author: NORWIN D. HOUSER, Special Judge. SMITH, Chief Judge

text:
    STATE of Missouri, Respondent, v. Marvin E. MILLER, Appellant.
    No. 36481.
    Missouri Court of Appeals, St. Louis District, Division Four.
    April 27, 1976.

      Carr L. Woods, Asst. Public Defender, Bowling Green, for appellant.
    James Millan, Pros. Atty., Charles L. Howard, Bowling Green, for respondent.
   NORWIN D. HOUSER, Special Judge.

Marvin E. Miller, convicted by a jury of burglary, second degree, and stealing, and sentenced to concurrent periods of two years for each offense, has appealed on the ground that there was no evidence placing appellant at or near the scene of the crimes at or near the time of the crimes, or that appellant had possession of, dominion over, knowledge of, or profited from, the stolen property.

We reverse the judgment of conviction for insufficiency of the State’s evidence, which follows: Sometime during the afternoon of December 4, 1973 appellant took several coonskins to the place of business owned and operated by Willard Magee in Eolia, Pike County for the purpose of selling them. In addition to the fur business Magee bought and sold ginseng root. The root business occupied the front part of the building. The fur operation was conducted in the rear. To get to the fur area it was necessary to pass through the root area. When appellant went through the root area on his way to the rear large quantities of ginseng root were open to view.- Appellant walked “near where the ginseng was.” Mrs. Magee was sorting the various kinds of ginseng roots. Some of the roots were enclosed in clear plastic bags; some in cloth bags; some were lying on the floor in bulk. Next morning, between 7 and 7:30, one of Magee’s employees discovered that a window of the room housing the ginseng root had been broken. The screen was cut, torn and hanging down. A door next to the window was standing open. At least 205 pounds of ginseng root, worth $66 to $72 per pound, were missing. Magee notified other dealers in the area of the theft. On Monday, December 10, Magee received a telephone call from one Bauer, a ginseng root dealer at Smithboro, Illinois, who stated that “they” had been at his place on Sunday and sold him some ginseng roots; that “they” had come back on December 10 and sold him some more. Bauer called Ma-gee again on December 11, reporting further sales. On these occasions “they” sold Bauer small quantities of roots, 2V2 or 4½ pounds each time. Magee called local Sheriff Willeford, who went to Bauer Fur Company and inspected the 1967 Chevrolet van in which the sellers had arrived. Looking through a window of the van the sheriff saw plastic bags with ginseng roots in them. The sheriff talked to appellant, who answered “Yes” to the question whether he had come to Bauer Fur Company with the “other people” in the van. The others were Charles, Abel, and Eddy Miller, brothers of appellant, and four girls. The van, recently purchased, was the property either of Charles, Charles’ wife, or both of them. Charles was the driver of the van. All eight were arrested by Sheriff Willeford. Charles Miller signed a waiver of search warrant. The sheriff searched the van, seized the bags of ginseng roots and later turned them over to Sheriff Jenkins of Pike County. Fern Burks positively identified three unbleached muslin sacks (seized during the search) containing ginseng roots as sacks made by her on her Singer sewing machine at the request of her husband, a dealer in ginseng roots. Burks had sold these sacks of roots to Magee during the fall of 1973. These three sacks and several other sacks introduced »in evidence were among those missing following the theft at Magee’s place of business. Smithboro, Illinois is located 100-120 miles from Eolia, Missouri.

Appellant did not testify or adduce any evidence.

When as here the evidence of an accused’s agency in connection with a crime is entirely circumstantial the facts and circumstances relied .on to establish guilt must not only be consistent one with another and consistent with the hypothesis of guilt, but also they must be irreconcilable and inconsistent with accused’s innocence, and must so satisfactorily and clearly point to his guilt as to exclude every reasonable hypothesis of innocence. State v. Thomas, 452 S.W.2d 160, 162 (Mo.1970); State v. Morse, 515 S.W.2d 608, 610 (Mo.App.1974).

That someone committed a burglary (the corpus delicti) was clearly established, but to fasten criminal agency on appellant a submissible case must be found in these facts: (1) appellant was on the premises the day before the burglary occurred, at which time he had an opportunity to observe the existence and whereabouts of the ginseng roots; (2) appellant was riding as a passenger with seven other persons in a van in which some of the stolen roots were found, 5 days later and 100-120 miles distant from the scene of the crimes. These facts do not make a submissible case of burglary and stealing. Lacking is evidence of the approximate time of the breaking and entering; that appellant or one or more of his brothers was seen at or near the scene of the crimes at or near the time of the breaking and entering, or some other evidence that appellant participated in the breaking and entering and removal of the roots as a principal, or aided and abetted others in the commission of the crimes; that appellant had guilty knowledge of the burglary and stealing; that appellant had possession, dominion over or control of the stolen property; that the ginseng roots were actually in the van at the time appellant was riding in the van; that appellant knew the roots were in the van and knew they were stolen property; that appellant accompanied the other seven persons in the van with the object and purpose of disposing of stolen property; that he participated in the sale of the roots or accepted some of the proceeds of the sales of the roots. None of the foregoing was established in this case. Appellant made no incriminating statement connecting him with the crimes; no contradictory statements to the officers; no effort to hide his true name and identity, and he did not attempt to flee.

Obviously, at some time the stolen property was placed in the Chevrolet van, but we may not infer from the fact that it showed up there on December 9 that it was placed in the van at the scene of the crimes on December 5, or that appellant placed it there or that he participated in the break-in and removal of the property and its transportation in the van from Eolia to Smith-boro. For all that appears the property could have been stolen by others without the knowledge or participation of appellant or his brothers, and acquired by him or them from the true thief in a wholly innocent transaction. That appellant was at the scene of the crimes on the previous afternoon and may have then observed the existence and whereabouts of the ginseng roots, or may have had an opportunity to commit the crimes, is not circumstantial evidence sufficient to justify a conviction. State v. Lane, 497 S.W.2d 207 (Mo.App.1973), and cases cited l. c. 209[2]. Other cases reversing larceny convictions of persons seen at or near the scene of the crime under suspicious circumstances, in which accused had an opportunity to commit the offense, are cited in State v. Irby, 423 S.W.2d 800, 803 (Mo.1968). Irby holds what we reiterate in this case, namely, that something more than mere presence at the scene of a crime must be shown; that it is necessary that accused shall have associated himself with the venture, affirmatively participated in the crime, forwarded the effort, or consciously shared in the act. In State v. Cheatham, 458 S.W.2d 336 (Mo.1970), a robbery case, appellant left the house in company with one of the robbers three hours before the robbery. He was seen in the store that was robbed two hours before the robbery, and was found six blocks from the store thirty minutes after the robbery. In reversing the conviction the court said, 458 S.W.2d l. c. 339, “With not one shred of eyewitness testimony to connect appellant with the robbery, those circumstances, standing alone, would obviously be inadequate to support a conviction of the appellant.”

The circumstances of this case do give rise to suspicion, especially in view of the close relationship between appellant and Charles Miller, the driver of the van, and the two other brothers riding in the van, but neither Bauer nor any of the Millers testified and there is no evidence from any other source as to the identity of the person or persons who sold the roots to Bauer. The jury may have inferred that Charles Miller, as owner and driver of the van and apparently the moving spirit, was knowingly in possession of stolen goods, and that it was he who sold the roots to Bauer Fur Company. The jury may have made the further inference that appellant was guilty by reason of his association with his brother Charles, but in State v. Cheatham, supra, 458 S.W.2d l. c. 339[2], and State v. Watson, 350 S.W.2d 763, 766[1] (Mo.1961), the Supreme Court eschewed an inference of guilt from association alone, and in State v. Belcher, 136 Mo. 135, 37 S.W. 800 (1896), reversed a conviction where it was clear that accused was convicted because of his association with his brother and the bad reputation of his family. “Strong suspicions are not sufficient to convict a person of a crime under our system of jurisprudence. It is necessary that there be some evidence, however slight, which would directly link appellant to the commission of the crime of which he is charged.” State v. Eye, 492 S.W.2d 166, 168 (Mo.App.1973). And see State v. Morse, supra, for the proposition that “a verdict based on suspicion, conjecture or on surmise, however strong, is not sufficient to permit a criminal conviction.” 515 S.W.2d l. c. 610.

The State contends that link is found in appellant’s possession of the stolen property; that there is sufficient possession to create a presumption that appellant was the burglar and thief since he was one of a number of persons found “in joint possession of stolen property.” The State relies on the cases of State v. Oliver, 355 Mo. 173, 195 S.W.2d 484 (1946); State v. Mesmer, 501 S.W.2d 192 (Mo.App.1973); State v. Cobb, 444 S.W.2d 408 (Mo. banc 1969), and State v. Farmer, 490 S.W.2d 72 (Mo.1973).

State v. Farmer supports appellant’s, not the State’s, position. Farmer was found in the back seat of an automobile driven by Owens, in which one Stanart was occupying the right front seat. On the floor of the back seat officers found a stolen cash register containing $81 in bills and other valuables. Farmer’s conviction of burglary and stealing the cash register was reversed on appeal. The court noted the same deficiencies in the proof we have pointed out in this case. Commenting that Farmer was not the owner or driver of the automobile and that there was no evidence that he exercised any control over it the court held Farmer not in exclusive possession of the cash register; that there was no more than a joint possession with Owens, owner of the vehicle, and perhaps with Stanart; and that “[wjhere there is only a joint possession of recently stolen property our recent affirm-ances have all contained something additional which ties defendant to the burglary and stealing.” Three examples were given. State v. Cobb was distinguished on the basis that Cobb was apprehended leaving the scene of the crime in a rapidly accelerating car, with the lights off and the police close behind; that in Cobb defendant “was shown to have been at the scene of the crime and had an opportunity to commit it in addition to being a passenger in the car transporting the stolen property,” so that the Cobb case “does not rest entirely on the fact of the stolen property being found in the same car as the defendant passenger.” 490 S.W.2d l. c. 74. Oliver and Mesmer are to be distinguished on the facts. In them there was other incriminating evidence pointing to defendant’s guilt in addition to possession of recently stolen property. The rule is that where “the possession [of recently stolen property] relied on to convict the defendant [of burglary and stealing or robbery] is joint with another, there must, at least, be some other evidence more than mere possession connecting defendant with the offense.” State v. Gonzales, 533 S.W.2d 268, 272[6] (Mo.App.1976). (Our brackets.) In Mesmer the court, at 501 S.W.2d l. c. 195[3], alluded to the necessity of there being “at least some additional facts connecting the defendant with the offense,” citing State v. Webb, 382 S.W.2d 601 (Mo.1964). That other evidence, referred to in Webb, may be “evidence that defendant, with conscious knowledge of the fact that the property was stolen, exercised dominion and control over it.” 382 S.W.2d l. c. 604[6]. Or it may be evidence of an incriminating nature, such as the dust found in the clothing of the four persons apprehended near the scene of the crime in State v. Heitman, 473 S.W.2d 722 (Mo.1971), denominated the “common denominator” which, together with other incriminating circumstances, “permitted] the inference that all four acted knowingly together in the joint and common enterprise * * The required additional facts tying and connecting appellant with the burglary and stealing are absent here. There is no showing that appellant knew the property was stolen; no proof that he exercised dominion and control over it, and no evidence of any common scheme, conspiracy or joint commission of the burglary and stealing by the eight persons arrested, so as to make the possession of one the possession of all (as in State v. Heitman, supra).

The judgment of conviction is reversed and the sentence set aside. Appellant asks for discharge but is not entitled to outright discharge as a matter of right “where the appellate court determines as a matter of law that the evidence is insufficient to support the judgment of conviction; in such case, unless it appears from the record that it would not be reasonably possible for the state to adduce sufficient evidence at another trial, the court should reverse the judgment and remand the cause for a new trial. [Citing 9 Missouri cases.]” State v. Patton, 308 S.W.2d 641 (Mo. banc 1958), followed recently in State v. Wade, 531 S.W.2d 726, 730[4] (Mo. banc 1976). See also State v. Sullivan, 454 S.W.2d 515 (Mo.1970), and State v. Gonzales, 533 S.W.2d, supra, l. c. 274. It not appearing from this record that it would not be reasonably possible for the state to adduce sufficient additional evidence at another trial to make a submissible case, the cause is remanded for a new trial. If sufficient evidence cannot be adduced the information should be dismissed and defendant discharged.

ALDEN A. STOCKARD, Special Judge, concurs.

SMITH, C. J., concurs in separate opinion.

SMITH, Chief Judge

(concurring).

I concur in the principal opinion because I believe it to be in accord with the law of this State as enunciated by the Supreme Court. I express here my grave reservations that an appellate court which finds insufficient evidence to make a criminal case has authority to remand for new trial to give the State an opportunity to present additional evidence. To me that is a violation of the rule against double jeopardy. Our decision here, in essence, holds that the trial court erred in not directing a verdict of acquittal. If the trial court had done what we say it should have done, double jeopardy would apply. If the State is unable to present sufficient evidence to establish defendant’s guilt, it should not have a second chance to do so whether the insufficiency is determined by the jury, trial judge, or appellate court. Obviously a different situation pertains where the reversal is upon the basis of error during the trial of the case. However, as the majority opinion holds, the position stated in this concurrence is contrary to the decisions of the Supreme Court of this State, so I must reluctantly concur in the disposition made.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jerry Lewis THOMAS, Defendant-Appellant.
    No. 36490.
    Missouri Court of Appeals, St. Louis District, Division 2.
    April 27, 1976.

      Richard H. Sindel, Asst. Public Defender, Clayton, Mo., for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Charles H. Howard, Asst. Attys. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Clayton, Mo., for plaintiff-respondent.
   STEWART, Judge.

A jury found defendant guilty of murder in the second degree (§ 559.020 RSMo. 1969) and fixed his punishment at fifteen years.

Defendant’s principal contentions are that the trial court erred (1) in permitting the prosecutor to ask the defendant’s witness if he had been convicted of juvenile delinquency; (2) in allowing a lay witness to testify that in her opinion the affray between defendant and the victim had terminated before the defendant shot the victim; and (3) in admitting dog tracking evidence without proper foundation.

Defendant does not challenge the sufficiency of the evidence. We briefly summarize the facts.

Defendant lived at 6228 Vetter with his mother, Mary Louise Jarrett, his stepfather Roosevelt Jarrett, his two younger sisters and the victim, Harvey Tenzsley, a nephew of Mrs. Jarrett. Defendant and Willie Malone, a friend, arrived at the house around 10:00 p. m. on June 25,1973. When defendant came into the house he and his mother had some heated words. Harvey Tenzsley came out of his bedroom about that time. He and defendant had some words with respect to the use of defendant’s record player. The defendant snatched the record player from the kitchen table, where Harvey had placed it, and ran to his own room. He was followed by Harvey who took the record player away from defendant. The defendant then went to the living room where Mrs. Jarrett had been ironing, grabbed the iron and ran back toward Harvey who was still in defendant’s room. Mrs. Jarrett followed the defendant. She, defendant and Harvey started struggling over the iron. Harvey was holding the defendant, who was kicking. She did not see Harvey hit the defendant. Mrs. Jarrett took the iron from defendant who unintentionally kicked her. Harvey left defendant’s room and went to the refrigerator in the kitchen. Mrs. Jarrett followed him into the kitchen and went to the kitchen closet to put the iron away. When she turned around the defendant was standing behind the dining room table holding a rifle. As Harvey turned around the defendant fired one shot which struck Harvey in the chest. The victim fell to the floor with a fatal gunshot wound.

Mrs. Jarrett did not hear the victim say anything just before he was killed. After the shooting the defendant left with the rifle, accompanied by Willie Malone.

The police were called and while tracking defendant’s scent with a German Shepherd dog discovered a .22 caliber rifle in a building nearby. The defense witness, Malone, saw the defendant hide the rifle where it was discovered by the dog.

Willie Malone testified on behalf of defendant. In support of defendant’s claim of self-defense he stated that he had seen Harvey hit the defendant across the head during the argument over the record player; that the victim was walking towards the defendant when defendant discharged the gun; and that as Harvey approached defendant he said that if defendant didn’t shoot him, he would shoot defendant.

Defendant’s first contention is that the trial court erred in overruling his objection to the “ . . . State’s inquiry of defense witness Willie Malone, whether he had a juvenile record and whether he had been adjudged a delinquent by the juvenile court.”

Willie Malone, who was 18 years of age at the time of the trial, was called as a witness on behalf of defendant. During cross-examination the prosecutor asked if he had ever been convicted of a crime. The witness responded in the negative.

Counsel then approached the bench and in the colloquy that followed the State announced its intention to attempt to show a finding of delinquency in the Juvenile Court, to which defendant objected; the court announced that he would overrule the objection. The court based his ruling on Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In the discussion Mr. Fahrenkrog, the prosecutor, stated that he did not know if the witness had a record. The prosecutor then asked the following questions over defendant’s objections:

“Q. Mr. Malone, I think you said you have never been convicted of a crime, is that correct?
A. Yes.
Q. Have you been known to the juvenile authorities?
A. Yes.
Q. Was there a finding of delinquency entered against you?
A. Nope.
Q. Never by the juvenile authorities?
A. No.”

The resolution of this issue is governed by § 211.271(3) RSMo. 1969 which states:

“After a child is taken into custody as provided in section 211.131, all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in causes under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.”

As conceded by the State, Davis v. Alaska, supra, is not applicable here. Davis holds that under the circumstances in that case the defendant’s Sixth Amendment right of confrontation is paramount to the policies of the States which enact legislation such as § 211.271. Thus the defendant in Davis was permitted to show the bias of a State’s witness by introducing evidence that the witness was on probation as a juvenile delinquent at the time he identified defendant as a burglar. The State has no such right. Davis would appear to be limited in its application. The statute invoked here, § 211.271, and its predecessors have been held to prohibit the impeachment of witnesses by reference to their past juvenile history. State v. Williams, 473 S.W.2d 388, 389[1] (Mo.1971).

It is clear from State v. Pitchford, 324 S.W.2d 684, 689[8] (Mo.1959) that the statutory ban applies not only to impeachment by means of the juvenile record itself, but also applies to any cross-examination on the subject of prior juvenile “convictions.”

The incredulity expressed in the question, “Never by the juvenile authorities?” could tend only to indicate that the prior negative answer was not believable. This interrogation was conducted by a prosecutor who admitted that he had no knowledge that the witness had a juvenile record. The interrogation was not only improper under the statute but was conducted in bad faith. See State v. Thomas, 535 S.W.2d 138, (Mo.App.1976). We can only conclude that it was prejudicial error.

While the case must be reversed for the above reason we shall discuss other matters which may arise in a retrial of this case.

Defendant’s second contention is that the trial court erred in overruling his objection to the prosecutor’s question of Mrs. Jarrett as to whether in her own mind she thought the struggle was over after the victim left defendant’s room and went into the kitchen. She testified that immediately prior to the killing there had been a struggle between the defendant and the victim; that she had assisted the victim in taking an iron away from defendant; and that Harvey Tenzsley had gone into the kitchen, after which defendant came toward Harvey with the rifle. She was then asked:

“Q. So at the time the iron was taken away from Jerry [defendant], you thought the struggle was over at that time?”

Defense counsel objected to the question because it called for a conclusion and because the witness’ mental state was irrelevant. The objections were overruled and the question was asked again as follows:

“Q. So in your own mind at that time, Mrs. Jarrett, did you feel that the struggle was over?
A. Yes, I did.”

The questions called for an opinion or conclusion on the part of a lay witness. The State concedes that as a general rule a lay witness may not testify as to his opinions or conclusions, but must state facts. 32 C.J.S. Evidence, § 438, p. 50. Freeman Contracting Company v. Lefferdink, 419 S.W.2d 266, 277[24] (Mo.App.1967). However, the State proposes that the present case comes within an exception to that rule.

Brown v. Kroger Co., 358 S.W.2d 429, 433[4] (Mo.App.1962) is cited as establishing such an exception “ . . . when it is impossible or extremely difficult for a witness to convey an accurate and actual meaning . . . ” if he is restricted to stating facts. See also State v. Davis, 284 Mo. 695, 225 S.W. 707, 708[1] (1920) which states that lay opinion evidence should be admissible “where the conclusion of the witness is based upon facts which are incapable of being accurately described . . . ” And Scanlon v. Kansas City, 325 Mo. 125, 28 S.W.2d 84, 95[15-16] (Mo. banc 1930) states that a lay opinion is admissible when “ . the nature of the subject-matter is such that it cannot be reproduced or detailed to the jury . . . ”

In the instant case the witness had already testified as to the conduct of the two parties, what they had said to each other, and their relative physical positions at the time of the killing. These and similar facts observed by her must have been the basis for her conclusion. We do not feel that such facts are “impossible or extremely difficult” to relate, nor “incapable of being accurately described,” nor that they “cannot be reproduced or detailed to the jury.” Rather we feel that this case is controlled by the general rule as given in State v. Davis, supra, 225 S.W.2d, at 708-9 as follows:

“But if the witness can clearly and correctly give the facts upon which a conclusion may be based, then it is for the jury to draw the conclusion.”

Finally, the State argues that the admission or exclusion of opinion testimony is largely within the discretion of the trial court. Anderson v. Robertson, 402 S.W.2d 589, 594[8] (Mo.App.1966). Such decisions are reviewable only for the abuse of discretion. State v. Edmonds, 468 S.W.2d 685 (Mo.App.1971).

The primary issue before the jury in the case at bar is whether the defendant acted in self-defense. By Instruction 10 the jury was to determine whether the defendant had reasonable cause to believe he was in immediate danger and that it was necessary for him to act to protect himself. They were also to consider any threats or assaults by the victim in order to determine who was the aggressor. The State’s evidence showed a struggle between the defendant and victim immediately prior to the killing. The defendant’s evidence was to the effect that at the end of the struggle the victim punched defendant in the head; that the victim threatened defendant and was walking toward him at the time of the killing. The determination of whether the struggle had continued till the time of the killing, or whether it had ended, was crucial to defendant’s claim of self-defense. Mrs. Jarrett’s conclusion that the struggle had ended invaded the province of the jury to the prejudice of defendant’s claim of self-defense. To allow such a conclusion or opinion into evidence under the circumstances of this case was reversible error.

Defendant next contends that the trial court erred in overruling his objection to testimony regarding the locating of the murder weapon by means of a German Shepherd dog.

Evidence of tracking by a dog is admissible only upon a showing “ . that the dog is of pure breed; that it has been trained to trail humans, and has the capacity to do so; and that it is qualified by experience to follow a human trail.” State v. Fields, 434 S.W.2d 507, 516 (Mo.1968).

The State concedes that the proper foundation was not set forth in the present case, but argues that the admission was harmless error. We agree.

The dog sniffed an article of clothing, presumably defendant’s, at the scene of the crime. The dog then, with his nose to the ground, led the officer to a .22 caliber rifle in the basement of a nearby residence.

This evidence was merely cumulative of other evidence connecting the rifle to the defendant. Mrs. Jarrett identified the gun as being similar to the gun used by defendant, as did Mr. Jarrett and Mr. Malone. There was no question of identity of the assailant. The defendant’s witness, Mr. Malone, testified that he saw defendant shoot the victim and that he saw defendant hide the rifle where it was found.

The only issue before the jury in the present case is whether the defendant acted in self-defense. The tracking evidence has no effect on that issue; its admission was harmless error.

Other matters raised by defendant are not likely to arise on the retrial of this case, it will therefore not be necessary to discuss them.

For the reasons herein the case is reversed and remanded for a new trial.

CLEMENS, P. J., and KELLY, J., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. Frank Allen ENLOW, Defendant-Appellant.
    No. 35216.
    Missouri Court of Appeals, St. Louis District, Division Two.
    April 27, 1976.

      James A. Bell, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Julian D. Co-sentino, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Defendant was convicted of murder in the second degree arising out of the shooting death of his wife, Margaret Enlow. He was sentenced to 10 years in the custody of the Department of Corrections of the State of Missouri.

Defendant, on this direct appeal, contends that the court erred in not sustaining his motion for acquittal at the conclusion of the case. Defendant urges that a statement made by him to the police and introduced into evidence by the State, which contained defendant’s statement that the shooting was accidental, is conclusive on the State. Although appellant briefed another point in his brief he announced on oral argument that he was abandoning that point.

Defendant and the deceased were married but had recently separated. Defendant encountered the deceased and her sister, Willie Mae Crawford, at a lounge in East St. Louis after midnight on November 26, 1971. Some time later the defendant accompanied the deceased and her sister back to St. Louis. They stopped at Mrs. Enlow’s mother’s, picked up the children, and then went to the deceased’s home. The deceased, her children, her sister went to bed. The defendant went to the deceased’s purse and removed a pistol from it, which he placed in his pocket.

A short time later the telephone rang. The defendant answered. A male caller asked for Mrs. Enlow, but he refused to identify himself. Defendant identified himself as her husband and the caller hung up. The phone rang a second time. Again a man, who defendant thought was the first caller, asked for the deceased, refused to identify himself, and hung up. The defendant went to the room where the deceased was sleeping and got her out of bed. She came into the living room where the two of them began to argue about the identity of the caller. The defendant became angry because the deceased could not, or would not, tell him who the caller was, and he ripped the telephone out of the wall jack. During the course of this argument Mrs. Enlow received a bullet wound over the left eye which caused her death.

Defendant went into the bedroom and woke Mrs. Crawford, saying that he had killed Margaret. Mrs. Crawford got up and in a state of hysteria left the house. She came back into the house a few minutes later. When she returned defendant said, “Oh, Lord, I done shot Margaret.”

When the police arrived the defendant was next to a couch upon which Mrs. Enlow was lying. As they came in defendant said that the woman was his wife, that he shot her and that it was an accident. A .22 revolver was on the couch partially under deceased’s head.

Defendant was taken into custody. At police headquarters he gave a voluntary statement. In the statement he advised the police that while arguing with his wife he removed the gun from his right front pocket and was placing it on the mantle when it discharged. The bullet struck his wife who was seated upon the couch.

There was evidence that the gun had a “hair trigger” if it was cocked. If the trigger was not cocked it could be discharged with a 15 pound pull.

We note first that defendant’s argument assumes that the only evidence which connects defendant with the actual shooting was that contained in his statements to the police officers. His argument overlooks the testimony of Willie Mae Crawford. Defendant, in his statements to Mrs. Crawford unequivocally admitted that he shot his wife.

“[WJhere the state’s evidence shows a killing by the use of a deadly weapon upon a vital part of the body, nothing else appearing, murder in the second degree, from the necessities of the situation, will be presumed.” State v. Malone, 327 Mo. 1217, 1228, 39 S.W.2d 786, 790 (1931). See also State v. Page, 130 S.W.2d 520, 523 (Mo. 1939). Margaret Enlow was shot in a vital part of the body by a deadly weapon which the defendant admitted he fired. The presumption of murder in the second degree thus arose.

The fact that his subsequent admissions made to the police contained exculpatory statements in no way altered the situation. The question raised by defendant has long been ruled adversely to his contention by the courts of this State. The State is not bound by the self-serving portions of defendant’s admissions even though they are introduced into evidence in the State’s case. State v. Elgin, 391 S.W.2d 341 (Mo.1965); State v. Caffey, 457 S.W.2d 657 (Mo.1970). This presumption of murder in the second degree would not have been overcome even if the statements to the police were the only admissions in the case. The effect of the introduction of the exculpatory statements was merely to give rise to the affirmative defense of accident. The question of whether the shooting was intentional or whether it was accidental was properly submitted to the jury for its determination.

Finding no error the judgment of the trial court is affirmed.

CLEMENS, P. J., and KELLY, J., concur.


author: FLANIGAN, Judge.

text:
    Marion C. COBB and Ruth C. Adkins, Plaintiffs-Appellants, v. R. W. BEASLEY CONSTRUCTION CO., a corporation, Defendant-Respondent.
    No. 9971.
    Missouri Court of Appeals, Springfield District.
    April 28, 1976.

      L. D. Joslyn and Jeffrey C. Vaughan, Charleston, for plaintiffs-appellants.
    Richard G. Steele, Finch, Bradshaw, Strom & Steele, Cape Girardeau, for defendant-respondent.
    Before BILLINGS, C. J., and HOGAN and FLANIGAN, JJ.
   FLANIGAN, Judge.

This is an action for damages. Plaintiffs are the owners of a bridge which, their petition claimed, was negligently damaged by the defendant. A jury found for the defendant and judgment was entered on the verdict. Plaintiffs appeal.

Plaintiffs’ sole point on appeal is that the trial court committed error in refusing to permit plaintiffs’ expert witness to state his opinion as to the cause of the damage to the bridge.

Dispositive of this appeal, and fatal to plaintiffs’ position, was the failure of plaintiffs’ counsel to make an offer of proof showing that the expert had an opinion, its content, and the fact that it was favorable to plaintiffs.

Plaintiffs sought to qualify B. J. Ger-hardt as their expert witness. Defendant’s brief attacks Gerhardt’s qualifications as an expert but that issue need not be examined. After Gerhardt had given testimony touching his qualifications, plaintiffs’ counsel asked him a lengthy question, hypothesizing certain facts and culminating in this inquiry: “Do you have an opinion, based on these exhibits, including Exhibit No. 5 what caused the damage and what caused the wing wall to be pulled out about 70 degrees from its original position?” Defendant’s counsel objected to the question “as not fairly and accurately setting forth the facts of the case.” The court sustained that objection. Counsel for plaintiffs then hypothesized certain additional facts. Defendant’s counsel then objected “for the reason he has not qualified Mr. Gerhardt as a type of person who can arrive at a decision like that.” That objection was sustained. Plaintiffs made no offer of proof at that time.

The court recessed for lunch. Thereafter no offer of proof was made.

“An objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been and that it was relevant and material. . . . [Rjeversible error cannot be predicated on the exclusion of a proper question where there is no offer of proof that the answer would have been in favor of the complaining party.” Thayer v. Sommer, 356 S.W.2d 72, 80[11, 12] (Mo.1963). To similar effect see Hays v. Western Auto Supply Company, 405 S.W.2d 877, 881[1] (Mo.1966); Moore v. Parks, 458 S.W.2d 344, 348[6] (Mo.1970); State v. Britt, 504 S.W.2d 38, 42[5] (Mo.1973); Brooks v. Travelers Ins. Co., 515 S.W.2d 821, 823[1] (Mo.App.1974).

Plaintiffs seek to excuse their failure to make an offer of proof by relying on language in Miller v. Kamo Elec. Coop., Inc., 351 S.W.2d 38, 43 (Mo.App.1962) to this effect: “[A]n offer of proof is not necessary, in order to preserve an objection to a ruling of exclusion for review, where the offer of proof would be a useless gesture by virtue of the attitude of the trial court

In support of this line of argument, plaintiffs’ brief, after making reference to the recessing for lunch, states “off the record, the court then informed plaintiffs’ counsel that this type of opinion was not a proper subject for expert testimony.”

This court has neither the power nor the inclination to permit the disposition of this appeal to be governed by alleged happenings “off the record.” A judgment is not so porous and a successful attack upon it requires a worthier foundation.

Finally plaintiffs say that their failure to make an offer of proof should be forgiven under the “plain error rule,” Rule 84.13(c). However, any error, far from being plain, is rendered speculative by reason of plaintiffs’ failure to make the offer of proof. The review of the transcript does not justify a finding by this court “that manifest injustice or miscarriage of justice has resulted.” Without such a finding, Rule 84.13(c) is of no avail to plaintiffs.

The judgment is affirmed.

All concur.

      . Exhibit 5 has not been filed with this court nor has it been incorporated in the transcript. See Rule 81.15.


author: PER CURIAM.

text:
    Merlin A. STAAB, Plaintiff-Appellant, v. Theodore THORESON et al., Defendants-Respondents.
    No. 10260.
    Missouri Court of Appeals, Springfield District.
    April 28, 1976.
    Motion for Rehearing or Transfer to Supreme Court Denied May 14, 1976.
    Robert P. Baker, Sarcoxie, for plaintiff-appellant.
    Joseph D. Baker, Belisle & Baker, Osceola, for defendants-respondents.
   PER CURIAM.

Appellant, Merlin A. Staab, has appealed from an adverse judgment upon respondents’ counterclaim in an action upon a contract for farm land clearing.

Judgment was entered December 19, 1975. Thereafter, on January 15, 1976, appellant filed a motion to set- aside judgment. Said motion alleged that the judgment was procured through extrinsic fraud. We find it unnecessary to recite the events leading to the motion to set aside judgment as the present record affords no basis for appellate review.

A motion to set aside judgment for extrinsic fraud differs from the ordinary after-trial motion in that the former contemplates consideration and ruling by the trial court while the latter is automatically overruled at the expiration of 90 days. The transcript in the present case reveals no action on the motion by either counsel or court. In the absence of a ruling the appeal is premature and must be dismissed.

All concur.


author: POPE, Justice.

text:
    C. E. COFFEE et al., Petitioners, v. F. W. WOOLWORTH COMPANY et al., Respondents.
    No. B-5603.
    Supreme Court of Texas.
    March 31, 1976.
    Rehearing Denied May 5, 1976.
    Francis I. Gandy, Corpus Christi, for petitioners.
    Dyer, Redford, Burnett, Wray & Wool-sey, B. Mills Latham, Corpus Christi, for respondents.
   POPE, Justice.

Mrs. Floy Coffee obtained favorable answers to special issues in her action for personal injuries which she sustained in a fall inside the store owned by defendants F. W. Woolworth Company and Woolco Department Stores. The defendants will be referred to as Woolco. The trial court granted defendants’ motion for judgment non obstante veredicto and the court of civil appeals affirmed the judgment. 526 S.W.2d 793. The points of error in the court of civil appeals and in this court are that the plaintiff produced more than a scintilla of evidence which supports each of the essential jury findings. In our opinion there was some evidence which supports each of the findings. We reverse the judgments of the courts below and render judgment on the jury verdict that plaintiff Coffee recover the sum of $7,500.00.

On December 15, 1970, at approximately 10:30 a. m. the plaintiff entered the defendant’s store for the purpose of shopping. As in many stores of this type the merchandise was arranged in long parallel rows down which the customers could walk and shop. The merchandise was not placed directly on the floor, instead it was placed on low rectangular platforms, or “gondolas” as the parties have referred to them. The platforms were about five feet square and were raised off the floor to a height of about six inches by narrow legs at each corner. The platforms were plaeed side-by-side in long rows and the merchandise was then stacked on top of them to about eye level. There were aisles between the parallel rows of merchandise and those aisles were intermittently broken by aisles which ran at right angles. While walking down an aisle between two rows of merchandise, Mrs. Coffee attempted to turn to the right down one of the right-angle aisles, when she tripped over the last platform which was at the intersection of the row of merchandise and the aisle. It is undisputed by the parties that this last platform was empty.

The jury found that the defendant (1) created a dangerous condition by leaving the platform in the condition and location where it was left; (2) the defendant knew or should have known of the dangerous condition; (3) the defendant was negligent in failing to warn Mrs. Coffee of the dangerous condition or in failing to remove it; and (4) such negligence was the proximate cause of the accident. Upon the defendant’s motion the trial court rendered judgment non obstante veredicto.

We hold that there was some evidence which supported the first finding. There is a picture in the record of the empty platform or one like it, which shows that the top of the empty platform was almost the same color as the white tile floor. An empty platform so close to the floor blended into the floor and could easily be confused for an aisle. The jury could well infer that one walking down the aisle would turn at the intersecting aisle without knowing that there was a platform six inches above the floor and believing it was an aisle.

The court of civil appeals focused its attention upon the second finding that the defendants knew or should have known of the condition about the empty platform, holding: “The record is void of any evidence that appellees [defendants] actually knew that the ‘gondola’ was empty. There is also a total absence of evidence regarding the time when the ‘gondola’ was emptied or how long it had been empty before Mrs. Coffee tripped over it.” 526 S.W.2d 793, 795. In our opinion there was some evidence which supports the finding. The personnel supervisor of defendant’s store testified that there were only two possible explanations as to why the platform would be empty. Either store personnel were in the process of changing a display of merchandise or the merchandise on that particular platform had sold out and had not been restocked. If the store personnel were changing a display, then it is obvious that the defendants, through their employees, had actual notice of the empty and dangerous condition. This explanation of why the platform was empty is somewhat more probable than the other since the personnel supervisor testified that it was the store’s policy, “to try and display it [the merchandise] so as it will look as full as possible . we’d like to have it to where it’s shoulder level or, you know eye level.” The store did not ordinarily permit the platform to become empty by virtue of customer buying, because they considered it bad salesmanship. Thus the jury could have reasonably inferred that the platform was empty because store personnel were changing displays and that the defendants had actual notice.

There was also evidence to support the finding that the defendants should have known about the empty platform even if it was empty because of customer buying. On this issue the court of civil appeals held that the plaintiff could not establish that the defendant should have known of the empty platform unless she produced some evidence as to how long the platform was empty before she tripped over it. There are numerous cases which hold that where an obstacle or slippery substance is on a floor because of the acts of some person, for whom the proprietor is not responsible, proof is necessary of actual notice or proof that the condition existed for such length of time as would give the proprietor a reasonable opportunity to discover the condition. Soto v. Biel Grocery Company, 462 S.W.2d 89 (Tex.Civ.App.—Corpus Christi 1971, no writ); Todd v. Hill’s, Inc., 383 S.W.2d 250 (Tex.Civ.App.—Fort Worth 1964, writ ref’d n. r. e.); Furr’s, Inc. v. McCaslin, 335 S.W.2d 284 (Tex.Civ.App.—El Paso 1960, no writ); Annot., Obstacle on Floor—Injury, 61 A.L.R.2d 110 § 7 (1958). These cases usually arise when a customer drops some food item on the proprietor’s floor. Fontenot v. Sears Roebuck Co., 399 S.W.2d 394 (Tex.Civ.App.—Beaumont 1966, writ ref’d n. r. e.) [banana peel]; Todd v. Hill’s, Inc., supra [lettuce]; O’Neal v. Weingarten, Inc., 328 S.W.2d 793 (Tex.Civ.App.—Beaumont 1959, writ ref’d n. r. e.) [grape]; Allen v. Woolworth, 315 S.W.2d 612 (Tex.Civ.App.—El Paso 1958, writ ref’d n. r. e.) [ice cream]. See Annot., Debris on Floor—Injury, 61 A.L.R.2d 6 (1958).

Courts have been reluctant to impose liability on a storekeeper without a showing that a foreign substance was on the floor for some length of time because it is unjust to hold the proprietor liable for the carelessness of some person over whom he has no control, unless he had a reasonable opportunity to discover the dangerous condition. Thus the rule developed that the plaintiff must produce some evidence that the foreign substance had been on the floor a sufficient length of time to give the proprietor notice. See Annot. 61 A.L.R.2d 110 § 7 (1958) and cases cited therein. While it may be argued that it is foreseeable to a proprietor that some slippery substances will be accidentally dropped on his floor by customers, the fact that customers are going to buy merchandise is certainly much more foreseeable and controllable — indeed an intended consequence and the purpose of doing business. Furthermore, the dangerous condition of the empty platform was not created instantly by the fortuitous act of a single customer but rather by the combined purchases of many retail customers which were occurring over some extended period of time.

The defendant also argues that the judgment non obstante veredicto was correct because this empty platform was open and obvious and as a matter of law the platform did not create a dangerous condition. We recently held that the question of whether or not a premises defect is open and obvious is for the court to decide as a matter of law. Adam Dante Corporation v. Sharpe, 483 S.W.2d 452 (Tex.1972). There is a dispute in the record as to how much the color of the platform contrasted with the color of the floor. Mrs. Coffee and a neighbor who happened upon the accident both testified that the color of the platform blended in with that of the floor. Given this testimony along with the height and location of the platform, we cannot say the condition was open and obvious.

The defendant did not bring forward any crosspoints to the court of civil appeals which alternatively asked for a new trial, based upon the factual insufficiency of the evidence. Therefore the judgments of the courts below are reversed and judgment is rendered for the plaintiff in the sum of $7,500.00.

ON REHEARING

Woolco says that our opinion inaccurately states that the gondola and the floor were of the same color, when in truth the floor was tan or varying shades of dark brown with a wide stripe extending along the floor to distinguish the two. Certainly the parties are entitled to a correct factual statement.

Since the jury answered the issues contrary to Woolco’s inferences and versions of the evidence, and since the trial court rendered judgment notwithstanding those findings, it is our duty to view the evidence most favorably to the plaintiff. ,In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1952).

The defendant Woolco introduced a photograph of an empty gondola to portray the situation as it existed on the day of the accident. Attached to the statement of facts is what appears to be a xerox copy of an original photograph. This is the only evidence of a photograph in this record, and it shows that the floor and gondola are the same color. The photo shows that the gondola is astride a rather wide dark stripe which runs along the floor. Plaintiff testified that she did not recall such a stripe running out from the gondola on the day of the accident. When Woolco’s counsel tried to establish his contention by cross-examination of one of plaintiffs witnesses, the witness afforded direct answers which supported the jury findings and the facts expressed in this court’s opinion. That evidence was:

Q. Well, now, you testified today about the color of the gondola—
A. Yes, sir.
Q. —and that it blended with the floor. Obviously you must have noticed the floor.
A. We looked at the gondola that day and it was just about the same color as the flooring.
Q. Well, was the floor one single color?
A. I would say so.
Q. There weren’t any off-colored stripes or anything that weren’t any different a color?
A. No.
* * * * * *
Q. How about the floor. Is the floor the same way it looked at the time as you recall the accident?
A. I don’t recall. It was, like I said, the floor and the gondola was the same coloring as far as looking at it.

Woolco also assumes that the jury was compelled to believe that the photograph portrayed the same gondola located at the same place it was when plaintiff fell. The personnel supervisor for Woolco at the time of the accident testified about the photograph:

Q. You are not saying that this is the platform that Mrs. Coffee fell over, are you?
A. No, Sir.
Q. And you are not saying that this is the area of floor where Mrs. Coffee fell?
A. No, Sir.

The jury very well could have concluded that the photograph was a posed photo.

The motion for rehearing is overruled.


author: POPE, Justice. REAVLEY, Justice

text:
    Ex parte Maurice WERBLUD.
    No. B-5639.
    Supreme Court of Texas.
    April 14, 1976.
    As Corrected on Denial of Rehearing June 9, 1976.

      Dunnam, Dunnam & Dunnam, W. V. Dunnam, Jr., Waco, for relator.
    John L. Hill, Atty. Gen., Bernard D. New-som, Asst. Atty. Gen., Austin, for respondent.
   POPE, Justice.

Maurice Werblud applied for writ of ha-beas corpus to obtain his release from custody for his failure to pay two fines, each in the sum of $500 for violations of a temporary injunction committed on different days. On July 28, 1975, the 54th Judicial District Court temporarily enjoined Wer-blud from operating his rendering plant, Texas Pet Foods, Inc., in certain designated ways because it was emitting noxious odors in violation of the Texas Clean Air Act, Tex.Rev.Civ.Stat.Ann. art. 4477-5 (pamp. supp. 1974), and the Renderers’ Licensing Act, Tex.Rev.Civ.Stat.Ann. art. 4477-6 (pamp. supp. 1974). Werblud appealed the injunction and after the court of civil appeals acquired jurisdiction of the case, the State instituted contempt proceedings based on several alleged violations of the injunction. The court of civil appeals conducted a factual hearing and then ordered that “Maurice Werblud shall be, and is hereby, punished by a fine of $500.00 for each of said two days of contemptuous acts ..” Werblud refused to pay the fines and therefore was taken into custody by the Sheriff. Werblud asserts that he should be released because: (1) the injunction was so broad and indefinite that he did not have notice of the acts prohibited, (2) he was denied a trial by jury, and (3) he was forced to testify against himself. We agree with the third contention and grant the writ.

It is well settled that a court of civil appeals may exercise contempt powers when the contempt proceeding is instituted after the jurisdiction of the appellate court has attached. Ex parte Duncan, 127 Tex. 507, 95 S.W.2d 675 (1936); Ex parte Travis, 123 Tex. 480, 73 S.W.2d 487 (1934); Musick v. Hunt, 364 S.W.2d 252 (Tex.Civ.App.— Houston 1963); International Ladies’ Garment Workers’ Local Union No. 123 v. Dorothy Frocks Co., 97 S.W.2d 379 (Tex.Civ.App.—San Antonio 1936). As this court stated in Ex parte Travis, supra at 489:

After the jurisdiction of the Appellate Court attached, it alone was clothed with the power to adjudicate the validity or invalidity of the temporary injunction and to exercise the discretion involved in compelling obedience to the injunction pending appeal.

When the proof of an alleged contempt requires a factual hearing, in some instances the court of civil appeals has conducted its own hearing. That was the procedure employed by the court of civil appeals in Ex parte Duncan, supra. The acts of contempt which were alleged in International Ladies’ G. W. Union No. 123 v. Dorothy Frocks Co., supra, involved a rather extensive hearing about a number of separate acts of contempt and a number of persons. The court of civil appeals in that instance, while retaining jurisdiction of the contempt matter, referred the matter of taking testimony and hearing evidence to the judge of a District Court. The transcript of the evidence was then forwarded to the court of civil appeals. Either of those procedures is an appropriate one, though this court considers referral to the district court preferable in the ordinary case. When a jury is required to determine factual issues, the court of civil appeals should retain jurisdiction of the contempt hearing and is required to refer the factual hearing to a trial court. The trial court may then try the disputed facts before a jury and transmit the findings to the appellate court. There is no contention made in this court that the court of civil appeals lacked jurisdiction to entertain the contempt charge. Under the authorities mentioned above, that contention would be without merit.

The order which Werblud was charged with violating was not overbroad nor subject to the deficiency of uncertainty. Attached to the order were eighteen xeroxed pages of the Texas Clean Air Act and the Renderers’ Licensing Act, but the order went on to specify the acts which were prohibited. The judgment of contempt made findings that Werblud had violated several of those specifications in the injunction order. The injunction met the test of certainty required by Ex parte Slavin, 412 S.W.2d 43 (Tex.1967).

The Right to a Jury Trial in the Contempt Hearing

Werblud also says that his constitutional rights were violated by the court’s denial of his request for a jury trial. He relies upon Articles V, VI, and XIV of the United States Constitution, as well as Article I, Sections 10 and 15, and Article V, Section 10, of the Texas Constitution. To determine Werblud’s right to jury trial, we must first decide whether the contempt for which Werblud was charged was civil or criminal, whether it was direct or constructive, and whether it was petty or serious.

The purpose of civil contempt is remedial and coercive in nature. A judgment of civil contempt exerts the judicial authority of the court to persuade the con-temnor to obey some order of the court where such obedience will benefit an opposing litigant. Imprisonment is conditional upon obedience and therefore the civil eon-temnor “carries the keys of [his] prison in [his] own pocket.” Shillitani v. United States, 384 U.S. 364, 368, 86 S.Ct. 1531, 1534, 16 L.Ed.2d 622 (1966); Gompers v. Buck Stove & R. Co., 221 U.S. 418, 442, 31 S.Ct. 492, 55 L.Ed. 797 (1910). In other words, it is civil contempt when one “may procure his release by compliance with the provisions of the order of the court.” Ex parte Hosken, 480 S.W.2d 18 (Tex.Civ.App.—Beaumont 1972). This is the settled rule in Texas. Ex parte DeWees, 146 Tex. 564, 210 S.W.2d 145, 147 (1948).

Criminal contempt on the other hand is punitive in nature. The sentence is not conditioned upon some promise of future performance because the contemnor is being punished for some completed act which affronted the dignity and authority of the court. Shillitani v. United States, supra; Beale, Contempt of Court Criminal & Civil, 21 Harv.L.Rev. 161 (1908); Magee, Contempt of Court in Texas, 14 S.Tex.L.J. 278 (1973). 17 Am.Jur.2d, Contempt § 4 (1964). This rule was well expressed in Ex parte Hosken at 23:

Where the primary purpose of the proceeding is to vindicate public authority, the proceeding is usually denominated criminal. The action is punitive in nature. Nye v. United States, 313 U.S. 33, 43, 61 S.Ct. 810, 85 L.Ed. 1172, (1941); Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968). Ordinarily, the punishment is fixed and definite and no subsequent voluntary compliance on the part of the defendant can enable him to avoid punishment for his past acts.

The affidavit of contempt filed by the State prayed that:

Texas Pet Foods, Inc., and Maurice Werblud, its owner, operator and principal corporate officer, be held in and punished for contempt of this court; that Maurice Werblud, as owner, operator and principal officer of the Defendant corporation be fined and imprisoned for such reasonable length of time commensurate with the gravity and seriousness of each act of contemptuous conduct alleged in this Affidavit . . .. [Emphasis added.]

The court of civil appeals made clear that its purpose in imposing the two fines upon Werblud was to punish him. The punishment was for completed acts of contempt and was not made conditional upon future compliance by Werblud. As the United States Supreme Court said in Gompers v. Buck Stove & R. Co., supra, and repeated in Shillitani v. United States, supra 384 U.S. at 369, 86 S.Ct. at 1535, “It is not the fact of punishment but rather its character and purpose that often serves to distinguish civil from criminal contempt. The test may be what does the court primarily seek to accomplish by imposing sentence?” In this instance the answer to that test is punishment.

A contempt may also be classified as either direct or constructive. A direct contempt occurs within the presence of the court; while a constructive, or indirect, contempt occurs outside the presence of the court. Ex parte Ratliff, 117 Tex. 325, 3 S.W.2d 406 (1928); Magee, supra at 281. This distinction has more significance than merely identifying the physical location of the contemptuous act, since more procedural safeguards have been afforded to constructive contemnors than to direct con-temnors. United States v. Wilson, 421 U.S. 309, 95 S.Ct. 1802, 44 L.Ed.2d 186 (1975); Ex parte Hill, 122 Tex. 80, 52 S.W.2d 367 (1932); Odom & Baker, Direct & Constructive Contempt, 26 Baylor L.Rev. 147 (1974). Note, Mayberry v. Pennsylvania: Due Process Limitation in Summary Punishments for Contempt of Court, 25 Sw.L.J. 805 (1971). The charge against Werblud was, of course, that of a constructive contempt. We have then, a constructive criminal contempt which is charged against one who is tried by judges other than the one who pronounced the original order.

One’s right to a jury, however, depends upon still another test, whether the offense may be classified as petty or serious. The distinction was noticed in the recent decision of the Supreme Court in Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 2190, 45 L.Ed.2d 319 (1975). Although that case arose in the Federal court, the jury trial requirements of the Sixth Amendment to the United States Constitution apply with equal force to State prosecutions for contempt. Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974); Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Muniz summarized the distinctions and from that case we extract these rules:

(1) Like other minor crimes, “petty” contempts may be tried without a jury, but contemnors in serious contempt cases in the federal system have a Sixth Amendment right to jury trial;
(2) criminal contempt, in and of itself and without regard for the punishment imposed, is not a serious offense absent legislative declaration to the contrary;
(3) lacking legislative authorization of more serious punishment, a sentence of as much as six months in prison, plus normal periods of probation may be imposed without a jury trial;
(4) but imprisonment for longer than six months is constitutionally impermissible unless the contemnor has been given the opportunity for a jury trial.

Cases of criminal contempt, where the sentence actually imposed does not exceed six months imprisonment, are exempted from the requirements of a jury trial. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974). This exemption is based upon the historical interpretation of the Sixth Amendment that “petty offenses” were tried without juries in both England and the colonies and that the framers of the Constitution did not intend the Sixth Amendment jury trial rights to be more comprehensive than the established common law practice. Duncan v. Louisiana, supra; Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917 (1926). Six months imprisonment and/or a $500 fine has been chosen as a somewhat arbitrary line for distinguishing petty offenses from serious offenses, although this does coincide with the statutory definition of a petty offense in Federal criminal law. 18 U.S.C.A. § 1(3).

Texas is in accord with these distinctions between petty and serious offenses. The statute which authorizes punishment for criminal contempt allows punishment by “a fine of not more than $500, or by confinement in the county jail for not more than six months, or both.” Tex.Rev. Stat.Ann. art. 1911a, § 2 (Supp.1975). The authorization of punishment falls within the definition of petty offenses as set forth by the United States Supreme Court. Muniz v. Hoffman, supra; Duncan v. Louisiana, supra; Bloom v. Illinois, supra. Furthermore, the legislative history of the Texas contempt statute reveals that it was the drafter’s intent to keep punishment within the petty offense category. Greenhill, Proposed New Statute on Contempt, 33 Tex.Bar J. 970 (1970). The fact that two $500 fines were imposed upon Werblud does not take this case out of the petty offense category. These fines constituted punishment for two separate acts of constructive contempt committed on separate dates. Ex parte Genecov, 143 Tex. 476,186 S.W.2d 225 (1945). Even if the fine was considered as being for a single offense, the United States Supreme Court in Muniz v. Hoffman, supra 422 U.S. at 476, 95 S.Ct. at 2190, held that a fine which exceeds $500 does not in and of itself necessitate the use of a jury.

[W]e cannot accept the proposition that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment. It is one thing to hold that deprivation of an individual’s liberty beyond a six-month term should not be imposed without the protections of a jury trial, but it is quite another to suggest that, regardless of the circumstances, a jury is required where any fine greater than $500 is contemplated. From the standpoint of determining the seriousness of the risk and the extent of the possible deprivation faced by a contemnor, imprisonment and fines are intrinsically different.

We hold that under the facts of this case the court of civil appeals was not required to provide a jury trial for Werblud in a case of constructive criminal contempt when two separate $500 fines were imposed.

Privilege Against Self-Incrimination

The state called Werblud as its first witness and Werblud’s attorney objected to this procedure on the grounds that it violated his client’s privilege against self-incrimination. The court of civil appeals overruled the objection and Werblud was questioned extensively by the state concerning his knowledge of and control over the rendering plant operations. Many constitutional rights are accorded criminal con-temnors, including the privilege against self-incrimination. See Goldfarb, The Constitution & Contempt of Court, 61 Mich.L.R. 283 (1962). See also, Gompers v. Buck Stove & R. Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); United States v. Temple, 349 F.2d 116 (4th Cir. 1965); Killpatrick v. Superior Court, 153 Cal.App.2d 146, 314 P.2d 164 (1957); Goldfarb, supra at 320; Merrick, The Privilege of Self-Incrimination as to Charges of Contempt, 14 Ill.L.Rev. 181 (1911); 8 Wigmore, Evidence § 2257 (McNaughton rev. 1961).

The state’s argument is that the privilege was not invoked because Werblud’s attorney could not legally claim the privilege for his client. Numerous cases are cited for the proposition that the privilege against self-incrimination is personal to a witness and must be claimed by the witness himself. Meyer v. Tunks, 360 S.W.2d 518 (Tex.1962); Ingersol v. McWillie, 87 Tex. 647, 30 S.W. 869 (Tex.1895); Ex parte Miers, 124 Tex.Cr.R. 592, 64 S.W.2d 778 (1933); Bybee v. State, 74 Tex.Cr.R. 211,168 S.W. 526 (1914); Owen v. State, 7 Tex.Cr.R. 329 (1879).

We hold that Werblud properly claimed his privilege against self-incrimination. The cases relied upon by the state are situations in which an ordinary witness claims his privilege against self-incrimination. Under those circumstances the privilege merely grants the witness an option of refusal to answer; it does not prohibit inquiry and the witness cannot refuse to take the stand. McCormick & Ray, Texas Law of Evidence § 432 (1956); 8 Wigmore, Evidence § 2268 (McNaughton rev. 1961). Thus where a party to a civil suit or a non-party witness in either a civil or criminal action is on the stand and being examined, it has been held that an attorney cannot interrupt the questioning and interpose the privilege in behalf of the witness. The questions may be asked and the witness must personally claim his privilege to each question. McCormick & Ray, Texas Law of Evidence § 432 (1956).

The privilege against self-incrimination grants a broader exemption from inquiry to an accused in a criminal case than to an ordinary witness.

In the case of an ordinary witness the question may be asked. He may then decide whether he will exercise the privilege. But to avail himself of the privilege he must make a claim. On the other hand, the defendant in a criminal case has the privilege of refusing to give any testimony in the case. It would seem, even so, that the prosecution might call him as a witness for they cannot know whether he will claim his privilege. Such, however is not the rule. Rather it is universally held that the defendant may refuse to be sworn at all. McCormick & Ray, Texas Law of Evidence § 432 (1956). • [Emphasis added.]

As the United States Supreme Court stated in Bloom v. Illinois, 391 U.S. 194, 201, 88 S.Ct. 1477, 1481, 20 L.Ed.2d 522 (1968):

Criminal contempt is a crime in the ordinary sense; it is a violation of the law, a public wrong which is punishable by fine or imprisonment or both. In the words of Mr. Justice Holmes: “These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the fundamental characteristic of crimes as that word has been understood in English speech.” Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115 (1914).

Werblud was charged with criminal contempt and his attorney correctly asserted his client’s privilege against self-incrimination as a reason that he should not have been sworn and compelled to testify at all.

The relator is discharged from custody.

Dissenting opinion by REAVLEY, J., in which GREENHILL, C. J., and STEAKLEY and SAM D. JOHNSON, JJ., join.

REAVLEY, Justice

(dissenting).

The extent to which the Fifth Amendment privilege applies in contempt proceedings has not been resolved. I would go no further in the expansion of the privilege than required by the United States Supreme Court. The question in the instant case is not whether the alleged contemnor is entitled to decline to answer specific questions upon the ground of possible incrimination. That contention was never made by relator or by his attorney. Relator took the oath of a witness. He was then called to the stand as an adverse witness. When he was asked to state his name, his attorney objected to his being called as a witness because it would violate his privilege against self incrimination. The objection was overruled and no further objection was made on grounds of self incrimination as relator proceeded to answer the questions of both attorneys through 91 pages of the statement of facts.

The right not to be called as a witness has been accorded only to the defendant in the course of a criminal case. Then is the present proceeding a “criminal case?” The hearing was held by the Court of Civil Appeals, and the habeas corpus has come here to the Supreme Court rather than to the Court of Criminal Appeals. We hold that the alleged contemnor was not entitled to a jury. Even if some privileges must be accorded because of the potential fine which may be assessed, our specific question is not accurately resolved by labeling the proceeding a “criminal case.” We should decide which aspects of a criminal proceeding must apply.

In Ex parte Butler, 522 S.W.2d 196 (Tex.1975), we recently said that in a suit by the State seeking to recover monetary penalties because of the violation of the Texas Solid Waste Disposal Act or the Texas Water Quality Act, the State could call the defendant as a witness or could take his deposition. We further said that the defendant could avoid answering a question only in the event his response might subject him to a criminal penalty. There is a difference between a proceeding which seeks to hold a party in contempt of court and a suit for “civil penalties”: prior conduct cannot subject the party to confinement in jail in the suit for civil penalty. The same action may seek a monetary penalty and also an injunction which, if subsequently violated, might then lead to a contempt proceeding and possible confinement. In the present case the contemnor faces confinement only because he refuses to pay the fine which was assessed because of his contempt. Nevertheless, the party was subject to the penalty of confinement at the outset of the contempt proceeding.

It is my understanding of the United States Supreme Court writing that all alleged contemnors (at least in “criminal contempt” proceedings) must be given the privilege to decline to answer questions which might tend to prove their own contempt. I would stop there; I would not go further and reverse this case on the sole ground that Werblud was required to take the witness stand.

GREENHILL, C. J., and STEAKLEY and SAM D. JOHNSON, JJ., join in this dissent.

      . “(2) by failing to repair all holes in the rendering plant structure and completely seal the entire building to prevent the emission of fugitive odors; (3) by failing to seal all product handling systems used in the transfer and processing of by-product materials to assure same are leak and spill-proof; (4) by failing to vent condensor and hot well exhaust gases, vapors and odors directly to the defendant’s venturi scrubber; (5) by failing to remove all raw and processed poultry materials from rendering plant floors, walls, and equipment and thoroughly steam same prior to start-up operations and on a daily basis thereafter; (6) by failing to level to the ridge-and-furrow system ditches so as to prevent standing water and assure adequate irrigation of ridge-and-furrow vegetation; (7) by failing to develop, reduce to writing, post in a noticeable plant location, and insist upon employees following, a regular daily cleaning procedure; and (8) by failing to operate all odor abatement and waste-water treatment equipment according to the manufacturer’s specifications;”