author: ALDEN A. STOCKARD, Special Judge.

text:
    William D. WITTER, Plaintiff-Respondent, v. The COUNTY OF ST. CHARLES, Missouri, et al., Defendants-Appellants.
    No. 36169.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 23, 1975.
    Thomas W. Wehrle, Counselor, James H. White, Associate County Counselor, George W. Lang, II, Asst. County Counselor, St. Louis, Clayton, for defendants-appellants.
    G. Carroll Stribling, G. Carroll Stribling, Jr., Fordyce, Mayne, Hartman, Renard, Stribling & Boedeker, St. Louis, for plaintiff-respondent.
   ALDEN A. STOCKARD, Special Judge.

Plaintiff is the owner of Howell Island, also referred to as Island No. 85, comprising approximately 2,570 acres and located in the Missouri River. He alleged in his petition that both St. Charles County and St. Louis County claim the island to be within its boundaries and that each county claims the right to assess and collect taxes and to exercise jurisdiction over it. Plaintiff prayed for a declaratory judgment that Howell Island is located in St. Charles County, and that St. Louis County be enjoined from exercising any governmental jurisdiction over it. The trial court found Howell Island to be in St. Charles County and granted the requested injunctive relief. St. Louis County, and the named officials thereof, have appealed. We affirm.

The trial was held before the court without a jury, and the record contains numerous exhibits, some of which are voluminous. In making our review on this appeal we determine the cause de novo, weigh the competent evidence introduced upon the factual issues essential to the appeal, and reach our conclusions of fact based on the evidence, although we defer to the finding of the trial court where there is conflicting oral testimony involving a determination of credibility of witnesses. Martin v. Norton, 497 S.W.2d 164 (Mo.1973). We have carefully reviewed the competent evidence in accordance with the above rules and have determined and reached our own conclusions as to the facts material to the issues presented. We shall set forth only those facts without a detail of the evidence.

Howell Island is roughly oval in shape. The St. Charles bank of the Missouri River lies generally north of the island and the St. Louis County bank lies generally to the south. At all times prior to 1930 the middle of the main channel (referred to in the evidence as the “Thalweg” or “Navigational Thalweg”) of the Missouri River ran to the south of Howell Island and between the island and the St. Louis County bank of the river. Except during periods of high water, when navigation was sometimes possible in the channel to the north of the island, all navigation passed through the channel to the south of the island.

Starting in the fall of 1930, the United States Army Corps of Engineers caused a dike to be built adjacent to the downstream end of Howell Island and extending from the St. Louis County bank out into the river substantially closing off the channel which prior thereto ran south of the island. The purpose and effect of the dike was to cause the main channel to shift to the north side of Howell Island, and this was accomplished within a few weeks, or at most several months. The shifting of the flow of the water necessarily resulted in a scouring action to the north of the island and a silting action to the south of the island, and shortly thereafter all navigation was required to go through the channel to the north of the island. A few years later the United States Army Corps of Engineers constructed additional dikes from the St. Louis County bank of the river to the upstream end of Howell Island which completely sealed off what was left of the old channel on the south side of the island. Following this action of the Corps of Engineers, there has existed a permanent, insofar as any channel can be permanent in the Missouri River, and stable navigable channel in the Missouri River to the north of Howell Island and between it and the St. Charles bank which is navigable and is the main channel or thalweg.

The boundary line between St. Charles County and St. Louis County, at the place material to the issues in this case, is set forth in identical language in § 46.141, defining the boundaries of St. Charles County, and § 46.145, defining the boundaries of St. Louis County, as “thence down the Missouri river, in the middle of the main channel thereof.” It is clear, and there is no dispute between the parties, that prior to the commencement of the above referred to construction work in 1930 by the Corps of Engineers, Howell Island was within the boundaries and was a part of St. Charles County.

The question thus presented is whether, when the main channel or thalweg of the Missouri River was changed from the south side of Howell Island to the north side thereof by the construction of dikes by the Corps of Engineers, the boundary between St. Charles and St. Louis Counties also changed and the island became a part of St. Louis County, or did the island remain a part of St. Charles County.

Where the boundary between states or political subdivisions is located in running water, changes in such boundary are determined by application of the basic principles stated in Kansas v. Missouri, 322 U.S. 213, 64 S.Ct. 975, 88 L.Ed. 1234 (1944) as follows: “ * * * when changes take place by the slow and gradual process of accretion the boundary moves with the shifting in the main channel’s course,” but “a sudden or avulsive change in that course does not move the boundary, but leaves it where the channel formerly had run.” Or, as stated another way in Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892): “Accretion, no matter to which side it adds ground, leaves the boundary still the centre of the channel. Avulsion has no effect on boundary, but leaves it in the center of the old channel.” See also, Arkansas v. Tennessee, 310 U.S. 563, 60 S.Ct. 1026, 84 L.Ed. 1362 (1940). The State of Missouri has applied the above rules with respect to county lines, Randolph v. Moberly Hunting & Fishing Club, 321 Mo. 995, 15 S.W.2d 834 (1929).

Appellants do not challenge these basic rules, but in an attempt to escape the result of an application of the doctrine of avulsion, they assert that “The evidence * * * does not indicate an ‘avulsive’ change, thus making the boundary between St. Louis and St. Charles Counties the present main channel.” Appellants rely on cases which, in reference to a change by avulsion, refer to such terms as “suddenness,” Kansas v. Missouri, 322 U.S. 213, 64 S.Ct. 975, 88 L.Ed. 1234 (1944), or “heaping up at an instant,” Nebraska v. Iowa, 143 U.S. 359, 12 S.Ct. 396, 36 L.Ed. 186 (1892), or “suddenly and with great violence,” Arkansas v. Tennessee, 246 U.S. 158, 38 S.Ct. 301, 62 L.Ed. 638 (1918). A change by accretion, appellant asserts, is a gradual and imperceptible change, McBaine v. Johnson, 155 Mo. 191, 55 S.W. 1031 (1900), or as stated in Jefferis v. East Omaha Land Co., 134 U.S. 178, 10 S.Ct. 518, 33 L.Ed. 872 (1890), “the test of what was gradual and imperceptible was that, although the witnesses might see from time to time that progress had been made, they could not perceive it while the process was going on.”

“The legal effect of an act of the government in changing the main channel or current of a river may be analogous to a change caused by an avulsion, or may not be, depending on the circumstances in any particular case.” 65 C.J.S. Navigable Waters § 86, p. 269. In this case the construction work of the Corps of Engineers did not merely aid the river in making an imperceptible change. As one witness stated: “Man made the river abandon it,” the channel, by substantially blocking it and thereby forced the water to the north of Howell Island to form a new main channel. This occurred in a relatively short period of time. It was in the fall of 1930 when the construction was started, and the survey of the Corps of Engineers made in September of that year showed that the thalweg was to the north of Howell Island. If flood waters had existed for the same period of time and the river had formed the new channel when the flood receded the change would unquestionably have been the result of an avulsion. See Louisiana v. Mississippi, 282 U.S. 458, 51 S.Ct. 197, 75 L.Ed. 459 (1931). What occurred here was what is referred to in Garrett v. State, 118 N.J.Super. 594, 289 A.2d 542 (1972) as an “artificial avulsion.”

For cases involving a comparable factual situation with the result that boundaries were not changed, see State v. Bowen, 149 Wis. 203, 135 N.W. 494 (1912), where the construction of a bridge caused a change in the main channel, and Whiteside v. Norton, 205 F. 5 (8 Cir. 1913), where dredging of the riverbed caused a change in the channel.

We conclude that the man-made avulsive change in the main channel of the Missouri River from the south side of Howell Island to the north side did not result in a change in the boundary between St. Charles and St. Louis Counties.

The result we have reached makes it unnecessary to elaborate on, or rule, the assertion of St. Charles County that because it continuously exercised jurisdiction over Howell Island, and because St. Louis County has not, St. Louis County is estopped to now claim jurisdiction. We also need not rule on the contention of St. Louis County that the so-called “Island Rule,” as set forth in Missouri v. Kentucky, 78 U.S. 395 (11 Wall. 395), 20 L.Ed. 116, should not be applied to boundaries between subdivisions of a state.

The judgment is affirmed.

SMITH, C. J., and NORWIN D. HOUSER, Special Judge, concur.


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Larry PARSONS, Defendant-Movant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 35611.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 23, 1975.

      Huck, Hasten & LaBeaume, Graham W. LaBeaume, St. Louis, for defendant-mov-ant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., St. Louis, for plaintiff-respondent.
   STEWART, Judge.

Movant, Larry Parsons, pleaded guilty to four counts of robbery in the first degree. He was sentenced to concurrent terms of seven years on each count. Movant filed a Rule 27.26 Motion which sought to vacate the guilty pleas. The trial court denied the motion without holding an evidentiary hearing. By this appeal movant seeks remand to the trial court for an evidentiary hearing.

The movant in his amended motion alleged that he had a “discussion with his trial counsel and the prosecutor. In the setting [he] was offered a sentence of five (5) years on ‘all’ four (4) counts of robbery to run concurrently with a two (2) year sentence ... in a cause involving carrying a concealed weapon.” He further alleged that he entered the plea on the express advice of his counsel with the assurance that the total sentence would be five (5) years. He also alleged that counsel advised him after the hearing that he would have “only five (5) years total”. The substance of movant’s contentions is that he was induced to plead guilty by reason of a promise by his counsel and the prosecutor that he would receive concurrent sentences of five (5) years on the four charges of robbery.

The rule in Smith v. State, 513 S.W.2d 407 (Mo.1974) is controlling in this case. The court at page 411 said:

“A 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing.”

We have carefully reviewed the record of the proceeding with respect to the movant’s pleas which covers 19 pages of the transcript. The proceeding can best be described as meticulous. The court thoroughly probed every aspect of the plea as to each count. The testimony specifically refutes the allegations of the motion that promises of a lesser punishment had been made to movant.

Prior to sentencing on each of the four counts the State made a recommendation of seven years. On each occasion movant’s counsel was asked if he had any comment for the record. The movant was then granted allocution on each count before the court pronounced sentence.

The files and records support the court’s finding that movant’s plea of guilty was freely and voluntarily given, and knowingly made; that he knew the consequences of his plea when it was entered; and that the allegations of the 27.26 motion are fully refuted. The trial court properly dismissed the motion without an evidentiary hearing. Smith v. State, supra; Ross v. State, 517 S.W.2d 185 (Mo.App.1974). To rule otherwise would be to relegate such a painstaking proceeding as the record discloses in this case, to “an exercise in futility”. See Colbert v. State, 486 S.W.2d 219, 221 (Mo.1972).

The judgment of the trial court is affirmed.

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

      . “The Court: Do you have any further questions you want to ask Mr. O’Keefe at this time?
      The Defendant: No, sir.
      The Court: Do you want to ask me any questions?

        The Defendant: No, sir.
      The Court: Have you been threatened or intimidated, mistreated or in any way forced to plead guilty against your will on any of these four counts?
      The Defendant: No, sir.
      The Court: Has anyone made any promises regarding your guilty plea?
      The Defendant: No, sir.
      The Court: Were any promises made to you with reference to the amount of time to be served or possible probation?
      The Defendant: No, sir.
      The Court: Do you understand that the Court makes no promises to you as to the amount of time to be served or possible probation?
      The Defendant: Yes, sir.
      The Court: Do you understand that the Court has not authorized any promises to be made to you?
      The Defendant: Yes, sir.
      The Court: Do you understand that any recommendations that might be made to the Court about any one of these counts or the case totally are not binding on the Court?
      The Defendant: Yes, sir.
      The Court: Are you stating, then, that your plea of guilty as to each one of the counts is not made in exchange for any promise or because of any force or other inducement?
      The Defendant: Yes, sir.
      The Court: Are you admitting and stating that you are pleading guilty voluntarily and of your own free will and because you are guilty as charged?
      The Defendant: Yes sir.”


author: GUNN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Royce T. ARNOLD, Defendant-Appellant.
    No. 36592.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Sept. 23, 1975.

      John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., Brendan Ryan, Circuit Atty., St. Louis, for defendant-appellant.
    Henry G. Philip, Jeffrey Shank, Asst. Public Defenders, Charles D. Kitchin, Pub-lie Defender, St. Louis, for plaintiff-respondent.
   GUNN, Judge.

Defendant Royce Arnold appeals his conviction and five year sentence for stealing from a dwelling house. Defendant maintains that an in-court identification of defendant by a prosecution witness was based on an unduly suggestive lineup and was therefore improper. We disagree and affirm the conviction.

The State’s key witness to the crime was Kenneth Churchill. Mr. Churchill testified that in midmorning he observed the defendant, who was wearing a dark brown jacket and trousers similar to those worn by a service station attendant, park his car across the street from Mr. Churchill’s apartment building and enter into his neighbor’s backyard which adjoined Mr. Churchill’s apartment building. It was Mr. Churchill’s testimony that defendant passed within six to eight feet in front of Mr. Churchill; that he saw defendant exit from his neighbor’s apartment carrying a portable television set; that defendant entered the automobile with the television set and sped away.

On the same day of the crime Mr. Churchill gave a detailed description of the defendant to the police and also of the automobile used in arriving and departing from the scene of the crime. Shortly thereafter, the defendant was arrested while driving an automobile bearing the same license plate numbers and carrying the same description as supplied to the police by Mr. Churchill.

Two days after the burglary Mr. Churchill made a positive and unhesitant identification of defendant at a police lineup. At the lineup, defendant was wearing a dark brown jacket and trousers similar to the clothing which Mr. Churchill described was being worn by the perpetrator of the theft of the television set. At trial Mr. Churchill made a courtroom identification of defendant as the person he had seen leaving his neighbor’s apartment, and defendant argues that since he was wearing dark brown clothing — the same as that worn by the offender — that the identification of defendant by Mr. Churchill was the résult of an unduly suggestive lineup.

Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) and Simmons v. U. S., 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), require us to look at the “totality of the circumstances” to determine whether identification procedures are unduly suggestive. And Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), sets forth the factors to be considered in evaluating whether under the totality of the circumstances the identification procedures were unduly suggestive:

“[T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” 409 U.S. at 199, 93 S.Ct. at 382.

Similarly, the Missouri courts in determining whether identification procedures have violated due process consider the presence of an independent basis of identification, absence of suggestive influence by others and a positive courtroom identification. State v. Boothe, 485 S.W.2d 11 (Mo. banc 1972); State v. Parker, 458 S.W.2d 241 (Mo.1970); State v. Everly, 430 S.W.2d 156 (Mo.1968); State v. Rutledge, 524 S.W.2d 449 (Mo.App.1975).

In this case, Mr. Churchill carefully observed the movements of the perpetrator of the offense in daylight-during a 10-15 minute period. The offender passed in front of Mr. Churchill at least three times approaching within six to eight feet of him and even speaking to him at one point. Mr. Churchill also gave an accurate description of the defendant leading to his arrest, and defendant was immediately and positively identified by Mr. Churchill at the lineup after the arrest. There was a complete absence of any suggestive influence on Mr. Churchill by others. We conclude that although at the lineup defendant was attired in a brown jacket and trousers — the same or similar apparel worn by the criminal offender when first observed by Mr. Churchill at his neighbor’s apartment — the lineup, by that fact, was not maculated. The articles of clothing worn by the defendant in this case were not decisive in his identification. Further, the courtroom identification by Mr. Churchill had ample independent basis in the light of the totality of the circumstances, and the identification testimony was admissible. State v. Everly, supra; State v. Rutledge, supra; State v. Gay, 523 S.W.2d 138 (Mo.App.1975); State v. Cole, 519 S.W.2d 370 (Mo.App.1975).

The judgment is affirmed.

SIMEONE, P. J., and McMILLIAN, J., concur.

      . State v. Rutledge, supra, contains an excellent and extensive recitation of the current law relating to proper identification procedures.


author: CLEMENS, Presiding Judge.

text:
    Cecelia OTT, Respondent, v. Robert M. HOFFMEIER et ux., Appellants.
    No. 35872.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 23, 1975.

      Dearing, Richeson, Roberts & Wegmann, Hillsboro, for respondent.
    Steiner & Fenlon, Joseph A. Fenlon, Clayton, for. appellants.
   CLEMENS, Presiding Judge.

Defendants husband and wife appeal a trial-court ruling for plaintiff on her claim to quiet title by adverse possession. Plaintiff claims she and her husband, now deceased, and their predecessors in title have had possession and control over the disputed tract for 47 years. The land in dispute, lying between the parties’ farms, is a small triangular tract, that part of a 40-acre quarter-quarter section lying northwest of the county road. Although neither plaintiff nor defendants introduced evidence of record title, the trial theory was that although defendants owned the entire 40 acres, the triangular tract was arguably plaintiff’s by adverse possession.

The triangular tract is enclosed by a fence, kept in repair by plaintiff, and has been inside that fence since long before plaintiff and her husband purchased their adjoining tract in 1955. Theresa Pyle, who with her husband sold their farm to plaintiff and her husband testified the triangular tract had always been part of their farm. Plaintiff, her husband, and their predecessors in title, the Pyles, since 1928 have used the tract for grazing and cutting timber, always treating it as their own.

Defendants first challenge plaintiff’s proof of location of the boundaries of the triangular tract. In finding for plaintiff the trial court used the description of the property in plaintiff’s petition. Defendants in their answer accepted this description, referring eight times to plaintiff’s description of the disputed tract. Defendants’ failure to challenge plaintiff’s legal description removes the issue from our consideration. Rule 55.09, VAMR (1973), formerly Rule 55.11, in effect at the time of the trial.

Defendants also contend certain necessary parties were not joined in this cause, namely the intestate heirs of plaintiff’s deceased husband. The evidence showed that title by adverse possession was established in the plaintiff’s predecessors in title. Since it was their intention to convey their interest in their entire farm to plaintiff and her husband, the transfer created an estate of the entirety. Crane v. Loy, 436 S.W.2d 739[3-5] (Mo.1968). Since plaintiff survived her husband she is the sole fee title holder. The husband’s heirs had no title and were not necessary parties.

Plaintiff, in an obvious attempt to settle the case without litigation, twice proposed a conveyance of the triangular tract from defendants to herself for a nominal consideration. Defendants’ last contention is that plaintiff’s attempt to acquire title to the property from them by deed was an admission plaintiff had no claim of right to the land. This attempted settlement of the dispute does not weaken the effect of plaintiff’s claim of right. Moran v. Roaring River Dev. Co., 461 S.W.2d 822[3] (Mo.1970) and cases cited therein.

Judgment affirmed.

KELLY and STEWART, JJ., concur.

      . A lien holder and its trustee were made parties defendant, but have disclaimed interest.


text:
    James Russell YATES, Appellant, v. STATE of Missouri, Respondent.
    No. 36564.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Sept. 23, 1975.
    James C. Jones, Asst. Public Defender, Charles D. Kitchin, Public Defender, St. Louis, for appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Chief Counsel, Crim. Div., Jefferson City, Brendan Ryan, Circuit Atty., Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
   CLEMENS, Presiding Judge.

Appellant James Russell Yates was originally the defendant below. He moved under Rule 27.26 to set aside his guilty pleas and two concurrent three-year sentences rendered upon two charges of carrying concealed weapons. He now pleads that before he entered those guilty pleas the trial court misled him by assuring him he would not receive a three-year sentence. The trial court held an evidentiary hearing, denied relief, and this appeal followed.

At his arraignment on October 25, 1973 Yates was represented by employed counsel, Mr. Paul H. Doberstein. Yates told counsel and the court he wanted to plead guilty to both charges; he acknowledged he understood his rights to a speedy trial, to a presumption of innocence, to be present at the trial and confront witnesses and to have them cross examined, and his right to refuse to testify; after a recitation of the facts by State’s counsel concerning each charge Yates admitted those facts.

To support his allegation that the trial court misled him at his arraignment by stating he would not receive a three-year sentence, appellant Yates relies on an isolated statement by the trial court, completely out of context.

We summarize the court’s arraignment questions and Yates’ answers concerning punishment: “Q: You understand, in effect, when you plead guilty to both of these charges, it’s possible you could go to the penitentiary for ten years, you understand that? A: Yes. Q: Any promises been made to you what will happen if you plead guilty? A: No, sir.” The State’s counsel then recommended two concurrent three-year sentences. On resumed questioning by the court, Yates declared he was not pleading guilty because of any promise of a three-year sentence. The court then questioned Yates: “Q: I will tell you right now, Mr. Yates, after having some discussion with your attorney that I’m going to talk about later on, I’m not going to follow that recommendation, you understand that? A: Sir? Q: I’m not going to do what the State has recommended to me. I want you to understand that I’m not going to send you to jail for three years, you understand that? A: Yes, sir. Q: So, that you are not pleading guilty because of any promise of three years or anything like that, is that correct? A: Yes, sir.”

The court then discussed with Yates his counsel’s proposal that Yates be granted probation in order to join an organization that would give treatment for his narcotics addiction. The trial court put three questions to Yates in which he acknowledged the court was not promising probation, and then: “THE COURT: Mr. Yates, in view of all the matters we have discussed, the fact you could go to the penitentiary for as much as ten years, the fact I’m not promising you the three years the State has recommended, I’m not promising you probation or anything else, do you still wish me to accept your plea of guilty? MR. YATES: Yes, sir.” Thereupon, the court deferred sentencing Yates pending a pre-sentence investigation to determine Yates’ prospects for successful narcotic treatment. Then came an adverse probation report, completed arraignment, and the two concurrent three-year sentences.

At Yates’ evidentiary hearing his former counsel, Mr. Paul Doberstein, a seasoned defense lawyer, testified that before arraignment Yates did not want to go to trial. He advised Yates there would be a recommendation of three years on a guilty plea; that he advised Yates there was a chance of probation, but did not give any assurance of probation; that he informed Yates chances of probation would be good if he received a favorable recommendation from the Board of Probation and Parole. Mr. Doberstein told Yates that if parole was granted it probably would be from a ten-year sentence, and if parole was denied the most he would serve would be three years. (We note that counsel’s forecast, conveyed to his client before arraignment, was accurate.)

At the evidentiary hearing Yates testified that before arraignment his lawyer told him “that I had a good chance of making probation but that the Judge wasn’t going to give me a slap on the wrist, and I may get ten years, and so he told me to plead guilty, and I pleaded guilty.” Nonetheless, Yates testified he relied on the court’s statement he would not get a three-year sentence.

After the evidentiary hearing, upon denying the Rule 27.26 motion, the trial court found Yates’ pleas of guilty to the two charges were not based upon any confusion resulting from the court’s statements and that no prejudice or injustice resulted; that the guilty pleas were intelligently, understanding^ and voluntarily made.

A fair reading of the arraignment record and the post-conviction testimony shows us the only reasonable interpretation of the trial court’s statements to Yates was: If Yates got a favorable probation report the court could give him a ten-year sentence and might grant parole, but if the probation report was unfavorable the court could sentence him to concurrent three-year terms. Nothing said by the trial court reasonably gave Yates any assurance he would be paroled or that he would receive less than a three-year sentence.

In determining whether a plea of guilty was in fact made voluntarily and with understanding of the nature of the charge, a trial court has the same discretion as when acting as trier of facts, and on appeal the review is limited to a “determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.” Rule 27.26(j); Watson v. State, 475 S.W.2d 8[1] (Mo.1972) and Crosswhite v. State, 426 S.W.2d 67[1] (Mo.1968). The court’s conclusions and findings were not clearly erroneous.

The judgment denying appellant’s motion is affirmed.

KELLY and STEWART, JJ., concur.


author: WEIER, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Morris D. FRENCH, Defendant-Appellant.
    No. 36535.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 23, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Public Defender, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Timothy D. Verhagen, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., Mark A. Brown, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Defendant Morris D. French was convicted by a jury on two counts of robbery in the first degree with a dangerous and deadly weapon in violation of §§ 560.120 and 560.-135, RSMo 1969, and sentenced to ten years imprisonment on each count, the sentences to run concurrently. Defendant appeals from his conviction. He asserts that the trial court erred in failing to sustain his motion to suppress identification testimony; first, because he was arrested without probable cause, and secondly, because the circumstances of the confrontation were im-permissibly suggestive and thus violative of due process of law. He also asserts error in permitting the testimony of a police officer regarding the preparation of arrest registers and the reading of his co-defendant’s address therefrom.

The facts are as follows: On October 31, 1973, at 8:00 p. m., two patrons and the owner of a tavern observed three men standing outside the front door. The two occupants of the tavern watched as two of the men entered with rifles and announced a holdup. A shot was fired, striking one of the victims, Mr. Zollie Tate. The two men then ordered the three to lie on the floor. They took money from the cash register, demanded money and additional items from the two uninjured patrons and left. Mr. Johnson, the tavern owner, went to assist one of the patrons, Mr. Tate, while the other patron, Miss Grady, telephoned the police.

Officer Von Dracek was driving west on Benton at 8:00 p. m., a short distance from the tavern, when he observed three men running toward him carrying rifles. He followed them to an alley and then pursued them on foot while his partner notified the dispatcher what was occurring. Another police officer, Donald Preston, heard a general police broadcast at about 8:03 p. m. that officers were pursuing two men carrying rifles in the area of St. Louis Park. Rapid communications led the dispatcher to believe that the subjects were confined to a limited area and cars were stationed at various points to prevent escape. Officer Preston was sent to the intersection of Twentieth Street and St. Louis Avenue. Subsequent to parking at this location, Officer Preston heard another broadcast notifying officers of a robbery at Twenty-Second and Benton, the same area in which the chase was occurring. At 8:09 p. m. Officer Preston observed defendant running toward him through a vacant lot. The officer testified that defendant noticed him, stopped, and began walking toward him. Officer Preston got out of his car and approached defendant. He saw that defendant was perspiring, breathing hard, and, when he placed his hand on his chest, that his heart was beating rapidly. Defendant was placed under arrest and returned to the scene of the robbery.

Miss Grady gave the first officers to arrive at the tavern a description of the clothing worn by two of the robbers. Shortly thereafter, within approximately ten or fifteen minutes of the robbery, defendant was brought into the bar accompanied by several police officers and identified as one of the robbers by Miss Grady and Mr. Johnson. Mr. Tate had been taken to the hospital and was not present. Defendant’s testimony describing the clothing he was wearing when arrested fit the description given to police by Miss Grady prior to the confrontation. Both Miss Grady and Mr. Johnson testified at trial that they had identified defendant as one of the robbers at the time of the initial confrontation at the tavern and also pointed him out in the courtroom. Mr. Tate, who was not present at the confrontation in the tavern, identified defendant both at the preliminary hearing and at trial.

We reject defendant’s contention that the identification evidence should have been suppressed because Officer Preston lacked probable cause to arrest him. Defendant apparently would raise the question of whether the identification of an accused constitutes an illegal search and seizure requiring suppression of the identification upon proper motion. But identification is in no way related to a search or seizure. Invalidity of an arrest does not affect the jurisdiction of the court to try the defendant. State v. Britton, 444 S.W.2d 465 (Mo.1969). Furthermore, the circumstances here were clearly sufficient to call the officer’s attention to the suspect, to raise more than a mere suspicion, and, therefore, to justify an arrest. State v. Dodson, 491 S.W.2d 334, 336[3] (Mo.banc 1973).

It is well settled in this state that there is no prohibition against returning a freshly apprehended suspect to the scene of the crime for prompt identification by an eyewitness. When, however, a confrontation is so unnecessarily suggestive as to be conducive to irreparable misidentification, the prosecution must prove by clear and convincing evidence that the in-court identification has an independent basis. If the prosecution’s burden is not met, the identification must be excluded. The threshold question then is the propriety of the initial confrontation. State v. Maxwell, 502 S.W.2d 382, 389[5, 6] (Mo.App.1973).

The circumstances of State v. Dodson, supra at 336[3, 4], are similar to, and the comments therein appropriate in, the instant case. The officer in Dodson, acting on a police broadcast, arrested a suspect within four blocks of the scene of the crime a short time after it was committed. The suspect was promptly returned to the scene and identified by the victims. The court noted the desirability of ascertaining as quickly as possible whether the person apprehended was the person sought and the likelihood that prompt confrontation may assure reliable identification. Confronting victims with a suspect who is handcuffed and in the custody of the police does not render the situation impermissibly suggestive. State v. Maxwell, supra at 389[7, 8].

The officers in the instant case returned defendant to the tavern within ten to fifteen minutes of the robbery. Nothing was said or done to encourage the victims to identify defendant. They were merely asked whether this was the man. Both victims present identified him. Since the on-the-scene confrontation was not imper-missibly suggestive, the trial court did not err in denying defendant’s pre-trial motion to suppress evidence of the out-of-court identifications. It is therefore unnecessary to consider whether the prosecution was required to prove a sufficient independent basis for the in-court identifications.

Appellant further contends that introduction of the arrest record of his co-defendant containing evidence of this co-defendant’s address was hearsay and incompetent, and was not intended to be rendered admissible by the Uniform Business Records Act, §§ 490.660-490.690, RSMo 1969. The defendant had taken the stand in his own defense and had testified that he did not know and had never seen his co-defendant George Robinson before. The state in rebuttal sought to introduce Robinson’s arrest register along with the defendant’s to show that they were neighbors in that they lived only one block from each other. The introduction of co-defendant’s arrest register was objected to on the grounds that it was irrelevant, immaterial and hearsay. The objection was overruled, the court determining that the information was relevant. After his conviction, the defendant, in his motion for a new trial, and as a contention in his brief, submitted that the information supplied to the booking officer came from co-defendant’s answers to questions and that, therefore, the reading of the alleged address was hearsay not intended to be made evidentiary by the Uniform Business Records Act. In both the motion for new trial and defendant’s brief, the case of Ryan v. Campbell “66” Express, 304 S.W.2d 825 (Mo.banc 1957) was cited wherein it was stated at p. 828: “The Uniform Business Records Act, * * * eliminates the hearsay objection [to a state highway patrol accident report] when such a record is properly qualified thereunder, but it does not make admissible any evidence which would be incompetent if offered in person.”

If records have been properly qualified under the Uniform Business Records Act, an objection to such records as hearsay and as depriving a party of the right of cross-examination is not effective. Qualification of the records under the Act does not make all parts of the record, however, automatically admissible. If specific and legally proper objections are made to parts of the record on grounds other than hearsay, then such parts may be properly excluded. Allen v. St. Louis Public Service Company, 365 Mo. 677, 285 S.W.2d 663, 666[3, 4] (1956).

Here the objection at the time of trial was that the arrest record concerning co-defendant’s address was hearsay and irrelevant and immaterial. In the motion for new trial and on appeal it is contended that the arrest record evidence was hearsay and incompetent. It is, of course, well established that a trial court may not be convicted of error in admitting evidence for reasons not presented at time of trial. State v. Weindorf, 361 S.W.2d 806, 810[12] (Mo.1962); State v. Brown, 360 S.W.2d 618, 621[8] (Mo.1962).

The judgment is affirmed.

DOWD and RENDLEN, JJ., concur.


text:
    Zebedee GARRETT, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
    No. 36539.
    Missouri Court of Appeals, St. Louis District, Division One.
    Sept. 23, 1975.
    Charles D. Kitchin, Public Defender, Neal P. Murphy, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Robert H. House, Asst. Atty. Gen., Brendan Ryan, Circuit Atty., William M. Frain, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   WEIER, Presiding Judge.

Movant was convicted of forcible rape and sentenced to twenty years imprisonment. The conviction was affirmed on appeal. State v. Garrett, 494 S.W.2d 386 (Mo.1973). Subsequently, movant sought to have his sentence vacated under Rule 27.26 which motion was denied. Movant appeals from that judgment.

In his written motion movant alleged, inter alia, ineffective assistance of counsel, listing five specific acts of omission and one of commission in support of his allegation. Not included in the list was original trial counsel’s failure to request a psychiatric examination of his client. A considerable portion of the testimony was elicited on this issue both by movant’s counsel and the state. The trial court twice pointed out that failure to request the examination was not alleged in the written motion. But no objection was made and the state was willing to try the issue by implied consent. The following interchange during questioning of original trial counsel led to a request by movant’s counsel, Mr. Harris, for leave to amend to conform to the evidence. (Mr. Murphy also represented movant.)

“Q. Now, I believe your testimony was that you thought the defendant should have an exam.
A. I thought so.
Q. You thought so?
A. (Nods affirmatively.)
Q. All right. But the parents didn’t think so?
A. And he didn’t think so.
Q. He didn’t think so. Did you preserve your thoughts and your feelings for the record?
A. No.
Q. No. When you talked to them about “552”, did you question them as to their knowledge of “552”?
MR. FRAIN: Your Honor, at this time, I’m going to object to this.
THE COURT: I’m going to sustain the objection for the reason there’s no allegation in this motion that Mr. Gray was ineffective because he failed to get a psychiatric examination.
MR. MURPHY: Your Honor, I think number 4 covers that where in the amended motion: That the Movant was denied effective assistance of counsel in the defense of said charge in derogation of his right—
THE COURT: We can’t hear you when you walk away, Mr. Murphy.
MR. MURPHY: — derogation of his right to counsel secured by the Sixth Amendment of the United States Constitution, and Article 18A [art. 1, § 18(a)] of the Constitution of the State of Missouri
Without being specific, I think this point would fall under that allegation in the amended petition.
THE COURT: But you go further to say “because”, and then you give six specific instances in which you allege that his constitutional rights were abridged by failure to provide effective assistance of counsel, and one of them is not a failure to secure a psychiatric exam.
MR. MURPHY: Your Honor, when I prepared that petition I gave some specific instances that the defendant’s right to counsel were violated. If I had gone on, the petition might have ran twenty pages. I believe when I wrote that petition that anything else that I missed would have been covered in section number 4 of the amended petition.
MR. HARRIS: Your Honor, may I suggest something to the Court? As long as it goes to the fundamental rights of the defendant, Judge, the Constitution here is involved, and everything else, let me ask at this time leave to amend so that it will encompass rather than go out and come back, and it’s so fundamental when it starts Mr. Murphy’s alleged abridgment of the rights under the Constitution, and other things, I think at this time, Judge, it would be proper and fair, more than fair, to let the defendant amend it so we can encompass this at this hearing.
THE COURT: Well, you’ve already had quite a bit of testimony on that.
MR. HARRIS: Right. To conform to the testimony, Judge,—
THE COURT: Do you still have any more?
MR. HARRIS: — if we could amend it to conform to the testimony.
MR. MURPHY: No, Your Honor. That was the other major point.
THE COURT: All right. So it’s all been covered.
MR. HARRIS: Good.”

Although the court made no specific ruling, acquiescence in the amendment could be implied especially since further questioning continued by both parties and the court touched upon movant’s mental capacity to stand trial and the failure of counsel to request an examination.

At the close of the evidence, in denying the motion, the trial court issued a thoughtful memorandum opinion thoroughly covering the issues raised in the written motion. Findings and conclusions regarding failure to request a psychiatric examination were not, however, included.

Movant argues on appeal that failure to request a psychiatric examination was properly before the court by an oral motion to amend to conform to the evidence under Rule 55.33 of the Rules of Civil Procedure and that specific findings of fact and conclusions of law must therefore be issued on this point to comply with Rule 27.26(j). We must, he asserts, remand for findings and conclusions since in their absence we have nothing to review, having been limited to a determination whether the trial court’s findings and conclusions are “clearly erroneous.”

The trial court hearing a 27.26 motion must make findings of fact and conclusions of law “on all issues presented”. Rule 27.26(i). The scope of review is expressly limited to a determination whether the “findings, conclusions and judgment of the trial court are clearly erroneous”. Rule 27.26(j). See Lahmann v. State, 509 S.W.2d 791, 794[1-5] (Mo.App.1974). Findings and conclusions by the trial court are a necessary prerequisite to any appellate review. Rule 27.26(i); Thomas v. State, 465 S.W.2d 513, 515[1] (Mo.1971). Of course, issues not raised in the motion or before the trial court cannot be considered for the first time on appeal. Harkins v. State, 494 S.W.2d 7, 14[7] (Mo.1973). Movant’s argument depends, therefore, upon whether failure to request the examination could be and was properly before the trial court.

Rule 27.26(a) provides that a motion filed thereunder is an “independent civil action” and that the Rules of Civil Procedure apply “insofar as applicable”. Rule 27.26(h) recognizes the right to amend the motion. The requirement of 27.26(c), that the prisoner include “every ground known * * * for vacating, setting aside or correcting his conviction and sentence”, must therefore be read in light of Rule 55.33 providing for amendments to pleadings if the latter rule is applicable to a 27.26 proceeding. We believe that it is. Rule 55.-33(b) provides in pertinent part that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings”, and that amendments to conform to the evidence and to raise these issues “may be made upon motion of any party at any time, * * In Vidauri v. State, 515 S.W.2d 562, 567[4] (Mo.1974), the court referred to the applicability of Rule 55.33(b) to a 27.26 proceeding. The state there argued that it was improper for the trial court to issue findings and conclusions regarding the voluntariness of movant’s confession because he failed to raise it in his motion. The court stated that, “If it can be said that the motion did not raise the issue, which we doubt, it is clear from the record and the trial court’s view of the matter that the issue of voluntariness of the confession was the issue actually tried by common consent and was treated in all respects as if raised in the pleadings, rule 55.33(b).” Vidauri v. State, supra at 568. The availability of an oral amendment to the 27.26 motion during the course of the proceedings was also implicit in Day v. State, 516 S.W.2d 53, 56[7] (Mo.App.1974), in which the court notes that movant could have sought leave to amend his 27.26 motion and thus properly placed the issue before the court. See also Burnley v. State, 518 S.W.2d 314, 316[5, 6] (Mo.App.1975).

The state in the instant case did not seasonably or specifically object to the introduction of evidence on the issue nor the request for leave to amend. Indeed, state’s counsel questioned witnesses extensively on the point both before and after the request to amend. Permitting further testimony subsequent to the request for leave to amend is consistent with granting, rather than denying, the request. We must conclude that the issue was properly before the trial court and failure to include any reference to it in the findings and conclusions, though obviously an oversight, was error.

The state’s contention that the issue was not preserved because no “formal action” was taken to amend is without merit in light of Rule 55.26(a) providing that applications to the court for an order must be in writing “unless made during a hearing or trial”. See also Habel v. Union Depot Ry. Co., 140 Mo. 159, 41 S.W. 459, 460[2] (1897).

Movant contends that remand for a further evidentiary hearing as well as for findings and conclusions on the omitted issue is required. We disagree. Movant was not restricted in presenting evidence on this issue. In fact, the issue was fully presented by movant and the state. The record of the hearing is more than adequate to permit the trial court to issue findings of fact and conclusions of law regarding whether mov-ant was denied effective assistance of counsel because the original trial attorney failed to request a psychiatric examination. The trial court’s findings and conclusions on all other points raised in the original motion have not been questioned. We reverse the judgment to permit counsel to amend the motion and the trial court to issue written findings and conclusions on the above stated issue.

The judgment is accordingly reversed and the case remanded for further proceedings in accordance with the instructions herein contained.

DOWD and RENDLEN, JJ., concur.


author: SMITH, Chief Judge.

text:
    James Nathaniel MOORE, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 36342.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Sept. 23, 1975.

      Charles D. Kitchin, Public Defender, James C. Jones, Marilyn K. Wallach, Asst. Public Defenders, St. Louis, for movant-ap-pellant.
    John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., James A. Roche, Jr., Asst. Circuit Atty., St. Louis, for respondent.
   SMITH, Chief Judge.

Movant appeals from the order of the trial court denying his Rule 27.26 motion to vacate his conviction. The motion was denied without evidentiary hearing.

Movant was convicted in 1961 of forcible rape and sentenced by the court as a Second Offender to forty-five years imprisonment. That conviction was affirmed in State v. Moore, 435 S.W.2d 8 (Mo. banc 1968). That case also affirmed the denial of a 27.26 motion filed after conviction. In 1970 mov-ant’s second 27.26 motion was denied following an evidentiary hearing at which movant was represented by counsel. That denial was affirmed in Moore v. State, 485 S.W.2d 9 (Mo.1972). Movant’s present motion seeks to vacate the 1961 conviction by attacking the court’s finding in that proceeding that movant was a second offender and by attacking the evidence upon which that finding was based.

Rule 27.26(d) provides:

The sentencing court shall not entertain a second or successive motion for relief on behalf of the prisoner where the ground presented in the subsequent application was raised and determined adversely to the applicant on the prior application or where the ground presented is new but could have been raised in the prior motion pursuant to the provisions of subsection (c) of this Rule. The burden shall be on the prisoner to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.” (Emphasis supplied).

The matters now raised by movant are new but they could have been raised in his prior 27.26 motions. No newly discovered doctrines of constitutional law are involved. The record and the present motion show movant was represented by counsel on such motion despite his statement in the motion that “he had no one to advise him.” The action of the trial court in refusing to entertain the motion was proper. Johnson v. State, 472 S.W.2d 433 (Mo.1971).

Judgment affirmed.

ALDEN A. STOCKARD and NORWIN D. HOUSER, Special Judges, concur.


author: BROCK, Justice. BROCK, Justice.

text:
    George M. TIDWELL, Commissioner of Revenue, State of Tennessee, Appellant-Defendant, v. RCA CORPORATION, for the Use and Benefit of Life and Casualty Insurance Company of Tennessee, Appellee-Plaintiff.
    Supreme Court of Tennessee.
    Sept. 2, 1975.
    Everett H. Falk, Asst. Atty. Gen., Nashville (R. A. Ashley, Jr., Atty. Gen., of counsel), for appellant-defendant.

      Robert W. Sturdivant, William E. Bishop, Trabue, Sturdivant & DeWitt, Nashville, for appellee-plaintiff.
   OPINION

BROCK, Justice.

This is a case of first impression in Tennessee involving the interpretation of the sales tax refund provision, T.C.A. § 67-3028.

On October 21,1969, the Life and Casualty Insurance Company of Tennessee entered into a contract to purchase some computer equipment from RCA Corporation. The purchase price was $528,440.00 to be paid in sixty monthly installments of $10,-216.00. RCA was to retain title to the equipment and a security interest in it until all payments were made and all the conditions of the contract fulfilled. The contract provided that Life and Casualty could cancel the agreement to purchase with respect to all or part of the equipment at any time after one year of use upon giving ninety days written notice. In the event of cancellation Life and Casualty was obligated to pay RCA the difference between standard rental charges which would have been owing had the equipment been leased up to the date of cancellation and the amount actually paid under the sales contract.

In October of 1970 RCA remitted to the Department of Revenue $15,853.20 as sales tax on the computer equipment; RCA was reimbursed for the sales tax by Life and Casualty.

Life and Casualty exercised its option to terminate the contract on June 28, 1971, and returned the equipment to RCA. Life and Casualty paid RCA the difference between the rental cost for the period of use and the sum of the monthly purchase payments.

Subsequently, on July 26, 1971, Life and Casualty sought a refund of the original sales tax paid to the Department of Revenue less the tax calculated on the rental of the computer equipment. The refund, totaling $8,229.00, was denied by the Department of Revenue.

Whereupon, on December 2, 1971, RCA, for the use and benefit of Life and. Casualty, filed a complaint in Chancery Court against the Commissioner of Revenue. The Chancellor overruled a motion to dismiss on behalf of the Commissioner and concluded that the taxpayer should be subject to a sales tax upon the rental paid for said equipment during its period of use and not upon the sales price. He held that pursuant to T.C.A. § 67-3028 the taxpayer was entitled to a refund equal to the difference between the sales tax paid and the tax calculated on the rent. The refund was reduced 2% from the original amount claimed to $8,064.42 by agreement of the parties. Finally, the Chancellor nullified Tennessee Sales and Use Tax Rule No. 50 to the extent it was inconsistent with the statute. From these holdings the Commissioner appeals.

T.C.A. § 67-3003 authorizes the taxation of goods which are sold or rented; the former are taxed according to the total sales price and the latter according to the gross proceeds derived from the rental. Consequently, the characterization of a transaction as a sale or rental is crucial to the determination of the measure of taxes.

In the present case the agreement was clearly a conditional sale originally and was taxed as such. However, in our view, it was converted into a rental upon cancellation by Life and Casualty. At that time the equipment was returned and Life and Casualty, after paying the difference between the purchase price installments up to cancellation and the standard rental charge, was excused from paying the remainder of the purchase price. Under these circumstances, to treat this transaction as a sale will result in payment by the taxpayer of a sales tax on a substantial portion of the purchase price he will never receive.

However, the difficult problem in this case i's time; can the transaction be restructured for tax purposes twenty months after the sale? The answer is to be found in T.C.A. § 67-3028. That Section states:

“67-3028. In the event purchases are returned to the dealer by the purchaser or consumer after the tax imposed by this chapter has been collected, or charged to the account of the consumer or user, the dealer shall be entitled to reimbursement of the amount of tax so collected or charged by him, in the manner prescribed by the commissioner; and in case the tax has not been remitted by the dealer to the commissioner, the dealer may deduct the same in submitting his return upon receipt of a signed statement of the dealer as to the gross amount of such refunds during the period covered by said signed statement, which period shall not be longer than ninety (90) days. . . . ”

We believe this Section is sufficiently broad to allow a refund in the present case and logically to permit a subsequent recharac-terization of the transaction.

The Commissioner argues, however, that a taxpayer is not entitled to a refund under T.C.A. § 67-3028 if the goods have been used. He also relies on Rule 50 of the Tennessee Sales and Use Tax Rules and Regulations which states:

“Returned Merchandise, Credits and Allowances
“a. In the event articles of tangible personal property are voluntarily returned to the seller by the consumer, or user, before said articles have been used, but after the Sales or Use Tax has been collected or charged to the account of the purchaser, and paid to the Commissioner, the dealer may deduct the sales price of such article from the gross proceeds shown on his report for the current month. The records of the taxpayer must clearly reflect and support his claim for all such deductions for merchandise returned for credit or refund, and must show that the article returned has not been used and is in condition to be resold at the same price originally charged.
“b. Articles of tangible personal property that are used for awhile and then repossessed by the seller, may not be classed as returned goods subject to deduction from the gross proceeds or gross receipts.
“e. In cases where a dealer gives credits or allowances to customers for specific sales, those credits and allowances are not subject to the Sales or Use Tax. In the event a customer is not given the benefit of the tax on such credits or allowances, the dealer may not claim such credits or allowances as a deduction from his gross sales. Rebates given at a later time for quantity purchases may not be claimed as a deduction from gross sales.”

However, T.C.A. § 67-3028 establishes no requirement of nonuse either expressly or by implication and we would not bar the taxpayer’s refund on this basis. Our opinion is not altered by Rule 50. The Commissioner only has the power to make and publish rules and regulations for the enforcement of the sales tax provisions which are consistent with the statute. T.C.A. § 67-3045. We agree with the Chancellor that Rule 50 is void to the extent that it conflicts with T.C.A. § 67-3028.

The Commissioner further maintains that a taxpayer cannot bring an action for a sales tax refund based on T.C.A. § 67-3028 unless he has paid the tax under protest and sued the collecting officer within six months of payment. T.C.A. §§ 67-2303 and 67-2305.

However, it is apparent that RCA could not have protested at the time of the original payment because the contract was not cancelled and the goods were not returned until after the remittance. In our view a protest is only required where the tax charged is illegal or unjust at the time of payment. T.C.A. § 67-2303.

The time limit issue is more contentious. T.C.A. § 67-2305 provides:

“The person paying said revenue may, at any time within six (6) months after making said payment, and not longer thereafter, sue the said officer having collected said sum, for the recovery thereof.”

In our opinion the best interpretation of this Section is that the taxpayer must commence his action within six months after his right to a refund accrues. To hold otherwise would debilitate the refund provision, T.C.A. § 67-8028, and would, in this case, result in the passing of the entire limitation period before the plaintiff’s cause of action ever accrued.

Accordingly, we affirm the judgment of the Chancellor and hold that the taxpayer is entitled to a refund of the sales tax paid on the computer equipment less the tax owing on the rental of the equipment.

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

HARBISON, J., not participating.

OPINION ON PETITION TO REHEAR

BROCK, Justice.

The appellant has filed a petition to rehear which the Court has considered but found to be without merit. Accordingly, the petition to rehear is denied at the cost of the appellant.

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

HARBISON, J., not participating.


author: WILLIAM M. LEECH, Special Justice.

text:
    Ernest GRIGGS, Commissioner, etc., Appellee, v. PEERLESS INSURANCE COMPANY, Appellant.
    Supreme Court of Tennessee.
    Sept. 29, 1975.

      Butler, Vines, Babb & Treadgill, Knoxville, for appellant.
    Sam J. McAllester, Jr., Nashville, for ap-pellee.
   OPINION

WILLIAM M. LEECH, Special Justice.

This is an action by the Commissioner, Department of Employment Security for the State of Tennessee, to recover from the defendant, Peerless Insurance Company, contributions due from Ransom Enterprises, Inc. as provided by the “Tennessee Employment Security Law”. (§ 50-1301 et seq. T.C.A.) This action against Peerless is a direct action on the performance bonds required by § 12-417 et seq. T.C.A.

The material facts giving rise to this action are as follows:

In 1968 Ransom Enterprises, Inc. entered into two separate contracts with two separate Housing Authorities for the construction of public housing, and being public contracts, the contractor was required by § 12-417 Tennessee Code Annotated to execute performance bonds, and the bonds were issued by the defendant, Peerless Insurance Company. Both bonds are identical in terms and conditions. One of the contracts was with the LaFollette Housing Authority and the other with the Hartsville Housing Authority, and each bond complied with the provisions of § 12-417 T.C.A. and provided only for liability for labor and materials used by the contractor, or any immediate or remote subcontractor in said contract. Thus, in the absence of § 12-423 T.C.A. only laborers and materialmen would have been protected by the bonds. However, the provision “that such contractor shall promptly make payment of all taxes, licenses, assessments, contributions, penalties, and interest thereon when, and if, the same may be lawfully due this state, or any county, municipality or political subdivision thereof by reason of and directly connected with the performance of such contract or any part thereof,” was by statute written into the bond although not expressly written therein. (Emphasis added. T.C.A. 12-423).

Prior to December 1968 Ransom Enterprises, Inc. experienced financial difficulties, and Peerless stepped in and assisted in completing the construction. From the returns filed in the name of Ransom Enterprises, Inc. there was due contributions to-talling $5,547.14 by reason of wages paid connected with the contracts for the year 1969.

The then Commissioner of Employment Security took the position that by reason of Peerless stepping in and controlling the completion of the construction, that Peerless was the employer and therefore made an assessment for that amount against Peerless under the authority of § 50-1329 T.C.A. Peerless paid the assessment under protest as provided by subsection “G” of § 50-1329 T.C.A. and filed suit in the Chancery Court for Davidson County as provided by said subsection “G”.

On December 4, 1973 Chancellor Ben H. Cantrell decreed, “that Plaintiff, Peerless Insurance Company, was not an employer under the terms and conditions of the Tennessee Employment Security Law and therefore was not liable for the taxes as such, which were paid under protest.” He further held: “The Court further finds that T.C.A. 12-423 was not applicable to the case at bar inasmuch as the issue was not raised in the pleadings and thus not before the Court.”

The defendant in that case did not appeal from that decree and same became final. On February 20, 1974 the Commissioner filed this action against Peerless on the bond as provided by T.C.A. 12-423 and 12-424.

The defendant specifically pled lack of notice as provided by § 12-421 T.C.A. and the Statute of Limitations as provided by § 12-422 T.C.A. The defendant also specifically pled judicial estoppel by reason of the former suit and laches.

On December 6, 1974 the Chancellor filed a memorandum wherein he overruled all defenses of the defendant and a decree for plaintiff was entered granting the relief prayed for in the complaint. Defendant was granted and perfected an appeal to this Court.

The assignments of error are to the action of the Chancellor in overruling defendant’s pleas to lack of notice; the statute of limitation of six months as set out in T.C.A. § 12-422; and equitable estoppel by reason of the former suit.

We will first consider if §§ 12-421 and 12-422 T.C.A. are applicable to the claim of plaintiff.

These two sections of the Code read as follows:

“12-421. Notice of claim. — Such fur-nisher of labor or material, or such laborer, to secure the advantage of §§ 12-417 —12-422, shall, after such labor or material is furnished, or such labor is done, and within ninety (90) days after the completion of such public work, given written notice by return-receipt registered mail, or by personal delivery, either to the contractor who executed the bond, or to the public official who had charge of the letting or awarding of the contract; such written notice to set forth the nature, and itemized account of the material furnished or labor done, and balance due therefor; and a description of the property improved; provided, that in the case of public work undertaken by a municipality, or any of its commissions, notice, or statement herein required, so mailed or delivered to the mayor thereof, shall be deemed sufficient; in the case of public work by any county or any of its commissions, notice or statement herein required, so mailed, or delivered to the chairman of the county court of such county, shall be deemed sufficient; in the case of public work by the state, or any of its commissions, notice and statement herein required, so mailed, or delivered to the governor, shall be deemed sufficient.”
“12-422. Joinder of parties — Limitation of actions. — Several persons entitled may join in one suit on such bond, or one may file a bill in equity in behalf of all such, who may, upon execution of a bond for costs, by petition assert their rights in the proceeding; provided, that action shall be brought or claims so filed within six (6) months following the completion of such public work, or of the furnishing of such labor or materials.”

Sections 12-423 and 12-424 Tennessee Code Annotated read as follows:

“12-423. Bond to pay taxes, licenses, and other amounts due. — Any person, firm or corporation entering into a formal contract with this state, or any county thereof, municipality or political subdivision, or any public board, department, commission or institution thereof for the construction of maintenance of public buildings, works or projects, or the doing of repairs to any public building, works or projects, shall be required, before commencing on such work, covered by such contract, to execute the usual bond with good and sufficient sureties, as required by law, with the additional obligation that such contractor shall promptly make payment of all taxes, licenses, assessments, contributions, penalties, and interest thereon when, and if, the same may be lawfully due this state, or any county, municipality or political subdivision thereof by reason of and directly connected with the performance of such contract or any part thereof. Prom and after February 21,1947, any such bond shall be deemed to include the foregoing obligation irrespective of whether or not the same be expressly written into such bond. [Acts 1947, ch. 33, § 1; C.Supp.1950, § 7955.1 (Williams, § 1689.6).]
12-424. Action on bond. — -In default of the prompt payment of all such taxes, licenses, assessments, contributions, damages, penalties and interest thereon, as may be due by any such contractor, a direct proceeding on said bond may be brought in any court of competent jurisdiction by the proper officer or agency having lawful authority so to do, to enforce such payment; the right to so proceed in this matter being cumulative and in addition to such other remedies as may now be'provided by law. [Acts 1947, ch. 33, § 2; C.Supp.1950, § 7955.1 (Williams, § 1689.7).]”

The Chancellor held that the statute of limitations of six years as set out in § 67-1323 applied and not § 12-422.

T.C.A. § 67-1323 does not apply to the claim for contribution by the Department. In Hake v. Warren, 184 Tenn. 372, 199 S.W.2d 102 (1947) the Court said:

“The tax sought to be collected in the instant case is not a tax in the sense that it is levied for the support of the general government. It is levied and collected for a special purpose, to-wit, to pay compensation to unemployed persons who can qualify under the act to receive benefits.” 184 Tenn. 375, 199 S.W.2d 103.

The Employment Security Act, (Chapter 29, Acts of 1947) imposes upon each “Employing unit” an obligation to pay “contributions” defined as money payments to the state unemployment fund required by the Act, and § 50-1331 T.C.A. requires these funds to be placed in a separate fund for the benefit of unemployed persons meeting the requirements of the Act. The Act provides for the collection of these contributions from the “employer” and provides the method of collecting the contributions from the employer, and not from anyone else.

The action in Hake was a direct action against the employer for delinquent contributions owed by the employer. The act then in existence did not contain a statute of limitations; however, the present Employment Security Law codified as Chapter 13, Sections 50-1301 et seq. in Section 50-1329 sub-section B does provide a six (6) year statute of limitations. The case, however, does require that the right to levy and collect the contributions be strictly construed against the collecting authority. Subsection B of Section 50-1329 provides:

“If, after due notice, any employer defaults in any payment of contributions or interest thereon, the amount due shall be collected by civil action in the name of the commissioner, and the employer adjudged in default shall pay the cost of such action.” (Emphasis added).

The same section also provides for the issuance of a distress warrant against the employer.

It is evident that after the decision in Hake the Legislature thought that a time limit should be provided for the protection of the employer. The Employment Security Act does not give the commission authority to levy and collect contributions from a surety on a performance bond executed in compliance with Section 12-417 T.C.A. and the statutory liability written therein by Section 12-423 T.C.A.

In Hake, supra, the Court held that this was a claim of the State of Tennessee, and the Court said:

“Regardless of whether it is a taxing statute or one to enforce ‘contributions’ for a special purpose, the rule is the same — that is, that the right to levy and collect ‘must be construed strictly against the taxing authority,’ or collecting authority.”

What is the effect of the provisions of § 12-423 that writes into the performance bond “that the contractor shall promptly make payment of all contributions . . . when, and if, the same may be lawfully due this state .”? (Emphasis added).

In the absence of Section 12-423 (Acts 1947, ch. 33, sec. 1) the performance bond required by Section 12-417 T.C.A. would not have included contributions due the Department of Employment Security. The 1947 Act pertains to public contracts and is codified in the chapter under “Public Contracts”. The reference therein to “the usual bond with good and sufficient securities, as required by law”, refers to the bond required by Section 12-417 T.C.A. and all sections on the same subject are relevant in interpreting the legislative intent. Procedures for collecting against the employer are contained in the Employment Security Act and a procedure for collecting against a surety and the performance bond is provided by Section 12-424 T.C.A. If the statutory liability written into the bond, places the surety in the shoes of the employer, then and in that event, the procedure provided by Section 50-1329 sub-section B would apply. Section 12-424 T.C.A., the right to proceed on the bond, is cumulative and in addition to the rights under section 50-1329 T.C.A. and gives to the department a remedy, if the department elects not to proceed against the employer. Strictly construed against the collecting authority, section 12-424 does not grant the department the same broad powers to proceed against the surety and the performance bond at anytime within six (6) years, as is granted by Section 50-1329 for an action against the employer.

In Air Temperature, Inc. v. Morris, 63 Tenn.App. 90, 469 S.W.2d 495, 499 (1970), the Court said:

“In order to provide protection and a remedy for the furnishers of materials to contractors who are engaged in a public improvement for a county, the Legislature enacted T.C.A. §§ 12-417 through 12-422.”

See also Scott v. Travelers Indemnity Company, 215 Tenn. 173, 384 S.W.2d 38 (1964), wherein it is stated that, “[T]he purpose of the bond is to afford protection to furnishers of materials and laborers, since they have no lien on public constructions.”

The bonds in this case are practically the same as the bond in Scott v. Travelers, supra, and each bond provides it shall be for the use of the respective Housing Authority and the furnishers of materials, and labor. Section T.C.A. 12-423 must be read in pari materiae with §§ 12-417 through 12-422. When this is done it is clear that the Legislature by enacting T.C.A. §§ 12-423 and 12-424 placed claims of the state, counties, municipalities, and political subdivisions thereof in the same category as material-men and laborers and subject to the same restrictions and requirements as all others for whose benefit the bond was required. These governmental agencies by statute become third party beneficiaries the same as all others for whom the bond was executed.

Since the enforcement of the claim of the State for these contributions due the Trust Fund is by direct action on the bond, and the statutory liability written therein by T.C.A. § 12 — 423, if the provisions of § 12-421 as to notice, and § 12-422 as to the statute of limitation, do not apply, then Section 50-1329 would apply. Can it be said that the Legislature intended to place a time limit upon one class of claimants for whom the bond was first required, and did not apply the same to another class? We think not.

In Heglar v. McAdoo Contractors, Inc., 487 S.W.2d 312 (Tenn.App.1972), there is a full discussion of the difference between statutory and common law bonds and on page 315 the statement is made: “If it is regarded as a common law bond, the suit is not subject to the statutory limitations. If it is regarded as a statutory bond, suit is subject to the statutory limitations.”

By the express terms of the statute the contributions due upon a public contract from the contractor apply only to those wages paid an employee engaged directly in the public facility involved, and therefore require that these contributions must be reported to the department separately from other contributions due from the contractor. The record does not disclose the type of reports required by contractors on public contracts, but under Section 50-1329 the department can require reports that would afford ample opportunity for the department to give notice to the contractor in the same manner as other claimants as provided by Section 12 — 421 T.C.A. All of the cases cited, with the exception of Scott v. Travelers, supra, involved claims of laborers or furnishers of materials and in every case the courts have strictly construed the liability of the surety. A formal determination of liability of a surety and a performance bond should be at a reasonable time, and the provisions of notice and suit on the bond is a reasonable time. While requiring the state to give such notice and bring suit, may require additional rules and regulations, we think that public policy requires that the state comply.

The bond in Heglar was a performance bond under T.C.A. § 12 — 417, and while the issue in that case was between a subcontractor and the prime contractor and the surety, the principle is the same as the case sub judice. In Heglar the Court concluded:

“After reviewing the authorities and examining the instant bond, we hold that the bond in this case is no broader than the statute. Therefore, it must be regarded as a statutory bond and any claimant thereunder must comply with the terms of the applicable statutes in order to maintain a suit against the surety.” (Emphasis added).

Since the claimant in this case did not comply with the applicable statutes, the decree of the Chancery Court is reversed and the case dismissed.

It is not necessary to pass upon the question of equitable estoppel relied upon by defendants, since the case must be dismissed for the reasons above stated.

COOPER, HENRY and BROCK, JJ., concur.

HARBISON, J., not participating.