author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Leroy PROCTOR, Defendant-Appellant.
    No. 36717.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 16, 1976.

      Christelle Adelman-Adler, Asst. Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., George A. Peach, III, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant appeals his conviction for the crime of stealing from a dwelling house. Defendant alleges that the trial court erred: 1) by overruling defendant’s motion to suppress an unduly suggestive lineup identification; 2) by failing to declare a mistrial after certain hearsay testimony; 3) by compelling defendant to walk in the courtroom to display a limp. We find no error and affirm the judgment.

The conviction stems from the theft of several items of personal property from the John Dooley home in St. Louis. Jeff Eilers, a neighbor of the Dooleys, testified that he observed two men park an automobile across the street from Eilers’ home and walk up an alley past Eilers to the Dooley home. Eilers observed one of the men enter the Dooley home while the other, identified as defendant, went back to the car and sat in the driver’s seat. After about ten minutes, the man who had entered the Dooley home returned and placed a large bundle in the car, and with the defendant driving, both men left. Eilers wrote down the license number and description of the car in which he had seen the defendant leave.

Eilers also testified that the defendant had twice passed within fifteen feet of him and that he had observed defendant’s face for about fifteen minutes. Eilers gave a detailed description of the defendant to police including the fact that defendant walked with a very bad limp. Another neighbor testified that he had seen the two men in the vicinity of the Dooley home, had noted that one of the men walked with a limp and had seen the other place a bundle in the ear. However, this neighbor could not identify either man.

Defendant’s first allegation of error concerns Eilers’ identification of him. The day after the theft, police showed Eil-ers pictures of four or five men taken from police files, and Eilers identified defendant as having been the driver of the automobile. Eilers also identified defendant at a police lineup and made an in-court identification of him. Defendant argues that the courtroom identification by Eilers should not have been allowed as it was based on an unduly suggestive lineup. Defendant notes that he was noticeably shorter and younger than the other men in the lineup presented to Eilers. Although a lineup does not require exact physical conformity of the participants, including height, State v. Word, 527 S.W.2d 708 (Mo.App.1975), we need not in this case rule on the question of whether the lineup was unduly suggestive. Looking at the “totality of the circumstances,” we find “the presence of an independent basis of identification, absence of suggestive influence by others and a positive courtroom identification,” State v. Arnold, 528 S.W.2d 164, 166 (Mo.App.1975). Defendant passed within fifteen feet of the identifying witness and was observed during daylight hours for a period of about fifteen minutes. The witness also gave an accurate description of the defendant to police. Thus, witness Eilers had ample independent basis in the light of the totality of circumstances for the courtroom identification, and the identification testimony was admissible. State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Arnold, supra; State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975). Thus, assuming arguendo the lineup was in some regard maculated, upon the facts here, the in-court identification was proper. State v. McFadden, 530 S.W.2d 440 (Mo.App.1975); State v. Davis, 529 S.W.2d 10 (Mo.App.1975).

Defendant’s second allegation relates to alleged hearsay testimony given by the arresting officer who, in response to questioning, testified that it was defendant’s car which had been observed at the scene of the theft. Defendant’s counsel objected to the officer’s reference that it had been the defendant’s car which had been placed at the scene of the crime, and after the objection was sustained, motion for mistrial was made and denied. Defendant contends that although the objection to the hearsay testimony was stricken and the jury instructed to disregard the remark, the prejudicial effect could be eradicated only by declaring a mistrial; that the hearsay statement coerced defendant’s concession during closing argument of his presence near the Dooley home. The defendant argues that the jury would not heed the trial court’s admonition to disregard the statement concerning the presence of defendant’s car. There is no merit to this contention. First, we cannot assume that the jury would defy the trial court’s instruction to disregard the remark. Second, we do not find the remark so prejudicial that its effect could be removed only by resort to the drastic remedy of mistrial. The trial court, which is in the best position to judge the effect of the remark, did not abuse its discretion in failing to call for a mistrial. State v. Mullen, 528 S.W.2d 517 (Mo.App.1975); State v. Pickens, 527 S.W.2d 29 (Mo.App.1975). Third, even had the hearsay remark been admitted — which it was not— the effect of placing defendant’s automobile at the scene would have been, at most, nonprejudicially cumulative to the other evidence which had already clearly placed defendant at the scene. State v. Mills, 521 S.W.2d 495 (Mo.App.1975). There was positive identification of the defendant at the scene of the crime without regard to the car. The car was not the factor that placed the defendant at the Dooleys’; defendant’s presence there was established through eyewitness identification.

Finally, defendant argues that his Fifth Amendment rights were violated when he was compelled to walk in the courtroom to display that he was afflicted with a severe limp. Our review of Fifth Amendment self-incrimination cases reveals that no violation was done to defendant’s rights in that regard. In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), a case upholding the validity of the taking of a blood sample of an accused, it was said:

“[B]oth federal and state courts have usually held that it [Fifth Amendment] offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling ‘communications’ or ‘testimony,’ but that compulsion which makes a suspect or accused the source of ‘real or physical evidence’ does not violate it.” (Emphasis added). Id., 384 U.S. at 764, 86 S.Ct. at 1832, 16 L.Ed.2d at 916.

In United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973), the taking of a defendant’s voice exemplars was held valid, and the foregoing quoted language of Schmerber v. California was repeated. The court also said:

“It has long been held that the compelled display of identifiable physical characteristics infringes no interest protected by the privilege against compulsory self-incrimination.” United States v. Dionisio, 410 U.S. at 5-6, 93 S.Ct. at 767, 35 L.Ed.2d at 74.

Similarly, Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), held the taking of handwriting exemplars not to be protected by the Fifth Amendment. And, again, Schmerber v. California, was quoted with approval in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), where the defendant was required to give voice utterings at a pretrial lineup.

We regard the requirement that the defendant display a limp in court as merely the identification of a physical characteristic outside the protective aegis of the Fifth Amendment stricture against self-incrimination. There was no compelling of “communications” or “testimony” — merely the source of “real or physical evidence” not barred by the Fifth Amendment. As stated by Justice Holmes in Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910):

“[T]he prohibition of compelling a man in a criminal court to be witness against himself is a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material” Id., 218 U.S. at 252-253, 31 S.Ct. at 6, 54 L.Ed. at 1030. (Emphasis added).

We find no error by the trial court in compelling the defendant to walk for the purpose of displaying an identifiable and material physical characteristic. Defendant’s asseveration that his walk in the courtroom was an infringement of his privilege against self-incrimination amounts to an “extravagant extension of the 5th Amendment.” Id., 218 U.S. at 252, 31 S.Ct. at 6, 54 L.Ed.2d at 1030.

Our ruling comports with prior Missouri decisions. In State v. Cook, 440 S.W.2d 461 (Mo.1969) the Missouri Supreme Court, in quoting from U. S. v. Wade, supra, which in turn quoted from Schmerber v. California, supra, approved the following language:

“(The privilege) [Fifth Amendment privilege against self-incrimination] offers no protection against compulsion * * * to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture.’ * * * ” (Emphasis added). State v. Cook at 463.

Defendant argues that he is not required to make any affirmative action for identification, referring to the following emphasized language of State v. Jackson, 444 S.W.2d 389, 392 (Mo.1969), cert. den. 397 U.S. 1014, 90 S.Ct. 1247, 25 L.Ed.2d 428 (1970):

“[I]t must be remembered that the safeguard against self-incrimination refers to evidence, ‘testimonial compulsion’; it does not mean that the accused may not be subjected to the observation of witnesses and jurors — in the absence of his being required to perforin some affirmative act in aid of observation."

But defendant’s paint brush is too broad. The quote from Jackson was taken from 22A C.J.S. Criminal Law § 652, which goes farther than the quoted language by stating that the self-incrimination privilege does not apply to physical evidence which may be revealed by an ordinary observation of the defendant or by requiring the defendant to stand, wear or remove articles of clothing, show scars and even shave or have his hair cut. In State v. Jackson, supra, the court also cited and relied on State v. Dean, 400 S.W.2d 413 (Mo.1966), as support for its statement upon which defendant seeks solace. And in State v. Dean it was noted that an accused could be “compelled to be present at the trial, to stand, to sit, to turn this way or that, and to try on a cap or a coat,” Id. at 416, quoting from the concurring opinion of Justice Douglas in Rochin v. California, 342 U.S. 165, 179, 72 S.Ct. 205, 96 L.Ed. 183, 193 (1952). Clearly, then, the State v. Jackson decision is not so restrictive as to interdict the defendant from being compelled to stand or walk for purposes of exhibiting a material physical fact, for the authorities upon which the Jackson case relies allow for such affirmative actions by an accused. We find no enervation of defendant’s Fifth Amendment rights by compelling him to walk in the courtroom to display his physical aberration. The privilege against self-incrimination does not extend that extravagantly.

The judgment is affirmed.

SIMEONE, P. J., and KELLY, J., concur.

      . See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).


source: Caselaw Access Project

author: SIMEONE, Presiding Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Rodney Earl HARRIS, Defendant-Appellant.
    No. 36560.
    Missouri Court of Appeals, St. Louis District, Division Three.
    March 16, 1976.

      David V. Uthoff, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Nanette Laughrey, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Neis C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

Defendant-appellant, Rodney Earl Harris, was charged, tried and found guilty by a jury for the offense of murder in the second degree. § 559.020, RSMo 1969. He was sentenced under the Second Offender Act, § 556.280, by the court to fifty years in the department of corrections. He appeals. We affirm.

Since the appellant does not question the sufficiency of the evidence, we will state only those facts necessary for the disposition of the points raised on appeal.

A jury could reasonably find the following: William J. Kupfer, Jr., a man of approximately 60 years of age, lived in the City of St. Louis. On the evening of June 18, 1973, his son, William J. Kupfer, III, who lived with his father, left the family home about 6:45 p. m., to attend a church meeting. When he returned at about 11:45 p. m., he found the house ransacked and saw his father “lying on the living room floor.” He “was strewn out on the floor, which would be unusual, just on the living room floor.” Mr. Kupfer, III called the police. The police came. Upon examination, it was found that there were several items missing from the house — radios, a cassette tape player, cameras, a diamond ring and some cash. When the police arrived, they found that Mr. Kupfer, Jr. had been shot six times and was apparently dead.

Patrolman Lawrence Keating was one of the policemen who arrived at the Kupfer home. He found the premises “pretty well disarranged.” He contacted the homicide division and the evidence technician unit. Officers from the evidence technician unit also came to the home and examined the room. They seized four pellets from the living room area and seven shell casings and made a fingerprint examination of the living room and bedroom area. They found a “Delco Remy battery switch box,” sometimes referred to as a coin box or container, in the home, and it was dusted for fingerprints. Two whole and other pieces of fingerprints were found thereon. These impressions were forwarded to the laboratory. They also found shell casings and pellets and took photographs. The victim was taken to the hospital. He was dead on arrival.

The next morning, Dr. John J. Thomas performed an autopsy. He found several gunshot wounds in: (1) the left shoulder, (2) the left side of the chest, (3) the left side of the abdomen three inches from the left iliac spine, (4) the middle of the right arm, (5) the middle third of the right thigh, and found (6) a penetrating wound on the right side of the chest. Death was caused by “traumatic intrathoracic hemorrhage” due to a penetrating gunshot wound of the “thoracic aorta.” “In other words, the cause of death was the massive bleeding.” Dr. Thomas recovered three bullets from the body which were turned over to the police.

On June 21, 1973, Officer Donald Ray was in the vicinity of University Avenue in the City of St. Louis and observed a 1968 Oldsmobile. He was asked on direct examination whether “[p]rior to observing that vehicle had you received any radio communication concerning a vehicle of that description?” An objection was made on the ground that “. . . he received some information by radio that implicated this defendant to this crime, and so it’s hearsay, your Honor. . . . ” The objection was overruled. Defense counsel argued that the officer is “leaving with the jury the impression that there is some evidence not introduced in this cause that caused a radio description to go out for this car in which this defendant was found. . . . ” After observing the Oldsmobile, Officer Ray summoned two other officers-Officers Dobbins and Mitchell. Officer Dobbins testified that after he “talked” to Officer Ray, he observed the vehicle. Again, objection was made that “[i]t’s a clear indication that something was said to this officer [Dobbins] by Ray that implicated this defendant and gave this officer reason to arrest him and stop that car. You can’t do that, that’s hearsay, your Honor.” The court overruled the objection and a motion for mistrial. Officer Dobbins then testified that he and his partner, Mitchell, observed this car, which at the time had no passengers, and they waited for occupants to enter. Eventually, an automobile pulled up alongside the Oldsmobile, and three “fellows” got out, entered the Oldsmobile and started to drive off. As they did so, Officers Dobbins and Mitchell “pulled up alongside,” and the car pulled to the curb. Appellant was in the Oldsmobile with two other persons who were known to the officers. The three men got out of the Oldsmobile, and the appellant, Harris, walked away to a grassy area by the sidewalk, where he removed a pistol from beneath his shirt and laid it in the grass. Officer Dobbins walked over, picked up the pistol and said, “ ‘. . . he’s under arrest for CCW.’ ” Mr. Harris then ran through the areaway. He was not apprehended at this time, but the gun and bullets were seized. The gun was a .32 automatic weapon. Officer Mitchell corroborated Officer Dobbins’ testimony regarding the event. Later that same day, appellant-Harris was arrested at his home “upstairs above the liquor store.” Officer Mitchell went to the liquor store, identified himself as an officer and talked to the mother of Mr. Harris. Mitchell went upstairs and found “Rodney climbing out of the back room,” “attempting to go out the window.” Harris was ordered back, and the officer took him into custody.

On August 29, 1973, the appellant was charged by a substitute information in lieu of an indictment with second degree murder. Trial began on July 8, 1974.

During the trial, the above facts were brought out. In addition, the commander of the police laboratory and a firearms examiner, Lieutenant William Armstrong, examined and test-fired the firearm seized by Officer Dobbins and examined the bullets recovered from Mr. Kupfer’s body. He performed a microscopic comparison of the test shot and the bullets removed from the victim. “The microscopic examination proved beyond any doubt that the two pellets . removed from Mr. Kupfer were definitely fired from this .32 caliber automatic.” Lieutenant Armstrong had no question in his mind that “this gun was used in the killing of that man.”

A fingerprint expert, Officer Paul English, testified at trial. He testified that he compared the latent fingerprints turned over to the division by the officer who took the prints from the “coin box” or “container” with the fingerprints of Mr. Harris and “found that the impressions made by the left thumb, left middle and left ring fingers of Rodney Harris matched the impressions on the container.” He testified that if prints were on the container over a “week” it would be “very unusual.” At the close of the evidence, defendant moved for a judgment of acquittal which was overruled. The court instructed the jury on second degree murder. MAI-CR 6.06. The defendant offered an instruction on manslaughter, but the offer was refused. After the jury was instructed, counsel argued the case. During the state’s opening argument, the prosecutor reviewed the evidence, and, after reviewing much of the evidence, the following occurred:

“[Prosecutor:] .
Now, we have gone through the whole process of a jury trial, a grand jury indictment. The grand jury indicted this ■ man and said it’s murder second degree.
[Defense counsel]: I’ll object, your Honor.
THE COURT: Sustained. Ordered stricken. The jury is instructed to disregard it.
[Defense counsel]: I ask a mistrial be declared.
THE COURT: Overruled.
[Prosecutor]: I didn’t indict this man.

The jury found the appellant guilty of murder in the second degree. In due time a motion for new trial was made complaining of the testimony of Officers Ray and Dobbins, the argument of the prosecutor and that “[t]he Court erred in refusing to give defendant’s instruction A on the lesser offense of Manslaughter.”

The motion was overruled, and on October 4, 1974, the defendant, having been granted allocution, was sentenced to fifty years in the department of corrections.

On this appeal, appellant makes three points. He contends that the trial court erred (1) in overruling his objections to the testimony of Officers Ray and Dobbins “for the reason that the testimony introduced a distinct inference of defendant’s guilt based solely upon hearsay . . . ” so that the defendant was prejudiced; (2) in refusing to give an instruction for manslaughter “for the reason that if the state had made a submissible case on murder second degree, it then became an issue for the jury to decide if the defendant was guilty of manslaughter”; and (3) “in overruling the appellant’s request for a mistrial when the state informed the jury that evidence reflecting against the appellant had been presented to the grand jury, resulting in the return of an indictment, for the reason that such argument and conduct on the part of the state [sic] attorney charged the trial atmosphere with prejudice and the jury could no longer deliberate dispassionately.”

As to his first point, appellant argues that the basic principle of the rule against hearsay is that in order to insure the truthfulness of testimonial assertions, such assertions are to be made in court and subject to cross-examination. He relies on State v. Chernick, 273 S.W.2d 741 (Mo.1955); State v. Chernick, 280 S,W.2d 56 (Mo.1955), and State v. Kirkland, 471 S.W.2d 191 (Mo.1971). In Chernick, the Supreme Court reversed the convictions because the circuit attorney was allowed to testify that immediately after he had questioned one of the participants in the crime, he directed the issuance of an arrest order for the defendant. The court held this to be error. “The subsequent statements of [one of the participants] to the Circuit Attorney were hearsay and inadmissible as evidence of the fact asserted.” Chernick v. State, supra, 278 S.W.2d at 747. And in State v. Kirkland, supra, the court reversed a conviction because of the testimony of an officer who related the statement of a certain woman that defendant had taken the victim’s taxicab, thus implicating the defendant. In these cases, “hearsay testimony was relied on heavily by the state to identify the defendant as the person who committed the crime and in which there was very little, if any, other evidence that connected the defendants in those cases with the offense with which they were charged. . . . ” State v. Ford, 495 S.W.2d 408, 414 (Mo. banc 1973). The Chernick case involved a factual setting wherein the assistant circuit attorney was permitted to testify that he had ordered defendant’s arrest after obtaining information from a hospitalized third party.

We do not believe that the principles set forth in Chernick and Kirkland are disposi-tive of the issue here. Those cases have been distinguished from the situation where the hearsay testimony was relied on heavily by the state to identify the defendant as the person who committed the crime and in which there was very little, if any, other evidence that connected the defendant with the offense charged. Those decisions have been distinguished. In State v. Stevens, 467 S.W.2d 10 (Mo.1971), 50 A.L.R.3d 96, cert. den. 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546, the testimony of certain officers that they had a conversation with the mother of the defendant, proceeded to a high school and arrested him, was held to be admissible. What was said in the conversation was not shown, but appellant there objected to the question of whether there was a conversation because of hearsay. Reliance was placed on Chernick. The Supreme Court held that the testimony of the officers was not objectionable under the doctrine of Chernick, supra, because there was nothing to indicate that the declarant was a co-conspirator in the case, and, “[i]n addition, if it be considered that statements made by Mrs. Stevens would have been hearsay as to appellant, there was no statement attributed to her which implicated appellant . . ..” State v. Stevens, supra, 467 S.W.2d at 22.

Such is the situation here. This is not a case where the “hearsay” testimony was relied on heavily to identify the defendant. There was other substantial evidence which implicated the appellant, and nothing in the radio description of the 1968 Oldsmobile implicated the defendant as the perpetrator of the alleged murder. It was just as logical for the jury to assume that the automobile was of interest to the police for a reason totally unrelated to the appellant and his connection with the murder.

We hold that under the circumstances of this case, the trial court did not err in admitting the testimony of Officers Ray and Dobbins regarding the stopping of the Oldsmobile and the appellant and reject the appellant’s contention that this testimony introduced a distinct inference of defendant’s guilt based solely upon hearsay.

Next, appellant contends that the court erred in not giving the offered instruction on manslaughter. The motion for new trial fails to allege facts warranting such an instruction. Supreme Court Rule 27.20(a) provides that a motion for a new trial “. . . must set forth in detail and with particularity, in separate numbered paragraphs, the specific grounds or causes therefor. . . . ” The Missouri Supreme Court, construing this rule in State v. Cheek, 413 S.W.2d 231, 238 (Mo.1967), stated:

. . ‘Among other assignments in the motion for a new trial is the contention that the court erred in refusing to instruct on manslaughter; that such an instruction was requested and refused and that the facts in the case warranted such an instruction. We think this assignment wholly insufficient, under the facts of this case, to comply with Supreme Court Rule 27.20 in that it does not set forth in detail and with particularity the specific grounds or cause therefor, in that it does not indicate in any manner what facts in evidence were considered sufficient to warrant such an instruction.’ . In that situation we rule that this assignment wholly fails to comply with S.Ct. Rule 27.20(a) and hence does not preserve anything for review.”

See also State v. Schulten, 529 S.W.2d 432 (Mo.App.1975).

Despite this, we have reviewed the transcript and determine that the refusal to give a manslaughter instruction in this case was not error. See State v. Mudgett, 531 S.W.2d 275, 280-281 (Mo. banc 1975). There the Supreme Court analyzed the many previous decisions, especially State v. Ayers, 470 S.W.2d 534 (Mo. banc 1971), and State v. Stapleton, 518 S.W.2d 292 (Mo. banc 1975), and concluded that the requirement of a submission of manslaughter “was not instituted by Ayers. Any contrary implication from the language appearing in Stapleton is unfortunate if ‘automatic’ submissions were made prior to March 1, 1975.” State v. Mudgett, supra, 531 S.W.2d at 281.

At the time this case was tried, the Notes on Use to MAI-CR 6.06 stated that “[a]n additional instruction on manslaughter should not be given unless there is evidence to support the giving of it. It should not be given automatically.”

On this record, we declare as a matter of law that there was no evidence to support a submission of manslaughter, and the trial court did not err in refusing to give the requested instruction. The evidence showed that the victim was found in the home, the house was in disarray, items from the home were missing, the victim was shot six times, fingerprints of the defendant were found in the home, and the gun which he placed in the grass was the same gun used to kill the victim. Under these circumstances, there was no justification to instruct on manslaughter.

Lastly, appellant complains of the argument of the prosecutor with reference to the Grand Jury and of the court’s denial of a request for a mistrial.

The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect can be removed in no other way, State v. Raspberry, 452 S.W.2d 169, 173 (Mo.1970), or where the incident is so grievous that the prejudicial effect can be removed in no other way. State v. Camper, 391 S.W.2d 926, 928 (Mo.1965). For these reasons, whether the remarks of counsel require a mistrial and the discharge of the jury rest largely in the discretion of the trial court which has observed the incident giving rise to the request for mistrial and is in a better position than an appellate court to evaluate the prejudicial effect and possibility of its removal by action short of a mistrial. State v. Camper, supra, at 928. Our function is to determine whether, as a matter of law, the trial court abused its discretion to the prejudice of the appellant in refusing to declare a mistrial. State v. Chester, 445 S.W.2d 393, 399 (Mo.App.1969). When an improper incident occurs during the trial and the jury is instructed to disregard it,

. . the reviewing court, in order to hold that the failure to grant a mistrial was reversible error, must determine and conclude as a matter of law from the entire record that the error was prejudicial and so impressive that its effect was not removed by the action of the trial court.” State v. Dennison, 428 S.W.2d 573, 577 (Mo.1968).

We find no abuse of discretion here. We cannot conclude from the entire record that the trial court abused its discretion in overruling the request for mistrial because of the reference by the prosecutor. The court sustained the objection and instructed the jury to disregard the statement. The cases relied upon by appellant are inappo-site. We find no error in this regard.

We have reviewed the entire record, the briefs of the parties, and the cases and authorities relied upon by the appellant and are convinced that there is no prejudicial error.

The judgment of conviction is affirmed.

KELLY and GUNN, JJ., concur.

      . INSTRUCTION NO. 4:
      “If you find and believe from the evidence beyond a reasonable doubt:
      First, that on June 18, 1973, in the City of St. Louis, State of Missouri, the defendant caused the death of William Kupfer, Jr. by shooting him, and
      Second, that the defendant intended to take the life of William Kupfer, Jr.,
      then you will find the defendant guilty of murder in the second degree.
      However, if you do not find and believe from the evidence beyond a reasonable doubt each and all of the foregoing, then you must find the defendant not guilty of that offense.”

      . See the thorough discussion in Richardson, Lesser Graded or Included Offenses, Mo. Bar Comments on Missouri Approved Criminal Instructions at 18-20, and Scurlock, Manslaughter, Comments, supra, at 4-9.


author: FONES, Chief Justice.

text:
    John T. FRAZIER and W. C. Cole, Jr., Appellants-Appellees, v. Thomas W. BYRD et al., Appellees-Appellants.
    Supreme Court of Tennessee.
    March 29, 1976.
    W. J. Reynolds, Reynolds & Deusner, Sel-mer, R. S. Hardin, Ripley, Miss., for appellants-appellees.
    James D. Todd, Waldrop, Hall, Tomlin & Farmer, Jackson, John L. Hopkins, Corinth, Miss., for appellees-appellants.
   OPINION

FONES, Chief Justice.

Frazier and Cole, residents and citizens of the State of Mississippi, filed a complaint in the Circuit Court of McNairy County seeking damages resulting from an accident between two trucks, one owned by Cole and driven by Frazier and the other owned by the Alcorn County Board of Supervisors, District Number Three and driven by Byrd. It was alleged that Defendant Alcorn County Board of Supervisors, District Number Three was a governmental entity of the State of Mississippi and was liable for the negligence of defendant Byrd, an employee, under the doctrine of respondeat superior.

Byrd and Alcorn County Board of Supervisors, District Number Three were served with process through the agency of the Secretary of State.

On September 12, 1974, plaintiffs amended the complaint by adding Alcorn County, Mississippi as a party defendant and by adding the following allegations:

“That Alcorn County, Mississippi is a governmental entity of the State of Mississippi and operates its road system by and through the Alcorn County Board of Supervisors-and in this particular instance, District Three and the said Alcorn County Board of Supervisors is a branch, or subdivision, of the said Alcorn County, Mississippi, and defendant, Thomas W. Byrd was acting as agent and/or employee for said Alcorn County Board of Supervisors and Alcorn County, Mississippi and was acting within the scope of his employment as a truck driver at the time of the accident complained of herein.”

The summons issued for service on Alcorn County was mailed to defendant, “Board of Supervisors, whose address is Alcorn County Courthouse, Corinth, Mississippi,” according to the endorsement of the Secretary of State.

On October 29, 1974, the trial judge entered an order entitled “Default Judgment.” The order recited, in part, that on motion of plaintiff for default judgment against the defendants Alcorn County Board of Supervisors, District Number Three and Alcorn County, Mississippi, it appearing that all parties were before the Court and that the Court had jurisdiction of the matter and that said defendants having failed to file an answer, a default judgment should be entered and the cause set for hearing ex parte. The order further recited that on motion of the plaintiff, a jury was waived, the court heard proof on the issue of injuries and damages, and awarded plaintiff Frazier the sum of $20,000 and plaintiff Cole the sum of $14,750 against both defendants.

The technical record contains an answer on behalf of defendant Byrd filed on September 17, 1974, wherein he admits that he is an employee of Alcorn County Board of Supervisors, District Three, Alcorn County, Mississippi. He admits that the accident occurred at the time and place alleged but denies that he was guilty of any negligence.

The technical record does not reflect any further proceedings with respect to defendant Byrd. The reply brief on behalf of Frazier and Cole contains the following recitation on page four:

“Subsequent to the entering' of the Default Judgment against Alcorn County, Mississippi, thereafter on'the same date, October 29,1974, the cause came on to be heard before a jury as to the case against Defendant Byrd and Plaintiff Cole was awarded the sum of Five thousand ($5,000.00) Dollars and Plaintiff Frazier, the sum of Seven thousand, five hundred ($7,500.00) Dollars against the Defendant Byrd, which judgments have now been paid. After payment of the aforesaid sums, the judgment in favor of W. C. Cole remaining outstanding is in the amount of Nine thousand seven hundred fifty ($9,750.00) Dollars and a judgment in favor of John T. Frazier in the sum of Twelve thousand five hundred ($12,-500.00) Dollars, which has not been paid.”

On February 13, 1975, plaintiffs issued execution directing the sheriff to levy upon the goods and chattels of the defendants and the sheriff’s return dated February 21, 1975, recites the seizure of six (6) trucks owned by defendant Alcorn County, Mississippi.

The copy of the execution issued by plaintiff Cole in the technical record shows a judgment of $9,750 and the execution issued by plaintiff Frazier recites a judgment of $12,500. Thus the technical record shows Cole’s judgment against the Alcorn County defendants has been reduced or credited with a payment of $5,000 and Frazier’s judgment reduced or credited with a payment of $7,500.

We therefore accept as true the admission of the plaintiffs dehors the record that the servant Byrd has paid in full the judgments rendered against him in the respective amounts stated.

On February 24, 1975, defendant Alcorn County, Mississippi, entering an appearance in the cause for the first time, filed two motions: (1) to quash the executions and (2) to set aside the judgment against Al-corn County, Mississippi.

The trial judge overruled the motion to set the judgments aside but sustained the motion to quash the executions and ordered the release of the six trucks. Both parties perfected direct appeals to this Court.

We must pretermit the several rare and interesting questions this case presents. The payment in full of the judgments rendered in favor of plaintiffs against the servant discharges the master, whose liability is derivative only, and renders moot issues involving the validity of judgments against the master.

That conclusion has its foundation in the following rationale:

“. ' .n . where the servant by whose act the injury occurred is exonerated it is contradictory and absurd to find the master guilty on the same evidence; that the servant’s liability is primary, that of the master secondary, or derivative, depending wholly on his duty to respond for the fault of his servant in the line of his employment, in the nature of a surety-ship; that when the relations between the two are left undisturbed, the master has the right to recover over against the servant for any liability imposed upon the former by the misconduct of the latter, but if the latter be exonerated in an action between him and the injured person, this status is destroyed, and the master prevented from such recovery.” Loveman Co. v. Bayless, 128 Tenn. 307 at 315 160 S.W. 841 at 843 (1913).

The doctrine of respondeat superior makes the master liable to the same extent as the servant, but also restricts the liability of the master to the amount of damages recoverable from the servant. See Granquist v. Crystal Springs Lumber Co., 190 Miss. 572, 1 So.2d 216 (1941); 141 A.L.R. 1169; Craven v. Lawson, Tenn., 534 S.W.2d 653, released January 26, 1976, Eastern Division.

It was erroneous for the trial judge to enter judgments against the two Alcorn County, Mississippi defendants for any sum in excess of the judgments rendered the same day against the servant Byrd. The payment of the judgments by the servant Byrd fully satisfies a judgment or other liability of the two Alcorn County defendants, if indeed said judgments were otherwise valid.

Affirmed in part, reversed in part, decree accordingly.

Costs of this appeal are adjudged against Frazier and Cole.

COOPER, HENRY and HARBISON, JJ., and DYER, Special Justice, concur.


author: CARNEY, Presiding Judge.

text:
    Marvin E. ALEXANDER and Wendell Alexander, Plaintiffs-Appellees, v. C. C. POWELL REALTY COMPANY, INC., Defendant-Appellant.
    Court of Appeals of Tennessee, Western Section.
    Nov. 18, 1975.
    Certiorari Denied by Supreme Court Jan. 26, 1976.

      William B. Aeree, Jr., and Elam, Glasgow, Tanner & Aeree, Union City, for plaintiffs-appellees, Marvin E. Alexander and Wendell Alexander.
    C. W. Miles, III, and Miles & Miles, Union City, for defendant-appellant, C. C. Powell Realty Co., Inc.
   CARNEY, Presiding Judge.

The Plaintiffs below, Appellees herein, Marvin E. Alexander and Wendell Alexander, of Martin, Tennessee, a partnership d/b/a Alexander Real Estate and Auction Sales, recovered a judgment for $2,000 against the Defendant-Appellant C. C. Powell Realty Company of Union City, Tennessee, a Tennessee corporation. Cecil C. Powell is the controlling stockholder and chief executive officer of the corporation. Cecil C. Powell is engaged in the retail grocery business and buys and sells real estate.

The Plaintiffs below sued on the alleged breach of oral contract to sell a 75-acre tract of land in Weakley County, Tennessee, and pay Plaintiffs a broker’s commission for finding a buyer ready, willing and able to buy on Defendant’s terms.

The Defendant-Appellant pleaded the Statute of Frauds and no contract but only a discussion of sale. The Chancellor held that Plaintiffs were entitled to the commission and that the Statute of Frauds did not apply to a contract for a broker’s commission.

The 75-acre tract was titled in the name of the corporation. However, the parties dealt with each other as if it were titled in the name of C. C. Powell individually and it was not until after suit was filed that Plaintiffs learned that Cecil C. Powell was not the title holder.

By assignment of error No. I the Appellant landowner, C. C. Powell Realty Company, insists that the Chancellor erred in failing to hold that T.C.A. Section 23-201, subsection 4, the Statute of Frauds, barred Plaintiffs’ suit. For convenience, we quote said section as follows:

“23 — 201. Writing required for action. —No action shall be brought:
(1) Whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate;
(2) Whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person;
(3) Whereby to charge any person upon any agreement made upon consideration of marriage, or,
(4) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease thereof for a longer term than one year; or
(5) Upon any agreement or contract which is not to be performed within the space of one (1) year from the making thereof;
Unless the promise or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.”

Tennessee does not have a special statute of frauds applying to brokers’ commissions on the sale of real estate such as many states have enacted. 103 A.L.R. 822; 17 A.L.R. 891; 56 A.L.R. 783.

In Restatement of the Law of Agency, Second Edition, American Law Institute, 1958, such statutes are discussed. We quote from Chapter 14, Agent v. Principal, Section 468, Statutes of Frauds as Defense as follows:

(2) If a statute provides that a person employing another for a specified purpose shall not be liable to the other for compensation although the other renders the promised performance, unless the employer has signed a memorandum in writing, a person has no duty to pay to another whom he orally employs for such purpose either the promised compensation or the reasonable value of services rendered.
(3) Except as stated in Subsection (2), an agent who has partially or fully performed a contract which is not enforceable because a memorandum thereof has not been signed is entitled to the fair value of services rendered if the principal refused to perform the contract or to sign a memorandum.
Comment on Subsection (2):
b. Statutes similar to the one referred to in this Subsection are not infrequently enacted with reference to contracts with real estate brokers. The memorandum commonly required under such statutes is one which describes the thing to be sold and the terms of compensation. In the absence of such a memorandum, the employer, although benefited by the service of the agent who has been orally employed by him, is under no duty to give compensation in any form. As stated in Section 414(3), however, unless the principal is willing to make a memorandum, the agent is under no duty to perform.
The rule stated in this Subsection differs radically from that applying to the ordinary Statutes of Frauds. Its purpose is to protect against fraudulent claims for services; if the broker were entitled to obtain the value of services the statute would not have the effect intended. Brokers are professionals; it is not unfair to deprive them of compensation if they do not adopt the safeguards of which they should be aware.

The general rule, however, is that the contract of employment between a broker and his principal may be either written or oral, irrespective of the nature of the property relative to which negotiations are to be instituted. 12 Am.Jur.2d, Brokers, B. Necessity of Written Contract, Section 38, Generally, page 801; 151 A.L.R., page 648, Annotation, Statute of Frauds, Broker’s Contract; 9 A.L.R.2d, page 749, Annotation, Writing Evidencing Broker’s Contract, and 12 A.L.R.2d, page 1410, Annotation, Oral Contract to Purchase — Commission.

The specific question whether a broker’s contract for the sale of real estate must be in writing has not been raised in the appellate courts of Tennessee to the best of our research.

In the case of Loventhal v. Noel, 196 Tenn. 308, 265 S.W.2d 891 (1954), opinion by Justice Burnett, later Chief Justice, cited by Appellees, a real estate broker was allowed to recover his commission for finding a purchaser ready, willing and able to buy the real estate after the owner had first accepted and later rejected the offer submitted by the real estate broker. The owner subsequently sold the property to other persons at a slightly higher price. The listing of the property with the broker was admitted. The record does not reveal whether the listing was oral or written.

In Slesinger v. Glatt, 52 Tenn.App. 307, 373 S.W.2d 220 (1962), this Court awarded a judgment in favor of the Plaintiff broker, Slesinger, against the Defendant landowner, Mrs. Glatt, for services rendered in connection with the sale by Mrs. Glatt of a parcel of land which she had listed with the Plaintiff. The property was under lease to DX Sunray Oil Company coupled with the right of refusal in DX Sunray to purchase the property. Slesinger, the broker, found a purchaser, McLemore, who signed a written contract to buy the property at a designated price with a proviso that his contract would be void if DX Sunray Oil Company exercised its prior right to purchase. After learning that Mrs. Glatt had a bona fide purchaser, DX Sunray Oil Company exercised its right to purchase on the terms of the McLemore contract. This Court sustained the validity of the oral agreement by Mrs. Glatt to pay Slesinger a commission in case the property was sold to DX Sunray. However, in the opinion, we stated that even in the absence of an express agreement this Court would have awarded a judgment to the Plaintiff for the value of his services under quantum meruit and to prevent unjust enrichment to Mrs. Glatt.

The Statute of Frauds apparently was not pleaded. The employment of Plaintiff as broker was uncontradicted. The only question of fact was whether Mrs. Glatt agreed to pay the broker a commission only on sale to McLemore or whether she agreed to pay a commission whether the lot was sold to McLemore or DX Sunray Oil.

We have been able to find no case in Tennessee where the agency was disputed and the land not sold. However, in the Slesinger case discussed above this Court refused to allow Plaintiff Slesinger a commission on a lot described as Lot No. 1 for which Slesinger found a buyer, McLemore, and which was not sold either to McLemore or to DX Sunray Oil. The agency of Sle-singer was not disputed. We denied recovery of a commission because the contract with McLemore expressly provided for no sale of Lot No. 1 if DX Sunray exercised its option to purchase Lot No. 2.

The relationship between a principal and his broker is one of mutual trust. Our courts require a principal to act in good faith toward his broker. Barnett v. Thirkield, 201 Tenn. 528, 300 S.W.2d 905 (1957); Peavy v. Walker, 39 Tenn.App. 382, 284 S.W.2d 1 (1954); Thomas v. Million, 35 TennApp. 604, 250 S.W.2d 111 (1952).

A real estate broker is a fiduciary. Ottarson v. Dobson & Johnson, Inc., 52 Tenn.App. 280, 372 S.W.2d 777 (1963).

A principal is liable to a purchaser for the fraud or misrepresentation of his broker. Hunt v. Walker, 483 S.W.2d 732 (Tenn.App.1971).

An agent or broker may even make a binding contract to sell his principal’s real estate under a parol contract of agency. Cobble v. Langford, 190 Tenn. 385, 230 S.W.2d 194 (1950); Lowe v. Wright, 40 Tenn.App. 525, 292 S.W.2d 413 (1956).

In Tennessee, unlike many other states a trust in real estate may be established on parol evidence. Hunt v. Hunt, 169 Tenn. 1, 80 S.W.2d 666 (1934); Woodfin v. Marks, 104 Tenn. 512, 58 S.W. 227 (1900).

However, in such cases the quantum of proof necessary to establish such trust is more than a bare preponderance and must be clear, cogent and convincing though not necessarily uncontradicted. Greenwood v. Maxey, 190 Tenn. 599, 231 S.W.2d 315 (1950).

Chief Justice Green, in Hunt v. Hunt, made the statement: “Ordinarily, the evidence of a single interested witness would not be sufficient to set up a trust resting in parol.”

In Kelley v. Whitehurst, 37 Tenn.App. 360, 264 S.W.2d 1 (1953), this Court upheld the Chancellor’s decree establishing a parol agreement to reconvey real estate of the decedent to the plaintiffs. In that case the testimony of the plaintiffs was corroborated by neighbors and relatives of the parties as well as the conduct of the parties.

While a broker’s contract to sell or find a buyer for real estate does not technically create a trust estate or interest in the real estate of the principal, such contract may and often does give the broker the legal right to bind the principal’s interest in such real estate in many ways. We hold that in Tennessee a broker’s contract for sale of real estate may be oral but, by analogy, the same quantum of proof necessary to establish a trust in real estate by parol evidence is necessary to prove an oral contract between a principal and a broker for the sale of real estate and that the contract must be proven by clear, cogent and convincing evidence though the evidence need not be uncontradicted. From this holding it necessarily follows that Appellant’s assignment of error No. I that the Tennessee Statute of Frauds, T.C.A. Section 23 — 201, applies to the instant case is respectfully overruled.

We turn now to the Defendant’s assignment of error No. II that there was no meeting of the minds and, therefore, no contract by Defendant with Plaintiffs. This assignment of error raises the question of the sufficiency of the evidence before the Chancellor to support the judgment in favor of the Plaintiffs.

There were no witnesses to the oral conversations between the Plaintiff Wendell Alexander or his brother, Plaintiff Marvin Alexander, and Cecil Powell, owner of C. C. Powell Realty Company.

Plaintiff Wendell Alexander testified that on or about October 4, 1972, he was settling up with Cecil Powell for the sale of Cecil’s former home in Weakley County and asked him if he would sell the 75-acre tract of land involved in this litigation located on Highway 22 in Weakley County. Cecil Powell had just recently bought this property at a price of $37,500. Cecil replied that he would take $45,000 or $600.00 per acre. Wendell Alexander made no offer to purchase but told his brother, the Plaintiff Marvin Alexander, of the conversation.

The Plaintiff Marvin Alexander testified that he called Cecil Powell by phone or auto radio on October 11, 1972, and asked if he would take $40,000 for the 75 acres and pay a $2,000 commission. Powell had never mentioned selling the property to anyone except Wendell Alexander and had never sought the assistance of either of the Alexanders in selling the property. Cecil Powell rejected the offer made by Plaintiff Marvin Alexander saying that on the basis of the purchase price of $37,500 he would have no profit but repeated his offer to take $45,-000. Marvin did not say whether this was net or included a commission. At any rate, Marvin Alexander testified that after some conversation Cecil Powell agreed to take $42,000 and pay a $2,000 commission provided he could wait until six months’ ownership had expired before giving a deed in order to obtain capital gain status on the profit for income tax purposes.

Plaintiff Marvin Alexander testified that he immediately called Robert Brundige, the person who had made him the original offer of $40,000, and Brundige agreed to the price of $42,000 but had some questions about the terms of sale and wanted more information. Before Marvin Alexander could get in touch with Cecil Powell, Cecil Powell’s secretary called the next day, October 12, 1972, and informed Marvin Alexander that Cecil would not sell the property under any circumstances. Marvin testified that the next day, October 13, 1972, he saw Cecil Powell at a Rotary meeting in Martin, Tennessee, and when Cecil again refused to sell, 'Marvin told him he intended to sue him; that on the following day Cecil called him by telephone and said he would give Marvin until Monday, October 16, 1972, at twelve noon to sell the farm but he wanted all cash and would keep next year’s crops.

Plaintiff Marvin Alexander testified that he confirmed the new terms with Brundige on Sunday, October 15, and located Cecil Powell on Monday morning, October 16, by telephone and offered to pay for the property all in cash or put up a deposit for Brundige at $42,000 because Brundige could not be present until the following Thursday to close the deal; that Cecil Powell said that there was no hurry, that he would close the deal on Thursday and that when Thursday came, Brundige offered to purchase and Cecil Powell refused to sell the property. The Plaintiffs filed the present lawsuit in October, 1973.

Plaintiff Marvin Alexander had prepared a written listing of the property but the record is not clear as to whether Cecil Powell refused to sign the written listing • or whether Marvin Alexander failed to present it to him in person. Wendell Alexander testified that Cecil Powell had listed two houses and lots with him for sale in October, 1972, but expressly refused to sign a written listing and after Cecil refused to complete the sale to Brundige of the 75 acres, he and his brother Marvin took no further action to try to sell the two houses and lots under the oral listing.

Cecil Powell testified that he had lived in Martin, Tennessee, twelve years prior to moving to Union City; that he was primarily in the retail grocery business but farmed and bought and sold real estate; that on or about October 5, 1972, Wendell Alexander, whom he had known for many years, was asking him about some of his farmlands and mentioned the Maness farm, that is, the 75 acres in question, and asked Cecil what he would take for it and Cecil said $100.00 an acre profit or a total of $45,000, to which Wendell said he might be interested; that the following Monday Marvin Alexander called and offered $40,000 which Cecil refused saying he would not take less than $45,000; that later he had his secretary call Marvin and tell him that he was not selling the farm at any price; that later he was at the Rotary Club in Martin, which was on a Thursday, and he again refused to sell the farm; that the following Thursday Marvin Alexander presented him a deed which he asked him to sign and he, Cecil Powell, refused to do so telling Marvin that he had never contracted with him to sell the farm and that he had never made any agreement except that he would take $45,000; that initially he had a written agreement with Wendell and Marvin Alexander for the sale of his homeplace in Weakley County which expired but later on they did sell the property and he paid the commission.

At the time of the trial in November 1974, Cecil Powell had sold 19 acres of the 75 acres for $1,000 per acre or $500 per acre profit through another broker who had no written contract and Cecil had paid the commission on the sale of this tract. There is no suggestion in the record that Cecil Powell was dickering with anyone else for the purchase of any part of the 75 acres at the time he refused to deliver the deed to Brundige on Thursday, October 19, 1972 or that he was negotiating with any other broker for the sale of the property.

The three parties and Brundige were the only witnesses. There was no corroboration of Plaintiff Marvin Alexander’s testimony either by circumstantial or direct evidence regarding the terms and provisions of his alleged contract with Cecil Powell. The testimony of Brundige is only corroboration of Marvin Alexander’s testimony that he found a buyer for the property. It is no corroboration of Marvin’s testimony concerning the terms and conditions of his alleged contract with Cecil Powell.

. . The Court may very well be wrong about it, but it is the Judgment of the Court that the Alexanders have carried their slight burden of proof. They do not have proof beyond a reasonable doubt as you do in a criminal case, and he believes that they have, through the testimony of Mr. Marvin Alexander and Mr. Robert Brundige proven that there was a contract to sell the property for $42,000.00 so therefore, it results that there will be a judgment against Mr. Powell for $2,000.00. You may note your exceptions.”

At the conclusion of the trial His Honor the Chancellor expressed himself thusly concerning the preponderance of the evidence:

The uncorroborated testimony of Plaintiff Marvin Alexander disputed by Cecil Powell falls far short of being clear, cogent and convincing proof of an oral contract with Cecil Powell and is insufficient upon which to predicate a judgment against the owner of the land, C. C. Powell Realty Company. To establish such a precedent would be against public policy and make it hazardous for a landowner to have a private conversation with a broker in person or by telephone. Unscrupulous brokers could more easily perpetrate frauds not only upon their principals but even upon strangers. By this holding, we do not mean to cast any aspersions upon the Plaintiffs nor to infer that they are unscrupulous. We hold simply that the uncorroborated testimony of the Plaintiff Marvin Alexander is insufficient as a matter of law to establish an oral broker’s contract to find a purchaser for the 75 acres of land.

Assignment of error No. II is, therefore, sustained, the decree of the lower Court is reversed, and Plaintiffs’ complaint is dismissed. The Plaintiffs are taxed with the costs in the Court below and in this Court.

MATHERNE, J., and McPHERSON, Special Justice, concur.


author: WALKER, Presiding Judge.

text:
    Royce Lavelle BOUNDS, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Nov. 13, 1975.
    Certiorari Denied by Supreme Court Feb. 9, 1976.
    James D. Todd, Jackson, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., Alex B. Shipley, Jr., Asst. Atty. Gen., Nashville, Howard F. Douglas, Asst. Dist. Atty. Gen., Jackson, for defendant in error.
   WALKER, Presiding Judge.

OPINION

The defendant below, Royce Lavelle Bounds, appeals in error from his conviction of second degree murder with an automobile and his sentence to 15 years in the penitentiary.-

The state’s evidence showed that on August 24, 1974, at about 8:00 p. m., the defendant was proceeding south on Highway 45 By Pass in the City of Jackson; that he passed another car at 70 to 80 miles per hour and struck the walkway of a bridge on his right, then crossed the roadway and the median strip into the opposite lanes of traffic and collided with the front of the car in which Debrah Jones was a passenger, resulting in her death. The defendant’s car continued off the highway, over a fence, and came to rest in Chester Street.

The defendant was injured in the accident. When officers arrived they found that he and his car smelled of alcohol. One officer felt his pulse to see if he was alive. Another witness did not smell alcohol. The officers took the defendant to the hospital where, at the request of one of them, a blood sample was taken from him which showed .24 percent ethanol.

Testifying in his own behalf, the defendant said that he was driving an automobile with three new tires and an old one on the right front wheel; that he passed another car at 50 to 55 miles per hour and attempted to slow down, at which time his right front tire blew out, pulling his car to the right; that he jerked the car to the left, skidded and hit the bridge; that the next thing he remembers was waking at the hospital.

He also said that about 1:00 p. m. that day he went to a tavern and drank four or five beers in a period of two or two and a half hours, then went home and cleaned up, after which he drank another quart of beer before going to see his former employer at 6:30 or 7:00 p. m. By his testimony he was not intoxicated, was driving properly and the collision was caused by a blowout. By his account he was guilty of no culpable negligence.

The wrecker driver found both front tires deflated and holes in the right one when he removed the defendant’s car from the scene.

In challenging the admissibility of the results of the blood test over his objection, the defendant insists that he did not consent to it and that, in fact, he was incapable of consenting within the meaning of TCA 59-1045.

The record shows (1) a witness said the defendant was limber and unconscious at the scene; (2) officers had to hold him up as they drove him to the hospital and he was carried in on a stretcher; (3) he was injured in the collision; (4) officers said he was not mentally alert. Further, no one at any time asked for his consent to the test.

The state argues that the “implied consent” law provides one way, but not the exclusive way, to take one’s blood and introduce it into evidence. It cites Fee v. State, Tenn.Cr.App., 497 S.W.2d 748, in which this court considered the place where a specimen had to be sent for analysis. We held that an analysis at a local hospital was valid even though the statute says it should be sent to the state examiner. To the same effect is Bunch v. State, Tenn., 499 S.W.2d 1, but these cases do not support a broader construction on the consent requirement.

The state also says that Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908; Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448, and a line of state cases support its view that the statutory procedures provide one way but not the exclusive method of showing results of a blood alcohol test. It contends that the implied consent law only places administrative sanctions upon the refusal to have a blood alcohol test administered. For this view see People v. Keen, 56 Mich.App. 84, 223 N.W.2d 700 (1974); Strong v. State, 231 Ga. 514, 202 S.E.2d 428 (1973); Scales v. State, 64 Wis.2d 485, 219 N.W.2d 286 (1974) (implied consent law does not limit the right to search incident to arrest).

TCA 59-1045 authorizes blood to be taken from an unconscious person or one incapable of refusal but the results shall not be used against him in evidence in any court or before any regulatory body without the consent of the person so tested, (emphasis ours) This statute covers the test introduced here and the results were improperly admitted. We hold that the introduction of this evidence constituted prejudicial error. We cannot say that aside from it the jury would have convicted the defendant anyway. For this reason the case is reversed and remanded for a new trial.

Although the case must be reversed, we have examined the other assignments of error and overrule them.

In his attack on the admissibility of the blood test, the defendant contends that TCA 59-1046 limits its introduction to violations of Chapter 10 of Title 59, Tennessee Code Annotated, and does not apply to homicide cases. He cites cases from other jurisdictions holding the presumption of intoxication in their implied consent statutes does not apply in motor vehicle homicide prosecutions.

Our statutes allow both the results of the blood test and the presumption into evidence regardless of whether or not the defendant is indicted for driving while intoxicated. TCA 59-1049 provides that the certificate is admissible “in any court, in any criminal proceeding, as evidence of the facts therein stated, and of the results of such test.” Without the presumption the blood test results would have little significance. This assignment is without merit.

The defendant also attacks the results of the blood test saying that no qualified person was present to testify about the procurement of the blood.

Evidence admitted without objection showed that the blood was taken by Miss Donna Jones and that she was an assistant laboratory technician at Jackson-Madison County Hospital. Miss Jones did not testify and it does not appear from the record whether or not she was under subpoena. Under State v. Robbins, Tenn., 512 S.W.2d 265 (1974), this assignment is overruled.

We find no merit in the contention that the trial judge improperly instructed the jury orally. In his main charge he correctly instructed the jury on the range of punishment. When it returned a verdict of guilty of second degree murder without fixing the punishment, he directed them to return and his oral instructions had to do with the form of the verdict or method of rendering a sentence. This is permissible.

Reversed and remanded for a new trial.

RUSSELL and DUNCAN, JJ., concur.


author: DUNCAN, Judge.

text:
    Willie Ray SMITH, Plaintiff-in-Error, v. STATE of Tennessee, Defendant-in-Error.
    Court of Criminal Appeals of Tennessee.
    Jan. 15, 1976.
    Certiorari Denied by Supreme Court Feb. 23, 1976.

      Hughie Ragan, Jackson, for plaintiff in error.
    R. A. Ashley, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, George W. Hymers, Dist. Atty. Gen., Howard F. Douglass, Asst. Dist. Atty. Gen., Jackson, for defendant in error.
   DUNCAN, Judge.

OPINION

The defendant, Willie Ray Smith, brings this appeal contesting his conviction in the Madison County Criminal Court for the offense of forgery. The defendant received a jail sentence of 11 months and 29 days.

The defendant’s five assignments of error can be reduced to two basic complaints. First, that his alleged confession should not have been admitted into evidence, and second, that the evidence is insufficient to support his conviction.

With respect to his confession complaint, the defendant particularly argues that the trial court erred by refusing his request to hold a hearing out of the presence of the jury on the admissibility of his alleged confession.

Officer Bobby Holt testified that he obtained a confession from the defendant. When the officer began his testimony, the defendant’s counsel requested that he be allowed an evidentiary hearing out of the presence of the jury on the question of the voluntariness of the confession. The court refused the request and permitted the officer to testify in the presence of the jury regarding his interrogation of the defendant. The officer stated that he advised the defendant of his rights and had him execute a form containing his Miranda warnings and a waiver with respect thereto. The officer then read the defendant’s statement to the jury, as follows:

“On Tuesday or Wednesday, April 8 or 9, 1975, I went to the First National Bank and the man at the bank gave me five blank checks. I left and met Paul Puckett on Institute Street and we went over to my house on Liberty.
“I wrote a check in the amount of $65.79 made payable to Willie Lee Reid and signed it William Ford. Paul and I went over to Super Save on Hays. I got Paul to go in and try to cash the check and I waited outside. Paul came back out and told me they took the check from him. I then left there and went to a friend’s house in East Jackson and Paul left too and said he was going home.”

The alleged confession was placed in evidence before the jury without the trial judge making any stated findings that the confession was given freely and voluntarily, or that the defendant had been adequately advised of his rights; likewise, no stated finding was made that the defendant had validly waived his rights. The trial judge gave no instructions to the jury at that point nor later in his written charge as to what the function of the court was with respect to the admissibility of a confession, or as to how the jury should treat a confession once it was found admissible by the court. By not holding a hearing on the admissibility of the questioned confession, and by not making an express ruling as to its admissibility, the court, in effect, left the question of its admissibility up to the jury.

When a confession is offered in evidence, its competency becomes a preliminary question to be determined by the court, and it is error to submit the admissibility of a confession to the jury. Self v. State, 65 Tenn. 244 (1873); Omohundro v. State, 172 Tenn. 48, 109 S.W.2d 1159 (1937); Wynn v. State, 181 Tenn. 325, 329, 181 S.W.2d 332-33 (1944). Of course, once the court determines that a confession is admissible, its weight is for the jury. As was stated in Wynn v. State, supra:

“A confession being admitted, its weight is of course a matter for the jury. That is, the jury is to determine whether defendant made the confession and whether the statements contained in it are true. To aid them in resolving these questions the jury may hear evidence of the circumstances under which the confession was procured.”

The procedure to be followed in passing upon the admissibility of evidence, where objection is made, is outlined in Hill v. State, 211 Tenn. 682, 687, 367 S.W.2d 460, 462 (1963), as follows:

“The procedure to be followed in passing upon the legality of a search and the admissibility of evidence thus obtained is the same as that followed when objection is raised as to the admissibility of a confession or a dying declaration. Goodwin v. State, supra; Wynn v. State, 181 Tenn. 325, 329, 181 S.W.2d 332. In each of these situations mixed questions of law and fact which are to be determined by the Trial Judge are presented. If the evidence is admitted, it is for the jury to say what weight will be given it. In each instance, when an objection is made to the offered evidence, the approved practice is for the Court to hear full testimony of all the relevant facts and circumstances in the absence of the jury and then rule upon the admissibility of the testimony offered. Dickason v. State, 139 Tenn. 601, 606, 202 S.W. 922; Goodwin v. State, supra; Wynn v. State, supra; Turner v. State, 187 Tenn. 309, 314, 213 S.W.2d 281.”

Addressing this question in Mitchell v. State, 3 Tenn.Cr.App. 153, 160, 458 S.W.2d 630, 633 (1970), the court said:

“A defendant who objects to the admission of a confession alleged to have been given by him is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of the confession are actually and reliably determined. Such determination should be made prior to the admission of the confession to the jury adjudicating guilt or innocence. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908.”

We recognize that after the decision in Jackson v. Denno, supra, the United States Supreme Court, in Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967) said: “This court has never ruled that all volun-tariness hearings must be held outside the presence of the jury, regardless of the circumstances.” It should be noted, however, that in the Pinto case the defendant did not object to the voluntariness hearing before the jury but, in fact, acquiesced in that procedure.

In McCravey v. State, 221 Tenn. 237, 240, 426 S.W.2d 174-75 (1968), our Supreme Court quoted approvingly from United States v. Carignan, 342 U.S. 36, 72 S.Ct. 97, 96 L.Ed. 48 (1951), as follows:

“The United States concedes in regard to the third issue that the better practice, when admissibility of a confession is in issue, is for the judge to hear the defendant’s offered testimony in the absence of the jury as to the surrounding facts.”

We do not think this court’s decision in Haggard v. State, 4 Tenn.Cr.App. 620, 475 S.W.2d 186 (1971), cited in the State’s brief, is any authority for the proposition that our courts have departed from the long-standing rule that hearings on the voluntariness of confessions must be out of the presence of the jury. That ease involved a post conviction petition, and one of the petitioner’s complaints was that in his original trial the trial court had not held a hearing, in the absence of the jury, to determine the volun-tariness of his and his co-defendant’s confessions. The court did quote in its opinion the statement above set forth from Pinto v. Pierce, supra, but the court’s actual ruling in rejecting the complaint was based on the fact that the admissibility of the confessions had been previously determined by the Supreme Court’s decision on the original appeal in Ledger and Haggard v. State, 199 Tenn. 155, 285 S.W.2d 130 (1955).

Perhaps circumstances could arise where it would not be prejudicial to a defendant for the court to conduct a hearing, in the presence of the jury, to determine if a confession was voluntarily and freely given; however, we think it would be a rare instance when such circumstances would be present.

We suggest one or two incongruities that can occur in such a “jury present” hearing. First, if after hearing all the evidence on the question, the court decides that the confession is inadmissible, then the harm done is irretrievable because the jury has already heard all of the incompetent proof. Second, if it be a case where the defendant does not intend to testify before the jury in his own defense on the merits of the case, as was the situation in the present case, then he is placed in an untenable position. Either he is forced to testify on the preliminary question, and thus expose himself to the jury in order to advance his position as to why the question should be resolved in his favor, or he is forced to forego his own testimony on the question so as to assert his right not to testify before the jury. Thus, he is either deprived of his constitutional right not to be a witness against himself, or he is deprived of his right to give the court his testimony on the preliminary question.

The above illustrations show the underlying reason for the rule that these preliminary questions should be resolved by the court, out of the jury’s presence.

We do not hold that it would be reversible error in every case where the court failed to grant a hearing out of the presence of the jury on the question of the admissibility of a confession or other evidence. Under some circumstances, it could amount to no more than harmless error; however, in the instant case, we are of the opinion that the defendant was not afforded an opportunity for a fair hearing on this question. The court permitted this evidence to come before the jury as evidence in chief, without even considering it as a preliminary matter. Since the defendant chose to exercise his right not to testify before the jury, he was denied any opportunity to offer his testimony on what should have been nothing more than a preliminary question before the court; furthermore, the court did not make any definitive ruling that the alleged confession was admissible and, in effect, left the question of its admissibility up to the jury. This, coupled with the fact that the court gave no written or oral instructions to the jury regarding their function with respect to the confession and the manner in which they should consider it, convinces us that reversible error has been committed.

With respect to the evidence complaint, the proof showed that in April, 1975, the defendant, in company with Paul Puckett, went to the Super Save Food Store in Jackson. The defendant remained outside while Puckett went in and attempted to cash a check drawn on the First National Bank of Jackson. When the store employee telephoned the bank to verify the check, Puckett walked out of the store, joined the defendant and both walked across the parking lot at a brisk pace. The check was drawn in the amount of $65.79, payable to Willie Lee Reid and signed by the name of William Ford.

The State did not call any witnesses from the Bank to prove whether or not William Ford had an account there. The defendant did not testify or otherwise offer any proof.

Since we have ruled that the defendant’s alleged confession was erroneously admitted into evidence, there is no proof remaining to support the defendant’s conviction for forgery.

Even had the defendant’s statement been properly admitted, there should have been some proof offered to show the fictitiousness of the name which the defendant allegedly affixed to the check. The case of Keebler v. State, 3 Tenn.Cr.App. 447, 463 S.W.2d 151 (1970), quotes liberally from 49 A.L.R.2d 852, 855, in explaining various ways in which it can be established that a check is fictitious or that the purported maker does not exist. As one of the ways, it is stated that if a proper officer of the drawee bank testifies that such person has no account in the bank, then that is prima facie evidence that such person is non-existent.

We hold that the defendant’s alleged confession was improperly admitted into evidence, and that the competent evidence in this record is insufficient to support the defendant’s conviction.

The assignments of error are sustained and the defendant’s conviction is reversed. This case is remanded to the trial court for a new trial.

WALKER, P. J., and RUSSELL, J., concur.


author: RUSSELL, Judge.

text:
    Alexander FORREST, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Feb. 10, 1976.
    Certiorari Denied by Supreme Court March 22, 1976.

      Hughie Ragan, Jackson, for appellant.
    R. A. Ashley, Jr., Atty. Gen., William J. Haynes, Jr., Asst. Atty. Gen., Nashville, George W. Hymers, Jr., Dist. Atty. Gen., James G. Woodall, Asst. Dist. Atty. Gen., Jackson, for appellee.
   OPINION

RUSSELL, Judge.

This is an appeal by Alexander Forrest from the dismissal without an evidentiary hearing of his petition for post-conviction relief from an armed robbery conviction and ninety-nine year penitentiary sentence.

Forrest alleged (1) that evidence obtained in an illegal search and seizure was introduced against him, (2) that he was illegally arrested, (3) that he was subjected to an illegal identification procedure by use of a single photograph, and (4) that proof of unrelated crimes was introduced against him over objection.

It is sufficient answer to these allegations to say that the latter two were explicitly dealt with upon the direct appeal to this court; and the first two were proper subjects for direct appeal.

A matter previously determined is not a proper subject for post-conviction relief. Pruett v. State, Tenn., 501 S.W.2d 807 (1973). A rebuttable presumption that a ground for post-conviction relief not raised in prior proceedings wherein it could have been raised is waived is grounded upon both statute and case law. T.C.A. § 40-3812; Arthur v. State, Tenn., 483 S.W.2d 95 (1972). T.C.A. § 40-3804(10) explicitly requires a petition for post-conviction relief to explain why a ground asserted therein has not been previously presented, where procedurally it obviously could have been.

The final ground for relief asserted by Forrest is that his appointed counsel was incompetent because they failed and refused to object to “the legality of the arrest warrant”. By way of pro se argument Forrest also claims that his attorneys refused to object to an illegal search and seizure, apparently in connection with the arrest. He also claims that they would not object to the evidence of unrelated facts, a contention rebutted by the record on direct appeal. The learned trial judge who summarily dismissed this petition presided over the trial and explicitly reports in a memorandum of record that defense counsel did in fact make the objections that they are accused of not making. In that context, it was unnecessary to hold an evidentiary hearing.

The dismissal of this petition for post-conviction relief is affirmed.

WALKER, P. J., and DUNCAN, J., concur.