enter the premises and steal from the Richmond house. In other words, to come by the conclusion that an attempted burglary had been committed would require piling one inference upon another which is not permitted. State v. Polk, 529 S.W.2d 490, 493[3] (Mo.App.1975).

Although it has been determined that the evidence was fatally flaccid to support the verdict and judgment of conviction because the perpetration of a crime was not proved, we do not hold that it would not be reasonably possible for the state at another trial to adduce sufficient evidence to prove that fact. Accordingly, the cause is remanded for a new trial in lieu of an outright reversal and discharge of the defendant. State v. Wade, 531 S.W.2d 726, 730[4] (Mo. banc 1976).

It is so ordered.

All concur.


author: BILLINGS, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Clinton McINTYRE, Defendant-Appellant.
    No. 10379.
    Missouri Court of Appeals, Springfield District.
    Oct. 14, 1976.
    John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Donald R. Rhodes, Bloomfield, Arthur T. Stephenson, Caruthersville, for defendant-appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Clinton James McIntyre was convicted by a jury of the first degree robbery of a Hayti, Missouri, liquor store operator and his punishment assessed at ten years imprisonment. His motion for new trial was overruled and following allocution, sentence was imposed and judgment entered. We affirm.

The defendant’s principal contention in this appeal is directed to evidence [money bag and contents and two pistols] used by the state at trial. Defendant’s earlier motion to suppress these items because of an alleged impermissible search and seizure was overruled following a pre-trial hearing.

Initially, we note that the defendant’s motion for new trial was not timely filed. Rule 27.20, V.A.M.R., is east in mandatory language and requires a motion for new trial in a criminal case to be filed within ten days after the return of the verdict unless, on application, the time is extended as set forth in the rule.

Here, the jury verdict was returned on April 16, 1976. At the request of the defendant the trial court granted him 15 days in which to file a motion for new-trial. The motion for new trial was not filed until May 3,1976, two days beyond the time allowed. Being untimely, the motion for new trial is a nullity and preserves nothing for appellate review. State v. Stevens, 529 S.W.2d 670 (Mo.App.1975). We are bound to recognize the late filing of the motion for new trial sua sponte as neither the court nor the parties can waive the requirements of Rule 27.20.

We have reviewed those matters required by Rule 28.02 and find no error.

The judgment is affirmed.

All concur.

      . Defendant shared a bedroom with an apartment tenant. The tenant consented to the search of the apartment. The items were found hidden in the bedroom. Aside from the tenant’s consent, the defendant specifically stated he had no objection to the admission of the items when offered at trial. See, State v. Ealey, 519 S.W.2d 314 (Mo.App.1975), for proper steps to keep the issue of an alleged unlawful search and seizure “alive”.


text:
    STATE of Missouri, Respondent, v. Andrew TOMLIN, Jr., Appellant.
    No. 10220.
    Missouri Court of Appeals, Springfield District.
    Oct. 15, 1976.
    Motion for Rehearing or to Transfer to Supreme Court Denied Oct. 26, 1976.
    John Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, for respondent.
    David G. Shy, Scott City, for appellant.
    Before BILLINGS, C. J., and STONE and TITUS, JJ.
   BILLINGS, Chief Judge.

Defendant Andrew Tomlin, Jr., was jury-tried and convicted of stealing a motorcycle [§§ 560.150 and 560.161, RSMo 1969] and sentenced to five years imprisonment. Plain error resulting in manifest injustice occurred when the state introduced and argued to the jury evidence of defendant’s silence to accusations made by an alleged accomplice while both were in custody. We reverse and remand.

Deputy Jones had been investigating the theft of two motorcycles and learned the defendant, together with others, had been at the house where the motorcycles were located a few nights before the bikes were stolen. He went to the defendant’s home and found one of the stolen motorcycles in a garage. The defendant told the officer the bike belonged to Hutchison and accompanied the officer to locate Hutchison. Hut-chison was taken into custody by the officer and admitted he had participated in the theft of the two machines. Initially, he did not implicate the defendant in the crime. Thereafter, while the defendant was in his house getting a key to one of the motorcycles, Hutchison told the officer that he and the defendant had stolen the motorcycles. When the defendant returned to the car he was placed under arrest by the officer and given the Miranda warnings. The officer then had Hutchison repeat his accusatory statement implicating the defendant.

At trial the prosecuting attorney elicited the fact of the defendant’s silence in the face of Hutchison’s accusation during his direct examination of Deputy Jones in the following manner:

“Q. Did Mr. Hutchison then go over his basic statement implicating Mr. Tomlin in Mr. Tomlin’s presence?
Q. Was Mr. Tomlin present when Mr. Hutchison related this to you the second time?
A. Yes, sir.
Q. Did Mr. Tomlin admit or deny it?
A. Yes, Mr. Tomlin didn’t have anything to say when I confronted him with it. He stayed there in the front seat and he didn’t have any reaction one way or the other.
Q. He did not deny it?
A. He did not deny it. He did not say anything either way.”

In his closing argument to the jury the prosecutor emphasized the evidence of the defendant’s silence. After explaining how Hutchison made his accusations concerning the defendant’s involvement in the crime, the prosecutor said: “He did this in the presence of Andrew Tomlin who never denied that was done. He never made any statements. He sat there and didn’t say a word." (emphasis added)

A criminal defendant’s failure to deny accusations made in his presence under such circumstances that were the accusations false he would deny them involves the “tacit admission” rule. McCormick, Evidence § 161 (2d Ed. 1972). Our Supreme Court had occasion to review this rule in State v. Samuel, 521 S.W.2d 374 (Mo. banc 1975) and in describing it quoted as follows from 29 Am.Jur.2d, Evidence § 638:

“As a general rule, when a statement tending to incriminate one accused of committing a crime is made in his presence and such statement is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution against him, as evidence of his acquiescence in its truth — that is, as a tacit admission of the facts stated — or as indicative of a consciousness of guilt.” 521 S.W.2d at 375.

The court, in Samuel, noted the tacit admission rule had been limited in its application in Missouri and had never been applied in this jurisdiction when the defendant was in custody. At 375 the court said:

“The following conditions must be met in Missouri in order to render the rule operative: (1) the statement must be made in the presence and hearing of the accused. (2) the statement must be sufficiently direct, as naturally would call for a reply. [A]nd (3) the statement must not have been made at a judicial proceeding, or while the accused was in custody or under arrest.” (citations omitted) (emphasis added).

Here, the defendant was under arrest and had been advised by the arresting officer of his right to remain silent. Under prior Missouri law, as well as the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant was under no duty or obligation to reply to Hutchison’s accusatory statement and it was prejudicial and reversible error for the prosecuting attorney to offer evidence of his silence as a tacit admission of guilt. It was equally prejudicial for the prosecutor to argue the matter to the jury.

The defendant failed to object to the evidence and argument and did not preserve the matter in his motion for new trial. Nevertheless, as we said in State v. Benfield, 522 S.W.2d 830, 835 (Mo.App.1975), we are not foreclosed from reviewing that which we deem to be plain error under Rule 27.20(c), V.A.M.R. Manifest injustice resulted to the defendant by reason of the state’s intentional injection of the defendant’s silence in the circumstances outlined. Reversal is called for.

Since upon retrial the other matters of which the defendant complains may not arise, we do not deem it necessary to rule them.

The judgment is reversed and the cause remanded for a new trial.

All concur.


author: RENDLEN, Judge.

text:
    Bobby Lee LAWSON, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 37360.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Oct. 19, 1976.
    Brett & Erdel, Bradford A. Brett, Mexico, for movant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, W. Mitchell Elliott, Asst. Attys. Gen., Jefferson City, Thomas I. Osborne, Pros. Atty., Mexico, for respondent.
   RENDLEN, Judge.

Bobby Lee Lawson appeals the denial of his Rule 27.26 motion seeking to vacate judgment of jury conviction and consecutive sentences totaling twenty-one years on charges of first degree robbery, felonious assault and breaking jail. We find the trial court was not clearly erroneous in denying movant’s motion and therefore affirm the judgment. Rule 27.26(j), V.A.M.R.

Movant asserts two grounds for relief: (1) the information filed September 28, 1971, was fatally defective in that Count II (breaking jail and escaping before conviction) failed to allege the offense was “felo-niously” committed; and (2) movant was denied equal protection under the law because he was deprived of any possibility of receiving concurrent rather than consecutive sentences.

Movant’s first contention is that the information was fatally defective as to Count II in that it failed to allege that the acts were performed “feloniously.” Movant was charged with five separate offenses in a single indictment. The introductory paragraph stated that movant “willfully and feloniously committed the offenses hereinafter stated . . . ” In addition each of the five counts, except Count II, separately alleged that the acts were committed “felo-niously” or with “felonious intent.” In State v. Vondereau, 438 S.W.2d 271, 272 (Mo. bane 1969) the court stated: “In charging a felony . . . the use of the word ‘feloniously’ is necessary, for the very sufficient reason that its use informs the accused of the nature or grade of crime he is alleged to have committed.” (Emphasis ours.) See State v. Davis, 510 S.W.2d 790, 792[1] (Mo.App.1974). Given'that the purpose for requiring the use of the word “felonious” in an information is to inform the defendant of the degree or seriousness of the offense charged, the trial court here correctly concluded that its use in the opening paragraph sufficiently performed that function and it was unnecessary to repeat this language in each count. The point is denied.

Movant’s second contention is also without merit. Movant argues the consecutive nature of his sentences was required by § 546.480, RSMo 1969, V.A.M.S., which was declared unconstitutional in State v. Baker, 524 S.W.2d 122, 129—131[5—6] (Mo. banc 1975), and therefore movant’s case must be remanded for resentencing. We disagree. In State v. Brown, 525 S.W.2d 565, 568[6] (Mo.App.1975), the court stated: “[T]he trial court in this case appears also to have assessed consecutive punishments as though there was no alternative. Since, under State v. Baker, supra, the trial court is now freed of any compulsions . . . and now has the authority to exercise judicial discretion whether to impose concurrent or consecutive sentences . . . the cause must be remanded for that limited purpose.” However in Spencer v. State, 534 S.W.2d 598, 599—600[3] (Mo.App.1976), the court found “nothing in this record to show that the trial court assessed consecutive punishments as though it had no alternative to bring the procedures of State v. Baker, supra, into play. To the contrary, the court specified the sentences ‘are to run consecutively.’ ”

In the case at bar the trial court specified during the assessment of punishment that the sentences were to run consecutively. During allocation defense counsel requested that the sentences be made concurrent. The trial court asked for comments or observations from the prosecutor, who requested the sentences run consecutively. The court then formally sentenced movant to consecutive terms of imprisonment. The statute was not mentioned and nothing in the record suggests the trial court acted in a manner demonstrating he felt constrained or prohibited by the statute from exercising his discretion. Instead it is apparent the consecutive sentences were imposed by the court in the exercise of such discretion. Finally the case comes to us from an adverse ruling on movant’s post-conviction motion in which the trial judge, who originally ordered consecutive sentences, again considered his actions following the effective date of State v. Baker, supra. This too corroborates that discretion was exercised at time of sentencing. The point must be denied.

The judgment is affirmed.

McMILLIAN, P. J., and STEWART, J., concur.


author: STEWART, Judge.

text:
    STATE ex rel. STATE HIGHWAY COMMISSION of Missouri, Plaintiff, Appellant-Respondent, v. Howard G. KEMPER et al., exceptions of George W. Kropp and Leona W. Kropp, Defendants, Respondents-Appellants.
    Nos. 36649, 36658.
    Missouri Court of Appeals, St. Louis District.
    Oct. 19, 1976.

      Bruce A. Ring, Richard E. Baker, St. Louis, for appellants.
    Lester H. Goldman, St. Louis, for respondent.
   STEWART, Judge.

This is a condemnation proceeding initiated by plaintiff to condemn all rights of direct access between Interstate Route 44 and abutting land in the City of Eureka, Missouri. Upon trial of the exceptions of George W. Kropp and Leona W. Kropp, hereafter called defendants, judgment was entered in favor of defendants in the sum of $3,000.00.

Defendants appeal contending that the judgment as to damages in the sum of $3,000.00 is inadequate because it was not within the range of the evidence.

Plaintiff contends that defendants’ property did not abut the highway and that they did not have direct access to the highway prior to the taking and therefore they suffered no damage. Plaintiff also contends that any damage defendants may have suffered was compensated for in the awards made to abutting owners over whose property defendants claimed a right of entry to the highway. We reverse as to the measure of damages only.

Defendants question plaintiff’s right to be heard on the issues raised in this appeal. Plaintiff filed a notice of appeal but did not perfect the appeal. This is no impediment to our consideration of the issues raised. When the party who carries the burden of proof appeals, the court is required to determine whether that party is entitled to recover under the law and the evidence of record, when those issues are raised on appeal by the respondent. Schmittzehe v. City of Cape Girardeau, 327 S.W.2d 918[1] (Mo.1959).

We consider first, the contentions of plaintiff. In doing so we view the evidence and the reasonable inferences arising therefrom in the light most favorable to the defendants. Zipp v. Gasen’s Drug Stores, Inc., 449 S.W.2d 612, 616 (Mo.1970).

In 1954 plaintiff condemned a portion of the properties of Ruprecht Material Co., hereafter called Ruprecht, and James W. Anderson, hereafter called Anderson. These properties abutted the south side of Highway 66 in Eureka, Missouri. The strip of land condemned was approximately 100 ft. wide with the south line parallel to the highway. An additional parcel was taken as an easement to provide an entrance to the properties of Ruprecht and Anderson. The latter was referred to as the “notch”. The “notch” encompassed about 0.14 acres. 0.12 acres was taken from the Ruprecht property and .02 acres from Anderson. It extended 110 feet south from the south line of the 100 feet originally taken and was 60 feet wide.

In July of 1956, defendant, George W. Kropp purchased a 15 acre tract of land. The tract was described as kite shaped. The north line borders on the Ruprecht tract, the east line borders on the Anderson tract. The south line is along the right of way of the St. Louis San Francisco Railroad (Frisco). What would be considered the western boundary is the right of way of the Missouri Pacific Railroad. The right of way of each of the railroads sweep in curves toward the southwest and converge to form the southwestern corner of defendants’ property. The south line of the Ru-precht property which is the north line of defendants’ property is the center line of what is designated as Blakely Road, sometimes referred to as Antire Road. This is an abandoned roadway. This road as indicated on the plats terminates on the east at the right of way of the Frisco RR and on the west at the right of way of the Missouri Pacific RR. It has no connection with any other public road. The western terminus of the “notch” above described is about 40 feet north of the center line of Blakley Road and the eastern terminus is about 50 feet north of the center line of that road.

The rough diagram attached may assist in visualizing the location and in understanding the issues presented in this appeal.

When Mr. Kropp purchased the property in 1956 he entered from the eastbound lane of Highway 66 (now 1-44) onto a macadam road which had been constructed by the Highway Department on the right of way. This road extended south from the highway to a point short of the Blakely Road right of way. The macadam road was about 20 feet wide, it thus did not cover the entire width of the “notch”. There was rock and dirt fill on either side of the macadam road. Kropp traveled over the macadam road and crossed over Blakely Road to reach the property. His use of this entry could readily be observed by persons on the Ruprecht property.

After purchase of the property he traveled that route by motor vehicle on an average of once a month. In late 1956 he improved his entry by putting a culvert pipe under the roadway on the Ruprecht property between the south end of the “notch” and the north side of Blakely Road. He also put two or three loads of rock on the roadway.

Commencing in 1959 George Weber, a farm operator in Eureka, entered into an agreement with defendants to farm the Kropp property. Mr. Weber raised wheat and corn. In the farming operation he brought plows, tillers, combines and trucks upon the property. He used the entry described by Mr. Kropp which was south from the eastbound slab of the highway through the “notch” and across a small portion of the Ruprecht property between the “notch” and the Kropp property.

Defendants and Mr. Weber continued use of this means of entry until mid 1970 when Interstate 44 was rendered inaccessible by reason of a trench about 10 to 15 feet deep across the macadam road within the highway right-of-way. This work was done on behalf of the Highway Department. After that time the property of the defendants was landlocked.

Plaintiff argues that defendants’ property did not abut upon the highway therefore they are not damaged. It also states that defendants had no direct access to the highway. The Highway Commission of Missouri cites as authority for these contentions, only, MAI 3.02 and Missouri Constitution Article I Section 26. The former is the damage instruction in condemnation. The latter provides that “. . . private property shall not be taken or damaged for public use without just compensation.” Neither has been helpful in our determination of the issues.

Contrary to plaintiff’s contention it has long been recognized that one who has been deprived of reasonable means of access to the general systems of streets and highways has suffered an injury special or peculiar to him and he is entitled to compensation. Rude v. City of St. Louis, 93 Mo. 408, 415, 6 S.W. 257 (1887). Generally it is only the abutting owner who suffers damages but the right to such damage is not confined to the abutting owner.

The principal involved has received expression in 29A C.J.S. Eminent Domain § 122, pp. 485^86:

“Where access is entirely cut off, or the property owner is otherwise entitled to compensation, he should not be denied compensation merely because his property does not abut on the street or highway.”

In 2, Nichols on Eminent Domain, p. 6— 82, § 6.32[2], (3rd Ed., 1975), it is said:

“. . .if there is only one means of access from the parcel of land over other private property to the public ways and that means is destroyed by the taking of the land over which the owner had a right to pass, whether such land belonged to him or to others, his land thereby cut off is taken and he is entitled to compensation.”

The principal is sound, and while no case has specifically ruled this point in Missouri it was referred to with approval in Applegate v. Director General of Chicago, R.I. & P. Ry. Co., 205 Mo.App. 611, 226 S.W. 628 (1920). See also Christy v. Chicago, B & Q R. Co., 240 Mo.App. 632, 212 S.W.2d 476 (1948). Closely akin to our case and holding the principal applicable is Munn v. City of Boston, 183 Mass. 421, 67 N.E. 312 (1903). See also Prymek v. Washington County, 229 Iowa 1249, 296 N.W. 467 (1941).

Defendants may recover if they can show that the actions of plaintiff have deprived them of access to the general system of roads and streets.

The remaining issue in the first portion of plaintiff’s first point is whether there was sufficient evidence to warrant the jury in finding that defendants had access to the highway. Plaintiff’s point while not wholly defective is somewhat vague. It argues that defendant could have had no access to the highway because access was taken by the 1954 condemnation. It also contends that the “notch” created a private right of entrance to the properties of Ruprecht and Anderson to the exclusion of the public generally, and in particular, to defendants’ predecessor and thus defendants. Plaintiff cites no authority in support of these arguments.

In the 1954 condemnation proceeding the State established a means of access to the highway from the Ruprecht and Anderson properties by way of the “notch”. It is apparent that access to the highway was not taken in the 1954 condemnation proceeding. It was specifically preserved. Public funds were expended in creating the way referred to as the “notch”. It thus could not have been a private right of way. Public funds may be expended only for public purposes. Bowman v. Kansas City, 233 S.W.2d 26 (Mo. banc 1950).

Defendants’ verdict directing instruction submitted alternate theories of recovery. One of the submissions required a finding that defendants had acquired an easement by prescription over the land of Ruprecht to the “notch” then to the highway. Plaintiff did not specifically object to the giving of the instruction, as to form or as to substance. The propriety of the instruction is not before us.

From a review of the facts set out above we can say that there was sufficient substantial evidence from which the jury could find that defendant had established an easement by prescription across the small portion of the Ruprecht property from the north line of defendants’ property to the 60 foot wide right-of-way easement and hence to the highway. Defendants had made use of the way starting in the latter part of 1956 when he put a culvert into the road on the Ruprecht property.

In this case the jury found that defendants had access to the highway. When the plaintiff condemned all access to the highway defendants’ property became landlocked. Defendants thus suffered damages that were not common to the public at large but peculiar and special to defendants. Defendants were proper and necessary parties to this action. The court did not err when it failed to sustain plaintiff’s motions to dismiss defendants’ exceptions.

Plaintiff points out that the exceptions of Ruprecht had been settled and the exceptions of Anderson were determined by judgment. It then argues, “Accordingly, under the doctrines of res judicata and collateral estoppel, the Kropps had no case left in any event (if arguendo, they ever had a case) because they were named only in respect to those two parcels. Accordingly, the motion to dismiss should have been sustained on these grounds also, and should now be sustained.” Plaintiff does not develop its argument and cites us no authority for its conclusions. As indicated above defendants suffered damage to their property which was special and peculiar to them. Applegate v. Director General, etc., 205 Mo. App. 611, 226 S.W. 628 (1920). Defendants’ loss was not encompassed within the taking of Ruprecht’s or Anderson’s right of access to the highway. In the taking of defendants’ right of access to the highway the defendants’ property became landlocked resulting in damages peculiar to that property for which defendants were entitled to a separate award of damages. There was sufficient evidence from which the jury could find that defendants suffered damage by reason of the condemnation of direct access to the highway in this case.

Defendants’ contention is that the award of $3,000.00 as damages was inadequate because it was not within the range of damages and limits of proof established by the testimony in the case.

This contention requires a brief review of the evidence with respect to the damages. George Kropp, as owner of the property, testified that prior to the time that access to the property was terminated the property, as heavy industrial, had a value of $6,500.00 per acre or a total of $97,500.00. He testified that with no access to the property, after the taking, the property was worthless. Mr. Feco who qualified as an expert testified on behalf of the defendants that in his expert opinion the property, prior to the taking, had a value of $6,000.00 per acre or a total value, rounded out to $90,000.00. He was of the opinion that without access the property would have a total value of $1,500.00. The difference in value after the taking would be $88,500.00.

The plaintiff called Mr. Tom McReynolds as an expert witness. This witness testified that it was his opinion that the value of the entire Kropp property before August 15, 1968 was $7,500.00. His valuation was based upon the premise that there was no access to the property and that its highest and best use was as farm land. He testified that the value of the property after the taking was $7,500.00 and therefore defendants suffered no loss. On cross-examination Mr. McReynolds explained that he had valued the landlocked property at $7,500.00, “Because I think some day you would be able to get into it.” He thought someone might pay that much for it. He then stated, “You ask if someone would pay this for it — I don’t think they would.” He concluded that if the property would remain landlocked for the foreseeable future the property would have no value.

In approaching the issue raised by defendants we first review the applicable general principles. The burden is upon the landowner to prove the extent of his damages. State ex rel. Highway Commission of Missouri v. Cady, 372 S.W.2d 639 (Mo.App. 1963). It is not incumbent on the condemn- or to produce any evidence of damages. If the award of the jury is within the range of competent evidence it is supported by substantial evidence and will not be disturbed. State ex rel. State Highway Commission v. Grissom, 439 S.W.2d 13, 17 [7-8] (Mo.App. 1969).

Value appraisal appears to be more an art than a science, as witness the wide disparity of opinion of the experts found in the reported cases, and in the case at hand. While the testimony of a qualified expert is said to constitute substantial evidence of value the jury must ultimately make the factual determination. The “opinion evidence is informatory and advisory in nature but in no way binding upon the jury, whose province it is to determine the credibility and weight thereof, ‘in keeping with the general rule that a jury may believe all of the testimony of any witness or none of it, or may accept it in part or reject it in part, just' as it finds the same to be true or false when considered in relation to the other testimony and the facts and circumstances of the case.’ . . . And it has been pointed out frequently that a verdict may be responsive to the issue of damages although it does not find an amount in strict accordance with the claim of either party.” State ex rel. State Highway Commission v. Grissom, supra.

In most of the cases which considered the underlying principle that the verdict must be within the “range of the evidence,” the verdict of the jury was in an amount somewhere between opinions of the landowners’ witnesses and the opinions of the condemn-ors’ witnesses as to the damages occasioned to the landowner. The courts in those cases have refused to disturb the judgment entered upon the verdict of the jury whether the verdict is closer to the higher or to the lower evidence of damages. In State ex rel. State Highway Comm. v. Riss, 432 S.W.2d 193 (Mo.1968), the value evidence ranged from $25,000 to $1,342,500. A judgment of $125,000 was sustained. In State ex rel. State Highway Comm. v. Dockery, 340 S.W.2d 689 (Mo.1960) with a range of $19,400 to $49,500 a judgment in the sum of $25,000 was upheld. In State ex rel. State Highway Comm. v. Anderson, 367 S.W.2d 809 (Mo.App.1963) the range was $2,100 to $11,000 and the court affirmed a judgment of $3,775.

We have concluded, as discussed hereafter, the verdict in this case was lower than the evidence which was produced by the plaintiff.

The only case which we have found in Missouri which discusses this problem is Jackson County v. Hesterberg, 519 S.W.2d 537 (Mo.App.1975), in which Judge Dixon clarifies the general proposition saying l.c. 546: “ . . . the rule is not that the verdict be within the range of the ‘opinion’ evidence alone when there is other evidence in the case; the rule is more properly stated that the verdict of the jury must be based upon all the evidence and a verdict without such support is not a proper verdict.” As we read that case it does not specifically determine the issue which we face. It seems to turn on the prejudicial effect of the condemnor’s evidence of value which had an erroneous basis.

The text writers have stated the general proposition to be that “ . . . jurors cannot go outside the record evidence in making their award, and when the award exceeds the amount claimed by the landowner, or is less than the estimate of any witness, it may be set aside . . .”30 C.J.S. Eminent Domain § 310, p. 154. In 5, Nichols on Eminent Domain, pp. 17-41, § 17.3, (3rd Edition, 1975), it is said: “The award may not be in excess of the amount claimed by the owner, nor should it be less than the lowest estimate of value testified to by a witness.” Our independent research has disclosed cases which seem to support the views of the text writers, holding that the verdict may not be less than the lowest estimate of the witnesses. In City of Grand Rapids v. Coit, 149 Mich. 668, 113 N.W. 362 (1907), which followed the rule, however, no mention was made as to whether the low estimate was made by a witness for the landowner or of the condemnor. In American Telephone and Telegraph Co. v. Walker, 77 N.M. 755, 427 P.2d 267 (1967) and Sallas v. State Road Department, 220 So.2d 378 (Fla.App.1969), the only evidence of damages came from the landowners. The con-demnor presented no evidence. The court in each case held that a verdict below the lowest amount that the evidence would sustain was outside the range of the evidence. The court set aside judgment below the lowest evidence of damages which were put into evidence by the landowner.

We agree with the text writers that the award may not exceed the highest evidence of damages. We are, however, unwilling to say that the verdict may not be lower than the estimate of any witness as was held in Walker and Sallas, supra. To so hold could lead to absurd results, particularly where the only evidence of damages is produced by the landowner. If in this case the only evidence on value had been that of the landowner, a verdict of less than $88,-500.00 would have been outside the range of the evidence. The landowner still has the burden of proof and when his is the only evidence, the jury is at liberty to disbelieve any or all of the landowner’s evidence. State ex rel. Highway Commission v. Gris-som, supra. It could therefore return a verdict from no damage to damages not in excess of the highest estimate of damage placed before the jury. However, in accord with the general rule in other forms of litigation, when the condemnor introduces evidence of damages he is bound by his own evidence whether adduced on direct examination or on cross-examination. Bridle Trail Ass’n v. O’Shanick, 290 S.W.2d 401, 407[9] (Mo.App.1956). It thus follows that absent other factors, a judgment is within the range of all of the evidence if it does not exceed an amount in excess of the highest amount of damages which the evidence will sustain and is not below the lowest amount shown by the party who does not have the burden of proof.

In applying these principals to this case we must analyze the testimony of Mr. McReynolds, the plaintiff’s expert witness. First we note that the only evidence that came into the case on value was the opinion evidence of Mr. Kropp, Mr. Feco and Mr. McReynolds. The evidence of defendants would have sustained an award of up to $97,500.00. It is evident, however, that the jury did not give full credence to defendants’ highest estimate of damages.

Plaintiff insists that the net effect of Mr. McReynolds’ testimony was that defendants suffered no loss and therefore the verdict of $3,000.00 was within the range of the evidence. Mr. McReynolds did testify on direct examination that the value of the property before the rights of access were condemned was $7,500.00 and that it had the same value afterward. He testified that there were no damages because there was no access to the property before or after access rights were condemned. On cross-examination he explained that he had placed the value of $7,500.00 on the property because of the possibility that the owner “might be able to obtain access.” This is tantamount to saying that with access the property had a minimum value of $7,500.00. The jury in returning a verdict for defendants, of necessity found that defendants had access to the highway prior to the condemnation. Mr. McReynolds further testified that if access to the property could not be obtained the property would have no value. There is no evidence of record that would warrant a jury finding that access could ever be obtained to this property. The evidence of the plaintiff thus establishes that the loss to defendants was at least $7,500.00. The plaintiff being bound by its own evidence may not contend that a verdict lower than that shown by such evidence is within the range of the evidence.

We conclude that the verdict of the jury was outside the range of the evidence and thus it was not supported by substantial evidence.

The judgment is reversed and remanded for a new trial on the measure of damages only.

CLEMENS, P. J., and DOWD, J., concur.

      . The property is held in the name of Mr. Kropp. Mrs. Kropp is a defendant for whatever marital right she may have.

      . Plaintiff also states that there was an agreement between Ruprecht and Kropp. We can find no such evidence of record. Counsel for the Highway Department in chambers stated, “ . . there was some side agreement between Ruprecht and Kropp which certainly is not binding on us . . ” There is thus no evidence of any such agreement before us.

      . State ex rel. State Highway Comm. v. Riss, 432 S.W.2d 193 (Mo. 1968). The value evidence ranged from $25,500 to $1,342,500. State ex rel. State Highway Comm. v. Dockery, 340 S.W.2d 689 (Mo. 1960), with a range of $19,400 to $49,500. State ex rel. State Highway Comm. v. Anderson, 367 S.W.2d 809 (Mo.App. 1963), $2,100 to $11,000.

      . [Attorney for Defendants] “Q. Nevertheless you are contending it’s worth $500.00 an acre.
      [Mr. McReynolds] A. I think somebody might pay that much for it.
      Q. You are to give us your expert opinion what that property is worth. ‘Might’, ‘somebody ’ and all that is very qualifying.
      A. It certainly is. This is a very qualifying piece of property, as long as you bring up the word. You ask if somebody would pay this for it — I don’t think they would.
      Q. Then why are you saying—
      A. I could tell you it’s worth nothing. If it’s absolutely landlocked and going to be absolutely landlocked through eternity, then it isn’t going to be worth anything.
      Q. You have to take into consideration the use you can make of the property now and in the foreseeable future, isn’t that the way appraisers value property?
      A. Yes.
      Q. You are not talking about twenty years or a hundred years, are you?
      A. That goes pretty far.
      Q. So this land is in the foreseeable future landlocked?
      A. I don’t know about the foreseeable future — if you are not going to be able to get on this property, then it doesn’t have any value.
      Q. If you are and the property is landlocked and in the foreseeable future going to remain that way, what is your value of it?
      A. I would think nobody would buy it.”


author: HENRY, Justice.

text:
    Rupert W. KNIERIM et al., Appellants, v. Robert H. LEATHERWOOD et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 18, 1976.

      Thomas Privette, Jr., Knoxville, for appellants.
    Richard Stair, Sr., Ronald L. Grimm, Ambrose, Wilson, Lockridge & Grimm, Knoxville, for appellees.
   OPINION

HENRY, Justice.

This civil action was instituted by certain adjoining and abutting property owners, and others, seeking to enjoin the obstruction of a roadway and a declaration of its existence as a public right-of-way.

The Chancellor sustained a motion to dismiss and this appeal ensued.

I

It is first necessary that we address the pleadings and the issues they posed in the trial court. Omitting for the time being the allegations of the complaint, we first note that the defendant, Arnwine, answered fully and in great detail, appending to her Answer certain maps and plats. .The defendants, Leatherwood, “pursuant to Rule 9.01 of the Tennessee Rules of Civil Procedure”, filed a motion to dismiss for want of standing. On the same date the defendant, Arnwine, with leave of the court, amended her answer so as to interpose a similar defense.

The order of the Chancellor sustaining the motion recites that the cause was heard upon “the Motion to Dismiss filed by the defendants, Leatherwood, joined in by defendant, Mary M. Arnwine, or in the alternative, on her motion for a judgment on the pleadings . . . ”.

We address first the character of the motion filed by the defendants, Leather-wood. While facially it purports to be filed pursuant to Rule 9.01, Tenn.R.Civ.P., actually Rule 9 is not a motion rule. As indicated in the Committee Comment, Rule 9 “sets forth rules governing the pleading of several specific matters about which questions might arise.” Rule 9.01 relates to capacity to sue. It merely requires that when a party desires to raise an issue as to the capacity of any party to sue “he shall do so by specific negative averment.”

If a party defendant conceives that the plaintiff does not have capacity, authority, or legal existence, he may plead this defect in his responsive pleading under Rule 9.01 “by specific negative averment.” It is not classified, however, as an affirmative defense under Rule 8.03.

If he elects to proceed by motion, he has three options. He may (1) move to dismiss for failure to state a claim upon which relief may be granted, under Rule 12.02(6), in those cases where the issue is framed by the pleadings; or (2) move to strike under Rule 12.06; or (3) move for a judgment on the pleadings under Rule 12.-03.

Actually, Rule 9.01 has no application in the instant case. The capacity to sue is something entirely different from standing to sue. The former is recognized specifically in the Rules of Civil Procedure; the latter is controlled by case law, with no reference being made thereto in the Rules.

Capacity, as used in Rule 9.01, relates to a party’s personal or official right to litigate the issues presented by the pleadings; is governed by Rules 17.02 and 17.03; and is not dependent upon the character of the claim.

Standing is a judge-made doctrine which has no per se recognition in the rules. It is used to refuse to determine the merits of a legal controversy irrespective of its correctness where the party advancing it is not properly situated to prosecute the action. An issue of standing is therefore raised by a specific denial or defense (but not an affirmative defense under Rule 8.03) in the answer or responsive pleading, or by a motion to dismiss under Rule 12.02(6) or in proper cases by a motion for judgment on the pleadings under Rule 12.03, or motion to strike under Rule 12.06.

Where made by Rule 12.02(6) motion the issue must be framed on the face of the pleadings. If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56. This is also true, with respect to a motion for judgment on the pleadings under Rule 12.03.

II

We now analyze the pleading situation in the instant case.

The Leatherwoods filed a procedurally good and sufficient motion to dismiss,' which we treat as being made under Rule 12.02(6).

Arnwine filed no such motion. The record merely shows, from the Chancellor’s decree, that the Leatherwood motion was “joined in by defendant, Mary M. Arn-wine.” Nowhere in the Tennessee Rules of Civil Procedure are oral motions sanctioned nor is the practice of “joining in” recognized. To the contrary, the Motion Rule (12.02), specifically requires that defenses not asserted in the responsive pleading be “made by motion in writing.”

We, therefore, hold that the defendant, Mary M. Arnwine, made no motion to dismiss.

When a party orally “joins in” on another party’s motion, good practice demands that the motion be reduced to writing or that a simple written statement be lodged with the clerk evidencing such fact, and in either event the resulting pleading must be filed forthwith and be made a part of the record.

We are bound by the record on appellate review and will not note a motion not reflected in the transcript.

The Chancellor’s decree also recites that the matter was considered “in the alternative on [Arnwine’s] motion for judgment on the pleadings.” Again, the technical record contains no such motion.

The result is that all we have for determination is the sufficiency of the Leather-wood Motion to Dismiss. This entails an analysis of the Complaint.

Ill

Six married couples who own or rent property in the Glenridge Gardens Subdivision fronting upon Peachtree Road, and another couple who own property in the vicinity of this subdivision, instituted this action to enjoin defendants from blocking or obstructing this road or street, and for a declaration of its existence as a “public right-of-way.”

The Complaint proceeds upon various theories. First it is insisted by the abutting plaintiffs that a plat of the Glenridge Gardens Subdivision was recorded in the Register’s Office of Knox County and their respective conveyances, or those of their lessors, made apt reference to this plat and/or described their property as “lying on Peach-tree Road.” The property of the abutting plaintiffs is on one side of Peachtree Road and that owned by defendants is on the other.

It is alleged by the plaintiffs Knierim that they are the owners of certain property adjoining the subdivision. We infer that this property does not abut on Peachtree Road. Nothing in the complaint or the exhibited plat would so indicate. It is alleged, however, that Peachtree Road affords their “only means of ingress and egress from the nearest public road” and that “said right-of-way has been so used by said parties or their immediate and remote grantors for many years, thereby becoming a public right-of-way by prescription in addition to the previous grant.”

Plaintiffs Knierim allege that their property “does not front on any public road, and the only means of ingress and egress thereto is by . . . Peachtree Road.” They insist that at the time they acquired their property in 1973, Peachtree Road was a well developed right-of-way in use by the adjoining property owners generally and they were not aware that anyone would attempt to prevent their use thereof. They insist that they used the road for about two years when the defendants, Leatherwood, notified them to discontinue doing so, asserting that its use was limited to the property located on the south side of the road.

The Knierims disregarded this notice and as a result the Leatherwoods blocked the road by parking their cars on it. They allege other acts of hostility committed by the Leatherwoods.

All plaintiffs assert open and adverse use for many years, under a claim of right.

Knierim and wife pray for a restraining order enjoining the blockage of the road and for damages.

All plaintiffs pray for a declaration of “the existence of a public right-of-way as shown on the recorded map of Glenridge Gardens Subdivision” and all pray for general relief.

Giving the complaint a liberal, and perhaps loose, construction, the Knierims seek to enjoin the obstruction of a public road; and all parties plaintiff seek to have Peach-tree Road declared a public road. The complaint viewed in a most liberal light might be construed as one to protect an easement or way, acquired by dedication, acceptance and user, or to enforce their rights as abutting owners in a public road or to an easement.

IV

We dispose first of the complaint insofar as it seeks to restrain the obstruction of a public road. Indulging every intendment in favor of the averments of the complaint and assuming that Peachtree Road is a way open to all the people without distinction, for passage and repassage at their pleasure [See Sumner County v. Interurban Transp. Co., 141 Tenn. 493, 213 S.W. 412 (1918)], plaintiffs Knierim run afoul of the rule announced in Ledbetter v. Turnpike Co., 110 Tenn. 92, 73 S.W. 117 (1902), that the ownership and title to public roads

[i]s vested in the county in its corporate capacity; and, under the elementary rules of pleading [and practice], suits brought to protect such roads and bridges, and enforce the rights of the county therein . . . must be brought and prosecuted in the name of the county. 110 Tenn. at 96, 73 S.W. at 118.

Ledbetter v. Turnpike Co. was decided three quarters of a century ago. To the extent of its requirements that suits brought to protect public roads must be brought in the name of the county, or the quarterly court, it stands in conflict with the rationale, reasoning and results of countless subsequent cases decided by our courts. Moreover, it does violence to recognized property rights of abutting owners. It has not been followed in a single reported case and has been cited in but few, primarily on the proposition of the nature and authority of counties.

For example, it was cited in Montgomery County v. Turnpike Co., 120 Tenn. 76, 109 S.W. 1152 (1907) which was a suit by Montgomery County to enjoin the collection of toll; in Sumner County v. Interurban Co., 141 Tenn. 493, 213 S.W. 412 (1918), a suit to enjoin a transportation company from using county roads; in Cannon County v. McConnell, 152 Tenn. 555, 280 S.W. 24 (1925), where the controversy was over the ownership of a county road fund in a defunct bank; in Boshears v. Foster, 154 Tenn. 494, 290 S.W. 287 (1926), a suit to invalidate bridge warrants; in Mooney, et al. v. Phillips, et al., 173 Tenn. 398, 118 S.W.2d 224 (1938), involving the use of voting machines; in Jackson v. Hutton, 15 Tenn.App. 281 (1932), on the proposition of the power of the county judge and road commissioner to execute a deed for an abandoned road; and in Rutherford County v. City of Murfreesboro, 43 Tenn.App. 489, 309 S.W.2d 778 (1957), which involved parking meters on the public square in Murfreesboro. Finally, it was cited, but not applied (on basis of waiver), in Reeves v. Perkins, 509 S.W.2d 233 (Tenn.App.1973).

We overrule so much of Ledbet-ter Turnpike Company as holds that all suits brought to protect public roads must be brought in the name of the county, as being out of harmony with better established law announced, or followed in subsequent cases, and as having only limited precedential value, in this regard. We approve and reiterate Ledbetter to the extent of those cases wherein the complaining party has no special, pecuniary or proprietary interest in a public road. In such cases the protection of the public interest is the sole prerogative of the county.

We think it both reasonable and clear that a private citizen may sue to enjoin the maintenance of an obstruction on a public highway where he has sustained special injury or damage. Day-Evans Iron Wks. v. L & N.R.R. Co., 161 Tenn. 649, 32 S.W.2d 1038 (1930). See also Maxwell v. Lax, 40 Tenn.App. 461, 292 S.W.2d 223 (1954).

An abutting owner has a greater interest than the general public, Thornton v. Connelly, 15 Tenn.App. 436 (1932) and has an easement of access over the road to his premises, even after a public road is abandoned, Jackson v. Hutton, 15 Tenn. App. 281 (1932).

In Current, et al., v. Stevenson, et al., 173 Tenn. 250, 116 S.W.2d 1026 (1938), this Court, speaking through the late Justice McKinney, quoted with approval from 29 C.J., 547 as follows:

An abutting owner has two distinct kinds of rights in a highway, a public right which he enjoys in common with all other citizens, and certain private rights which arise from his ownership of property contiguous to the highway, and which are not common to the public generally, and this regardless of whether the fee of the highway is in him or not. . . . They include the easement of access . 173 Tenn. at 254-55, 116 S.W.2d at 1028.

Again quoting from an earlier Tennessee case, the Current Court declared:

But the owners of lots bordering upon a public street, have an easement of way in the street, in addition to the use of it in common with the people generally. This additional right of way, is private property . . . . 173 Tenn. at 255, 116 S.W.2d at 1028.

Moreover, our courts have long held that “persons who buy lots according to plats or plans whereon streets are marked or exist acquire irrevocable rights to such streets.” Wilson v. Acree, 97 Tenn. 378, 381, 37 S.W. 90, 91 (1896). See also Bunns v. Walkem Development Co., 53 Tenn.App. 680, 385 S.W.2d 917 (1964), and Moore v. Queener, 62 Tenn.App. 490, 464 S.W.2d 296 (1970).

But his easement is limited to the street or way upon which his lot is situated and in such other streets or ways as are necessary or convenient to his ingress or egress. State v. Hamilton, 109 Tenn. 276, 70 S.W. 619 (1902). See also Byington v. Bass, 11 Tenn.App. 569 (1930).

V

We, therefore hold that the complaint contains sufficient allegations of fact to make out a prima facie case for relief. There issues must be fully determined and are not necessarily limited to those dealt with in this opinion. On remand, and after the Leatherwoods shall have filed their responsive pleading, the Court’s consideration should include the nature and character of Peachtree Road and the interests of the respective parties therein; the validity of the Knierim claim of a way of necessity over Peachtree Road, and their claim for damages; the right of the parties plaintiff to injunctive relief, and such other issues as may be developed by the pleadings and proof.

In fairness to the Chancellor, it should be noted that he was bound by Ledbetter.

Reversed and Remanded.

All concur.

      . The Committee Comment following Sec. 17.-02 is imprecise.

      . This opinion addresses only formal motions, or those that are in the nature of pleadings. Informal motions made during trial proceedings are not required to be “in writing” although good practice may indicate the desirability of reducing some of these to writing.

      . 39 C.J.S. Highways § 141 contains the same language.


text:
    Autra WILKERSON, Jr., Petitioner, v. Joyce Ann BENSON, Respondent,
    Supreme Court of Tennessee.
    Oct. 18, 1976.

      Irving S. Zeitlin, Memphis, for petitioner.
    James W. Surprise, Memphis, for respondent.
   OPINION AND- ORDER DENYING CERTIORARI

HENRY, Justice.

This matter is before the Court by common law writ of certiorari.

This is a paternity action transferred from the Juvenile Court at Memphis to the Circuit Court for a jury trial on the issue of paternity.

Subsequent to the transfer, the respondent propounded to the petitioner, a total of ten interrogatories pursuant to Rule 33. Tennessee Rules of Civil Procedure. The Trial Judge entered an order directing that responses to seven of these be made for purposes of discovery, but holding that the responses so made would not be admissible in evidence unless the defendant waived his privilege under § 36-227, T.C.A.

Petitioner then filed his petition for the writ of certiorari in the Court of Appeals for the Western Section, seeking to reverse the action of the Trial Court in requiring responses to these interrogatories. That court declined to entertain the petition holding that “the constitutional questions presented are substantial and not merely incidental to the cause of action; that the petition for certiorari should have been presented to the Supreme Court instead of to the Court of Appeals.”

Petitioner has now filed a petition in this Court for the writ of certiorari.

While the petition so filed is somewhat meager, it does aver that “the Circuit Court order violates his rights under T.C.A. 36-227(1) and under the Fifth Amendment of the United States Constitution, against self-incrimination”.

There is no substance to petitioner’s complaint based on an alleged violation of the Fifth Amendment. The permitted interrogatories relate to acts of sexual intercourse, paternity of a child, and seek other pertinent information to include a list of the persons “whom you intend to call as witnesses in this action”. As a maximum, responses to these questions would tend to establish that petitioner had been guilty of fornicating and had sired a bastard child. Fornication, committed in private, by consenting adults, is not a criminal offense under Tennessee law. To make it a crime, it must have been attended with such circumstances as to give it publicity and notoriety. Or phrasing it another way, it must amount to open and notorious lewdness. Insurance Company v. Bennett, 90 Tenn. 256,16 S.W. 723 (1891). As pointed out in 2 Am.Jur.2d, Adultery and Fornication, § 8, fornication “was not per se a punishable offense” at the common law, but only became such “where the circumstances rendered the parties guilty of some other offense — as, for instance, a public nuisance

It is not made a criminal offense in Tennessee for one to father an illegitimate child. Our bastardy statutes (§ 36-222 et seq., T.C.A.) are civil in nature and are intended to provide for the support, maintenance, education and funeral expenses of the child, and for the expenses of the mother’s confinement and recovery, along with those incurred in connection with her pregnancy.

It is true that the court may, in its discretion, cause a summons to be issued as in civil cases, or may direct the issuance of a warrant for the apprehension of the father; and may require that he make bond, and in default may commit him to jail, but this is all in connection with a civil proceeding designed to meet the purposes aforesaid and to prevent the child from becoming a public charge. At the conclusion of the hearing, the court makes an order of paternity with appropriate provisions for the support and education of the child. These statutes clearly are civil In nature.

It necessarily follows that since the defendant in a paternity suit is not subject to a prosecution based either upon paternity or fornication, he has no right to remain silent under the Fifth Amendment, and may not assert any privilege against testifying on that basis.

It is true that § 36-227, T.C.A., provides that “the alleged father shall not be compelled to give evidence”. The constitutionality of this exemption is assailed. We do not consider it either necessary or proper, at this stage of the proceeding, to pass upon this question, nor do we express any opinion as to the correctness of the action of the trial judge in holding that the responses to the interrogatories are not admissible in proof.

We have examined and responded to the only pressing constitutional issue raised by the pleadings. All other matters must await a final hearing and abide the orderly processes of appellate review, The writ accordingly is

Denied.

All concur.

      . As propounded, this question is not permissible. No rule of practice or procedure requires a party to inform his adversary as to the identity of the witnesses he proposes to call.


author: HARBISON, Justice.

text:
    LOUISVILLE & NASHVILLE RAILROAD COMPANY et al., Appellants, v. TENNESSEE PUBLIC SERVICE COMMISSION et al., Appellees.
    Supreme Court of Tennessee.
    Oct. 25, 1976.

      Gareth S. Aden, Nashville, James L. Howe, III, Washington, D. C., John F. Smith, Louisville, Ky., David M. Keeble, F. Clay Bailey, Jr., Nashville, for appellants.
    Eugene W. Ward, Thomas E. Midyett, Jr., Nashville, for appellees.
   OPINION

HARBISON, Justice.

This appeal is from an order of the Tennessee Public Service Commission requiring three railroad companies operating in the state to open certain interchanges and to establish joint rates in connection with intrastate shipments. The Chancellor affirmed the order of the Commission on petition for certiorari, and review of his decree is sought in this Court pursuant to the provisions of T.C.A. § 65-230.

The case was heard before the Commission upon oral testimony and documentary evidence. There were sharp conflicts in the testimony of the various witnesses.

Appellants, together with the Illinois Central Railroad Company, purchased segments of the abandoned line of the bankrupt Tennessee Central Railway Company. One of the disputed issues before the Commission was whether or not the purchasing railroad companies had adhered to certain commitments with respect to continuation of service and interchanges made by them in connection with the acquisition of the segments of abandoned lines. Other issues were presented as to whether or not the terms of emergency tariffs issued by the railroads in connection with the resumption of service over the abandoned segments of line had resulted in the imposition of unfair and discriminatory rates.

The Commission resolved the disputed issues against appellants, and the Chancellor, upon a review of the record, found that the conclusions and orders of the Commission were justified, particularly in view of “the conditions under which the three companies purchased the three sections of the old Tennessee Railway Company . . ..”

Although certainly contrary conclusions could have been reached from the testimony introduced before the Commission, there is sufficient material evidence in the record supporting its conclusions as to foreclose any further review here of the disputed factual issues. The assignments of error pertaining to those issues are overruled.

Appellants have raised a legal question, however, as to the jurisdiction of the Commission to establish joint rates and to order the opening of interchanges on intrastate shipments. Although recognizing that the Commission has broad powers in connection with the fixing of rates and tariffs and in preventing discriminatory practices under T.C.A. §§ 65-501 et seq., appellants insist that the Commission has no authority to establish joint rates.

Appellants recognize that T.C.A. § 65-518 confers such authority upon the Commission with regard to public utilities in general. The statute provides:

“The commission shall have power after hearing upon notice, by order in writing, to fix just and reasonable individual rates, joint rates, tolls, fares, charges or schedules thereof, as well as commutation, mileage, and other special rates which shall be imposed, observed, and followed thereafter by any public utility as defined in § 65-401, whenever the commission shall determine any existing individual rate, joint rate, toll, fare, charge, or schedule thereof or commutation, mileage, or other special rates to be unjust, unreasonable, excessive, insufficient, or unjustly discriminatory or preferential, howsoever the same may have heretofore been fixed or established.”

The defining section referred to, T.C.A. § 65 — 401, contains broad descriptions of entities embraced within the term “public utility”, and expressly included in the definition are all common carriers. T.C.A. § 65-402, however, provides that none of the provisions of Chapter 4, Title 65, “shall apply to any railroad . . ..”

Appellants base their contention upon this exclusionary language, and insist that since railroad companies are not subject to the provisions of Chapter 4, they are likewise not subject to the provisions of T.C.A. § 65-518 with respect to joint rates.

We are unable to agree with this interpretation of the statute. The reference to T.C.A. § 65-401 is simply for definitional purposes, and there is no question but that railroad companies are defined as public utilities in that section. The remaining portions of the chapter deal with special powers and duties of the Commission regarding utility companies other than railroads, but this does not remove railroad companies from the terms defining public utilities.

Several other chapters of Title 65 deal expressly with railroad companies, particularly Chapter 3 and Chapters 5 through 13. Railroads are not exclusively dealt with in Chapter 5, however, and it is clear that T.C.A. § 65-518 purports to give the Commission power over rates, including joint rates, of all public utilities, including railroads and transportation companies.

It will be recalled that Chapter 4 of Title 65 generally does not deal with the power of the Commission over railroad companies. T.C.A. § 65-405, however, contains the following language:

“In addition to the power conferred by this chapter on the commission it shall possess with reference to all public utilities within its jurisdiction all the other powers conferred on the commission with reference to railroads or transportation companies as provided by chapters 3 and 5 of this title . . ..” (Emphasis added).

It thus seems irrefutable that the General Assembly considered that the provisions of Chapter 5, including those dealing with joint rates, applied to railroads and other transportation companies.

We are of the opinion that the Commission and the Chancellor were correct in holding that the Commission had jurisdiction of the subject matter involved in this case and the authority to order joint rates on intrastate shipments.

The assignments of error of appellants are overruled and the judgment of the Chancery Court is affirmed at the cost of appellants.

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