author: CLEMENS, Presiding Judge. DOWD, Judge,

text:
    STATE of Missouri, Respondent, v. Willie GARRETT, Appellant.
    No. 38668.
    Missouri Court of Appeals, St. Louis District, Division One.
    March 21, 1978.

      Robert C. Babione, Public Defender, Joseph Webb, Asst. Public Defender, St. Louis, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

A jury found defendant guilty on two counts of possessing narcotics and the court sentenced him to consecutive eight-year terms.

On appeal defendant concedes the sufficiency of the state’s evidence of possession but contends the trial court prejudicially erred by admitting irrelevant evidence of police affidavits and a search warrant when he had challenged neither the propriety of his arrest nor the seizure of narcotics.

The substantive evidence was definite. When police officers forcibly entered a house, defendant and others scattered. The police found defendant and another flushing capsules down a toilet. They arrested defendant and found other capsules of “controlled substances” in his pockets. Case made.

For reasons not apparent to us, the state was not satisfied with the quantum of the cited evidence. In its opening statement, in its testimony in chief and in closing argument, statements by counsel and testimony of witnesses, references were made to the challenged affidavits and search warrant.

The arresting officers testified that before arresting defendant they had prepared affidavits concerning narcotics at the address in question, appeared before a circuit judge, swore to the affidavits, and the judge issued the search warrant which was introduced in evidence. At every step, defendant objected to reference to the affidavits and search warrant on the ground of irrelevance.

Two related questions arise. Were the challenged references relevant to the crime charged? If not, was there prejudicial or only harmless error?

As to relevancy: In Crowley v. Crowley, 360 S.W.2d 293[2] (Mo.App.1962) we held: “Relevancy is the relationship between the offered fact and the fact in issue to such a degree that the existence of the offered fact logically renders probable the existence of the fact in issue.” Here, the simple fact issue was whether defendant possessed narcotics. The “offered facts” were the police officers’ out-of-court statements that they believed someone at the named address did possess narcotics and that a judge had believed them. Had defendant challenged the police officers’ right to arrest him, or to seize contraband in his possession, the offered facts probably would have been relevant. But he did not.

The state now seeks to justify the offered facts by arguing that the officers’ possession of a warrant tended “to substantiate the officers’ testimony in regard to the circumstances of appellant’s arrest.” The officers arrested defendant the moment they •found him in possession of what they believed were narcotics. The search warrant, being based only on the officers’ previously stated beliefs, was utterly irrelevant to defendant’s arrest and to the charge of possessing narcotics.

We hold the offered facts concerning the police officers’ belief and the circumstances surrounding the issuance of the search warrant did not logically tend to establish the issuable fact that defendant thereafter unlawfully possessed narcotics. The challenged evidence was inadmissible, and we move to the related issue of whether the error in admitting it was prejudicial or harmless.

We consider the judicial role in determining on appeal whether the improper admission of evidence was harmless error. For a court to so determine, of necessity it must be able to declare beyond doubt that the tainted evidence did not affect the jury in its fact-finding process. It is, of course, the jury’s sole prerogative to believe, or disbelieve, all or part of any item of evidence. An appellate court has no way of knowing — and should not speculate about — what evidence a jury did or did not believe and the extent to which that evidence entered into the jury’s decision-making process. The rationale of these principles is capsulized in the judicial pronouncements that “error in the admission of evidence should not be declared harmless unless it is so without question,” (State v. Degraffenreid, 477 S.W.2d 57[14] (Mo.1972)), and that the record must “demonstrate that the jury disregarded or could not have been influenced by the evidence.” (State v. Wynne, 353 Mo. 276, 182 S.W.2d 294[9] (1944)). How can we declare here that the tainted evidence was harmless without question or that the jury could not have been influenced by it?

The state’s evidence that defendant possessed narcotics depended on the jury’s accepting as true the testimony of the two police officers. Their credibility or lack of credibility was the key to conviction or acquittal. To buttress that credibility the prosecution showed the officers had previously made affidavits concerning narcotics at the place in issue and that a judge had believed them by issuing a search warrant. Over defendant’s repeated objections, testimony of this “boot-strap” tactic was admitted into evidence. It was stressed in opening statement, in testimony and in closing argument.

We hold the state has not shown without question that the error was harmless, that is, that the jury could not have been influenced by it. It follows that the trial court prejudicially erred.

Reversed and remanded.

SMITH, J., concurs.

DOWD, J., dissents in separate opinion.

DOWD, Judge,

dissenting.

I respectfully dissent. The defendant was found guilty by a jury of two counts: (1) possession of heroin; and (2) possession of amphetamines and dextroamphetamines and sentenced under the Second Offender Act to two eight year terms to run consecutively.

The point raised by the defendant on appeal is that the court erred in admitting evidence of the search warrant and affidavits of the police officer used to obtain the warrant because such evidence was irrelevant “and caused the jury to improperly infer that the defendant was engaged in some prior illegal activity.”

The test of relevancy is whether or not a fact tends to prove a fact in issue or to corroborate evidence which is relevant and bears on the principal issue. State v. Campbell, 543 S.W.2d 508, 510[2] (Mo.App.1976); State v. Walden, 490 S.W.2d 391, 393[1] (Mo.App.1973). It is within the trial court’s discretion to determine materiality and relevance of evidence, State v. Martin, 530 S.W.2d 447 (Mo.App.1975), and doubts as to relevancy of evidence should be resolved in favor of the admissibility of evidence. State v. Proctor, 546 S.W.2d 544, 545[4] (Mo.App.1977). I believe the evidence that the officers were executing a valid search warrant when they entered the house was relevant to show the legality of this entry. The legality of the entry may well have been of concern to the jurors, especially when the forceful nature of the entry was revealed to them.

The house was entered in the following manner: Detective Taff was looking into the house through a window when his partner Detective Kientzy knocked on the door and stated “Police officers, we have a search warrant”. In response to the knock, the people inside the house got up and began running, saying, “It’s the heat!” Then, Officer Kientzy struck the door with a sledge hammer, forcing the door open. Once the door was broken in, Officer Taff chased one of the running men through the living room and the bedroom into the bathroom. In the bathroom the officer saw defendant on his knees flushing pink capsules down the toilet. He retrieved some of the capsules from the toilet. Officer Kient-zy pursued three other men through the house, and also saw defendant dropping pink capsules into the toilet.

When the facts leading to the arrest of defendant are reconstructed, we are presented with a scene where the door to a house is violently broken down by police officers with a sledge hammer, followed by general pandemonium inside as the officers chase suspects through the house. Under these facts, the jurors may well have questioned whether the officers were authorized to enter the house at all. The existence of a search warrant is both logically and legally relevant to this issue under the normal test of relevancy. I believe the legality of entry is relevant under the facts of this case.

Likewise, the existence of a search warrant which was required to be executed by the breaking in of a door with a sledge hammer, the fleeing of the occupants with the shouting of “It’s the heat!”, and the flushing of heroin into the toilet by the defendant is relevant to the issue of guilt of the defendant. And as such was admissible.

Furthermore, the search warrant was only admitted into evidence in a limited way. The trial court admitted it with the condition that the hearsay evidence used to obtain the warrant be excluded, and the warrant would not be shown to the jury. It is quite remote that the bare fact that a warrant was issued, without knowledge of what the facts were to support the warrant’s issuance, would cause the jury to infer defendant was engaged in prior illegal activity.

The majority opinion cites no authority in support of its conclusion that admission of the evidence of the search warrant requires reversal. My conclusion is supported by the holding in U. S. v. Buchanan, 529 F.2d 1148, 1151[2] (7th Cir. 1975), which ruled this identical point. In so ruling, the Court characterized this contention as being “totally without merit”. In reference to this contention the Court in Buchanan stated at 1151[2]:

“The defendant contends that the trial judge committed reversible error by permitting the Government to elicit from a government witness the fact that a search warrant had been obtained before entering the post office box rented by the defendant and the fact that a second search warrant had been obtained to search the defendant’s home and seize certain items that were admitted into evidence. He states that the evidence regarding the issuance of the warrants was neither relevant nor material. The defendant asserts that: ‘[this evidence] was also detrimental to defendant in that it gave an aura of judicial credence to the fact that there was information that indicated the guilt of this defendant.’ He sums up his argument by saying that since the searches were not in controversy the evidence about them was irrelevant and prejudicial.
“Defendant’s contention is totally without merit. The legality of a search is always relevant and the evidence that search warrants were issued, although perhaps not material in a strict sense, was not prejudicial to the defendant’s case. Even should there have been error in the admission of this evidence, it was harmless error.”

Even assuming the evidence was irrelevant as not tending to prove possession of narcotics, I disagree with the conclusion that reversible trial error resulted. Irrelevant evidence, when not unduly prejudicial or inflammatory, does not require reversal if it was introduced as background information to fill in the narrative of events leading up to defendant’s arrest. State v. Johnson, 539 S.W.2d 493, 512[36] (Mo.App.1976). The evidence of the search warrant was not unduly inflammatory or prejudicial. As we have stated above, it is highly unlikely that a jury would infer from such evidence that defendant was engaged in prior illegal activity.

In addition, the majority opinion has omitted an important principle from the Degraffenreid ease. The majority cites De-graffenreid for the proposition that “error in the admission of evidence should not be declared harmless unless it is so without question”. Degraffenreid did not concern the question of relevant evidence. And in Degraffenreid, which was decided en banc by our state supreme court, Judge Bard-gett, speaking for the court, stated, “error which in a close case might call for reversal may be disregarded as harmless when the evidence of guilt is strong.” 477 S.W.2d at 65[15]. Such a rule has been consistently followed by our courts. See, e. g., State v. Vernor, 522 S.W.2d 312, 316[3] (Mo.App.1975); State v. Belleville, 530 S.W.2d 392, 395[5] (Mo.App.1975).

In this case, there was overwhelming evidence of defendant’s guilt. It could aptly be called a “caught in the act” case. Two police officers saw the defendant dropping heroin into the toilet and five amphetamine pills were found in defendant’s pockets after the arrest. If not relevant, I believe the evidence complained of here is harmless under Degraffenreid because “the evidence of guilt is strong.”

I would affirm the conviction.

      . For a host of decisions on this principle see 24 B, C.J.S., Criminal Law, § 1915(2), n. 86.

      . The principle was applied in State v. Banton, 342 Mo. 45, 111 S.W.2d 516[4-5] (1937), in reversing a conviction because the prosecutor erroneously told the jury over objections that the defendant had taken a change of venue.

      . Defense counsel failed to object to the prosecutor’s reference to the search warrant and affidavits of the police officers in the opening statement and final argument. Defense counsel objected when reference was made to the search warrant during Officer Taffis testimony but not during Officer Kientzy’s testimony.


source: Caselaw Access Project

author: FLANIGAN, Judge.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Jackie E. SWEARINGIN, Appellant.
    No. 10597.
    Missouri Court of Appeals, Springfield District.
    March 22, 1978.
    Motion for Rehearing or Transfer Denied April 10, 1978.
    Application to Transfer Denied May 9,1978.

      Robert H. Handley, Springfield, for appellant.
    John D. Ashcroft, Atty. Gen., Nanette K. Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
    Before STONE, P. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

Defendant Jackie E. Swearingin, charged as a second offender (§ 556.280), was found guilty by a jury of jtnurder in the second degree (§ 559.020), and was sentenced by the court to 40 years’ imprisonment. Defendant appeals.

On June 19, 1976, in a bar known as the Jockey Club in Springfield, Missouri, Larry Brown was stabbed with a knife during a brawl. He died six days later as a direct result.

On July 29, 1976, a felony information was filed, naming appellant and his brother Ricky Swearingin as defendants. Each filed a motion for separate trial and separate trials were ordered. In November 1976 Ricky Swearingin was found guilty of manslaughter in connection with the death of Larry Brown and received a sentence of two years.

The amended information against defendant, upon which the instant case was tried, in addition to alleging a prior conviction, charged the defendant with the murder of Larry Brown. That information is the only one shown in the instant record. The original information filed against the two defendants is not shown and this record does not contain any portion of the proceedings in the case against Ricky. Defendant’s trial took place in January 1977.

Defendant’s brief contained six “points relied on.” In the argument portion of his brief under four of those points, defendant makes repeated references to Ricky’s case and alleged happenings therein. Only Ricky’s conviction of manslaughter and his sentence of two years therefor are supported by this record. Defendant alludes, however, to other features of Ricky’s case, none of which is shown in this record. Those features include pleadings, evidence, instructions and arguments of counsel.

Defendant’s brief says that “the central issue in this appeal is the state’s improper conduct in attempting to convict defendant of the crime committed by Ricky.” Seeking to invoke the doctrine of res judicata, defendant argues that the degree of the offense of which Ricky was convicted, the length of Ricky’s sentence, and the unsubstantiated happenings in Ricky’s case all have controlling effect upon the state’s case against defendant. Defendant suggests that this court “call up the file” in Ricky’s case in order to verify defendant’s assertions of what took place in those proceedings.

Rule 84.03 provides, in part, that this court “may of its own motion, at any time, require the clerk of the trial court to send up a complete transcript or any portion thereof or any original documents or exhibits.” In State v. Collett, 526 S.W.2d 920, 927-929 (Mo.App.1975) the defendant filed a motion asking the court of appeals to order the clerk of the circuit court to send up the record in a case against a fellow criminal. The court denied the motion and held that Rule 84.03 did not authorize its sustention. The court said, at p. 929, “[Rule 84.03] authorizes us to require the clerk to send up a complete transcript or a portion thereof or any original documents or exhibits in the case tried before the circuit court and does not authorize us to order up any and all matters that may have some relation to the cause on appeal.” (emphasis added) On the same page the court said, “We may consider only those matters presented on the record made in the lower court.”

In addition to the foregoing procedural obstacle confronting defendant, there are deeper and more compelling reasons for rejecting his contention that various aspects of the case against Ricky have controlling effect upon this case.

The evidence in the case at bar showed that defendant and Ricky jointly participated in the barroom brawl during the course of which Larry Brown was fatally stabbed. Although there was evidence offered by the defendant showing that Ricky, rather than defendant, was the man who fought Brown, the state’s evidence was overwhelmingly to the effect that defendant alone was Brown’s assailant and that it was defendant, and not Ricky, who inflicted the mortal wound. One witness testified that he knew defendant fought Brown and that he thought Ricky did so.

In support of his assertion that Ricky’s conviction of manslaughter is a bar to defendant’s conviction for a higher degree of homicide, defendant relies upon res judicata. Such reliance is unwarranted for the reason that defendant was not a party to the separate trial against Ricky and was in no way affected by the judgment and sentence therein. State v. Couch, 341 Mo. 1239, 111 S.W.2d 147, 150[9-11] (1937); State v. Bradley, 361 Mo. 267, 234 S.W.2d 556, 558[2-4] (Mo.1950). See also State v. Aubuchon, 381 S.W.2d 807, 815[14-17] (Mo.1964). A judgment in a criminal case operates as res judicata in a second criminal case only where the parties to both proceedings are identical. United States v. Masgrave, 483 F.2d 327, 332[2, 3] (5th Cir. 1973); Smith v. United States, 248 F.2d 877 (6th Cir. 1957); Anno. 9 A.L.R.3d 203, 218 (Res Judicata — Criminal Cases). It is also true that defendant was not placed in jeopardy by the conviction of his co-perpetrator Ricky. United States v. Coppola, 526 F.2d 764, 776[19] (10th Cir. 1975).

In State v. Couch, supra, one DeMore pleaded guilty to a murder charge and was sentenced to the penitentiary. Later defendant was charged with the same offense. The state’s evidence showed that only one person committed the offense. Defendant relied upon DeMore’s conviction to bar his own. In rejecting that contention the court said, at 111 S.W.2d p. 150, “The conviction of DeMore for the offense charged could not be pleaded in bar by appellant, because appellant was not a party to that prosecution and was in no way affected by that judgment. Whether DeMore was rightfully or wrongfully convicted was no concern of appellant’s.” The court also said, “The issue before the court and jury was the guilt or innocence of appellant and not of De-More.”

In State v. Bradley, supra, defendant was convicted of murder in the first degree. Co-perpetrators of the same murder, prosecuted in separate cases, were convicted of murder in the second degree. The court rejected defendant’s contention that the degree of the crime for which his co-perpetrators were convicted was res judicata in his case. The court said, at 234 S.W.2d p. 558, “Defendant-appellant was not a party defendant in the [co-perpetrators’] cases . The disposition of [the co-perpetrators’ cases] to which he was not a party, was of no concern to defendant herein.” (emphasis in original) The court also held that the judgments in the co-perpetrators’ cases “could not have been pleaded in bar by defendant, nor was evidence of the disposition of those cases admissible in the instant case.”

Although defendant does not specifically refer to the doctrine of “collateral estoppel,” it is clear from his brief’s general tenor that he is advancing that theory in support of his claim that certain aspects of the proceedings against Ricky affect the case at bar.

“ ‘Collateral estoppel’ is an awkward phrase, but it stands for an extremely important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” (emphasis added) Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469, 475 (1970).

The doctrine of collateral estoppel, as it pertains to criminal cases, was discussed at length by the Supreme Court of Pennsylvania in Com. v. Brown, 375 A.2d 331 (Pa. 1977). Citing numerous authorities from many jurisdictions, the court said, at p. 334:

“Collateral estoppel principles may be applicable in some criminal cases as well as civil cases, but the scope of the doctrine as applied in criminal cases is not coextensive with that applied in civil cases, particularly where, as here, collateral estoppel is invoked on behalf of a defendant who was not a party to the prior adjudication. See generally Annot., 9 A.L.R.3d 203 (1966). Traditionally, collateral estoppel has been limited by, inter alia, the rule of mutuality; that is, collateral estoppel does not operate unless the party seeking to take advantage of it would have been likewise bound by an adverse judgment in the prior adjudication. In the context of civil litigation, this mutuality requirement has been eroded in recent years and the modern trend has been for courts to abandon it. . In the context of criminal litigation, however, the concept of mutuality has retained its vitality. Collateral estoppel has generally been applied only in those criminal cases involving defendants who were parties to the prior adjudication. . . . The majority rule remains that a judgment of acquittal of one criminal defendant does not prevent the relitigation of an issue or controversy in the prosecution of another criminal defendant, even though the same transaction is involved.” (emphasis added)

This court concludes that the separate proceedings against Ricky have no effect upon the instant case and that defendant’s reliance upon the doctrines of res judicata, double jeopardy, and collateral estoppel is not justified. Accordingly, the following discussion of defendant’s points lays aside those arguments of defendant which are based on what he claims to have transpired in Ricky’s case.

Defendant’s first point is that the trial court erred in overruling defendant’s motion for acquittal, offered at the close of the state’s evidence and renewed at the close of all the evidence, for the reason that “the verdict is against the weight of the credible evidence.” The state’s evidence justified the jury in finding that the defendant, unprovoked by the victim, stabbed him with a knife and thereby intentionally caused his death. Moreover, it is not the function of this court to determine the credibility of the witnesses or to weigh the evidence. State v. Small, 423 S.W.2d 750, 751[2] (Mo.1968); State v. Berry, 526 S.W.2d 92, 95[3] (Mo.App.1975). Defendant’s first point has no merit.

Defendant’s second point is that the trial court erred in overruling defendant’s motion to reduce the charge against defendant from second degree murder to manslaughter. The sole ground on which this alleged error is predicated is that Ricky was previously convicted of manslaughter and thus, says defendant, he could not be convicted of a higher degree of homicide. This point is without merit as demonstrated by the authorities discussed prior to the statement of defendant’s first point.

Defendant’s third point is that the trial court erred in failing “to instruct on Assault with Malice Aforethought (MAI-CR 6.22) or Assault Without Malice Aforethought (MAI-CR 6.24) or Common Assault (MAI-CR 6.26).” At the trial defendant did not request that any of the three mentioned instructions be given. During the instruction conference the court asked defendant’s counsel if he wished any additional instructions and counsel replied, “No.” The instant point was presented initially in the motion for new trial.

The state’s evidence was to the effect that the defendant, unprovoked by the victim, stabbed him with a knife and thereby caused his death. The defendant’s evidence, in essence, was that Ricky was the knife wielder and that defendant took no part in the brawl or in the fatal contest itself.

In State v. Gadwood, 342 Mo. 466, 116 S.W.2d 42 (1938) defendant was convicted of manslaughter for the killing of one Fla-cey. On appeal defendant assigned error in the trial court’s failure to instruct on assault with intent to kill or do great bodily harm. Defendant relied upon two statutes which are now § 556.220 and § 556.230.

At p. 55[19] the court said:

“But in spite of these statutes [§ 556.220 and § 556.230] appellant’s contention is untenable because of another statute which has been in the books for more than 100 years, Section [556.160] providing that: ‘No person shall be convicted of an assault with an intent to commit a crime, or of any other attempt to commit any offense, when it shall appear that the crime intended or the offense attempted was perpetrated by such person at the time of such assault or in pursuance of such attempt.’ The words in the statute ‘when it shall appear’ do not mean when it shall appear conclusively or without dispute; they mean when it shall appear from substantial evidence.” (emphasis added)

On the following page the court said:

“[I]t indicates the purpose of [§ 556.160]. Construed with sections [§ 556.220 and § 556.230], supra, the three statutes evidently mean that if substantial evidence shows the crime charged was consummated the defendant cannot be convicted of a mere attempt. He cannot go to the jury on a charge so light in the face of a prima facie case showing the graver offense was committed; but if the State’s evidence fails to establish commission of the crime and does show an attempt thereto the jury may convict on the latter theory under the original charge without the necessity of instituting a new proceeding. In the instant cause the State made a prima facie case of murder. That being so, the appellant was not entitled to an instruction on felonious assault.” (emphasis in original)

Defendant’s third point has no merit; State v. Gadwood, supra; see also State v. Villinger, 237 S.W.2d 132, 135[8 — 9] (Mo.1951); State v. Adams, 380 S.W.2d 362, 370[18] (Mo.1964); State v. Charles, 537 S.W.2d 855, 856[1 — 3] (Mo.App.1976).

Defendant’s fourth, fifth and sixth points are presented without citation of authorities and thus each fails to meet the requirements of Rule 84.04(d).

Defendant’s fourth point is that the trial court erred in giving, over the objection of defendant, Instruction No. 7 (MAI-CR 2.10). Defendant claims that the instruction is not supported by the evidence but this court’s review of the record discloses that the instruction was properly given and is not subject to the complaint defectively advanced. See State v. Connell, 523 S.W.2d 132, 136[3, 4] (Mo.App.1975); State v. Mandina, 541 S.W.2d 716, 719[4] (Mo.App.1976).

Defendant’s fifth point is that the trial court erred in refusing to receive evidence of Ricky’s conviction. This was error, argues defendant, because (a) once it had been determined at Ricky’s trial that Ricky was “the actual killer of Larry Brown” it was improper “to keep that information from the jury and allow the state to infer (sic) that Jackie was the actual killer” and (b) the state shifted its position from arguing that Ricky was the actual killer to arguing that Jackie was the actual killer.

The court did not err in refusing to receive evidence of the fact of Ricky’s conviction. State v. Dunn, 116 Iowa 219, 89 N.W. 984, 986[9] (1902); Martin v. State, 151 Tex.Cr.R. 212, 206 S.W.2d 254, 255[3] (1947), 22A C.J.S. Criminal Law § 784, p. 1191. See also State v. Aubuchon, 381 S.W.2d 807, 815[14 — 17] (Mo.1964), quoted in footnote 2. Ricky did not testify, so the use of his conviction for impeachment is not involved. Defendant was, of course, permitted to introduce evidence that Ricky, and not Jackie, was the knife wielder and he did so. Reason (a) has no merit. There is nothing in the instant record to show a factual basis for reason (b). Defendant’s fifth point has no merit.

Defendant’s sixth point is that the trial court committed error in replacing a venireman, successfully challenged for cause, with another venireman. This court has made a gratuitous examination of that portion of the record dealing with the incident and no error appears. See State v. Henson, 552 S.W.2d 378, 381[7] (Mo.App.1977).

The judgment is affirmed.

All concur.

      . Unless otherwise indicated, all references to rules are to Missouri Rules of Court, V.A.M.R., and all references to statutes are to RSMo 1969, V.A.M.S.

      . “We have held that it is error to show in evidence or to tell the jury that a jointly accused defendant has been convicted or has pleaded guilty. State v. Mull, 318 Mo. 647, 300 S.W. 511; State v. Stetson, Mo., 222 S.W. 425; State v. Castino, Mo., 264 S.W.2d 372; and see 2 Wharton Cr.Evi. (12th Ed.) § 439, p. 215. So, also, have we held that evidence of the acquittal of one jointly accused is improper. State v. Recke, 311 Mo. 581, 278 S.W. 995, 1000; State v. Brown, 360 Mo. 104, 227 S.W.2d 646, 653. Were this not the law, the value of a defendant’s right to a separate trial under § 545.880 and Rule 25.07 might be considerably dissipated. The theory of our statute abolishing the distinction between principals and accessories, § 556.170, is that every defendant who joins in the commission of a crime is liable, on his own, as a principal; but he is also entitled to be tried on his own without having his guilt prejudged by what has happened to his co-defendant.” (emphasis in original) State v. Aubuchon, supra, at p. 815.

      . The authorities cited include State v. Bradley, 234 S.W.2d 556 (Mo.1950) discussed earlier in this opinion.

      . “The defendant was not allowed to prove the conviction of Gray under this same indictment. It is very evident that it would have been error for the court to allow the state to show such conviction as a reason why the defendant should be convicted, and, if Gray had been acquitted, we hardly think counsel would claim such acquittal competent evidence of the innocence of his client. Upon what theory, then, evidence of Gray’s conviction was competent in behalf of the defendant, we do not see. The jury in this case could not retry Gray’s case, and determine whether he was rightly or wrongly convifcted; and unless they could do this, and then distinguish between the two cases, the offered evidence would not be competent.” State v. Dunn, supra, at p. 986.


author: HOGAN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie L. CROSBY, Defendant-Appellant.
    No. 10489.
    Missouri Court of Appeals, Springfield District.
    March 24, 1978.
    Eddie L. Crosby, pro se.
    John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Before HOGAN, P. J., and CROW, KENNEDY and BACON, Special Judges.
   HOGAN, Presiding Judge.

Defendant Eddie L. Crosby stands convicted of sodomy per os upon the person of a 19-year-old female who was seven months pregnant at the time. A jury has assessed his punishment at imprisonment for a term of six years. He appeals.

The offense was committed in what is consistently described as the “East end” of Butler, Missouri, during the early morning of June 14, 1975. The pathic, who was separated from her husband, resided with one Williametta Brown, a “middle-aged lady.” The pathic began her description of events by saying that “[T]here was a fight that evening.” Three neighborhood men were involved. The pathic stood in the “front yard” and observed the fight.

After the fight was over, while the pathic was “standing out in the yard in front of [the] house where [she] lived,” two men “picked [her] up.” The pathic “thought they was goofing around” and “kept telling them to put [her] down.” She “grabbed Williametta’s shirt” and the defendant “hit [her] hand away.”

The two men did not release the pathic, but “carried [her] over into Charles Wright’s house,” which was “[r]ight next door.” The pathic was “taken into the bedroom” and “maybe a minute or minute and a half after that [defendant] walked through the door and come in.” Defendant told the other two men to leave. He then told the pathic “[Y]ou are going to do what I tell you,” and thereupon “pushed [the pathic] down on the bed and started to pinch [her] breasts.” The pathic told defendant to leave her alone, but defendant replied “just . . . shut up because [she] would have to do what [defendant] said.” The pathic was told to remove her clothes. She did so, and the defendant struck her “pretty hard” on the side of the neck, dazing her momentarily. The pathic thereupon testified:

* * * * * *
“A. I just started crying. I told him, ‘Just let me go home,’ so, anyway, he had put his left knee on my left arm and his right knee up above my head, and he— * * * * * *
Q. All right. What happened then? A. So, anyway, he had taken and unzipped his pants and took his male organ out and put it in my mouth and he was still pinching my breasts at the time.
* * * * * *
Q. Now, you say he then placed his organ into your mouth, is that right? A. Yes.
Q. What did you do at this point? A. I didn’t do anything. I couldn’t. I couldn’t do anything.
Q. You didn’t try to bite or anything like that? A. I never did think of it. I was so scared I didn’t know what to do. Q. How long did this go on? A. It wasn’t very long after that that he had reached a climax.
Q. He did? A. Yes, he did.
Q. What did he do then? A. He got up and he said, ‘Now, Mark is going to come in and you do as he says. If you don’t, I will be right outside the door.’
Q. Then he left? A. Yes.”

Section 563.230, RSMo (1969), which defines and denounces the crime of which defendant was convicted, reads:

“[E]very person who shall be convicted of the detestable and abominable crime against nature, committed with mankind or with beast, with the sexual organs or with the mouth, shall be punished by imprisonment in the penitentiary not less than two years.”

This statute, though it is couched in common law terms, prohibits all deviate or aberrant acts of copulation, provided some degree of penetration is shown, and penetration may be proved circumstantially. State v. Pettijohn, 541 S.W.2d 74, 77-79[4][5][6] (Mo.App.1976). On appeal after conviction, the State is entitled to have the evidence considered in the light most favorable to the result reached, and is entitled to the benefit of all reasonable inferences fairly deducible from all the evidence. State v. Petrechko, 486 S.W.2d 217, 218[1] (Mo.1972). So considered, there is direct evidence of penetration of defendant’s penis into the pathic’s mouth, and the proof is sufficient to sustain the judgment of conviction. State v. Hubbard, 295 S.W. 788, 790[5] (Mo.1927).

We observe from examining the transcript that the jury’s verdict was returned on March 19, 1976. A motion for new trial was filed, but it was not filed until March 31. Rule 27.20(a) mandatorily requires that a motion for new trial be filed before the entry of judgment and within ten days after the verdict is returned, subject to the trial court’s power to extend the period for filing an additional 30 days. There is no indication in the record that defendant requested, or that the trial court granted any extension of time. Neither the State nor this court can waive the mandatory requirements of Rule 27.20(a); we must hold that the motion filed is a nullity and preserves nothing for review. State v. Howard, 476 S.W.2d 587, 588 (Mo.1972); State v. White, 439 S.W.2d 752, 753[1] (Mo.1969); State v. Nelson, 526 S.W.2d 56, 57[1] (Mo.App.1975).

Apparently recognizing the narrow scope of our review, defendant contents himself with the assertion of one ground of error, arguing that we should consider it as plain error pursuant to the provisions of Rule 27.20(c). The point, as briefed, is that the trial court committed plain error in allowing the pathic to testify to other separate, distinct offenses committed by the defendant prior to June 14, 1975. The rule invoked by the defendant is very elementary, and may be broadly stated thus: the prosecution may not show the commission of other, distinct criminal acts by the accused in aid of the proof that he is guilty of the crime charged. See, e. g., State v. Shumate, 478 S.W.2d 328, 330[2] (Mo.1972); State v. Spinks, 344 Mo. 105, 112, 125 S.W.2d 60, 63 — 64[3] (Mo.1989); and see generally McCormick, Evidence, § 157, p. 327 (1st ed. 1954). Nevertheless, this general rule is subject to a good many exceptions. When the proof of other offenses may tend to establish motive, or intent, or absence of accident or mistake, or identity of the defendant, or a common scheme or plan embracing the commission of separate similar offenses so interrelated that proof of one tends to establish the other, then evidence tending to show the commission of other, distinct offenses may be received. State v. Shumate, supra, 478 S.W.2d at 330; State v. Kornegger, 363 Mo. 968, 975, 255 S.W.2d 765, 768[7] (Mo.1953).

In this instance, the evidence complained of was that the pathic had seen the defendant on three prior occasions. On the first two occasions, she had seen the defendant while she was walking along a “path” which she used as a shortcut. On another occasion, when the pathic was living nearby but in different quarters, she started to enter the trailer where she lived with a female companion. Defendant was sitting in the “doorway” of the trailer. He moved to allow the companion to enter, but as the pathic “ . . . was fixing to go up [the steps] [defendant] kicked [her] in the stomach and knocked [her] backwards.”

The effect of this evidence must be con-' sidered in context. The defendant was not one of the men who carried the pathic from the scene of the fight to an adjoining house, and there was, in fact, evidence that the pathic was sexually assaulted by two other men after the defendant committed his so-domitic act upon her person. There was evidence that the neighborhood, called the “east end,” was poorly illuminated — “street lights at about every comer.” The offense was committed in a room where the lights had been extinguished. The only light “was lights coming through the window from the street light.” The whole sodomitic episode was rather brief. Given the detailed circumstances, the identity of the defendant was clearly in issue, the evidence complained of was properly received to establish the defendant’s identity, and the trial court did not err, much less err “plainly” in receiving it.

The evidence is ample to support the judgment; the defendant’s sole point on appeal is wholly without merit, and accordingly the judgment is in all respects affirmed.

All of the Judges concur.

      . All references to statutes and rules are to this revision, V.A.M.S. and V.A.M.R.

      . Which reads: “ . . . (c) [P]lain errors affecting substantial rights may be considered . . . on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.”


author: PER CURIAM.

text:
    SOUTHWEST BY-PRODUCTS, INC., a corporation, Plaintiff-Respondent, v. Wayne STUBBLEFIELD, Defendant-Appellant.
    No. 10898.
    Missouri Court of Appeals, Springfield District.
    March 27, 1978.
    Gregory J. Smith, Springfield, for plaintiff-respondent.
    Douglas W. Greene, III, Springfield, for defendant-appellant.
   PER CURIAM.

Plaintiff corporation filed a petition in two counts seeking (1) specific performance of a contract for the sale of land, and (2) damages allegedly caused by defendant’s failure to convey the land. Defendant answered. Thereafter, defendant filed a counterclaim in two counts alleging (1) that the transaction was permeated with fraudulent representations as to the value of the land, and (2) that the instant suit amounted to an abuse of process.

On April 27, 1977, the circuit court made an entry upon the docket which stated “. . . Count I and Count II are severed for purposes of trial.” The entry failed to specify whether the severance affected the two-count petition or the two-count counterclaim.

Missouri appellate courts are obliged to examine records on appeal to insure that jurisdiction exists to entertain the appeal. The pleadings in this case raise more issues than are resolved by the judgment. In Missouri, appellate review is purely statutory and § 512.020, Y.A.M.S., grants the right of appeal only where the judgment constitutes a final determination of all issues framed by the pleadings. Cochran v. DeShazo, 538 S.W.2d 598, 600(3, 4) (Mo.App.1976). However, the unsevered issues which should have been disposed of by the judgment cannot be divined. In the absence of demonstrable finality of the judgment, the court has no alternative but to dismiss the appeal as premature.

Appeal dismissed.

All concur.


author: BROCK, Justice.

text:
    George W. DEHOFF, Harry Belcher, for and on behalf of the Registered Voters of Rutherford County, Tennessee, and Ben Hall McFarlin, Sr., Appellants, v. ATTORNEY GENERAL, State of Tennessee, Secretary of State, State of Tennessee and Rutherford County Election Commission, Defendants, John T. Bragg, Intervening Defendant, Appellees.
    Supreme Court of Tennessee.
    April 17, 1978.
    H. Francis Stewart, Stewart, Ester & Donnell, Nashville, for appellants; Jack G. Heffington, Ben Hall McFarlin, Jr., Richard E. Leddy, Jim K. Duncan, Murfreesboro, of counsel.
    John R. Rucker, Rucker & Rucker, Wm. T. Sellers, Smith & Sellers, Murfreesboro, for appellees.
   OPINION

BROCK, Justice.

The plaintiffs have appealed from the action of the trial court dismissing their suit for a declaratory judgment upon the ground that it was an election contest and as such was barred by the ten day period of limitations prescribed for filing of election contests by T.C.A., § 2-1705.

The controversy grows out of the enactment of a private act applicable only to Rutherford County, Chapter 187 of the Private Acts of 1974, which, as stated in its caption, was intended “to relieve the county judge of all judicial functions, powers and responsibilities and to transfer those functions to the Court of General Sessions; and to fix the term of office of the County Judge and his compensation.”

Sections 1 and 2 of the Act changes the nature of the office of the County Judge, as described in the caption, and Section 3 reduces the term of the office from eight to four years, providing that:

“After the first day of September, 1974, the term of office of the County Judge of Rutherford County shall be four years, and an incumbent shall hold the said office until his successor is duly elected and qualified.”

Section 4 of the Act provided that it should become effective only upon approval of a majority of those voting in a special election and provided that:

“The ballots used in the election shall have printed on them — For a four year term for Rutherford County Judge or Against a four year term for Rutherford County Judge. . . . ”

It is noted that the question thus required by the Act to be printed upon the ballot made no reference to the change in the nature of the office of the County Judge, i. e., that all judicial functions, powers and responsibilities were to be transferred from the office of County Judge to the Court of General Sessions.

Pursuant to this private act a referendum election was held in Rutherford County on May 2, 1974, in which the official ballot presented the question as follows, to wit:

“Election submitted to the people of Rutherford County to change the term of Rutherford County Judge from an eight year term to a four year term.
“FOR four year term Rutherford County Judge EH
“AGAINST four year term Rutherford County Judge” EH

The majority of the votes cast in this referendum election were FOR the question thus submitted to the voters.

On August 23, 1974, more than three months following the election of May 2, 1974, this action was filed by two citizens of Rutherford County, for and on behalf of the registered voters of the county, contending: (1) that the election was invalid because the question submitted, as set out above, was inadequate and misleading and violated T.C.A., § 2-514(e), and Article XI, Section 9, Constitution of Tennessee, in that it failed to contain any reference to the fact that, in addition to changing the term of the County Judge, the Act also had the effect of transferring all judicial functions, powers and responsibilities of the County Judge to the Court of General Sessions and (2) that the Act violated Article VI, Section 4 of the Constitution of Tennessee which fixes the term of the office of the County Judge at eight years.

The relief prayed by the plaintiffs was that the referendum election of May 2, 1974, be adjudged to be a void election, that the Act, Chapter 187 of the Private Act of 1974, be declared unconstitutional for the reasons above stated and that “the status of the law as pertains to the office of County Judge of Rutherford County be declared to be that as existing prior to the May 2,1974, special referendum, and that such status be continued until such time as altered by the legislature.”

At the direction of the Chancellor, the Honorable Ben Hall McFarlin, Sr., who had been elected to the office of County Judge of Rutherford County in an election held subsequent to the referendum, intervened in the action and adopted the position of the original plaintiffs.

The defendants denied that the act was in violation of any of the statutory or constitutional provisions as alleged, denied that the ballot was misleading or deceptive in any way and asserted that the referendum election was valid in all respects. The intervening defendant, John T. Bragg, defended upon the further grounds that the complaint should be dismissed because it amounted to an election contest and was not filed within ten days following the election, as required by T.C.A., § 2-1705, and that the plaintiffs did not have standing to maintain an election contest under the provisions of T.C.A., § 2-1701.

The Chancellor heard evidence and argument of counsel and determined that the action was in reality an election contest and as such was required by T.C.A., § 2-1705, to be filed within ten days following the election and, since this action was not filed within that period of time, dismissed- the plaintiff’s suit. The Chancellor pretermit-ted all other questions raised.

Limitations statutes do not apply to declaratory judgments suits, as such, because a declaratory judgment action is a mere procedural device by which various types of substantive claims may be asserted. Luckenbach Steamship Co. v. United States, 312 F.2d 545 (2d Cir. 1963). Accordingly, it is necessary to ascertain the nature of the substantive claims sought to be asserted in a declaratory judgment action in order to determine the appropriate statute of limitations. And, if a special statute of limitations applies to a special statutory proceeding, such as an election contest, it will be applied when a declaratory judgment action is employed to achieve the same result as the special proceeding. Finlayson v. West Bloomfield Township, 320 Mich. 350, 31 N.W.2d 80 (1948); Campbell v. Nassau County, 273 App.Div. 785, 75 N.Y.S.2d 482 (1947); 22 Am.Jur.2d Declaratory Judgments § 78 (1965).

Accordingly, in the case at bar, it is clear that insofar as the plaintiffs seek to contest the election of May 2, 1974, the applicable period of limitations is the ten days period prescribed by T.C.A., § 2-1705, and since the suit was not filed within that ten day period, it is, to that extent, barred as held by the Chancellor.

The election code of this State does not specifically define “election contest.” However, in Hatcher v. Bell, Tenn., 521 S.W.2d 799 (1974), this Court, speaking through Mr. Justice Cooper, has given a broad interpretation to the words “election contest” as they are used in the election code. Thus, we said:

“There is no question but that a suit which attempts to go behind the election returns, to recount the votes or otherwise assail the manner and form of the election is an election contest. (Citations omitted.) But an election contest is not limited to an attack on the integrity of the election process, nor is it limited to an attack by a candidate who makes claim to the office. .
‡ ‡ ‡ ⅜ ⅜ ‡
“The election contest statute gives to the unsuccessful candidate the right to contest the validity of the election by suit filed within ten days of the election, without limitation to any specific ground or grounds of contest. We are not inclined to restrict judicially the grounds of contest to eliminate therefrom a challenge to the validity of an election predicated on the constitutional disqualification of the successful candidate at the time of election.” (Emphasis added.) 521 S.W.2d at 801, 803.

We also said in the Hatcher case that the target of an election contest is the validity of the election.

Subsequently, in Rodgers v. White, Tenn., 528 S.W.2d 810 (1975) we held that an action in which the plaintiffs sought to invalidate a referendum election upon the ground that the question submitted to the voters did not comply with the requirements of T.C.A., § 2-514(e), was an election contest rather than a quo warranto proceeding and upon this point Mr. Justice Fones, speaking for the Court, said:

“We agree with the Chancellor that the gravamen of this action is analogous to Hatcher v. Bell, (citation omitted) wherein the constitutional disqualification of the successful candidate to hold office was asserted as a ground to void the election.” 528 S.W.2d at 811.

By our decisions in Hatcher and Rodgers, supra, we are committed to the broad proposition that insofar as an action seeks a judicial determination that an election is invalid, whatever the cause of invalidity, it is an election contest and, thus, subject to the requirements of the election code for such contests.

Applying these principles to this case, we conclude that, except for the claim that the Act in question violates Article VI, Section 4, Constitution of Tennessee, by reducing the term of the County Judge from eight to four years, the claims asserted by the plaintiffs amount to an election contest which was not filed within the ten days limitation period for such contests. Moreover, since the referendum election ratifying the act is now incontestable and the Act has the effect of transferring all judicial functions, powers and responsibilities from the office of County Judge to the Court of General Sessions, the office of County Judge of Rutherford County ceased to be a court within the meaning of Article VI, Section 4 of the Constitution. Hence, the reduction of the term of the “County Judge” from eight to four years is permissible.

The decree of the Chancellor is affirmed. Costs are taxed to the appellants.

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


author: CARNEY, Presiding Judge.

text:
    Faitha Greenwood RIMEL et al., Plaintiffs-Appellants, v. Richard FULTON et al., Defendants-Appellees.
    Court of Appeals of Tennessee, Western Section.
    July 8, 1976.
    Certiorari Denied by Supreme Court Oct. 4, 1976.

      Carl P. McDonald, Goddard & Gamble, Maryville, for plaintiffs-appellants.
    W. Henry Ogle, Sevierville, Marsh T. McCoy, Gatlinburg, for defendants-appel-lees.
   CARNEY, Presiding Judge.

The Plaintiffs-Appellants, Faitha Greenwood Rimel, et al., filed suit for the sale for division of a 15-acre tract of land originally owned by Gertrude Fulton. Defendant-Ap-pellee, Mrs. John (Elizabeth) James was in possession of the property under a contract of purchase from two of the heirs of Gertrude Fulton.

The Chancellor found that the Defendant-Appellee, Mrs. James, and her deceased husband entered possession of the property about 1970 in good faith under the assumption that they could purchase the property for $2,700 and that the instruments attempting to convey interests in the property did not constitute valid conveyances to the Defendant-Appellee, Mrs. James. The Chancellor further found that the Appellee and her husband did expend money in constructing a house on the property which enhanced the value of the property even though the Special Master’s report indicated that the shack did not enhance the value of the property.

The Chancellor held that the Defendant-Appellee was not liable for any rent on the property during the period which she had occupied it because the Plaintiffs-Appellants had slept on their rights and had not asked for any rents. The Chancellor awarded the Defendant-Appellee, Mrs. James, the sum of $1,100 representing the cost of excavating a basement and the construction of the house upon the property. The Plaintiffs have appealed and assigned errors.

George and Gertrude Fulton purchased the property in 1940. George died before Gertrude. Gertrude Fulton died sometime prior to 1949 when her will was probated. In her will she ordered the property sold and the money divided among her seven children several of whom have died prior to the present litigation. The property lay vacant form 1949 to 1970 when the Defendant Elizabeth James and her husband attempted to buy the property at a price of $2,700. Two heirs, Bun Fulton, son of Gertrude Fulton, and George Fulton, a grandson, signed a statement on the back of Gertrude’s deed stating that they sold their interests to Mrs. James and her husband. Their contracts were notarized but not acknowledged in the form of the statute.

There is some doubt whether any of the $2,700 was ever paid. Mrs. James and her husband, who were junk dealers, moved a two-room house onto the property, dug a basement, added three more rooms to the house and a pump to the well. The house was wired for electricity. The house had no inside plumbing. Mr. and Mrs. James did most of the labor themselves. They also placed some gravel in the roadway. Defendant-Appellee Mrs. James estimated the value of the property to be $5,000 with the house and $3,000 without the house. Other of her witnesses estimated the replacement value of the house to be $3,500.

The Special Master, who was in the real estate business, valued the 15 acres at $7,000 without the house and valued it slightly less than $7,000 with the house on the property. Defendant Mrs. James produced bills showing expenditures on the house of approximately $1,200.

Assignment of error No. V that the Trial Judge erred in finding that the Defendant entered upon the property in good faith upon the assumption that they had purchased the property for $2,700 is respectfully overruled.

We find no merit in assignment of error No. Ill that the Trial Court erred in considering incompetent evidence as to the value of the premises and the improvements placed thereon. Assignment of error No. Ill is, therefore, respectfully overruled.

Assignment of error No. II is that the Court erred in awarding $1,100 to the Ap-pellee for excavation of a basement and construction of the house upon the property. The Plaintiffs insist that the value of labor and materials expended in making improvements is not a sufficient measure for ascertaining the value of the improvements; that the proof must show the actual permanent enhanced value of the land, citing Vaughan v. Cravens, 38 Tenn. 108, 73 Am.Dec. 163 (1858), and Fisher v. Edington, 85 Tenn. 23, 1 S.W. 499 (1886).

The Trial Judge did not determine the value of the property but merely ordered a sale of the property.

Rule 53.04(2) of Tennessee Rules of Civil Procedure expressly provides that in non-jury actions “. . . The court after hearing may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions.” We hold that His Honor the Chancellor was not bound by the testimony and finding of the Master that the house built by the Defendant-Appellee on the property in question did not enhance the value of the property. His Honor the Chancellor was legally empowered to and did find that the house, as a matter of fact, did enhance the value of the property. Assignment of error No. II is respectfully overruled.

By assignment of error No. I the Plaintiffs insist that the Trial Court erred in not confirming the report of the Special Master on motion of the Plaintiffs after the Defendant-Appellee had filed no objection to the report.

The Master’s report did not set out the evidence heard by the Master. The Master relied upon a letter of an attorney to establish the interests of the parties in the land. The report was in the form of a letter stating that the property could not be partitioned in kind; that the value was $7,000; and that there was no enhanced value to the property as a result of placing the building thereon.

After Plaintiffs’ attorney asked the Court to confirm the report of the Special Master, the Chancellor stated that he would hear proof on Proposition Four, namely, that the house did not enhance the value of the property. His Honor the Chancellor was well within his authority in hearing additional evidence concerning the enhanced value under Tennessee Rules of Civil Procedure 53.04(2). Assignment of error No. I is, therefore, respectfully overruled.

Finally, by assignment of error No. IV Appellants contend that the Chancellor erred in finding that the Plaintiffs slept on their rights during the occupancy of the premises by the Defendant and that the Defendant Mrs. James and her husband made a good faith effort to ascertain and purchase the interests of all of the devisees of Gertrude Fulton. Two of the parties interested in the property signed a written statement purporting to sell their interest in the property. Several other devisees agreed to sell. The parties were so numerous and their interests so uncertain, Mrs. James and her husband were never able to complete the purchase of the property. No one ever asked them to. pay any rent. As an illustration of the complex state of the title we quote from the letter of Attorney Wynn to the Special Master as follows:

“8. One-seventh (¼) to the brothers and sisters and the children of predeceased brothers and sisters of Ida Dogan, who are the children of Ruth Brabson, a deceased sister; the children of Jossie McBee, a deceased sister; Abe Fulton; Alec Fulton; widow of Bunn Fulton-Lillian Fulton; and the widow and children of Richard Fulton; Faitha Greenwood; and Lum Fulton.”

Plaintiff’s proof of the rental value of the premises during the five-year period of Plaintiff’s occupancy was limited to the testimony of the Special Master. The Master fixed the rental at $70.00 per month for five years or $4,200. He said he figured the owners ought to get ten percent on their investment. In reality, $70.00 per month amounts to twelve percent on $7,000.

There is no proof that the property had been worth $7,000 during all of the five years that Mrs. James and her husband had occupied it. The proof was that it was worth from $2,000 to $3,000. Some of the heirs had agreed to sell it for $2,700. There was no proof that the property had been rented or could have been rented for any amount of money from 1949 until the Defendant-Appellee and her husband built the house after 1970.

We find that the evidence does not preponderate against the Chancellor’s finding. Assignment of error No. IV is respectfully overruled.

The decree of the lower Court is in all things affirmed. The costs of this appeal are taxed against the Plaintiffs. The cause will be remanded to the lower Court for further proceedings consistent with this opinion.

MATHERNE and NEARN, JJ., concur.


text:
    Louise WATKINS, Plaintiff-Appellant, v. Dr. John M. RUSSELL, Jr., Defendant-Appellee.
    Court of Appeals of Tennessee, Western Section.
    Aug. 10, 1976.
    Certiorari Denied by Supreme Court Nov. 29, 1976.

      James H. Hicks, George C. Harrison, Memphis, for plaintiff-appellant.
    James F. Eggleston, Buchignani & Greener, Memphis, for defendant-appellee.
   CARNEY, Presiding Judge.

Plaintiff Louise Watkins brought suit for herself and her four adult children for damages resulting from the alleged wrongful death of her husband, David Watkins. She alleged malpractice by Defendant Dr. John M. Russell, Jr. as the cause of death. The Trial Judge directed a verdict in favor of the Defendant at the conclusion of the Plaintiff’s proof and the Plaintiff has appealed and assigned errors.

The Defendant had been the family physician for the deceased, David Watkins, aged 52, for a considerable period of time prior to his death on May 19, 1973. Plaintiff’s proof established that the Defendant knew that David Watkins had a heart condition; that the Defendant had previously run an EKG on him; and on May 18, 1973, about 10:00 A.M. David Watkins’ daughter, Elizabeth, carried him to Defendant’s office for examination and treatment; the deceased was suffering from severe chest pains, pains in the left arm, and a swollen stomach; Elizabeth Watkins asked the Defendant Russell to get David Watkins into a hospital for emergency treatment; the Defendant Russell seemed unconcerned about his condition, prescribed some medicine for David Watkins and sent him home.

After reaching home and taking the medicine, David Watkins’ condition grew worse; the family tried all during the day to get in touch with the Defendant Dr. Russell; finally, in the late afternoon of May 18,1973, they talked to Dr. Russell by telephone and insisted that David Watkins was in extre-mis and needed to go to a hospital. Dr. Russell then gave the Plaintiff the number of Dr. Thomas Stern, a heart specialist; Dr. Stern was called and shortly thereafter David Watkins was admitted to the hospital about 5:30 P.M. May 18, 1973. Dr. Stern saw him immediately upon arrival. David Watkins died in the hospital about 10:30 A.M. on May 19, 1973.

Plaintiff relied upon the deposition of Dr. Thomas N. Stern who testified that David Watkins died as a result of a massive heart attack. Dr. Stern was asked if he felt that if David Watkins had been hospitalized by Defendant about ten or ten-thirty on the morning of May 18, 1973, his chances of overcoming the heart attack and surviving would have been better. Dr. Stern made the following reply:

“This is an extremely difficult question to answer. And my first inclination is simply to give you a flat — it probably wouldn’t have made any difference when he got in. I think there is some possibility that it would have made a difference, and, yet, from his condition when I saw him, from the size of the attack, from the fact that his heart got progressively weaker, even in the hospital, on usual and extraordinary treatment, I would think it probably wouldn’t have made any difference.”

The Trial Judge made the following statement in granting the motion for directed verdict:

“The Court has listened to this testimony, and it comes down to a Motion for a Directed Verdict. I have the duty of taking the proof, of taking all the proof in favor of the Plaintiff, and putting aside all countervailing proof and giving the Plaintiff the benefit of all reasonable inferences, and deciding whether or not we have an issue of fact here on the question of liability, and that’s a very serious duty. It’s as serious, or more serious where we have a professional man involved, as to whether or not a case has been made out.
Now, I’m of the opinion in the present state of the record that Mr. Eggleston’s Motion is well taken.
Now, even if I weren’t of that opinion, Mr. Hicks and Mr. Harrison, as the thirteenth Juror, whatever verdict that Jury brought back for the Plaintiff, I’d never let it stand, and I’m going to tell you why.
I’m first of all holding that Mr. Eggle-ston’s Motion is well taken because the proof does not show proximate cause for any act that the doctor did or failed to do. I want the record to be clear that that is why I’m granting the Motion, but I want it also stated here in the record, that there’s no way that Doctor Russell, as an ordinary, reasonable human being, with the description that Ms. Elizabeth, bringing her father to his office, the pain he was in, the perspiration, the swollen stomach, could hardly walk, helped him back to the treatment room, giving him an EKG, staying there with him, working with him an hour or hour and a half, maybe two hours; you’re going to tell me the doctor didn’t tell her to get him to the hospital? No way, no way; absolutely unreasonable, unbelievable, and as a thirteenth Juror, I could never approve the verdict.
I’ll grant the Motion.”

Assignment of error No. I insists that the Trial Judge was in error in granting the motion for a directed verdict and in finding that the negligence of Dr. Russell was not the proximate cause of the death of David Watkins. The substance of Dr. Stern’s testimony was that if David Watkins had been hospitalized on the morning of May 18, it possibly could have improved his chances of survival but very probably would not have. The small possibility of survival admitted by Dr. Stern precludes a finding by the jury that Dr. Russell’s negligence was a proximate cause of death. See Crowe v. Provost (1963), 52 Tenn.App. 397, 374 S.W.2d 645; Stewart v. Crook Sanatorium (1933), 17 Tenn.App. 589, 69 S.W.2d 259; Pulaski Highway Express, Inc. v. Terminal Transport Co., Inc. (1973 Tenn.App.M.S.) 493 S.W.2d 103. Assignment of error No. I is respectfully overruled.

Assignment of error No. II is that His Honor the Trial Judge erred in applying a different rule of law insofar as the Plaintiff’s burden of proof is concerned because the Defendant was a professional man. The assignment of error is predicated upon the portion of the statement of the Trial Judge in granting the motion for directed verdict that it was a very serious duty on the part of the Court to determine whether or not the motion should be granted and the further statement: It’s as serious or more serious where we have a professional man involved, as to whether or not a case has been made out.”

We know of no rule of law and of no cases designating suits against professional men as more serious than other suits. However, we find no reversible error in the statement by His Honor the Trial Judge. Therefore, assignment of error No. II is sustained without reversal.

Assignment of error No. Ill insists that the Court erred in making a statement, in substance, that he did not believe the testimony of David Watkins’ daughter, Elizabeth, that Defendant Dr. Russell failed and refused to send David Watkins to a hospital after his examination on the morning of May 18 and that he, the Trial Judge, would never approve the verdict as the thirteenth juror. It was unnecessary to a decision of the motion for directed verdict for His Honor the Trial Judge to make such statement. However, we cannot hold him in error for stating his views on the evidence which he had heard. It was not before a jury. Assignment of error No. Ill is respectfully overruled.

Assignment of error No. IV complains of the action of the Trial Judge in sustaining Defendant’s objections and striking the following question and answer from Dr. Stern’s deposition:

“Q But it possibly could have?
“A There is some possibility. I can’t deny a possibility. I believe that his course was determined more by the location of the blockage, which determined the degree of damage, rather than any subsequent damage.”

In portions of his deposition which were admitted, Dr. Stern made the statement that because of the weakness of the heart, decedent’s chance of mortality in the hospital was ninety percent or possibly ninety-five percent. Dr. Stern’s entire deposition was before the Trial Judge and before this Court. No verdict of the jury is involved. We find no abuse of discretion on the part of the Trial Judge in striking the particular question and answer.

Assignment of error No. V complains of the action of the Trial Judge in sustaining the Defendant’s objection to other portions of the deposition of Dr. Stern.

The Plaintiff had established in the discovery deposition of Dr. Russell that Dr. Russell had made no notation on his office records that he had run an EKG on David Watkins on April 10 and had made no notation that he had advised David Watkins that he was having a myocardial infarction and no notation that he had advised him to go to the hospital. Dr. Russell had stated that he had not completed his office notes as a result of a visit by the deceased on April 11, 1973, because he got busy with other patients. The questions and answers stricken from Dr. Stern’s deposition complained of in assignment of error No. V related to Dr. Stern’s testimony that if he had examined the patient for heart attack and had run an EKG and determined that the patient had myocardial infarction, he, Dr. Stern, would have made note of such facts on his records.

The stricken testimony was admissible only to show negligence. In considering the motion for directed verdict the Trial Judge was required to take Plaintiff’s proof of negligence by Dr. Russell as true and discard the denial of negligence by Dr. Russell. The stricken testimony did not relate to proximate cause which was the predicate of the directed verdict. Therefore, there was no reversible error in striking the testimony. Assignment of error No. V is overruled.

All the assignments of error are respectfully overruled and the judgment of the lower Court is affirmed. The costs in the Court below and in this Court are taxed to the Plaintiff.

MATHERNE and NEARN, JJ., concur.


text:
    STATE of Tennessee ex rel. Edward B. PEEL, Plaintiff-Appellee, v. SHELBY COUNTY, Tennessee and the Members of the Shelby County Quarterly Court, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    Oct. 13, 1976.
    Rehearing Denied Dec. 14, 1976.
    Certiorari Denied by Supreme Court March 28, 1977.
    Certiorari Denied by U. S. Supreme Court on Jan. 6, 1978.
    C. Cleveland Drennon, Jr., County Atty., J. Minor Tait, Jr., Asst. County Atty., Memphis, for defendants-appellants.
    Edward B. Peel, Memphis, for plaintiff-appellee.
   CARNEY, Presiding Judge.

Plaintiff and Relator, Edward B. Peel, a citizen of Shelby County, Tennessee, brought this suit alleging that the present plan of apportionment providing for some justices of the peace to be elected from the county at large is illegal. Plaintiff contends the plan is a violation of Article 6, Section 15, of the Tennessee Constitution and T.C.A. Sections 19-102 and 19-103. Plaintiff’s suit is predicated entirely upon the recent case of State ex rel Jones et al. v. Washington County, Tennessee et al., Court of Appeals of Tennessee, Western Section, decided January 22, 1973, affirmed by the Tennessee Supreme Court July 15, 1974, reported in 514 S.W.2d 51. Defendants, members of the Shelby County Quarterly Court, contended that State ex rel. Jones v. Washington County is not controlling because the Shelby County apportionment plan was specifically approved as being constitutional in Hyden v. Baker (D.C. 1968), 286 F.Supp. 475, decision by a Three Judge Federal District Court, whereas the apportionment plan of Washington County declared illegal in State ex rel. Jones v. Washington County was adopted in 1972 and had not been previously approved by any court other than the Chancery Court of Washington County.

Both parties filed motion for summary judgment. The Chancellor granted Plaintiff’s motion for summary judgment on the authority of State ex rel. Jones v. Washington County and ordered the Defendants to submit a plan of redistricting the Shelby County Quarterly Court after the present litigation has been finally determined by the appellate courts.

By their three assignments of error the Defendants make the same contention as made in the Court below.

The Shelby County apportionment plan divides the county into seven substantially equally populated districts. From each district one justice of the peace is elected and then the entire county is designated as justice of the peace districts 8, 9, 10, and 11. From each of these four districts, one justice of the peace is elected by all the voters of Shelby County.

The apportionment plan for Washington County, Tennessee, held illegal in State ex rel. Jones v. Washington County provided for sixteen separate civil districts, two justices being elected from each district for a total of thirty-two, plus eleven justices of the peace to be elected from the county at large for a total of forty-three justices of the peace.

Article 6, Section 15, of the Constitution and T.C.A. Sections 19-102 and 19-103, provide as follows:

Article 6, Section 15: “Districts in counties — Justices and constables — Number— Term — Removal from district. — The different Counties of this State shall be laid off, as the General Assembly may direct, into districts of convenient size, so that the whole number in each County shall not be more than twenty-five, or four for every one hundred square miles. There shall be two Justices of the Peace and one Constable elected in each district by the qualified voters therein, except districts including County towns, which shall elect three Justices and two Constables. The jurisdiction of said officers shall be co-extensive with the County. Justices of the Peace shall be elected for the term of six, and Constables for the term of two years. Upon the removal of either of said officers from the district in which he was elected, his office shall become vacant from the time of such removal. Justices of the Peace shall be commissioned by the Governor. The Legislature shall have power to provide for the apportionment of an additional number of Justices of the Peace in incorporated towns.”
T.C.A. Section 19-102: “Rural districts.— For each district of every county, except those districts including county or incorporated towns, two (2) justices of the peace shall be elected by the qualified voters therein.”
T.C.A. Section 19-103: “Districts including county towns. — For every other district in the state which includes a county town, three (3) justices of the peace may be elected by the qualified voters therein.”

“At large” districts have been approved by the United States Supreme Court as complying with the one-man, one-vote, rule. Dallas County, Alabama v. Reese (1975), 421 U.S. 477, 95 S.Ct. 1706, 44 L.Ed.2d 312; Dusch v. Davis (1967), 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656; Reynolds v. Sims (1964), 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, Rehearing De nied October 12, 1964, 379 U.S. 870, 871, 85 S.Ct. 12, 13, 13 L.Ed.2d 76, is authority for the general statement that where there is an unavoidable conflict between the Federal Constitution and a State Constitution, the supremacy clause controls in favor of the United States Constitution. The cases of Sudekum v. Hayes (6 Cir. 1969), 414 F.2d 41; Hyden v. Baker (and Bennett v. Elliott) (1968), 286 F.Supp. 475, were discussed in our opinion in State ex rel. Jones v. Washington County.

In the case of Seals v. The Quarterly Court of Madison County, Tennessee, decided April 9,1976, the U. S. District Court for the Western District of Tennessee at Memphis, Honorable Harry Wellford, District Judge, held that the 1968 reapportionment plan by Madison County, Tennessee, under which justices of the peace were elected at large was illegal under Tennessee law, to-wit, Jones v. Washington County. See also Seals v. Quarterly Court of Madison County, 526 F.2d 216 (6th Cir. 1975).

We find no material difference between the apportionment plan of Washington County and the apportionment plan of Shelby County involved in this litigation. We repeat our statement from Jones v. Washington County, supra, “. . . the election of Justices of the Peace from the county at large is impliedly forbidden by Article 6, Section 15, and T.C.A. Section 19-102 and 19-103.” Under T.C.A. Section 5-111 Plaintiff Relator is entitled to relief by mandamus if necessary to require the reapportionment of the Shelby County Quarterly Court so as to meet both federal and state law. Bradley v. State ex rel. Haggard (1969), 222 Tenn. 535, 438 S.W.2d 738.

The assignments of error are respectfully overruled, the judgment of the lower Court is affirmed, and the cause is remanded to the Chancery Court of Shelby County. The costs of this appeal are taxed to the Appellants.

MATHERNE and NEARN, JJ., concur.

PETITION TO REHEAR DENIED

The Appellants, Shelby County, Tennessee, et al., have filed a Petition to reconsider our opinion filed in this cause of date October 13, 1976.

The Petitioners insist that State ex rel. Jones v. Washington County (Tenn.App.1973), 514 S.W.2d 51, is not controlling of the case at bar because the apportionment plan of Washington County had never been approved by the Federal Court whereas the apportionment plan adopted by the Quarterly County Court of Shelby County was approved by the United States District Court in Hyden v. Baker (1968), 286 F.Supp. 475. We hold that approval by a Federal Court is not a determinative difference. Hyden v. Baker only approved the apportionment plan as it related to the Federal Constitution. It did not decide the issue of whether the plan violated the Constitution of Tennessee.

We adhere to our opinion that the apportionment plan discussed in our opinion is in violation of Article 6, Section 15, of the Constitution of the State of Tennessee. The Petition to Rehear is respectfully denied at the cost of the Appellants.

MATHERNE and NEARN, JJ., concur.


author: DAUGHTREY, Judge.

text:
    Andrew T. WHITNEL, III, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Jan. 5, 1978.
    Certiorari Denied by Supreme Court April 10, 1978.

      E. Lee Allen, Nashville, for appellant.
    Brooks, McLemore, Jr., Atty. Gen., Henry E. Hildebrand, III, Asst. Atty. Gen., Harold B. McDonough, Jr., Ronald E. Miller, Asst. Dist. Attys. Gen., Nashville, for appellee.
   OPINION

DAUGHTREY, Judge.

The defendant-appellant, Andrew T. Whitnel, III, was convicted of possession of a controlled substance (heroin) with the intent to resell and of simple possession of a controlled substance (a variety of pills), for which he received sentences of five to ten years and eleven months, twenty-nine days, respectively. On appeal he challenges: (1) the sufficiency of the evidence to support the jury’s verdict, (2) the alleged excessiveness of the sentences imposed, and (3) the validity of the police search of his automobile that resulted in the seizure of the controlled substances involved in his prosecution. We find no reversible error on these grounds, and we affirm the convictions.

Two local police officers in a patrol car first spotted the defendant’s automobile at 4:00 A.M., parked next to another car in the otherwise empty parking lot of a closed-down motel. Because of the late hour and the location of the two vehicles in what the officers described as a high crime area, they decided that further investigation was warranted. When the police officers approached the two automobiles, the vehicles were driven off in opposite directions and the officers fell in behind the defendant’s car, an early model station wagon. Instead of stopping the car immediately, the officers continued to follow it for some distance. Both officers testified at trial that when the station wagon came to a halt at the first stop sign on its route, they noticed that the brakelights on the rear of the vehicle were not working. On the basis of this apparent violation of T.C.A. § 59-905, the officers stopped the vehicle by use of their emergency equipment, and the defendant emerged from the driver’s side of the car, while his female companion remained in the vehicle.

While one of the officers took down information concerning the defendant’s driver’s license, etc., and questioned him about a pump shotgun lying in view on the rear seat of the station wagon, the second officer made a cursory visual inspection of the interior of the vehicle and spotted a second weapon, a rifle. Both the shotgun and the rifle were loaded. The officers immediately arrested the defendant for violation of T.C.A. § 39-4901, carrying a weapon for the purpose of going armed.

One of the officers testified that upon further inspection of the car, he saw an amber-colored commercial pill bottle “sticking about halfway out from under the front seat [on the driver’s side], with aluminum foil ... a little package of aluminum foil wrapped up inside of it, which [he] suspected to be heroin . . .,” based on his training at the local police academy. The officer retrieved the pill bottle and found that it actually contained thirteen small foil-wrapped packets. A similar pill bottle found underneath the same seat contained an assortment of pills, which were later analyzed as Schedule II drugs. Tests showed that each of the thirteen foil packets contained heroin.

The weapons charge was subsequently abandoned by the prosecution.

One month prior to trial on the narcotics charges, the defendant filed a motion to suppress the drugs seized by the police, alleging lack of probable cause to stop the automobile driven by the defendant at the time of his arrest. There is no indication that this motion was ever ruled on prior to trial, nor was it reviewed at the beginning of the trial or at anytime prior to introduction of the evidence in question. During the trial the defendant attempted to show by cross-examination of the State’s witnesses that the drugs belonged to his companion rather than to him. This effort was thwarted by the officers’ testimony concerning the events surrounding the arrest, including the defendant’s on-the-scene statement that the narcotics were his and not his passenger’s.

The defendant did not contest the volun-tariness or truthfulness of this admission. He did, however, contest the accuracy of the officers’ testimony that his brakelights were not working on the night in question. The defendant offered testimony from members of his family that the brakelights were operational two days after his arrest, while the automobile was still impounded at the police tow-in lot. Pictures taken by the defendant at that time were introduced, purportedly showing the brakelights in operation. But a review of the exhibits leads us to conclude that the photographs do not clearly depict what they are alleged to demonstrate. Furthermore, the defendant’s own testimony concerning the brakelights on his car was for some unexplained reason heard outside the presence of the jury.

The defendant made no contemporaneous objection to the introduction of the drugs, nor did he attempt to impeach the officer’s testimony that the pill bottle containing heroin was lying on the floorboard of the automobile “in plain view.” At the end of the State’s case he made a three-pronged motion for a directed verdict, alleging inter aim that the State had made “no presentation of probable cause for the stopping of the vehicle and the subsequent arrest and search.” The defense attorney did not argue his motion, there was no response from the State, and it was perfunctorily overruled by the trial judge. At the end of all the proof, the attorney asked, “Could I renew all previous motions?” To this the trial judge replied, “All right. Let them all be overruled.” The defendant later raised the Fourth Amendment question in his motion for a new trial and has brought it before this Court by assignment of error on appeal.

The record demonstrates to our satisfaction that the defendant abandoned his motion to suppress the narcotics involved in this case when (1) he failed to enter a contemporaneous objection to their introduction into evidence, and (2) he did not adequately press that portion of his motion for a directed verdict related to this issue. Given this state of the record, we are left greatly in doubt as to whether or not the trial judge ever made a conscious and specific ruling on any facet of the search and seizure issue now raised on appeal. This doubt could have been avoided if the defendant’s attorney had made timely objection to the introduction of the evidence in question.

Under the contemporaneous objection rule, “errors, to which no objections are made and exceptions taken in the court below, cannot be raised on appeal.” Ezell v. State, 220 Tenn. 11, 413 S.W.2d 678, 681 (1967). Both the state and federal courts have long recognized that “the rule requiring contemporaneous objection to the introduction of illegal evidence clearly serves a legitimate state interest.” Crawford v. State, 4 Tenn.Cr.App. 142, 150, 469 S.W.2d 524, 527 (1971); accord, Henry v. Mississippi, 379 U.S. 443, 448, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965); Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594, 608-09 (1977). The rule has also been held constitutional. Wainwright v. Sykes, supra 433 U.S. at 86, 97 S.Ct. at 2506, 53 L.Ed.2d at 608. Applied to the record before us, that rule prevents our review of the search and seizure question on its merits. We therefore overrule the defendant’s assignment of error attacking the legality of the evidence introduced in this case.

The remaining assignments of error are likewise without merit. The evidence, when measured by the relevant standard, is clearly sufficient to support the verdict. McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963). The sentences are within the limits prescribed by statute, and for this reason they cannot be said to be legally excessive. Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

The judgment of the trial court is affirmed.


text:
    Stuart James MEW et al., Petitioners, v. J & C GALLERIES, INC., Respondent.
    No. B-7060.
    Supreme Court of Texas.
    March 29, 1978.
    Ross, Griggs & Harrison, James E. Ross and Charles W. Kelly, Houston, for petitioners.
    William M. Jones, Dallas, for respondent.
   ON MOTION FOR REHEARING OF APPLICATION FOR WRIT OF ERROR

PER CURIAM.

In their motion for rehearing, petitioners again complain that there is no evidence to support the trial court’s finding of actual cash value. However, we agree with the court of civil appeals that the computer printout containing the purchase prices of the stolen goods does constitute some evidence of their actual cash value. We accordingly overrule the motion for rehearing.

We do not, however, agree with the language in the opinion which implies that this Court, in Crisp v. Security Nat’l Ins. Co., 369 S.W.2d 326 (Tex.1963), abolished any distinction for purposes of valuation between chattels possessed for the purpose of resale and chattels possessed solely for the comfort and well-being of the owner. In Crisp the Court stated:

The law of damages distinguishes between marketable chattels possessed for purposes of sale and chattels possessed for the comfort and well-being of their owner. In the instance of the former it judges their value by the market price. In the instance of the latter it measures their loss, not by their value in a secondhand market, but by the value of their use to the owner who suffers from their deprivation. The latter measure is employed in the case of household furniture, family records, wearing apparel, personal effects, and family portraits.

Actual cash value for marketable chattels, for which market value can be determined, is market value. When the market value of such property cannot be determined, or it is inadequate, then resort may be had to other factors to determine actual cash value.