author: SIMEONE, Chief Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Arondo IRVING, Defendant-Appellant.
    No. 38117.
    Missouri Court of Appeals, St. Louis District, Division Four.
    Nov. 15, 1977.

      William Shaw, Public Defender, Dennis N. Smith, Asst. Public Defender, St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, Courtney Goodman, Jr., Pros. Atty., Richard S. McConnell, Asst. Pros. Atty., Clayton, for plain tiff-respondent.
   SIMEONE, Chief Judge.

I.

This case may be referred to as the “triple jeopardy case.”

This is an appeal by the defendant-appellant, Arondo Irving (sometimes referred to as Ron), from a judgment of conviction entered on April 29, 1976 by the circuit court of St. Louis County wherein the defendant was sentenced upon a jury verdict to a term of six months in the custody of the St. Louis County Department of Welfare for the offense of stealing a motor vehicle in violation of § 560.161, subsection 2, RSMo Supp.1975. He appealed. We reverse the judgment and discharge the defendant.

The defendant-appellant does not question the sufficiency of the evidence to make a submissible case. Appellant’s only point is that the trial court erred in overruling his motion to dismiss the case prior to the start of a third trial for the reason that he had been placed in jeopardy previously for the same crime and that any further proceedings were barred by the United States and Missouri Constitutions. U.S.Const., Amend. Y and XIV; Mo.Const., Art. I, Sec. 19.

II.

The facts giving rise to the conviction are as follows.

On July 4, 1975, John Lawrence Winston, age 30, attended a party at a friend’s house at the Village Apartments in Ferguson, Missouri. The next day, July 5, 1975, at about 2:15 p. m. he returned to the apartment complex to recover his glasses which he thought he had lost there the night before. He drove his 1971 black Chevrolet Camaro to the apartment complex and parked it on a nearby parking lot. When Winston got out of his automobile he thought he would be gone a very short time and left his keys in the ignition. On the way to the friend’s apartment he was “confronted by someone across the street and just got into a casual conversation.” About twenty minutes later he returned to the place where he parked his car. The car was gone. He had not given anyone permission to take the car. Upon discovering that the vehicle was missing he called the Ferguson police and an officer came out to take a statement. The automobile was eventually recovered in Brooklyn, Illinois. When it was recovered there were “several small things wrong such as . the gearshift lever, . . . the light switch . [and] a tear in the headliner . . . .” The license plates on the automobile were not Winston’s. Papers and the registration (pink slip) were also missing.

On July 8, 1975, Detective Edward Robertson and his partner Detective Donald Bortz had a conversation with the appellant, Irving, after advising him of his Miranda rights, concerning the theft of the vehicle at the police department. Detective Robertson earlier met appellant at his home and advised him he would “like to talk to him in reference to a theft that had occurred in Ferguson on Saturday.” They went to the police station. Irving was quite cooperative. At the station he made two oral statements and one written one. The thrust of these statements was that the appellant, on July 5, 1975, drove to the apartment complex with Earl Ganaway, Christine James and Harold Bradshaw. The purpose of the trip was to take Gana-way there. Appellant parked alongside the Camaro. Bradshaw noticed the keys in the Winston automobile, said he was going to “snatch” it and, according to Detective Robertson, made arrangements between himself and Irving to meet each other later on Wells Avenue in the City. The statement of appellant indicated that he drove his car to Earl Ganaway’s mother’s house in Ferguson together with Christine James and Harold Bradshaw. Bradshaw noticed some keys in the car and drove the vehicle away. Bradshaw asked appellant to meet him at Wells and Stewart where “they” changed plates. Later at Christine James’ house Irving’s statement was that “we took the plates off of my car and put them on the Camaro.” But later appellant became afraid “and took my plates off the Camaro and put them back on my car.”

On October 20, 1975, appellant was charged by information with stealing the Winston vehicle. Trial began on January 27, 1976 in the circuit court of St. Louis County. After the jury was empaneled and sworn and preliminary instructions read, the prosecutor made an opening statement. During the opening statement the prosecutor stated:

“[Prosecutor]:

At the Ferguson Police Department Detective Robertson will testify that he interviewed Miss James. And he will tell you her version of the story indicates that the defendant was present, but that another person who was present took the car. And that the defendant and this other person met later after the car was stolen, that the defendant put his license plates on the stolen car and that she was with the defendant — ”

The defense attorney objected “to this form of opening statement” because “he is talking about hearsay testimony at this point, and it would be inadmissible at trial . . .” Defense counsel did not, however, move for a mistrial. After a short colloquy the court said, “That’s hearsay. Wouldn’t that be hearsay?” The prosecutor replied, “If objected to I think it would be hearsay.” At that point the court, without a request and in the presence of the jury, declared a mistrial:

“THE COURT: Members of the jury, I am going to declare a mistrial. What [the prosecutor] told you is hearsay. And if objected to during the trial, as I think it could have been anticipated, it would be wholly improper to get before a jury. This is hearsay. It’s the unsworn statement of somebody made to somebody else outside the courtroom.
So that terminates your services in the case. . . . ”

Later that same day a new jury was empaneled. During this second trial and during the reading of MAI-CR 1.02, defense counsel asked leave to approach the bench and informed the judge that

“. . . it’s my feeling that since a mistrial was declared after the jury had been sworn that my client has been placed in jeopardy and, therefore, . I would move that he be discharged and the case be dismissed at this time.”

The court overruled the motion and continued reading MAI-CR 1.02. At the completion of the voir dire examination, defense counsel again moved to dismiss the case

“. . . for the reason of double jeopardy. . . And I would like to make the motion prior to the jury being sworn in and indicate on the record at this time that I am proceeding to trial with this case, but I wish in no way to waive that objection.”

This second trial proceeded. The first witness, John Lawrence Winston, testified. The second witness to testify for the State was Detective Robertson. During his testimony the prosecutor asked:

“Q. [Prosecutor]: Do you recall the conversation that took place then?
A. [Detective Robertson]: Yes. Well, I did not talk to Mr. Irving first. I talked to Miss James first and then I came back and talked to Mr. Irving after advising him his rights. He stated that on the date the automobile was stolen he had driven a subject by the name of Ganaway, Miss James, Mr. Bradshaw — ”

At that point defense counsel objected on the grounds of hearsay. The court overruled the objection. The detective then related the conversation he had with appellant in which Irving stated that Bradshaw “took the car and he had not seen him since.” The prosecutor then asked if the Detective had a conversation with Christine James. The Detective replied that he had. The prosecutor then asked, “Would you relate to the Court the conversation you had with her.” An objection was made by defense counsel and sustained. The very next question by the prosecutor was: “After your conversation with Detective Bortz what then took place?” (emphasis added). The answer was: “Mr. Irving was placed under arrest for suspicion of auto theft.” At that point defense counsel approached the bench and moved for a mistrial.

“[Defense Counsel] . . . Once again [the prosecutor] is interjecting this theory of what Miss James said at the time to the police at the police station. Now, he has left the inference in the jury’s mind that she said something implicates [sic] Arondo Irving in the crime. . ” (emphasis added).

Out of the hearing of the jury the following occurred:

“THE COURT: On the record. We had a situation that occurred this morning, and I think the record ought to show it. We had one jury and in the opening statement counsel for the state told the jury about what this woman said to the police by way of hearsay, which would implicate or tend to implicate the defendant. Is that right, gentlemen? (emphasis added).
[Defense Counsel]: Yes, your Honor.
THE COURT: I declared a mistrial on motion of the defendant because of this hearsay statement.
[Defense Counsel]: Your Honor, .
I did not move for a mistrial this morning. I merely objected to the evidence at that time.
THE COURT: Well, what difference does it make?
THE COURT: I declared the mistrial.
THE COURT: ... I thought you [defense counsel] moved for a mistrial.
[Defense Counsel]: No, I didn’t. I don’t believe I did, your Honor.
THE COURT: Well, it doesn’t make any difference in my opinion. I think the Court has authority on its own motion to declare a mistrial. . . .”

After the prosecutor attempted to explain his position, the court stated:

“THE COURT: . . . I say that, as far as I am concerned, whether a question is asked like that . . . it’s a very questionable practice; no matter what the circumstances are that you have detailed to me, whether you thought [defense counsel] wanted it in or not, whether the witness you thought would be called or not. .
Now we come to the second point. After getting an objection sustained to the question you say then, the next question comes after talking to this woman, then you arrested the defendant. The very plain implication is that this woman told you something or told the police something that implicated the defendant, which of course is hearsay.
Now, I am going to have a recess now, and I want to look up some law about it.
. ” (emphasis added).

The court then recessed until the following day. Out of the presence of the jury the trial judge stated that he checked the law,

“ . . . particularly the case of the State against Chernick, in 280 SW 2nd. I feel that a prejudicial statement has been made or some testimony has come out before the jury under the Chernick case and that it would be unfair to the defendant and would prejudice his constitutional rights if we proceed with a trial.
How do you feel about it, [defense counsel]? . . . ”

Defense counsel withdrew his earlier motion for a mistrial stating, “ . . . I really don’t want a mistrial.” After further colloquy the court stated:

“THE COURT: You know, the Judge has a little bit of responsibility to the defendant and to the state and to the people to see that the defendant gets a fair trial. And if you don’t move for a mistrial I think that I have power to declare one because I think something prejudicially erroneous has been committed, and it’s my duty to remove it.”

Defense counsel then informed the court that

“ . . .we have a jury right now that I think is very highly favorable to our side. I think we had a good voir dire and I would very much like this jury to decide the case. Now, I agree with the Court that prejudicial error has been committed, but I think it’s only fair to the defense . . that we continue with this trial. . . . [I]f we allow a mistrial in this situation every time we get a jury in the box that is favorable to the defendant, . . . then the state can come ont with something that would be prejudicial and there would be a mistrial.”

The court then found that the prosecutor acted in good faith “ . . . because there was some confusion about whether this woman [Christine James] was going to be put on the stand or not.”

After defense counsel again stressed the point that he did not want a mistrial, the trial court on its own motion declared a mistrial “for the reason that I have stated,” and the jury was discharged.

On January 28, 1976, a new jury panel was called for. Prior to any of the trial proceedings, defense counsel moved to dismiss the case on the ground of double jeopardy. This third trial proceeded and the above facts were elicited. The jury found the defendant guilty and assessed his punishment at six months in the county jail. After a motion for new trial was filed and allocution granted, the court sentenced the defendant in accordance with the verdict. Defendant duly appealed.

III.

On this appeal appellant makes one point. He contends that the trial court erred in overruling his motion to dismiss the proceedings prior to the beginning of the third trial for the reason that appellant had been placed in jeopardy for the same crime and that any further proceedings were barred by the Fifth and Fourteenth Amendments of the United States Constitution and by Article I, Section 19, of the Missouri Constitution.

He argues that jeopardy attaches when the jury is sworn and that a mistrial was declared by the trial court sua sponte and not at the request of appellant, and in effect under the circumstances the defendant has been placed in jeopardy in the first two trials so that he should be discharged.

The State on the other hand contends that the trial court did not err in overruling the motion to dismiss prior to the beginning of the third trial because the trial court reasonably believed that it was “manifestly necessary” to order a mistrial in both prior proceedings.

IV.

The issues presented in this case are of an “elusive nature.” They are not easily resolved. No hard and fast principles can be laid down.

The issues, as we perceive them, are whether in the first trial there was “manifest necessity” for the court to declare a mistrial sua sponte during the opening statement and whether in the second trial a mistrial should have been declared against the express wishes of the defense so as to permit a reprosecution of the appellant in the third trial.

The Fifth Amendment of the United States Constitution made applicable to the states, Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), represents fundamental policy considerations. It provides that “[n]o person shall . be subject for the same offense to be twice put in jeopardy of life or limb. . ” The concept of “Double Jeopardy” is very old. The Constitution of Missouri, Article I, Section 19, provides that “ . . . nor shall any person be put again in jeopardy of life or liberty for the same offense, after being once acquitted by a jury. . . . ” While there are many protections underlying the Double Jeopardy Clause, the constitutional prohibition represents a “constitutional policy of finality” for the defendant’s benefit in criminal proceedings. The power of government to subject an individual to repeated prosecutions for the same offense “ . . . would cut deeply into the

framework of procedural protections which the Constitution establishes for the conduct of a criminal trial. And society’s awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws.” United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 554, 27 L.Ed.2d 543 (1971).

There are certain well-recognized principles governing the concept of “Double Jeopardy.”

1. The Double Jeopardy prohibitory rule is applicable to a criminal proceeding once the defendant is put to trial before the trier of facts whether the trier be a jury or a judge. In jury trials the defendant in a criminal case is placed in “jeopardy” when, upon a valid indictment or information, the jury has been empaneled and sworn. State v. Snyder, 98 Mo. 555, 12 S.W. 369, 370 (1889); State v. Miller, 331 Mo. 675, 56 S.W.2d 92, 95 (Mo.1932); Durham v. State, 538 S.W.2d 881, 883 (Mo.App.1975).

2. Normally, the Double Jeopardy claim does not arise when a mistrial is declared upon the defendant’s request. But even where there is a request, there are circumstances where a defendant’s mistrial request does not remove the Double Jeopardy bar. The Clause protects a defendant against governmental actions intended to provoke a mistrial request. It bars retrials where the underlying error is motivated by bad faith or undertaken to harass or prejudice the defendant. Dinitz, 96 S.Ct. at 1081-1082; Martin, supra.

3. The Double Jeopardy provision is not applicable to all circumstances. The provision

“does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforseeable circumstances that arise during a trial making its completion impossible . In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. . . . ” Wade v. Hunter, 336 U.S. 684, 69 S.Ct. 834, 837, 93 L.Ed. 974 (1949).

4. The trial court, vested with discretion, has the authority to discharge a jury from giving any verdict when, under all the circumstances, there is a “manifest necessity” to abort the trial, so that the defendant may be retried without violating the Double Jeopardy prohibitory rule. In this regard the courts have not laid down an inflexible, rigid test as to when trials may be discontinued by a trial court sua sponte so that the constitutional prohibition is applicable to a subsequent trial. A mechanical rule has never been applied nor can one be devised. Rather, the guiding principle, and the fount of all discussion, is United States v. Perez, 22 U.S. 579 (9 Wheat.), 6 L.Ed. 165 (1824). There, in a capital case where the jury was unable to agree upon a verdict and was discharged, Mr. Justice Story stated for the Court:

“ . . . We think, that in all cases of this nature, the law has invested Courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; . . . Courts should be extremely careful how they interfere with any of the chances of life, [or liberty] in favour of the prisoner. But, after all, they have the right to order the discharge; and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests, in this, as in other cases, upon the responsibility of the Judges, under their oaths of office.” Perez, 22 U.S. at 580.

Under this flexible rule of “manifest necessity” or “the ends of public justice,” numerous decisions both in the federal and state courts have held that a reprosecution is not barred where a mistrial has been declared without the defendant’s request therefor.

The decisions, of course, depend upon particular facts. While it is not possible to set forth a principle governing all of the cases, a distillation of the authorities shows that “manifest necessity” is applicable either when there is an obvious procedural error in the trial which would, on appeal, make reversal a certainty or when there is a breakdown in the judicial machinery. See Somerville, 93 S.Ct. at 1070; Note, Double Jeopardy: The Reprosecution Problem, 77 Harv.L.Rev. 1272, 1277 (1964).

While most decisions have held that the trial court acted in the exercise of sound discretion in aborting an earlier trial and that reproseeution may proceed without violating the Double Jeopardy provision, certain factual situations have been held not to rise to the high level of “manifest necessity” so as to permit a reprosecution of the defendant. In Jorn, 91 S.Ct. 547, a mistrial was declared by the trial judge on its own motion when the judge concluded that taxpayers who had been called as government witnesses in the trial of defendant had not been properly advised of their rights against self-incrimination. The Supreme Court of the United States held that repros-ecution of the defendant violated the Double Jeopardy provision of the Fifth Amendment. The trial judge in Jorn acted abruptly, discharged the jury and did not allow consideration of other alternatives.

In the course of the opinion, the court also disapproved of the principle established in Gori, 81 S.Ct. 1523, relied upon by the respondent. In Gori the reprosecution of the defendant was upheld after a mistrial and no abuse of discretion was found when the judge was acting in the sole interest of the defendant. In Jorn, 91 S.Ct. at 556, the Court held that the benefit to the defendant test enunciated in Gori “ . . . does not adequately satisfy the policies underpinning the double jeopardy provision.” When the judge acts without the defendant’s consent and aborts the proceedings, the defendant has been deprived of the valued right to have his trial completed by a particular tribunal. Hence, in the absence of a request,

“ . . . the Perez doctrine of manifest necessity stands as a command to trial judges not to foreclose the defendant’s option until a scrupulous exercise of judicial discretion leads to the conclusion that the ends of public justice would not be served by a continuation of the proceedings.” Jorn, 91 S.Ct. at 557.

Applying these principles to this appeal, we hold that the trial court erred in not granting the defendant’s motion to dismiss the proceedings at the beginning of the third trial.

In the first trial against the appellant, which was aborted, the trial court, without a request for a mistrial, declared a mistrial on the grounds that the prosecutor indicated that hearsay evidence would be used. The prosecutor’s statement did not constitute evidence and the statement was objected to. The court made clear in Instruction No. 2 (MAI-CR 2.02) that the opening statements of the attorneys are not evidence. When an objection to improper statements to the jury has been made and no further relief is sought, the courts have maintained confidence that the jury will be guided by admissible evidence. At this early stage of the proceeding there were other possible alternatives available to the trial court to correct the situation other than the drastic remedy of aborting the trial. Cf. Jorn, 91 S.Ct. at 558. The power of a trial court to declare a mistrial must be exercised with the greatest caution, only under urgent circumstances and only for very plain and obvious reasons. As Perez teaches, courts must be extremely careful how they interfere. Since the court acted abruptly, without request and at a time when there were other possible alternatives to correct any error, and aborted the trial, we are compelled to conclude that aborting the trial at this early stage did not rise to the level of “manifest necessity” within the meaning of the principles set forth above.

As to the second proceeding, the trial court and apparently counsel for the defense as well as appellate counsel here are all under the impression that prejudicial error was injected because Detective Robertson had testified that after his conversation with Miss James he immediately arrested the appellant — all in direct violation of State v. Chernick, 280 S.W.2d 56 (Mo.1955). As a matter of fact, however, the objection to the question of the prosecutor to Detective Robertson to relate the conversation he had with Miss James was sustained. Detective Robertson then testified that he placed the appellant under arrest after he had a conversation with Detective Bortz, not Miss James. It was thereafter that lengthy discussions were had concerning the impropriety of interjecting the arrest after talking to “this woman,” and was on that basis that the trial judge granted a mistrial on the basis of Chernick.

In Chernick our Supreme Court reversed the convictions because the circuit attorney was permitted 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 prejudicial error. See also State v. Kirkland, 471 S.W.2d 191 (Mo.1971). But these cases have been distinguished from the situation where hearsay testimony was heavily relied upon by the State to identify the defendant and in which there was very little, if any, other evidence which connected the defendant with the offense. See State v. Stevens, 467 S.W.2d 10, 21-22, 50 A.L.R.3d 96 (Mo.1971), cert. den. sub nom. Stevens v. Missouri, 404 U.S. 994, 92 S.Ct. 531, 30 L.Ed.2d 546; and State v. Harris, 535 S.W.2d 145, 149 (Mo.App.1976).

Assuming, as did apparently the trial court and counsel, that Chernick was directly applicable to the situation relative to the questions of the prosecutor that the appellant was arrested after Robertson’s conversation with Miss James, the action of the trial court in aborting this second proceeding must be balanced by the wishes and desires of the defendant to proceed to have his trial completed by a particular tribunal. The right to be tried before a particular tribunal is a “valued right.” The defendant has a significant interest in the decision whether or not to take the case from the jury when circumstances occur which might be thought to warrant a mistrial. Jorn, 91 S.Ct. at 557; Dinitz, 96 S.Ct. at 1080. “The important consideration, for purposes of the Double Jeopardy Clause, is that the defend-ant retains primary control over the course to be followed in the event of such error.” Dinitz, 96 S.Ct. at 1081. The mistrial in the second aborted proceeding was granted over the specific objections of defense counsel. The defendant had a valued right to proceed with the selected jury. We therefore believe under all the circumstances that the trial court erred in aborting the second trial.

While a trial court is vested with broad discretion in declaring a mistrial because of “manifest necessity” and while we normally defer to that discretion, in this case, applying all these considerations to this complex and difficult cause, we are compelled to conclude that the trial court erred in overruling appellant’s motion to dismiss the third proceeding. Since the defendant was placed in jeopardy, the judgment of conviction must be reversed and the defendant discharged.

We have read the total transcript; we have studied the briefs of the parties and all of the authorities cited therein. We have done our own independent research and conclude that, under these unique circumstances, the judgment should be reversed.

The judgment is reversed and the defendant discharged.

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

      . The appellant’s version differed. In his testimony he stated that he gave his plates to Bradshaw to put on his [Bradshaw’s] car and when he found out they were on the Camaro he took them off. He also testified that he made a strong effort to have the car returned to Winston by notifying several individuals. Bradshaw asked appellant to meet him at Wells and Stewart. Bradshaw put license plates on the Camaro which were later learned to be stolen.

      . The actual question was: “Q. After your conversation with Detective Bortz what then took place?” “A. Mr. Irving was placed under arrest for suspicion of auto theft.”

      . “[Defense Counsel]: Your Honor, once again I make a motion to dismiss this case. I feel.the defendant has once been placed in jeopardy once again through actions by the prosecuting attorney, whether intentional or unintentional. . . . I withdrew my motion for a mistrial.
      I stated to the Court that I wanted to continue with the trial. . . .
      THE COURT: There is no jeopardy. The man’s guilt or innocence has never been put in issue for determination.
      As I understand the law in Missouri, there is no jeopardy when there has been a mistrial declared.
      Well, I have already ruled on it.
      [Defense Counsel]: I disagree with that, but we can take it up later.”

      . For a full discussion of the concept and history of the Double Jeopardy Clause see United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 1020-1023, 43 L.Ed.2d 232 (1975); Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 695-697, 3 L.Ed.2d 684 (1959) — (Black, J., dissenting); United States v. Jenkins, 490 F.2d 868, 870-873 (2d Cir. 1973), aff’d, 420 U.S. 358, 95 S.Ct. 1006, 43 L.Ed.2d 250 (1975); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199, 61 A.L.R.2d 1119 (1957).

      . Although the language of the constitution is restrictive it must be construed to comport with the principles of the United States Constitution as made applicable to the states. There is no readily discemable difference between the Fifth Amendment guarantee against double jeopardy and the common law guarantee as applied in this State. State v. Aguilar, 478 S.W.2d 351, 354 (Mo.1972).

      . “It protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969).

      .The claim of Double Jeopardy does not arise when the mistrial is declared at defendant’s own motion, Madison v. State, 533 S.W.2d 252, 255 (Mo.App.1976). See also United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 1080, 47 L.Ed.2d 267 (1976) and Lee v. United States, 432 U.S. 23, 97 S.Ct. 2141, 2147-2148, 53 L.Ed.2d 80 (1977). The Double Jeopardy Clause generally does not stand in the way of a reprosecution where defendant has requested a mistrial. United States v. Martin, 8th Cir., 561 F.2d 135 (1977).

      . Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1891) — retrial not barred where mistrial granted because letter published in newspaper rendered juror’s impartiality doubtful; Wade, 69 S.Ct. 834 — retrial not barred where military court martial gave new trial because of the tactical situation in the field; Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892) — retrial not barred when jury was discharged after 40 hours deliberation; Thompson v. United States, 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1894)— retrial not barred when one juror had served on indicting grand jury; Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973)—defective indictment; Gori v. United States, 367 U.S. 364, 81 S.Ct. 1523, 6 L.Ed.2d 901 (1961) — appearance to judge that prosecutor’s questions might lead to introduction of evidence of prior crimes; Parker v. United States, 507 F.2d 587 (8th Cir. 1974), cert. den. 421 U.S. 916, 95 S.Ct. 1576, 43 L.Ed.2d 782 (1975)—jur- or heard radio report that prosecution witness had been threatened; Lovato v. New Mexico, 242 U.S. 199, 37 S.Ct. 107, 61 L.Ed. 244 (1916)—no plea to indictment; Anno., 6 L.Ed.2d 1510 (1962); 85 A.L.R.2d 486 (1962); State v. Tippett, 538 S.W.2d 756 (Mo.App.1976)—juror advised court that she knew defendant—good discussion; Miller, 56 S.W.2d 92—sickness of key participant in trial; Aguilar, 478 S.W.2d 351— improper questions by defense counsel.

      . “Yet, in the final analysis, the judge must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate.” Jorn, 91 S.Ct. at 558.

      . In Scott v. Municipal Court of Beverly Hills Jud. Dist., 17 Cal.App.3d 885, 95 Cal.Rptr. 460, 462 (1971), the California court, quoting from Curry v. Superior Court, 2 Cal.3d 707, 87 Cal. Rptr. 361, 470 P.2d 345 (1970) stated:
      “ ‘A defendant may choose not to move for or consent to a mistrial for many reasons. . . . Indeed, even when a palpably prejudicial error has been committed a defendant may have valid personal reasons to prefer going ahead with the trial rather than beginning the process anew, such as a desire to minimize the embarrassment, expense, and anxiety mentioned above. These considerations are peculiarly within the knowledge of the defendant, not the judge, and the latter must avoid depriving the defendant of his constitutionally protected freedom of choice in the name of a paternalistic concern for his welfare.’ ”


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Dennis Keith DITTMAN, Defendant-Appellant.
    No. 10568.
    Missouri Court of Appeals, Springfield District.
    Nov. 22, 1977.
    Motion for Rehearing or to Transfer to Supreme Court Denied Dec. 2, 1977.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Paul Crider, Jr., Public Defender, Rolla, for defendant-appellant.
   PER CURIAM:

Defendant, a second offender, was found guilty of receiving stolen property. § 560.-270, V.A.M.S. On December 6, 1976, defendant’s after-trial motions were overruled and defendant was duly sentenced to imprisonment for a period of five years. Thereafter, on December 14, 1976, defendant filed his notice of appeal unaccompanied by the $20 docket fee required by Rule 81.04, Y.A.M.R. On the same date his notice of appeal was filed (December 14), defendant filed a motion to perfect the appeal as a poor person. On the twenty-first day after judgment or on the thirteenth day after the notice of appeal was filed (i. e., December 27, 1976), the trial court entered an order permitting defendant to appeal as a poor person.

“Rule 81.04 [supra] provides: ‘ . No such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final. . . . The docket fee of $20.00 in the appellate court shall be deposited with the clerk of the trial court at the time of filing the notice of appeal. No notice of appeal shall be accepted and filed by the clerk of any trial court unless said docket fee is deposited therewith.’ The notice of appeal . . . was timely sent to the circuit clerk. However, the notice was not accompanied with the $20.00 docket fee and at the time it was filed the court had not entered an order waiving payment of same. The filing of the notice of appeal by the circuit clerk was invalid and ineffective. State v. Keeney, 536 S.W.2d 518 (Mo.App.1976); State v. Peck, 536 S.W.2d 511 (Mo.App.1976); State v. Worl, 531 S.W.2d 294 (Mo.App.1975); Application of Holt, 518 S.W.2d 451 (Mo.App.1975). Because the filing of the . notice of appeal was invalid . . ., we have no jurisdiction. State v. Brookshire, 400 S.W.2d 61 (Mo.1966).” Keeney v. State, 556 S.W.2d 514 (Mo.App.1977).

The appeal is dismissed.

All concur.


author: FLANIGAN, Judge.

text:
    In the Matter of the ESTATE of Irvin WALLER, Deceased.
    No. 10492.
    Missouri Court of Appeals, Springfield District.
    Nov. 22, 1977.
    James Edward Reeves, Ward & Reeves, Caruthersville, Veryl L. Riddle, G. William Weier, Bryan, Cave, McPheeters & McRo-berts, St. Louis, L. Joe Scott, Poplar Bluff, for appellant Helen Waller.
    William O. Welman, Welman, Beaton & Sharp, Kennett, for respondent Gordon F. Waller.
    Before TITUS, P. J., and FLANIGAN and HOGAN, JJ.
   FLANIGAN, Judge.

The two former co-executors of the will of Irvin Waller, deceased, are at war with each other on the issue of whether the estate should be reopened pursuant to § 473.147, which provides for the granting of “letters of administration of the goods remaining unadministered.”

On October 30,1975, Helen Waller, (“Helen”), sought to invoke § 473.147 by filing, in the Probate Court of Dunklin County, an “application for an order reopening the estate and for letters of administration de bonis non.” Helen’s former co-executor, Gordon F. (Jack) Waller, (“Jack”), filed an objection to the application. After hearing evidence from both sides, the probate court denied the application. Helen appealed to the circuit court and that tribunal also denied the application. Helen appeals.

Irvin Waller died on January 28, 1970. Helen, his second wife, is his widow. Jack is the only child of Irvin’s first marriage. In February 1970, Irvin’s will was admitted to probate and letters testamentary were issued to Helen and Jack. Beneficiaries named in the will were Helen, Jack, Nancy Beall (daughter of Helen and Irvin), Jackie Chambers and Gordon I. Waller. The latter two are grandchildren of Irvin and children of Jack. In December 1971, Helen and Jack filed their final settlement. The probate court approved it and on March 3, 1972, entered an order discharging the executors.

The briefs of the parties advance conflicting views on whether the reopening of the estate was barred by the 5-year limitation contained in § 473.070. Helen argues that the statute applies only to the opening of original administrations and does not apply to administrations de bonis non. Jack argues that the statute bars Helen’s application.

The material portion of § 473.147 is:

“2. If, after final settlement of an estate is had and the executor or administrator has been discharged, unadministered assets of the estate are discovered, letters of administration of the goods remaining unadministered, if there are unpaid allowed claims or if other good cause is shown, may be granted . . . ”

Whether § 473.070 bars the instant proceeding need not be decided for the reason that this court holds that the trial court properly could have found that there was no showing of “good cause” for the granting of letters of administration d/b/n.

Helen’s verified application stated that the “unadministered assets of the estate” consisted of the following: (a) 10 shares of stock in the State Bank of Bernie, and (b) approximately $26,000 “in the form of currency or bonds.” The application further stated that those assets were shown on an amended U.S. estate tax return which Helen filed on September 26, 1975. A copy of the latter return was attached to the application.

When the cause was appealed from the probate court to the circuit court, the latter became “possessed of the cause” and was under the duty to “proceed to hear, try and determine the same anew, without regard to any error, defect or other imperfection in the proceedings of the probate court.” § 472.250; Maus, Mo.Prac., Prob.Law and Prac., Vol. 3, § 580, p. 551.

With an exception not applicable here, Rule 41.01(b) provides: “Civil actions originating in the . . . probate courts but which are pending in the Supreme Court, Court of Appeals, circuit courts, or courts of common pleas, shall be governed by Rules 41 through 101.”

In the circuit court, where the case was tried without a jury, the record consisted of the following: The file of the probate court in the estate of Irvin Waller, deceased, the amended U.S. estate tax return and the testimony of Helen and Jack.

Neither Helen nor Jack invoked Rule 73.-01(l)(b), which permits a party to request a statement of the grounds for the court’s decision and its findings on specified controverted fact issues. Because the circuit court made no such findings, that rule requires that “all fact issues . . . shall be considered as having been found in accordance with the result reached.”

Helen’s application did not allege that there were “unpaid allowed claims.” Jack’s brief, which he filed as respondent in this court, states that there are no “unpaid allowed claims” and that this is “undisputed.” Helen’s reply brief does not attack that statement. Helen’s position, on this appeal, is that she has shown “other good cause,” § 473.147, for the granting of the letters of administration d/b/n.

The record strongly suggests that the instant proceeding was motivated by Helen’s desire to establish that 10 shares of stock in the State Bank of Bernie, now in the possession of Jack, were owned by the decedent at the time of his death and should have been included in his estate. If so included, Helen would take the 10 shares under the will.

Helen’s theory that the 10 shares in question were owned by the testator is based on the factual assumption that the certificates representing those shares, although issued to Jack, had been endorsed in blank by Jack and were in the testator’s safety deposit box at the time of the latter’s death. However, Jack testified that the certificates were kept in Jack’s own box and were not in the testator’s box at any time. Helen offered no substantial evidence to the contrary, although she was present, with Jack, when the testator’s box was initially opened after his death. Accordingly the trial court properly could have found that Helen’s claim with respect to the 10 shares was unsupported by the evidence.

Jack and Helen were the only two witnesses who testified and each called the other. In some respects their versions coincide and in others they differ. Under any view of the evidence, each failed to perform duties statutorily imposed upon an executor. Those duties include the inventorying of “all of the property of the decedent” and “all property possessed but not owned by the decedent,” § 473.233, and the annexing of an affidavit to the inventory, “stating that it is a full inventory and description of all of the property of the decedent which has come into the possession or knowledge of the executor or administrator and of the property in the possession of the decedent at his death, as far as they know.” § 473.237. During the original administration Jack and Helen verified and filed the original inventory. Nine months later they verified and filed an amended inventory. Neither document made mention of the instant “unadministered assets.”

At the time of decedent’s death Jack was president of the Bank of Malden. The day after the testator’s funeral, testator’s safety deposit box, located in the Malden Bank, was opened after banking hours by Helen and Jack with no other person present. Jack had the bank’s key to the box and Helen brought the other key to the bank.

Jack admitted that when the box was opened he “had not received a consent or waiver from the attorney general or the Department of Revenue,” and that he was “aware of the fact that such consents and waivers were required by state law prior to opening a lock box of a decedent.”

Among the contents of the box were 230 shares of stock in the Bernie Bank issued to testator and inventoried in the estate. The box also contained 10 shares in the Bernie Bank issued to Helen. Helen’s shares were included in the original inventory but should not have been and the mistake was corrected by an amended inventory filed by Helen and Jack in December 1970.

The box contained 4 sealed envelopes, each bearing a name. There was an envelope apiece for Jackie Chambers, Gordon I. Waller, Tracy Waller, and Helen. Helen’s envelope bore the legend, “This is for Helen to pay inheritance tax.” It contained $1,000 in cash and “the listing of $115,000 in stocks and bonds from the National Stockyards.” Helen admitted that she took the $1,000 out of her envelope “and it was not reported.” The other envelopes were not opened at the bank.

The will was in the box and Jack and Helen looked at it. The envelopes were removed from the box and taken by Helen and Jack to Helen’s home where a birthday dinner was held for Helen. There Jackie, Gordon and Tracy were given their respective envelopes.

The record is unclear with regard to the contents of the envelopes of Gordon, Jackie and Tracy. Helen’s testimony was that Gordon’s envelope contained $10,000, Jackie’s contained $10,000, Tracy’s contained $5,000 and Helen’s contained $1,000. According to Helen that is how she arrived at the $26,000 figure mentioned in the application. She stated, however, that she did not know what the envelopes of the three other people contained. “I just know what the children told me.”

The will gave to Jackie “all the bank stock I own in the National Bank of Ca-ruthersville or $10,000 in cash” and gave to Gordon “the sum of $10,000.” In the original administration, Jackie received the Ca-ruthersville bank stock but no money. Gordon received nothing and signed a “release as to a lapsed bequest.” The decree of distribution recited that Gordon’s bequest lapsed “due to insufficient assets in residue of estate for payment thereof.”

Jack’s testimony in essence was that he did not know how much money the envelopes contained. In the probate court Jack testified that he thought Jackie received “around $10,000 or $20,000” and he thought Gordon received a similar amount. Jack thought that Tracy received “a $10,000 bond.” Jack had made some “notations,” which he had not brought to the courtroom, concerning the contents. Although the circuit court trial was held two and one-half months later, the record does not show any effort by Helen to produce those notations or to obtain any more specific testimony from Jack.

It was Jack’s testimony that “none of this cash that I have described that was delivered to my children, my grandchild and Helen” was inventoried in the estate and that none of it was included in the inheritance tax report or reported in the original federal estate tax return which he and Helen had signed.

Jack admitted that when he signed the federal estate tax return he knew that the cash had been omitted from the return. When asked if he knew that he was violating the “Internal Revenue Laws” in doing so, Jack gave the lame and unresponsive answer, “It was my assumption that probably my father left that money there for the family and their use. I am sure he had paid taxes on it.”

The amended estate tax return was filed by Helen three and one-half years after the estate was closed. Helen said she filed it “voluntarily” and that she had not been “audited.” It contained a declaration by Helen “under penalties of perjury” that it had been examined by her and was, “to the best of my knowledge and belief, true, correct and complete.” It contained a recital that Helen had made a careful and diligent search for property of every kind left by the decedent.

The only new assets shown on the amended return which were not shown on the original were the 10 shares and the $26,000 mentioned in Helen’s application. The return called for information concerning whether the decedent had a safety deposit box and, if so, whether any of the contents of the box were omitted and a full explanation thereof. Helen left these inquiries unanswered. The original return contains similar inquiries, similarly unanswered. The amended return, as did the original, took credit, as deductions, for $6,000 in executor’s commissions and $6,000 in attorney’s fees. The probate records show, however, that Helen and Jack waived their executor’s commissions and that the total attorney fee paid was $3,500.

All the information which Helen included in the amended return was possessed by her at the time the original return was filed during the course of the original administration. The amended return itself contains inaccuracies of which Helen had to be aware.

In support of her contention of “good cause” for the sustention of her application, Helen makes the following points:

1. “Conceding a dispute as to the [10] shares,” $26,0.00 of assets of the testator were not inventoried in his estate.

2. Helen advanced $50,172.01 to the estate to pay the federal estate tax shown on the original return, and Helen paid $4,167.60 in connection with the filing of the amended return. The will provided: “all taxes to be paid from my estate.”

3. After the distribution of bank stock and payment of fees and expenses, the distributed estate was $386.41.

4. Gordon I. Waller released his claim to a $10,000 bequest under the will.

With respect to [1], an examination of § 473.147(2) discloses that the existence of unadministered assets is not alone sufficient to trigger the operation of the statute. Letters may be granted if, in addition to the discovery of such assets, there are unpaid allowed claims or if other good cause is shown. Helen’s statement that $26,000 in assets were not inventoried may well be accurate, but in making that statement Helen confesses her own dereliction.

With respect to [2], Helen does not claim that any portion of the federal estate tax remains to be paid or that the failure of her application would prevent its collection by the government. Her position seems to be that some of the other beneficiaries should participate in the tax burden. Whether or not the appointment of a personal representative would be a prerequisite to such litigation, a matter on which Helen cites no authority, she fails to show that this problem could not have been resolved during the course of the original administration.

With respect to [3], the statement made is factually correct but Helen fails to demonstrate why that fact constitutes “other good cause.”

With respect to [4], the evidence permits a finding that Gordon I. Waller has in fact received his bequest, although such was done by by-passing the probate court, with Helen’s knowledge and participation. There is no showing that this legatee’s financial position would be improved if the estate were reopened and he has not requested reopening.

It may be that taxes other than federal estate taxes remain unpaid, but Helen makes no mention of that nor does she claim that her lack of success below would preclude their collection.

“ ‘Good cause’ depends upon the circumstances of the individual case, and a finding of its existence lies largely in the discretion of the officer or court to which the decision is committed.” Wilson v. Morris, 369 S.W.2d 402, 407[7] (Mo.1963).

“Even though there are newly discovered assets of an estate the appointment of an administrator of the goods unadministered is not required unless there are unpaid allowed claims against the estate, or other good cause is shown. What may constitute other good cause is not defined and has not been fully developed by the cases. The phrase would appear to include situations where it was uncertain who, as heirs or distributees, is entitled to receive the newly discovered assets. If there are no debts and it is clear who is entitled to the newly discovered assets, and all parties interested therein can be brought before the court, it has been held proper for those distributees or heirs to maintain an action to collect or reduce to their possession the newly discovered assets of the estate without the appointment of an administrator of the goods unadministered.” Maus, Mo.Prac., Prob.Law & Prac., Vol. 4, § 1523, p. 644.

In this proceeding Helen seeks issuance of letters of administration d/b/n to accomplish purposes which, so far as the record reflects, would redound solely to her own benefit. They are purposes which, had she not neglected her duties during the original administration, could have been accomplished during the course of it. The relief sought is based upon information which was within her knowledge prior to and during the original administration. The latter, improperly conducted by her and her co-executor, had been closed for several years before her personal motives precipitated the instant proceeding. Even her belated efforts to comply with federal estate tax requirements are inadequate. The trial court was entitled to reach the conclusion that there was no showing of “other good cause,” § 473.147(2), and its decision not to grant the application should not be disturbed. Rule 73.01; Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976).

The judgment is affirmed.

All concur.

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

      . § 472.010, as originally enacted in 1955, defined the word “claims” to include “and all estate and inheritance taxes.” In 1957 the latter language was deleted. Even if, as appears to be the case, some taxes remain unpaid in this estate, they have not been “allowed” and thus, at least in this instance, are not “unpaid allowed claims.” “An executor or administrator shall pay all taxes due the United States, the State of Missouri . . . without any claim therefor being presented to the court for allowance. . . ” Maus, Mo.Prac., Prob.Law and Prac., Vol. 4, § 933, p. 217.
      The probate court made a finding that there were no unpaid “allowed claims.”

      . Jack’s brief asserts that the “reason behind all of this litigation” is the 10 shares of stock. Helen’s reply brief says, “The 10 shares of Bernie stock have substantially more significance than meets the eye. If [Helen] is declared the rightful owner of those shares, as she should be, she would then own ⅝ of the outstanding stock and thus be able to have an equal voice in bank matters. Without those shares, her remaining interest in the bank is worth substantially less because of the control factor.”

      . In 1970 § 145.210 read in part:
      “2. No . . . bank or other . . . person or persons having in possession or under control securities, deposits, or other assets belonging to or standing in the name of a decedent . . shall deliver or transfer the same to the executor, administrator, or legal representative of the decedent ... or upon their order or request unless notice of the time and place of the intended delivery or transfer be served upon the director of revenue and attorney general at least 10 days prior to the delivery or transfer.” The statute also conditions delivery upon retention of a sufficient amount “to pay and tax or interest which may thereafter be assessed on account of the delivery or transfer” unless the director of revenue and the attorney general give written consent thereto. Violators of the statute are subject to liability for the payment of “the tax and interest due” and a penalty.

      . Helen’s brief relies upon the amended inventory as supporting her assertion that the 10 shares of Bernie stock issued to Jack were in testator’s deposit box. Helen gave no such testimony and Jack’s testimony, as indicated, was to the contrary.

      . The record does not contain any testimony, deposition or direct, of Jackie, Gordon or Tracy, nor any explanation for that lack. Helen’s instant application alleged that Jackie and Gordon resided at Malden, Missouri. It makes no mention of Tracy, who was not named as a beneficiary in the will.

      . Jack argues that the assets in question were not discovered “after final settlement of an estate is had and the executor or administrator has been discharged,” § 473.147(2), because he and Helen knew about them before the original estate was closed. Citing In re Nitti’s Estate, 22 Ill.App.2d 300, 160 N.E.2d 706, 708[3] (1959), Helen argues that the discovery, within the meaning of the statute, is done by the probate court and not by the applicant or another person. In view of the disposition of this appeal, that issue need not be resolved.

      . Cf. Michaelson v. Wolf, 364 Mo. 356, 261 5.W.2d 918, 923 (1953).

      . During his appellate argument Helen’s counsel was asked if the assets mentioned in the application had been the subject of an amended Missouri inheritance tax report. His answer was that his own computations indicated no tax was due. Accordingly Helen’s claim of good cause does not include an assertion by her that additional inheritance tax is due.


author: HENRY, Justice.

text:
    Douglas Macarthur FORBES, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    Nov. 21, 1977.

      Thomas E. Cowan, Jr., Tucker, Cowan & LaPorte, Elizabethton, for petitioner.
    Brooks McLemore, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Lewis W. May, Dist. Atty. Gen., Nashville, for respondent.
   OPINION

HENRY, Justice.

We granted certiorari in this rape case in order to consider the question of the right of the trial judge to require that a rape victim submit to a psychological examination and to examine the issues of the sufficiency of the identification and of the alibi and insanity defenses.

Petitioner was convicted of rape and sentenced to serve fifty years in the State Penitentiary. The Court of Criminal Appeals affirmed. We granted certiorari to consider the matters indicated, thus rejecting all other issues presented in the petition for the writ of certiorari. Upon such consideration we concur in the results reached by the Court of Criminal Appeals and affirm the conviction.

This tragedy occurred at approximately 3:45 p. m. (EDST) on April 25, 1974, in the Johnson City residence of the victim, a twenty-five year old housewife and the mother of two children. As she entered her house after sunbathing in the backyard, she was confronted by her assailant who, brandishing a hunting knife, forced her upstairs, disrobed her, and at knifepoint, forced her to engage in fellatio, followed by intercourse, an effort to have anal intercourse, and then by further normal intercourse.

Defendant was identified and arrested on 1 August 1974, while a patient at Mountain Home Veterans Administration Hospital.

I.

Psychological Examination of the Victim

On 2 December 1975, one day before the commencement of the trial, defendant moved the Court for an order directing the victim “to present herself for a psychological examination ... to examine into her mental attitudes prior to trial [in order] to introduce expert testimony to impugn the credibility of the prosecutor and otherwise question her competency as a witness and truthfulness.”

This motion was overruled at the time of its presentation, the Trial Judge stating: “[t]here is no right to have the alleged victim of a crime examined in Tennessee. .” The Court of Criminal Appeals concurred in this conclusion, holding that “[t]here is no authority in Tennessee that a trial judge has the power, discretionary or otherwise, to compel such an examination.”

It is true that we have no statute authorizing such a procedure and no decisional law precisely in point. We are unwilling, however, to conclude that the judge is totally lacking in power to order such an examination, upon motion timely made, and supported by compelling reasons or a showing of a particularized necessity for such an examination.

We similarly reject the notion advanced by Wigmore:

No judge should ever let a sex offense charge go to the jury unless the female complainant’s social history and mental makeup have been examined and testified to by a qualified physician.

We think a rule that would operate to make it mandatory that rape victims submit to psychological or psychiatric examinations would be contrary to public policy. A woman raped is shorn of all her dignity. She is the victim of the most humiliating, degrading and debasing of all crimes. We know judicially that an alarming percentage of rape victims never make public complaint. This must be attributed in substantial part to the fact that she is subjected to examination and cross-examination on the most intimate details of the penetration and must testify to matters that are not even discussed among intimate friends, but are the legitimate subject of inquiry in a courtroom crowded with the participants, the court’s retinue and the curiosity seekers.

In Tennessee this testimony comes first at the preliminary hearing, second before the Grand Jury and lastly at the trial. To superimpose a further requirement of a mental examination would operate to compound the humiliation of this traumatic experience and to deter prosecution for this loathsome criminal act.

This question came before the California Supreme Court in Ballard v. Superior Court of San Diego County, 64 Cal.2d 159, 49 Cal.Rptr. 302, 410 P.2d 838, 18 A.L.R.3d 1416 (1966). After holding that a general rule requiring psychiatric examination of complaining witnesses in sex cases would be both unnecessary and inappropriate, the Court said:

Rather than formulate a fixed rule in this matter we believe that discretion should repose in the trial judge to order a psychiatric examination of the complaining witness in a case involving a sex violation if the defendant presents a compelling reason for such an examination. (Emphasis supplied). 49 Cal.Rptr. 313, 410 P.2d 849.

Following the full reporting of Ballard, there appears in 18 A.L.R.3d beginning on page 1433, an annotation headed “Requiring Complaining Witness in Prosecution for Sex Crimes to Submit to Psychiatric Examination.” This annotation reveals that the general rule supports such examinations on a discretionary basis.

We hold that in any case involving a sex violation, the trial judge has the inherent power to compel a psychiatric or psychological examination of the victim, where such examination is necessary to insure a just and orderly disposition of the cause. Such power should be invoked only for the most compelling of reasons, all of which must be documented in the record. This discretion should be exercised sparingly.

Any such motion must be made on a timely basis. The rule we announced in State v. Gaddis, 530 S.W.2d 64 (Tenn.1975), is analogous:

A motion for such inspection and analysis may be made at any time after arrest but must be made in ample time so as not to result in a postponement or continuance of the final hearing. 530 S.W.2d at 69.

See also State v. Stephens, 529 S.W.2d 712 (Tenn.1975).

In the instant case the record reveals no compelling reasons for ordering the victim to submit to a psychological examination. Moreover, the motion, made one day in advance of the trial, was not timely. For these reasons, the action of the trial judge in overruling petitioner’s motion was correct.

II.

The Identification Issue

Petitioner assails the identification by the victim and strongly urges upon the Court his insistence that the in-court identification was tainted by an impermissibly suggestive out-of-court identification. We review the facts.

The victim first saw the petitioner in her residence on the date of the crime. She viewed him for ten or fifteen minutes in the closest proximity, under adequate lighting conditions, and gave the police a substantially correct description.

Subsequent to the rape a continuing investigation was conducted. The Sheriff was informed that a patient at Mountain Home Veterans Administration Hospital was a possible suspect. He conveyed this information to an assistant attorney general and an agent of the Tennessee Bureau of Investigation.

On July 29, 1974, the Sheriff, the Assistant District Attorney General and another representative of the District Attorney General’s office, and the T.B.I. agent went to Mountain Home, where a conference was held with Dr. Neale. As a result of that conference, on the following day, July 30, 1974, the Assistant Attorney General and the T.B.I. agent took the victim to Mountain Home for the purpose of having her view the petitioner in a therapy session, through a two-way mirror. After further consultation, Dr. Neale refused to permit this procedure. He did, however, advise them of the route petitioner, along with other patients, would take in going to the evening meal.

Pursuant to this information the victim was taken to Mountain Home and viewed the cafeteria line from a parking lot. A hundred or so patients were in line, but petitioner was not one of them. Hence, there was no identification.

Thereafter, they were advised by Dr. Neale that the petitioner would be exercising in a specified area the following morning. Subsequently, Dr. Neale advised that the exercise session would be in the afternoon.

On the afternoon of August 1,1974, some ninety-eight days after the assault, the victim, accompanied by her husband, the Assistant Attorney General, the T.B.I. agent, a photographer, and others, converged upon the designated location. Some five or six patients, of varying ages, were playing volley ball under the supervision of an orderly.

The victim positively identified the petitioner from a distance of about twenty-five feet. After doing so, she was driven past the recreation area and then back by to a point some two hundred feet away, where, after studying petitioner through binoculars, she again identified him. All this occurred on a bright, sunny day.

Pursuant to this identification, petitioner was arrested.

The victim made a positive in-court identification without contemporaneous objection.

We should note, at the very outset, that since the identification occurred during the investigative phase and prior to arrest, we are not dealing with the Sixth Amendment right to counsel. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). Thus, the issue here presented arises under the due process clause; and our consideration is limited to a determination of the single issue of whether it was so impermissibly suggestive as to give rise to “a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).

In our recent case of Bennett v. State, 530 S.W.2d 511 (Tenn.1975), we pointed out that “[t]he controlling law [relating to identification procedures] is of comparatively recent vintage” and recognized the departure in 1967 from the old rule that line-up procedures “went to the weight of the testimony and not its admissibility upon the trial,” as a result of the great trilogy of cases decided in 1967 by the Supreme Court of the United States, viz.: United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199.

In Stovall the Court announced a “totality of the circumstances” rule, which was reaffirmed in Simmons v. United States, supra, and which we adopted and followed in Bennett. Also followed in Bennett were the factors laid down in Neil v. Biggers, 409 U.S. 188, 199, 93 S.Ct. 375, 382, 34 L.Ed.2d 401,411 (1972), for consideration in evaluating the likelihood of misidentification:

the opportunity of the witness to view the criminal at the time of the crime, [2] the witness’ degree of attention, [3] the accuracy of the witness’ prior description of the criminal, [4] the level of certainty demonstrated by the witness at the confrontation, and [5] the length of time between the crime and the confrontation.

Holding that “reliability is the linchpin in determining the admissibility of identification testimony,” the Supreme Court, in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977), specifically reaffirmed the factors set forth in Neil v. Biggers, supra.

We apply these factors to the instant case.

1. The opportunity to view. There can be no legitimate doubt that the victim had ample opportunity to view the petitioner and it is undisputed that she got a good look at him.

2. The degree of attention. The victim was not disinterested. As the Supreme Court said in an analogous situation in Neil v. Biggers:

She was no casual observer, but rather the victim of one of the most personally humiliating of all crimes. 409 U.S. at 200, 93 S.Ct. at 382-383, 34 L.Ed.2d at 412.

3. The accuracy of the description. The victim in this case gave a detailed description of her assailant and it was largely a correct description. There was some variance in estimated height, but we regard this as inconsequential in view of the overall accuracy of her description.

4. The witness’ level of certainty. The record reflects that without prompting or suggestion, except to the extent that the setting of the identification involved an element of suggestiveness, the victim promptly, absolutely and unconditionally identified the petitioner and confirmed that identity by a second viewing and a third viewing by binoculars.

5. The time between the crime and the confrontation. The crime was committed on April 25, 1974; the identification was made on August 1, 1974, an elapsed time of ninety-eight days. In Neil v. Biggers, supra, seven months elapsed.

It is evident that the show-up in this ease was characterized by a degree of suggestiveness. This conclusion follows from the fact that the victim knew in advance of the identification that she would be viewing a suspect. The investigation had conditionally focused upon the petitioner. On the other hand, there is not the slightest semblance of impropriety by the State. The victim was a hospital patient. The line-up or show-up was necessarily confined to the hospital premises. Victim knew petitioner would be present among the group participating in calisthenics, but the record is clear that she participated in the procedure in an honest effort to make an accurate identification. And, it will be borne in mind that on the previous day, given the same opportunity, she made no identification.

Consideration also must be given to the fact that those charged with the investigation were confronted with a situation affording no alternatives. Without an identification an arrest could not be made. It was beyond their power to conduct a more reliable line-up procedure. While the procedure followed was inherently suggestive, we do not think it was impermissibly so. We cannot, on the record before us, and when consideration is given to the totality of the circumstances, find as a matter of law that there was “a very substantial likelihood of irreparable misidentification.” We hold that the petitioner was not denied any right under the due process clause of the fourteenth amendment to the Constitution of the United States or under the analogous “law of the land” provision of Article 1, Section 8, Constitution of Tennessee.

III.

The Alibi Defense

Petitioner presented an unusually strong alibi defense.

He testified positively that he did not know the victim and had never been in her house. He was on annual leave from his employment as a postal worker and testified positively that he did not leave his home in Carter County at any time during the afternoon of April 25, 1974. He was fully supported by his wife.

His strongest witness was a Mrs. Danner, wife of an Army Major and a resident of Carter County while her husband was on a “hardship” tour of duty in Cambodia. Petitioner’s wife operated a baby-sitting or nursery service in the basement of her home. Mrs. Danner patronized this service and testified that on April 25,1974, she left her children at petitioner’s home at about 9:30 a. m. and picked them up sometime between 3:30 and 4:30 p. m. She testified that petitioner was present when she picked up her children.

The record suggests no clear reason that would support the jury’s seeming rejection of her testimony. From a reading of the record it is apparent that she was an intelligent and articulate woman, with no motive to falsify. Indeed the distinguished District Attorney General knew both Mrs. Danner and her husband, and referred to her “as a fine lady.”

Under a close and rigid but courteous cross examination she wavered to the extent of saying that “[i]t could have been another day, but I don’t think so.” The jury heard this testimony, and would have been warranted in reaching the conclusion that Mrs. Danner could have been mistaken as to the date.

There is yet another approach that the jury might have taken that did not involve a rejection. The proof is clear (1) that the crime was committed at 3:45 p. m., (2) that it continued for ten to fifteen minutes and (3) that it required 20-24 minutes to travel from victim’s residence to the home of the petitioner. The jury could have concluded that petitioner left the home of the victim at 3:55 p. m. and reached his own home at 4:15 p. m., thus validating Mrs. Danner’s testimony.

Quite aside from the oft-quoted rule that the “verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves all conflict in favor of the theory of the State”, McBee v. State, 213 Tenn. 15, 20, 372 S.W.2d 173, 176 (1963), there is for consideration the fact that the credibility of alibi witnesses and the weight to be given their testimony are within the exclusive province of the jury, Turner v. State, 187 Tenn. 309, 213 S.W.2d 281 (1948). This Court only reverses criminal cases on the facts, when the evidence preponderates against the verdict and in favor of the innocence of the accused.

The evidence in this case does not preponderate against the rejection of the alibi defense.

IV.

The Insanity Issue

The most troublesome issue in this lawsuit is the insanity issue. The case was conducted under the M’Naghten Rules.

Petitioner urges upon us the retroactive application of Graham v. State, 547 S.W.2d 531 (Tenn.1977), wherein we retreated from M’Naghten, and earlier Tennessee cases, and adopted the ALI Model Penal Code Test of Criminal Responsibility. We said that the new rule would be applied

(1) in all criminal trials or re-trials beginning on or after the date of the release of this opinion [Jan. 31, 1977] and (2) in all cases wherein appropriate special requests were submitted during the trial of the action, or the issue otherwise was fairly raised in the trial court and supported by competent and credible testimony, and the conviction has not become final. (Emphasis supplied). 547 S.W.2d at 544.

We apply these criteria to the instant case.

First, the trial was concluded on December 6, 1975, approximately fourteen months prior to the release of Graham.

Secondly, no special request was tendered incorporating the Model Penal Code Rule, or any other alternative to M’Naghten. To the contrary, counsel for the defendant tendered a special request which included a correct statement of M’Naghten.

Thirdly, the issue was not otherwise fairly raised. Petitioner’s counsel treats the “issue” as being insanity. This is not a correct interpretation of Graham. The “issue” there contemplated was the correct test or standard of criminal responsibility. The phrase “or the issue otherwise was fairly raised in the trial court” was not defined in Graham, by design. We will not define it now. Its insertion was for the sole purpose of insuring that mere failure to make an appropriate special request would not per se operate to preclude the applicability of Graham.

Had any of petitioner’s expert witnesses testified to capacity under the ALI Model Penal Code, or under any substantially similar standard, or had a tender of such testimony been made and overruled, the issue would have been “fairly raised in the trial court.” Such was not the case: Here, the trial from proof to argument to charge proceeded solely under M’Naghten, and we, accordingly, decide the case under these rules.

Petitioner complains of the trial judge’s charge on insanity. At best the charge was a meager statement of the M’Naghten rules. The trial judge defined insanity as being “a perverted and deranged condition of the mental and moral faculties.” We reject out-of-hand any suggestion that any person suffering írom a mental disease is morally perverted. We would be inclined to reverse on this charge were it not for a subsequent development which we think cured the error. Counsel for the defendant submitted a most excellent special request setting forth fully and accurately the correct version of M’Naghten. The trial judge granted this request and this was the last item covered in the charge. The jury retired with this fresh on its mind. We think this cured the error.

We test the testimony under M’Naghten and apply thereto the established rules relating to the burden of the proof.

Massive testimony supports the defendant’s theory that he was a long-time sufferer from the mental disease known as paranoid schizophrenia. We discussed the nature of this malady in Sampson v. State, 553 S.W.2d 345 (Tenn.1977).

We must consider this variety of mental disorder in the light of the established medical fact that it tends to be cyclic or periodic in nature and generally characterized by periods of remission. This is important to a proper analysis of the testimony. This characteristic is noted in P. Solomon and V. Patch, Handbook of Psychiatry (1974) at pages 187-188:

With proper treatment, most schizophrenic patients will achieve some remission of symptoms after their first attack. However, one must distinguish between social recovery and complete disappearance of symptoms. Most patients hospitalized for the first time with the diagnosis of acute schizophrenic reaction can be expected to make a social recovery in the sense that their chances are excellent for returning to their families and jobs. The ultimate prognosis depends to some extent on the quantity and quality of continued treatment, the stresses to which the patient continues to be exposed, and the severity of the disease. With the advent of phe-nothiazine drugs and other modern treatment methods, schizophrenia has become for many patients a disease of attacks and remissions. (Emphasis supplied).

The same authority at page 170 states that “[v]ast numbers of schizophrenics manage to function in the community without ever being admitted to a psychiatric hospital.” (Emphasis supplied).

One of the most authoritative of all textbooks in the field, Comprehensive Textbook of Psychology — II (2d ed. Williams & Wilkins 1976), states that “[t]he paranoid patient usually conducts himself quite well socially” (903) and that “[t]he majority of schizophrenics today will emerge in the categories of sound remission with personality defect or full remission with relapses.” (920).

Further in the same text it is stated that the schizophrenic is “best suited for quiet routine work he can perform independently from others and at his own pace.” (920). It is significant to note that petitioner was a post office employee and delivered the mail over five different routes.

The same authority tells us that “[i]n most daily life situations the patient may, even socially, function at an apparently normal level.” (920).

The testimony of the medical experts is consistent with these textbook principles and is replete with proof of periodic psychotic episodes, with periods of remission.

Three inescapable conclusions emerge from the proof, i. e. (1) that a paranoid schizophrenic is not legally insane under the M'Naghten rules when he is in a period of remission; (2) a prima facie case of legal insanity in such a case may only be established by proof that at the time of the crime the accused was not in remission; and (3) that proof of proper job functioning and normal appearance on the part of a paranoid schizophrenic is of questionable value.

The issue in this case boils down, first, to the single question of whether the proof shows that this defendant was not in remission on the date of this crime. If this question is resolved in favor of remission, the insanity defense is inappropriate. If resolved in favor of non-remission, then the two-pronged test of M’Naghten comes into play.

We resolve the first issue against defendant, therefore, the second need not be considered.

The record shows that petitioner had his first psychotic episode in June 1961, within a matter of days after he went on active duty with the United States Army and while stationed at Fort Knox, Kentucky. After a series of incidents he was placed in Ireland Army Hospital. His condition was diagnosed as schizophrenic reaction, paranoid type. He was transferred to Walter Reed General Hospital on July 19, 1961, where he remained for evaluation for about two weeks until he was returned to duty with a diagnosis of paranoid personality.

He then proceeded to run amok in the barracks, throwing his boots at the wall and talking and acting in a bizarre fashion. He was placed in the army stockade and transferred from there to Ireland Hospital, and then back to Walter Reed, with an admitting diagnosis of schizophrenic reaction, paranoid type. He was given electro-con-vulsive therapy (19 shock treatments). His final diagnosis was “schizophrenic reaction, paranoid type, acute, severe.”

After a four-month stay at Walter Reed, he was found unfit for further military duty and was discharged from the Army on or about December 11, 1961.

He was seen in psychiatric consultation by Dr. George L. Gee of Knoxville on May 7, 1962, and was diagnosed as schizophrenic reaction in fair partial remission.

Following his release from the army, he took a six months business course in Knoxville, after which he stood a civil service examination, passed, and was employed in the Knoxville Post Office. He continued this employment for approximately four years and, at his own request, was transferred to the Johnson City Post Office, where he was employed on the date of the crime.

On April 25, 1967, he was found to be legally competent and capable of handling his own affairs. His mental condition was found to be “in good remission.”

A principal witness offered by the defendant was Dr. Charles Walter, clinical and consulting psychologist with the Veterans Administration Hospital at Mountain Home. Dr. Walter began treating petitioner on November 29, 1972. At this time, he was suffering from anxiety and agitation, was dissatisfied with his life style, and was troubled with depression and obsessional thinking. He was unable to cope, had a feeling of inadequacy, and was sensitive to stress.

After the first three treatments, Dr. Walter diagnosed his condition as “a long term mental illness apparently of schizophrenic variety, and he was in some remission.” By December 12, 1972, he had shown some improvement and by December 27, the improvement was “considerable”. On January 11, 1973 and subsequently through February, he continued to show improvement. Finally on March 14, 1973, Dr. Walter felt that petitioner had passed through the “crisis” and treatment goals had been reached.

On August 3, 1973, he returned to Dr. Walter on his own initiative with some feelings of anxiety about his job and some dissatisfaction with his home life. He was treated with supportive therapy. He was next seen by Dr. Walter on November 20, 1973. Before this visit the Postmaster called Dr. Walter and reported that petitioner was “having trouble at work.”

Dr. Walter next saw him on March 13, 1974, and found that he was “bored, feels bleak and uninterested in job or life.” This was the last time Dr. Walter saw the petitioner before the rape incident on April 25, 1974.

Dr. Walter refused to give an opinion on sanity as of April 25,1974, because “assuming this was a patient who, whose status would change rather rapidly, I do not think that I could venture anything more than speculation. . . . ”

While Dr. Walter’s testimony gives valuable insight into the nature of the petitioner’s mental condition and demonstrates clearly that his remission over the two year period he saw him before the rape incident was “rather fragile,” it falls far short of making out a prima facie case of insanity on April 25, 1977. There is nothing in his testimony from which it might be inferred that petitioner was not in remission on that date.

Defendant next called Dr. A. Cooper Price, Chief Psychologist at Mountain Home. He first saw him on May 21, 1974, twenty-six days after the rape. Dr. Walter had advised him that petitioner’s condition was of “long duration and cyclic.” He had his “ups and downs.” As a result of a consultation on June 6,1974, forty-two days after the rape, Dr. Price felt that he was “approaching a psychotic break,” and had developed chronic schizophrenia. His impression was that petitioner had had periodic psychotic episodes and that his condition fluctuated from time to time.

When asked to express an opinion under the M’Naghten standard, Dr. Price, after noting that he had examined all the past history of “being in and out of remission” and after noting the “cyclic” nature of the illness, said:

Since I didn’t see him at that time, I would not really be certain as to whether he was or was not in remission. It would be, it would be impossible almost for me to categorize remission or non-remission.

Therefore, he declined to state whether the petitioner was sane or insane. He does make it clear that a paranoid schizophrenic may function normally depending upon the “degree of remission” and says that petitioner was probably functioning normally during the period April 22 through April 28, 1974.

Again, viewing Dr. Price’s testimony in a light most favorable to the petitioner, it does not make out a prima facie case of insanity.

Dr. Jack Neale, Chief of Psychiatry at Mountain Home, testified for the defendant. He first saw the defendant on May 22, 1974, twenty-seven days after the rape and did not feel that he was psychotic at that time. Nor was he showing any of the actual symptoms of paranoid schizophrenia. He saw him again on July 2,1974, and again on July 16, 1974. At the latter time he felt that petitioner had become psychotic and hospitalized him on July 22, 1974.

When asked to express an opinion (under the M’Naghten standard) as of April 25, 1974, he responded:

It would just be impossible to speculate on that, on a date so distant from the time I saw him.

Dr. Neale confirmed the textbook principle that schizophrenia is a disease that has cycles. In response to questions by the District Attorney predicated upon the fact that up until a few days before the rape incident and within a few days after (petitioner was on leave on the date of the rape) petitioner was able to deliver the mail and function in an outwardly normal fashion, the Doctor said:

One can be delusioned and still sort and deliver mail. .

Again, while Dr. Neale’s testimony gives insight into the nature of the disease, it furnishes no proof that defendant was not in remission, or insane, upon the date of the commission of the crime.

Lastly, the defendant called a husband and wife team of clinical psychologists, Dr. Nancy Lanthorn and Dr. Bruce Lanthorn.

They first saw petitioner on May 14,1975, twelve months and nineteen days after the rape incident. Their testimony gives further and valuable insight into the nature of the illness and confirms the other expert witnesses and the medical literature on its cyclic or episode nature and on the ability of the paranoid schizophrenic to function with outward normality during periods of remission.

The testimony of this obviously highly qualified team of clinical psychologists was based upon exhaustive tests, examination of prior medical reports and upon lengthy personal interviews.

Specifically testifying within the framework of Mc’Naghten, Dr. Nancy Lanthorn first stated unequivocally that petitioner, on April 25, 1977, “did not have sufficient mental capacity to appreciate the nature and quality of any acts committed in that period of time, or to know right from wrong.” The jury obviously did not accept this conclusory and generalized testimony as being proof of non-remission. This follows from the fact that her testimony was somewhat diluted on cross-examination by this series of questions and responses:

Q. Well, I’m asking you if this man assuming that he is legally psychotic, as your diagnosis is, if he functioned as a rational, normal aware human being in his job on April the 22nd, and observed functioning this way, and then functioned that way on April the 27th, isn’t it most likely and most probable that he was an aware human being, legally responsible under McNaughton on the 25th, the middle of that week, yes or no?
A. Okay, will you stipulate that he was not delusional?
Q. I’m not stipulating anything. I just asked you a question.
A. If what you say is true, then yes.

In connection with this testimony it should be noted that adequate proof supported the question propounded by the prosecutor.

Her testimony, however, makes clear her view that “functioning in a job does not equate to being psychotic or nonpsychotic, depending upon the nature of the job”; that “a person [paranoid schizophrenic] can do routine concrete activities; in fact prefers this kind of activity because of the very rigid structure, because of the nature of the job and still be able to do this and be very incompetent.”

She further testified by affirmative response that a person “can still be psychotic and still be legally responsible under the M’Naughton Rule.”

Dr. Bruce Lanthorn testified that paranoid schizophrenics “enter into long periods of remission in which their mental illness is fairly well controlled”; that they are able to function pretty well socially and vocationally.

Dr. Bruce Lanthorn testified that petitioner, on April 25, 1974, did not meet the M’Naghten criteria; however, he conceded that there is no known test “whereby you can look into a man’s mind, thirteen months after a crime is committed, and state with any degree of medical certainty that that man knew right from wrong at a certain hour thirteen months before that.”

We have read and examined all the medical testimony with interest and we accept it all at face value. It is clear that petitioner, for some twelve or thirteen years before the rape incident suffered from paranoid schizophrenia. It is equally clear that during most, if not all of this time, he was, as a minimum, in a partial state of remission. There is no proof in the record that he was in non-remission on April 25, 1974.

The issue, under M’Naghten is not whether petitioner is sane or insane, but whether he knew the nature and quality of the act he was doing and if so, that what he was doing was wrong.

To make that determination the basic issue, in this case, relates itself to the matter of remission, or non-remission and the degree thereof. Under the evidence in this record the jury was warranted in concluding that petitioner was in a state of remission on April 25, 1974. If the general progress of his disease prior to that date was leading in the direction of non-remission and if it be concluded that he was in partial remission on that date, there is still no proof of the extent thereof..

We do not depart from the established rule, reiterated as late as in Graham v. State, supra, that if the proof raises a reasonable doubt as to the defendant’s sanity, the burden of proof rests on the State to establish sanity to the satisfaction of the jury and beyond a reasonable doubt. We think this rule does not come into play, in the context of this case.

It is our view that when any defendant, suffering from a mental illness that is cyclic, periodic or episodic in nature, characterized by periods of remission, interposes a plea of not guilty by reason of insanity, it is incumbent upon him to make out a prima facie case of insanity by offering evidence of non-remission at the time of the commission of the crime. To hold that general proof of such a mental illness, without proof of non-remission, operates to shift the burden of going forward with the proof to the prosecution, would cast an unfair and impossible burden upon the state.

We close this opinion with the observation that this trial was characterized by advocacy in its highest and best form. We are impressed that the District Attorney General prosecuted with force and vigor and yet the entire prosecution was marked by courtesy and fairness. Counsel for the petitioner represented his client in keeping with the highest standards of the legal profession. The trial judge presided ably and judiciously. This defendant not only had a fair trial, we think he had a well nigh perfect trial. Strong adversaries make strong issues. As indicated in this opinion some of them were difficult of resolution. We are satisfied with the results of the trial and our resolution of the issues.

Affirmed.

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

      . 3A Wigmore, Evidence, Sec. 924a (Chadbourn rev. 1970).

      . Stipulated.

      . M’Naghten’s Case, 1 C. & K. 130, 10 C.L. & F. 200, 8 Eng.Rep. 718 (1843).

      . For a case involving retroactive application of Graham, see Sampson v. State, 553 S.W.2d 345 (Tenn.1977).

      . For correct statement of the rule, see 547 S.W.2d at 539 (verso).

      . Used at Vanderbilt University School of Medicine.