author: WALLACE, Justice.

text:
    C. R. ROYAL, Appellant, v. M. E. MOORE et aL, Appellees.
    No. 17357.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 5, 1979.

      Frank Puckett, Jr., Ben L. Adams, Jr., K. D. Keenan, Houston, for appellant.
    Seeligson, Douglass & Falconer, William F. Douglass, Dallas, for appellees; Weitinger, Steelhammer & Tucker, Don Weitinger, Houston, of counsel.
    Before COLEMAN, C. J., and WALLACE and PEDEN, JJ.
   WALLACE, Justice.

This is an appeal from an order of the trial court sustaining pleas of privilege of appellees Moore and Transportation Properties, Inc., and transferring the suit against them to Dallas County.

On January 1, 1971 J. Larry Morris, R. A. Lile, individually and as trustee, Bill M. Griffis, trustee, M. E. Moore and R. D. Rawn entered into a partnership agreement under the name of Paseo Apartment Development Co. The pertinent parts of the agreement are:

“3. PLACE OF BUSINESS. The partnership business is to be carried on at 6300 West Park Mall, Suite 300, Houston, Harris County, Texas.”
“8. BOOKS OF ACCOUNT. Books of account of the partnership shall be kept at the place of business, and shall be at all times open to the inspection of any partner. Each partner shall cause to be entered upon said books a just and true account of all of his dealings, receipts, and expenditures for or on account of the partnership.”
“9. ANNUAL ACCOUNTING AND INVENTORY. As soon as practicable after the end of each year an independent audit shall be made of the partnership books and accounts by a certified public accountant, who shall make statements for each of the partners, and an accounting between the partners shall be had, and the profits or losses of the preceding year shall then be divided and paid or contributed. The fiscal year shall begin on the first day of January of each year.”

The partnership acquired three tracts of land and erected 570 apartment units on one of the tracts.

On April 18, 1972 the partnership agreement was amended to show appellant as owner of 12½% interest therein, this interest being ½ of the 25% owned by Bill M. Griffis, trustee. There were various other changes in the parties of interest in the partnership and the extent of their interests, which changes are not important for purposes of this appeal.

On January 2, 1973 the partnership was amended, over the objection of appellant, to provide that the owners of a majority of the partnership interest could convey partnership property without the consent of the remaining partners. On November 15,1977 the appellees, M. E. Moore and Transportation Properties, Inc., joined by the defendant Bill M. Griffis, and other owners of interests in the partnership, transferred the tract of land containing 570 apartment units to the defendant Lilac Corporation.

On December 9, 1977 appellant filed suit for a partnership accounting, an injunction against further transfer of partnership property, and for 12% of the partnership assets or damages in lieu thereof. Appel-lees filed pleas of privilege and appellant filed controverting affidavits alleging venue in Harris County under Article 1995, Sections 4, 5, 14 and 29a, V.A.C.S. Bill M. Griffis is the only named defendant who is a resident of Harris County, Texas.

Appellant’s first point of error complains of the trial court’s action in not sustaining venue in Harris County under Section 4 of Article 1995. Said Article provides:

“. . . if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides . . . ”

The test for review of the trial court’s decision in a case such as this is set out in James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959), where the Supreme Court stated that “. . . every reasonable intendment must be resolved in favor of the trial court’s judgment.”

The requirements to sustain venue under Section 4 of Article 1995, V.A.C.S. are (1) one defendant resides in the county of suit, (2) the party asserting his privilege is at least a proper party to the claim against the resident defendant and (3) the plaintiff has a bona fide claim against the resident defendant. O. P. Leonard Trust v. Hare, 305 S.W.2d 833 (Tex.Civ.App.—Texarkana 1957, err. dism’d).

It is undisputed that requirements 1 and 2 above were met by appellant. In Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300 (1936) the court held that the plaintiff, in order to comply with requirement no. 3 above, must plead and prove his cause of action against the resident defendant.

We find that appellant’s first amended original petition was sufficient to allege a cause of action against Bill M. Griffis. He is a named defendant and the petition alleges a refusal of defendants to permit him access to the partnership books and to render an annual accounting as required by the partnership agreement. It further alleges that defendants are negotiating for the sale of more partnership land in violation of the partnership agreement. Thus, the trial court’s judgment must have been based on a finding that a cause of action against Bill M. Griffis was not proven. We must resolve every reasonable in-tendment in favor of the trial court’s finding. This is equivalent of a “no evidence” point which means that we must look only to the evidence in support of the trial court’s judgment and view it in the light most favorable to his holding. Fox v. Boese, 566 S.W.2d 682 (Tex.Civ.App.—Houston [1st Dist.] 1978, writ ref. n. r. e.)

Appellant’s cause of action against Bill M. Griffis is based upon his alleged (1) refusal to grant access to the partnership books, (2) refusal to render a partnership accounting, and (3) threat to dispose of partnership property. As to refusal to grant access to the books or to render an accounting, appellant testified that Bill M. Griffis had access to the books of the partnership for an interim period, but his testimony is not clear as to whether any request was made of Griffis during the period he had such access. The trial court could have interpreted his testimony to mean that he made all such requests to R. A. Lile, who took over management of the partnership assets and the books from Mr. Griffis. In response to a question from Mr. Griffis’ attorney, the appellant testified as follows: (referring to Mr. Griffis)

Q. You are not saying he has done anything to you?
A. I have no knowledge of anything he had done, no.

On direct examination Bill M. Griffis testified that he, Appellant and Lile agreed that he would be interim manager of the partnership property until Mr. Lile and Lincoln Properties took over. He denied having custody of the books but later testified that in response to a request from Appellee Moore, who was apparently being audited by IRS and had requested the books, he packed them in five separate cartons and sent them to Mr. Moore in Dallas. His testimony was:

Q. Did you ever take custody of the partnership books?
A. Never. They were sent to Dallas and that is all I know about handling the books.

We find that, based on the evidence, the trial court did not err in holding that Bill M. Griffis did not refuse access to the books or to render an accounting to appellant.

There is a complete absence in the record of any threat by anyone to dispose of any further partnership land.

The only basis upon which appellant can sustain venue in Harris County under Section 4, Article 1995, V.A.C.S., under the facts of this case, is that his testimony that he is demanding an accounting constitutes, as a matter of law, a cause of action against Griffis, merely because Griffis is a partner.

In Park v. Wood, 146 Tex. 62, 203 S.W.2d 204 (1947) our Supreme Court held that a suit for an accounting and for specific performance of a partnership agreement was not sufficient to sustain venue in Tar-rant County as against a Harris County resident, merely because a Tarrant County resident was a member of the partnership and was a named defendant. We hold that the Park decision controls in this case.

Appellant’s second point complains of error by the trial court in holding that the provision in the partnership agreement which provided “the partnership business is to be carried on at 6300 West Park Mall, Suite 300, Houston, Harris County, Texas” does not come within the purview of Article 1995, Section 5, V.A.C.S. Appellant cites no authority for his position, and we can find none. A partnership has no residence for venue purposes other than the residence of the partners. McCall v. Sadler, 467 S.W.2d 216 (Tex.Civ.App.—Eastland 1971, no writ hist.). Appellant’s second point is overruled.

Appellant’s third point of error is directed to the trial court’s refusal to find that venue was properly in Harris County under Article 1995, Section 14, V.A.C.S., in that his cause of action involves title to real estate located in Harris County. Appellant’s first amended original petition prays for the following, (1) a partition of partnership assets, i. e. a tract of land, (2) an accounting of the assets and liabilities of the partnership, (3) an injunction against disposal of land belonging to the partnership, (4) 12½% of the partnership assets or damages in lieu thereof.

In determining the nature of a plaintiff’s suit we must look to the facts as alleged in plaintiff’s petition and therefrom garner what principal rights and relief are sought. Renwar Oil Corp. v. Lancaster, 154 Tex. 311, 276 S.W.2d 774 (1955), W. B. Johnson Drilling Co. v. Lacy, 336 S.W.2d 230 (Tex.Civ.App.—Eastland 1962 no writ hist.); Miller v. Howell, 234 S.W.2d 925 (Tex.Civ.App.—Fort Worth 1950 no writ hist.). To sustain venue under Article 1995, Section 14, V.A.C.S., plaintiff’s petition must state a cause of action principally for recovery of an interest in land, as opposed to an accounting and division of partnership assets. Gold v. Simon, 424 S.W.2d 32 (Tex.Civ.App.—Fort Worth 1968, no writ hist.); Kirshenbaum v. Smith, 480 S.W.2d 500 (Tex.Civ.App.—El Paso 1972, no writ hist.); Milburn v. Minette, 278 S.W.2d 269 (Tex.Civ.App.-El Paso 1955, no writ hist.).

From a careful reading of appellant’s pleadings we hold that the principal relief sought was an accounting of partnership assets, an injunction against further disposing of partnership realty and for damages. His prayer for title to any real estate is secondary to his main cause of action. The parties stipulated in the trial court that the three tracts of land in question were assets of the corporation. Therefore, Appellant’s interest in the land was thus as an asset of the partnership and personal property for all purposes. Article 6132b, Sec. 26, V.A.T.S. Appellant’s third point of error is thus overruled.

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


source: Caselaw Access Project

license: Public Domain

text:
    Carroll CHILDERS, Appellant, v. PUMPING SYSTEMS, INC., et al., Appellee.
    No. 17365.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 5, 1979.

      Pendergraft & Acosta, Robert L. Pender-graft and Jane Keller of Houston, for appellant.
    McCracken, Shields & Taylor, William H. Shields and Beverly Martin, Carrollton, for appellee.
    Before WALLACE, PEDEN and EVANS, JJ.
   WALLACE, Justice.

This is an appeal from the trial court’s order sustaining appellees’ pleas of privilege and transferring the case to Dallas County.

Appellant assigns as error the overruling of his contention that venue should be maintained in Harris County under Article 1995, § 23 and § 29a, Tex.Rev.Civ.Stat.Ann.

It is undisputed that the two named individual defendants, Pettingill and Van Y, are necessary parties to this suit and are residents of Dallas County, and that the corporate defendant Pumping Systems, Inc., hereinafter referred to as P.S.I., is a private corporation whose principal place of business is Dallas, Dallas County, Texas. It is also undisputed that the appellant, a former vice-president of P.S.I., was a resident of Harris County, Texas at all times material to this case.

In order for appellant to prevail under Article 1995, § 23, he must prove that P.S.I. had an agent or representative in Harris County at the time suit was filed on June 6, 1978. Stockyards National Bank v. Maples, 127 Tex. 663, 95 S.W.2d 1300 (1936).

Appellant testified that he was vice-president of P.S.I. and that P.S.I. distributed brochures which listed his name and phone number in Houston. This was confirmed by appellee Pettengill. However, appellant further testified that this situation ended in the Fall of 1976 when he formed his own business and went into competition with P.S.I. Accordingly, appellant was not an agent or representative of P.S.I. at the time suit was filed June 6, 1978.

On cross examination, appellee Pettengill testified that Goldthwaite of Texas was P.S.I.⅛ agent in Houston in early 1976. He then qualified his statement by saying that he did not understand the term “agent”; that Goldthwaite of Texas was associated with P.S.I. but was not its agent. Petten-gill later testified that P.S.I. has a distributor in Houston, “then (1976) as now.” Appellant’s attorney did not inquire as to the name of the distributor nor did he develop any facts concerning the rights, duties, or responsibilities of the distributor necessary to show that they conducted the business of P.S.I. in Harris County on a more or less regular permanent form, or that they possessed broad powers from P.S.I. This was necessary to prove that P.S.I. had an agent or representative in Harris County under Article 1995, § 23. Milligan v. Southern Express Co. 151 Tex. 315, 250 S.W.2d 194 (1952).

The burden was on appellant to both plead and prove facts which would bring him within the applicable exception to the general venue law. Stockyards National Bank v. Maples, supra; Colorado Interstate Gas Co. v. Mapco Inc., 570 S.W.2d 164 (Tex.Civ.App.—Amarillo 1978, no writ history). In reviewing the trial court’s order in a venue case, every reasonable intendment must be resolved in favor of the trial court’s judgment. James v. Drye, 159 Tex. 321, 320 S.W.2d 319 (1959). We find that the evidence supports the trial court’s implied finding that P.S.I. did not have an agent or representative in Harris County.

Since appellant failed to sustain his burden under Section 23 of the venue statute, Section 29a does not become applicable.

The order of the trial court is affirmed.


text:
    H. Clyde SMITH, Appellant, v. GREATER HOUSTON BANK, Appellee.
    No. 17391.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 5, 1979.
    Paul Kens and Robert C. Sohns, Jr., Houston, W. Thomas McKissick, Alvin, for appellant.
    Edwin Lamm, III, Houston, for appellee.
   WALLACE, Justice.

Appellant, H. Clyde Smith, was defendant and cross-plaintiff below. Appellee, Greater Houston Bank, was plaintiff and cross-defendant below. Appellant appeals from a judgment denying him recovery on his counterclaim for statutory damages under the Federal Truth-in-Lending Act, 15 U.S.C.A. § 1601 et seq., and 12 CFR § 226 et seq.

Appellee sued appellant on a promissory note which evidenced a loan made to appellant for the purchase of a boat for personal use. A security agreement was executed by appellant simultaneous with the note. Appellant counterclaimed alleging various violations of 15 U.S.C.A. § 1601 et seq., Federal Truth-in-Lending Act, and 12 CFR § 226 et seq., Federal Reserve Board Regulation Z. The alleged violation material to the appeal is:

“The fact that security interest extended to after-acquired property was not clearly and accurately disclosed because the disclosure statement did not inform the borrower that under Texas law the security interest could not attach to consumer goods acquired after ten (10) days from the date the lender gave value.”

Trial was to the court which rendered judgment in favor of appellee for the unpaid balance of the note plus interest and attorney fees. This part of the judgment is not attacked by appellant. The trial court filed findings of fact and conclusions of law. The findings pertinent to this appeal are:

“9. H. Clyde Smith suffered no actual damage as a result of the alleged violation by Greater Houston Bank of the provisions of 15 U.S.C.A. § 1601 et seq. and 12 CFR § 226 et seq.
“13. Greater Houston Bank did not fail to clearly and accurately define the extent of the security interest created by the security agreement described . above”.

Appellant’s first point of error is directed to the failure of the trial court to grant appellant’s counterclaim, asserting that the security agreement did not comply with 15 U.S.C.A. § 1601 et seq. and 12 CFR § 226 et seq. as a matter of law. The reason urged was that the agreement did not inform the borrower that the security interest in after-acquired property, which was consumer goods, was limited by law to those goods acquired within ten (10) days of the date the lender gave value. Tex.Bus. and Comm. Code Ann. § 9.204(d)(2). It is not disputed that 15 U.S.C.A. § 1601 et seq. and 12 CFR § 226 et seq. are applicable to the transaction in question. 12 CFR 226.-8(b)(5) provides:

“If after-acquired property will be subject to the security interest, or if other or future indebtedness is or may be secured by any- such property, this fact shall be clearly set forth in conjunction with the description or identification of the type of security interest held, retained or acquired.”

In Pollock v. General Finance Corp., 535 F.2d 295 (5th Cir. 1976) the court interpreted the above provision as follows:

“We believe this portion of the regulation requires a lender to explain the 10 day limitation of UCC 9.204(4)(b) so that the borrower is informed that any consumer goods that he may acquire within 10 days of the loan transaction are subject to the security interest and that any consumer goods acquired after that date are not. Since the lender failed to disclose the nature of the security interest retained in after-acquired property, we determine that [the lender] violated § 226.8(b)(5).”

The Texas courts are in accord with this view. Garza v. Allied Finance Co., 566 S.W.2d 57 (Tex.Civ.App.—Corpus Christi 1978, no writ hist.), in adopting the fifth circuit view, stated:

“This portion of the regulation requires a lender to explain the 10-day limitation of U.C.C. 9-204(4)(b) so that the borrower is informed that any consumer goods that he may acquire within 10 days of the loan transaction are subject to the security interest and that any consumer goods acquired after that date are not.” (at page 65)

This was also the view adopted by the court in Casillas v. Government Employees Credit Union, 570 S.W.2d 57 (Tex.Civ.App.—El Paso 1978, writ ref’d n. r. e.). This view has been adopted not only by the fifth circuit, but by a number of other federal courts. Tinsman v. Moline Beneficial Finance Company, 531 F.2d 815 (7th Cir. 1976); In Re Dunne, 407 F.Supp. 308 (D.R.I.1976); Willis v. Town Finance Corp., 416 F.Supp. 10 (N.D.Ga.1976); Woods v. Beneficial Finance Company, 395 F.Supp. 9 (D.Or.1975).

The only authority cited by appellee for its failure to more fully explain the 10 day rule as to after-acquired property was a Federal Reserve Board Opinion Letter No. 983 dated January 5, 1976. To bolster the weight of the Federal Reserve Board Opinion Letter, appellee relies on Philbeck v. Timmers Chevrolet, Inc., 499 F.2d 971 (5th Cir. 1974). In Philbeck the court said that Federal Reserve Board Opinions are to be given “great deference”. Texas courts, however, have adopted the view expressed in Ives v. W. T. Grant Company, 522 F.2d 749 (2nd Cir. 1975) which rejects this defense. Pollock v. General Finance Corp., supra, also rejects this view. In Casillas v. Government Employees Credit Union, supra, the court said:

“The court in Pollock v. General Finance Corporation . . . considered both [staff] letters, rejected the staff conclusions, and held that the ten-day limitation on after acquired property must be disclosed. That decision was followed in Garza v. Allied Finance Company . .”

Appellee asserts that the Pollock case which rejected the “great deference view” to staff opinion letters is distinguishable from the instant case because the Pollock case dealt with a loan disclosure statement which stated “the security agreement ‘may cover after-acquired property.’ ” They contend that since in this case the security agreement stated “a security interest is granted . . .” there is a compliance with all applicable regulations. This position has been impliedly rejected by Texas Courts. In Casillas, supra, the disclosure form stated, “ ‘The Security Agreement will secure future or other indebtedness and will cover after acquired property.’ ” Nonetheless, the court held the disclosure form defective as it failed to include the ten-day limitation on after-acquired property.

Since appellant’s first point of error states the prevailing law of Texas it is sustained.

Appellant’s second point of error is directed to the trial court’s finding that appellant suffered no actual damages and refusal to award statutory damages.

15 U.S.C.A. § 1640(a) provides:

“Except as otherwise provided in this section, any creditor who fails to comply with any requirement imposed under this part or part D or E or this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of the failure;
(2) (A)(i) in the case of an individual action twice the amount of any finance charge in connection with the transaction . except that the liability under this subparagraph shall not be less than $100.00 or greater than $1000.00 . .; and
(3)in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court.” 15 U.S.C. § 1640.

No showing of actual damage is required. Recovery is fixed by law. Hinkle v. Rock Springs Nat. Bank, 538 F.2d 295 (10th Cir. 1976). Further, it is not necessary that the consumer be mislead before he is entitled to enforce liability. McGowan v. King, Inc., 569 F.2d 845, 5th Cir. 1978). Rather, the “twice the finance charge” recovery provision of the Act has been viewed “as a means of achieving enforcement of the Act by encouraging private causes of action.” Murphy v. Household Corp., 560 F.2d 206 (6th Cir. 1977), creating a “species of ‘private attorney general’ to participate prominently in enforcement”, Ratner v. Chemical Bank New York Trust Co., 329 F.Supp. 270, 280 (S.D.N.Y.1971).

In the instant case the finance charge is set out in the note in the amount of $582.33. The maximum statutory penalty is $1000, less than twice the amount of the finance charge. Appellant is entitled to statutory damages of $1000.

Appellant’s third point of error complains of the trial court’s failure to award him attorney fees.

The Act, as quoted above, provides for reasonable attorney fees and they should be awarded. The amount of reasonable attorney fees is a matter within the sound discretion of the trial court. The judgment of the trial court is reversed and the cause remanded to the trial court for determination of attorney fees to be awarded appellant, and for rendition of judgment in favor of appellant for statutory damages of $1,000.00.

EVANS, WALLACE and WARREN, JJ., sitting.


author: NYE, Chief Justice.

text:
    AMERICAN INDEMNITY COMPANY, Briarwood Associates, LTD., Appellant, v. C. R. SEARCY d/b/a C. R. Searcy Company, Appellee.
    No. 1363.
    Court of Civil Appeals of Texas, Corpus Christi.
    April 12, 1979.
    Rehearing Denied April 26, 1979.
    Robert M. Kendrick, Kendrick & Kratzig, Corpus Christi, for appellant.
    Fisher Alsup, Alsup & Alsup, Corpus Christi, for appellee.
   OPINION

NYE, Chief Justice.

This is a suit to foreclose a mechanic’s and materialman’s lien brought by a mate-rialman against the owner of the property, the bonding company and the subcontractor. The trial court found for C. R. Searcy, the plaintiff. The subcontractor defaulted. Only the bonding company and owner appeal.

The owner, Briarwood Associates, Ltd., built an apartment project during the year 1973 wherein Consolidated Construction Company was the general contractor. The contractor entered into a subcontract with defendant Don Keeble, Jr., for concrete and labor work. Keeble in turn entered into an agreement with C. R. Searcy, the appellee herein, to supply a trenching machine for use by the subcontractor on the job. The subcontractor Keeble failed to pay the material and labor bills incurred by him. The owner had purchased a performance and payment bond from American Indemnity Company under the provisions of Article 5472c.

The evidence showed that Searcy rented a trenching machine to the defaulting subcontractor for three months. The equipment was last used on the job during the month of September, 1973. Searcy filed a mechanic’s lien on October 1, 1973. A copy of the lien affidavit was mailed to the general contractor by certified mail on February 8, 1974.

The trial court filed findings of fact which virtually track the exact language of Article 5453(2)(b)(l).

By their first point of error, the owner and surety contend that there was no evidence to support the trial court’s finding that “the Plaintiff gave notice to the owner of the unpaid balance of the claim not later than ninety days after the tenth day of the month next following each month in which the claimant’s material was delivered in whole or in part.” A similar attack is launched by the defendant-appellant’s third point of error against the court’s finding that “the Plaintiff gave notice of the unpaid balance of the claim to the original contractor not later than thirty-six days after the tenth day of the month next following each month in which claimant’s material was delivered in whole or in part.”

Both such notices are conditions precedent to the perfection of a valid mechanic’s lien by one who supplied materials to a subcontractor. Tex.Rev.Civ.Stat.Ann. art. 5453(2)(b)(l) (Supp.1978). Considering only the evidence favorable to the trial court’s findings, as we must do, we overrule both points of error. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). The plaintiff testified that he personally sent such notices in a timely manner. There was no objection to his testimony.

By their second point of error, the owner and surety contend that the trial court erred in concluding that the plaintiff fully complied with all of the statutory requirements necessary to establish a valid lien. The crux of their argument under this point is that plaintiff failed to give the owner the required statutory warning required by Tex.Rev.Civ.Stat.Ann. art. 5453(2)(b)(2) (Supp.1978) which provides:

“. . . provided, however, if such statement or billing is to be effective to authorize an owner to retain funds for the payment of such claim as provided in Article 5463 of this Act, it shall contain or be accompanied by some form of statement to an owner to the effect that if the bill remains unpaid he may be personally liable and his property subjected to a lien unless he withholds payments from the contractor for the payment of such statement or unless the bill is otherwise paid or settled.”

Texas courts have held that a subcontractor’s mechanic’s lien is ineffective as against the owner in cases such as this, unless the owner is given the required statutory warning. Herrington v. Luce, 491 S.W.2d 478 (Tex.Civ.App.—Tyler 1973, no writ); Trinity Universal Insurance Co. v. Palmer, 412 S.W.2d 691 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.).

The plaintiff testified that notices of unpaid balances were sent to the parties. His attorney testified that “all the notices that are required” were sent. We construe the attorney’s testimony to mean that the notices of unpaid balance containing the required statutory warning were sent. The attorney’s testimony was never objected to, disputed or challenged by anyone. Indulging all reasonable inferences from the evidence favorable to the court’s conclusion, we can reach no other result. All points of error are overruled.

The judgment of the trial court is AFFIRMED.

      . “Where the claim consists of a lien claim arising from a debt incurred by a subcontractor, the claimant shall give written notice of the unpaid balance of such claim to the original contractor not later than thirty-six (36) days after the tenth (10th) day of the month next following each month in which claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part; and claimant shall give a like notice to owner not later than ninety (90) days after the tenth (10th) day of the month next following each month in which the claimant’s labor was done or performed in whole or in part or his material delivered in whole or in part.”


author: SHANNON, Justice.

text:
    David Lee POWELL, Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Appellee.
    No. 13003.
    Court of Civil Appeals of Texas, Austin.
    April 18, 1979.
    Rehearing Denied May 2, 1979.

      J. P. Darrouzet, Austin, for appellant.
    Mark White, Atty. Gen., Stephen G. Na-gle, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

The opinion of this Court filed on April 11, 1979, is withdrawn, and the following opinion replaces it.

This is an appeal from the judgment of the 261st District Court of Travis County dismissing for want of jurisdiction David Lee Powell’s suit for declaratory judgment. We will affirm the judgment.

On January 2,1979, Powell filed a declaratory judgment suit in the 261st District Court of Travis County. Powell sought a declaration by the court that a “rule” adopted by W. J. Estelle, Jr., Director of the Texas Department of Corrections, is invalid. Estelle’s rule provides that execution by injection will be by use of a lethal dose of sodium thiopentol.

Powell claims that the rule is invalid because Estelle did not comply with the Administrative Procedure and Texas Register Act, Tex.Rev.Civ.Stat.Ann. art. 6252-13a § 5 (Supp.1978). Section 5 of the Administrative Procedure Act provides, in general, that prior to the adoption of a rule, an agency shall give thirty days’ notice of its intended action and an opportunity for all interested persons to submit their views on the subject, either orally or in writing. In certain classes of rules, opportunity for public hearing must be granted if requested by a certain number of persons or by certain classes of agencies or associations. Section 5(e) provides that no rule is valid unless adopted in substantial compliance with § 5.

In September of 1978, Powell was tried and found guilty of capital murder in Cause Number 55,521, State v. Powell, in the 167th District Court of Travis County. In response to a question from the bench during oral argument in this Court, counsel for Powell stated that the invalidity of the rule prescribing the substance and dosage to be used in execution by injection had been asserted by Powell in the criminal trial. The basis for the asserted invalidity of the rule in the criminal proceeding was that § 5 of the Administrative Procedure and Texas Register Act had not been followed.

The judgment signed by the 167th District Court on October 5, 1978, provided in part:

“It is therefore the Order of the Court that the Defendant is sentenced to death; but the law further providing for an automatic appeal to the Court of Criminal Appeals of the State of Texas, the sentence is suspended until the decision of the Court of Criminal Appeals is received by this Court.”

Powell has filed a motion for new trial in State v. Powell, and that motion is presently pending determination by the 167th District Court.

As basis for his declaratory judgment suit in the 261st District Court, Powell relies upon § 12 of the Administrative Procedure and Texas Register Act. Section 12 provides that validity or applicability of any rule adopted by an agency may be determined by declaratory judgment suit in district court in Travis County.

Because we regard Powell’s suit for declaratory judgment as an effort to obtain an advisory opinion from the 261st District Court, we are of the opinion that the 261st District Court had no jurisdiction to entertain the suit. Powell filed suit for declaratory judgment in the 261st District Court before the 167th District Court had made a determination of Powell’s motion for new trial. In the criminal trial in the 167th District Court, Powell asserted that the rule prescribing the substance and dosage for execution by injection was invalid because § 5 of the Administrative Procedure and Texas Register Act had not been complied with prior to the adoption of the rule. The obvious purpose of Powell’s declaratory judgment suit was to obtain a declaration from the 261st District Court as to the applicability of § 5 to Estelle’s rule so that Powell might assert that declaration in the hearing for new trial in the 167th District Court and perhaps later on appeal to the Court of Criminal Appeals.

Prerequisite to the declaratory judgment process is the existence of genuine controversy between the parties that will be determined by the declaration sought. Otherwise, the judgment obtained is an advisory opinion. Board of Water Engineers v. City of San Antonio, 155 Tex. 111, 283 S.W.2d 722 (1955); Wilson v. Grievance Committee for State Bar Dist., 565 S.W.2d 361 (Tex.Civ.App.1978, writ ref’d n. r. e.). If the 261st District Court is to entertain the suit for declaratory relief, that court must have power to settle the entire controversy by final judgment. Powell is not entitled to have his suit tried piecemeal. United Services Life Insurance Co. v. Delaney, 396 S.W.2d 855 (Tex.1965). Although the same suit, or portion thereof, was pending in both the 167th and the 261st District Courts, only the 167th District Court could enter judgment disposing of all disputed matters. Wilson v. Grievance Committee for State Bar Dist., supra.

Article V, § 8 of the Constitution of Texas prohibits courts from rendering advisory opinions. United Services Life Insurance Co. v. Delaney, supra; Firemen’s Insurance Co. of Newark, New Jersey v. Burch, 442 S.W.2d 331 (Tex.1968); Wilson v. Grievance Committee for State Bar Dist., supra. In view of the constitutional prohibition, § 12 of the Administrative Procedure and Texas Register Act cannot empower the 261st District Court to render an advisory opinion. That court correctly dismissed the suit for want of jurisdiction.

The judgment is affirmed.

Affirmed on Motion for Rehearing.


author: WARREN, Justice.

text:
    Vernon R. YOUNG, Jr., Individually and as Trustee et al., Appellant, v. Richard M. DeGUERIN et ux., Appellees. No. 17436.
    Court of Civil Appeals of Texas, Houston (1st Dist.).
    April 19, 1979.

      Morris & Campbell, Rhett G. Campbell, Preston L. Dodson, Houston, for appellant.
    Eikenburg & Stiles, John J. Eikenburg, Houston, for appellees.
    Before WARREN, EVANS and WALLACE, JJ.
   WARREN, Justice.

On the 11th day of January 1979, a judgment in this cause was rendered by the 234th Judicial District Court of Harris County, Texas. On the 9th day of February 1979 at 10:29 A.M., DeGuerin filed an appeal bond designating the Fourteenth Court of Civil Appeals as the appellate forum. Approximately one hour later, Young filed a certificate of cash deposit but did not designate the appellate forum. On the 8th day of March 1979, Young filed a transcript with the clerk of the First Court of Civil Appeals. The next day DeGuerin filed a transcript with the clerk of the Fourteenth Court of Civil Appeals. Neither party has limited appeal pursuant to Tex.R. Civ.P. 353.

Young filed a motion for an extension of time in which to file the statement of facts in the First Court of Civil Appeals. DeGue-rin filed a motion in opposition alleging that the prior filing of his appeal bond, which designated the Fourteenth Court as the appellate forum, conferred jurisdiction on that court. Young contends that since the transcript was filed and the cause docketed in the First Court of Civil Appeals on the morning of March 9, 1979, and whereas, the transcript was not filed and the cause docketed in the Fourteenth Court of Civil Appeals until the afternoon of March 9, 1979, that his prior filing of the transcript conferred jurisdiction on the First Court of Civil Appeals.

Thereafter Young filed a motion in the Fourteenth Court requesting a transfer of the cause pending in the Fourteenth Court to the First Court and DeGuerin filed a motion in the Supreme Court of Texas to transfer the cause pending in the First Court to the Fourteenth Court.

The First and Fourteenth Courts of Civil Appeals are courts of concurrent jurisdiction. Texas Const, art. V, § 6; Tex.Rev. Civ.Stat.Ann. art. 198 (Vernon).

The issue presented is whether the perfection of the appeal or the filing of the transcript confers exclusive plenary jurisdiction. Tex.R.Civ.P. 363 provides, in relevant part, that an appeal is perfected when the appeal bond is filed. The filing of the bond divests the trial court of jurisdiction, except in limited instances, and vests the appellate court with limited powers. Ammex Warehouse Company, Inc. v. Archer, 381 S.W.2d 478, 482 (Tex.1964).

The filing of the transcript confers power upon the appellate tribunal to review the judgment on the merits. Failure to file the transcript within the time prescribed by the rules divests the appellate court of its limited powers and precludes the court from reviewing the judgment on the merits. Consolidated Casualty Insurance Company v. Wade, 373 S.W.2d 841 (Tex.Civ.App.-Corpus Christi 1963, writ dism’d).

The rules do not specifically address the issue of concurrent appellate jurisdiction. The supreme court has addressed the issue, however, in Texas State Board of Pharmacy v. Gibson’s Discount Centers, Inc., 539 S.W.2d 141 (Tex.1976) (hereinafter cited as Gibson’s). In that case the supreme court and the court of civil appeals shared concurrent appellate jurisdiction. The State Board of Pharmacy filed notice of appeal to the supreme court pursuant to Tex.R.Civ.P. 354. The appeal was perfected upon the filing of the notice because a bond was not required. On the same day, the Board of Pharmacy requested that additional findings of fact and conclusions of law be made in order to become part of the record for the court of civil appeals. The transcript was filed with the court of civil appeals and no further action was taken with respect to the appeal to the supreme court.

The court of civil appeals granted the motion to dismiss holding that the perfection of the appeal conferred exclusive plenary jurisdiction on the supreme court. Texas State Board of Pharmacy v. Gibson’s Discount Center, Inc., 530 S.W.2d 332, 334 (Tex.Civ.App.-Austin, 1975, r’vsd 539 S.W.2d 141). The supreme court reversed reasoning that the rules did not require the notice of appeal to identify the appellate forum, and therefore, it was not within the scope of the notice of appeal to resolve the problem of concurrent jurisdiction. It was also noted that the erroneous designation of the appellate forum did not preclude appeal to the appropriate forum. Gibson’s, supra 142. The court held that the filing of the transcript conferred jurisdiction on the court of civil appeals. Gibson’s supra 142.

The appeal bond, cash certificate, or affidavit in lieu thereof, do not require that the appellate forum be designated. Like the notice of appeal, they were not intended to confer exclusive plenary jurisdiction. For these reasons, we hold that the filing of the transcript is determinative of the issue and that the First Court of Civil Appeals has exclusive plenary jurisdiction over the entire controversy.

Appellee DeGuerin’s motion to Dismiss for Want of Jurisdiction is denied.


author: LUKOWSKY, Justice. STEPHENSON, Justice,

text:
    Bobby WORKMAN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    Jan. 16, 1979.
    Jack Emory Farley, Public Defender, Edward C. Monahan, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., John W. Stewart, Asst. Atty. Gen., Frankfort, for appellee.
   LUKOWSKY, Justice.

On January 13, 1975, Workman was indicted for the murder of Chaffins which occurred on May 4, 1969. His extradition from Michigan was completed on August 26,1976. On September 9,1976, he entered a plea of not guilty. He was tried, convicted and sentenced to life imprisonment, on what may be charitably described as far less than overwhelming evidence, on December 30, 1977. He appeals and we reverse.

On November 21, 1977, Workman filed a motion to dismiss the indictment supported by an affidavit which alleged:

“[A]n offer was made by the Commonwealth that if the defendant would voluntarily submit to a polygraph examination by the Kentucky State Police, and in the event that that test indicated that the defendant had no involvement in the shooting of James Chaffins, the charge would be dismissed. The defendant did submit to the examination and passed the aforementioned test, as well as a separate test conducted by Marcy Consulting Agency, Incorporated, of Dearborn, Michigan, and another polygraph examination conducted by Sgt. Godby of the Kentucky State Police.”

Confirmatory copies of the reports of these examinations and their results appear in the record. The Kentucky State Police Polygraph report discloses that their tests were given on March 28, 1977, at the request of the Commonwealth’s Attorney.

The Commonwealth filed no response to the motion and did not challenge the affidavit or the reports. The trial court denied the motion in an order which gave no reason for its action.

It is plain that the Commonwealth, acting through its agents who had apparent if not actual authority, entered into an agreement with Workman to abandon their prosecution of him if he passed a polygraph examination given by the Kentucky State Police. It is equally apparent that even though he took and passed such examination on March 28, 1977, the Commonwealth took no steps to fulfill its bargain as late as November 21, 1977, when Workman asked the circuit court to enforce the bargain.

The question is not whether the Commonwealth’s bargain was wise or foolish. The question is whether the Commonwealth should be permitted to break its word.

The standards of the market place do not and should not govern the relationship between the government and a citizen. People v. Reagan, 395 Mich. 306, 235 N.W.2d 581, 585 (1975). “Our government is the potent, the omnipresent, teacher. For good or ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U.S. 438, 485, 48 S.Ct. 564, 575, 72 L.Ed. 944, 960 (1928) (Brandeis, J., dissenting). If the government breaks its word, it breeds contempt for integrity and good faith. It destroys the confidence of citizens in the operation of their government and invites them to disregard their obligations. That way lies anarchy. We deal here with a “pledge of public faith—a promise made by state officials—and one that should not be lightly disregarded.” State v. Davis, Fla.App., 188 So.2d 24, 27 (1966).

The attorney for the Commonwealth, with the permission of the court, may dismiss an indictment prior to the submission of the case. RCr 9.64. The motion of an attorney for the Commonwealth to dismiss an indictment may be granted or denied by the judge in his discretion. Rader v. Commonwealth, 287 Ky. 282, 284, 152 S.W.2d 937, 938 (1941). It is axiomatic that the exercise of such discretion must be reasoned and supported by the record. Kidd v. Commonwealth, 255 Ky. 498, 505-06, 74 S.W.2d 944, 947 (1934); United States v. Cowan, C.A. 5th, 524 F.2d 504, 513-515 (1975).

“[N]o distinction can be taken between the government as prosecutor and the government as judge.” Olmstead v. United States, supra at 470, 48 S.Ct. at 575 (Holmes, J., dissenting). When as here, our historical ideals of fair play and substantial justice do not permit attorneys for the Commonwealth to disregard promises and fail to perform bargains, it does not permit the judge to allow such iniquities to succeed. Butler v. State, Fla.App., 228 So.2d 421, 424-25, 36 A.L.R.3d 1274, 1279 (1969).

The record as it was constituted on November 21, 1977, disclosed no rational basis which would relieve the attorney for the Commonwealth from the performance of his bargain or justify the refusal of the trial judge to grant the motion to dismiss. We are faced with a hard choice, but in the last analysis we find it less evil that a criminal should escape punishment than that the government should be allowed to welsh on its bargain. Olmstead v. United States, supra at 470, 48 S.Ct. at 575 (Holmes, J., dissenting).

The judgment is reversed and the cause is remanded with directions to dismiss the indictment with prejudice.

All concur except STEPHENSON, J., who dissents and AKER, J., who did not participate in the decision of this case.

STEPHENSON, Justice,

dissenting.

In my view the holding of the majority effectively nullifies the clear provisions of RCr 9.64. For whatever purpose RCr 9.64 was adopted, it is there and requires the approval of the trial court before dismissal of an indictment. I am not aware of any authority in this jurisdiction that requires the trial court to give reasons for the exercise of discretion in refusing to dismiss an indictment, nor does the majority opinion supply any such authority. Rader and Kidd, cited in the majority opinion, do not support such a proposition. Butler, the Florida Court of Appeals’ opinion, is so different in its factual situation it could not be applicable here. There, the trial court approved the written agreement to dismiss the indictment if the results of the polygraph test showed the defendant was telling the truth. The agreement further provided that if the results of the test inculpated the defendant such evidence could be admitted at trial. Further, Florida apparently does not have a rule comparable to RCr 9.64.

Here, the appellant does not make a showing of any prejudice to him in the trial of the case as a result of taking the polygraph test, and I can find no rational basis for forcing the trial court to accept an agreement such as was apparently made here.

I can agree with the statements about “fair play” and the Commonwealth keeping a promise. If the trial court had participated in the agreement, I would be the first to say it should be kept. However, I would hold appellant to the knowledge that the permission of the trial court was necessary before the indictment could be dismissed.

In keeping RCr 9.64 as a viable rule and in the absence of a showing of prejudice to the appellant, I would affirm the judgment.

Accordingly, I dissent.


author: STERNBERG, Justice.

text:
    Larry Wayne HAMILTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 20, 1979.

      Clem & Sellars, Lexington, for appellant.
    Robert F. Stephens, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Frankfort, for ap-pellee.
   STERNBERG, Justice.

On February 27, 1978, the appellant, Larry Wayne Hamilton, along with Wendell M. Rabbitto and Charles R. Morse, was indicted by the Fayette County Grand Jury for the December 28, 1977, robbery of the Ollie’s Trolley restaurant in Lexington, Kentucky. They were tried jointly and each was found guilty of first-degree robbery. Appellant was sentenced to 20 years’ imprisonment.

On this appeal, the appellant presents three issues, as follows:

“A. The trial court was clearly erroneous in admitting into evidence the appellant’s alleged confession.
B. The trial court erroneously failed to either admonish the jury that they should disregard the appellant’s alleged confession unless they believed beyond a reasonable doubt that it was voluntarily given or to so instruct.
C. The appellant is entitled to a new trial, because he received ineffective assistance of counsel in the trial court.”

The appellant is charged with entering the Ollie’s Trolley restaurant, at approximately 3:30 p. m., wearing a halloween mask and flourishing a 32-caliber revolver. Earlier in the day the appellant, Rabbitto, and Morse were seen together and were overheard discussing robbing the Ollie’s Trolley restaurant. The restaurant clerk, Vickie Campbell, who was alone in the restaurant at the time of the robbery, upon seeing the robber flourishing his gun, filled a bank deposit bag with $70 to $80. The thief took the money and ran outside to an awaiting automobile occupied by one of his co-indictees. Persons in the neighboring florist shop witnessed the robbery and were able to take pictures of the robbery while it was in progress. The pictures illustrate: (1) the getaway car, which the evidence disclosed belongs to Rabbitto or his wife; (2) the robber standing outside of the car talking to Rabbitto, who was sitting in the driver’s seat; and (3) the robber as he ran from the restaurant to the car. He was wearing a long dark coat and striped tennis shoes. The evidence further reflects that appellant’s co-indictee Rabbitto was heard to say, “We just pulled a job, we have the car hid and we will be home after dark.” The appellant and Rabbitto had spent a large part of the day together at the “Rack and Cue,” a local pool parlor, and also for a big part of the day they had just ridden around town.

Appellant’s contention that the trial court was clearly erroneous in admitting into evidence the appellant’s alleged confession must be measured by the record as a whole.

In the appellant’s brief, it is written: “The issue in this case is not whether Hamilton was advised of his rights; the issue is whether he understood his rights and made a knowing and intelligent waiver of them.” Counsel for appellant correctly states the criteria by which the issue is to be measured. The confession attributed to the appellant consists of five words, “He made me do it.” The appellant did not deny making such a statement, nor did he admit having made it. There is nothing in the record which indicates to whom the “he” refers.

Following his arrest, the appellant was advised of his constitutional rights and was interrogated by Detective Alan Ernest. The product of this in-custody interrogation was the statement made by the appellant that “He made me do it.” At the time the case was called for trial, counsel for appellant moved the court to suppress this alleged confession. The court held that it was proper to admit the confession and denied the motion to suppress. In support of his motion, the appellant contended that at the time the statement was purported to have been made he was under the influence of alcohol and drugs; that he did not have control of his faculties; that he had been without sleep for three days; and that he did not remember having any such conversation with Detective Ernest, but did remember talking to some detective about something. The appellant did recall many things that happened to him and things said by him prior to the robbery and subsequent thereto, but he had very little recall, if any, of what happened or what he said at the time of his interrogation. Detective Ernest stated that the appellant was able to understand his rights when read to him and that, although he was under the influence of some drug or alcohol, he could walk perfectly, had no problems standing up, his speech was only slightly slurred, and he understood what was happening. As a result of the suppression hearing held pursuant to Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969), the trial court found that the appellant had made the confession voluntarily, knowingly, and intelligently.

In Britt v. Commonwealth, Ky., 512 S.W.2d 496 (1974), we held that the trial judge’s decision to permit a confession to be heard and considered by the jury, following an in-chambers evidentiary hearing on a motion to suppress, is conclusive if the determination is supported by substantial evidence of record. Further, we said:

“It is only when intoxication reaches the state in which one has hallucinations or ‘begins to confabulate to compensate for his loss of memory for recent events’ that the truth of what he says becomes strongly suspect. Loss of inhibitions and muscular coordination, impaired judgment, and subsequent amnesia do not necessarily (if at all) indicate that an intoxicated person did not know what he was saying when he said it. ‘In vino veritas’ is an expression that did not originate in fancy. If we accept the confessions of the stupid, there is no good reason not to accept those of the drunk.”

From an analysis of the record, it can logically be said about appellant’s condition at the time he made the statement that he had a convenient loss of memory. His condition was not of one having hallucinations or as a person unable to confabulate. We find no error in the action of the trial judge in admitting the proffered confession.

The appellant’s second issue is without merit. In order to clarify what has apparently not been recognized by counsel, we take this opportunity to discuss the applicability of RCr 9.78 to an issue such as is now presented. RCr 9.78 provides:

“If at any time before trial a defendant moves to suppress, or during trial makes timely objection to the admission of evidence consisting of (a) a confession or other incriminating statements alleged to have been made by him to police authorities or (b) the fruits of a search, the trial court shall conduct an evidentiary hearing outside the presence of the jury and at the conclusion thereof shall enter into the record findings resolving the essential issues of fact raised by the motion or objection and necessary to support the ruling. If supported by substantial evidence the factual findings of the trial court shall be conclusive.”

The effect of RCr 9.78 is to obviate the procedural requirement of submitting the issue of voluntariness of a confession to a jury following the determination of that issue by the trial judge. Consequently, since we have held in this opinion that the trial judge found that appellant’s confession is admissible, it follows that there was no error in his failure to present the issue of voluntariness to the jury. The finding of the trial judge is conclusive and an admonition to the jury was unnecessary.

As a final point of error, the appellant alleges that he is entitled to a new trial because he received ineffective assistance of counsel in the trial court.

This issue has never been presented to the trial court for consideration. For this reason it may not be considered by this court. Huff v. Commonwealth, Ky., 560 S.W.2d 544 (1977). Cf. Potts v. Kentucky, 435 U.S. 919, 98 S.Ct. 1480, 55 L.Ed.2d 513 (1978), wherein the Supreme Court of the United States “dismissed for want of a substantial federal question” an appeal from the Kentucky Court of Appeals, in which the Kentucky court held, in an unpublished opinion, that the issue of ineffectiveness of counsel could not be raised for the first time on appeal when it has never been presented to the trial court. The effect of the dismissal by the Supreme Court affirms the opinion of the Kentucky Court of Appeals on the merits of the case. Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975).

The judgment is affirmed.

All concur.


text:
    Christopher David HENNEMEYER, Movant, v. COMMONWEALTH of Kentucky, Respondent.
    Supreme Court of Kentucky.
    March 20, 1979.
    Jack E. Farley, Public Advocate, William M. Radigan, Asst. Public Defender, Frankfort, for movant.
    Robert F. Stephens, Atty. Gen., Robert W. Hensley, Asst. Atty. Gen., Frankfort, for respondent.
   STERNBERG, Justice.

On December 17, 1976, movant, Christopher David Hennemeyer, was indicted by the Grand Jury of Pike County, Kentucky, for the following offenses: ten counts of wanton endangerment in the first degree (KRS 508.060) and one count of theft and unlawful taking of a 1970 Ford automobile valued at $100 or more (KRS 514.030 — Indictment Number 2605). In Indictment Numbers 2580, 2581, 2582 and 2583, the description of wanton endangerment was by shooting a 30.30 rifle at and in the direction of police officers Paul Maynard and Lacy Goodman. Indictment Numbers 2564, 2565, 2566, 2567, 2568 and 2569 described the offenses of wanton endangerment by shooting a 30.30 rifle into the automobile occupied by police officers Dennis Potter and Ernie Stepp. The trial court entered an order that Indictment Numbers 2580 through 2583 be treated as one offense. Hennemeyer moved the trial court to dismiss all of the ten wanton-endangerment counts, save one, No. 2564, because they allegedly constitute a single course of action. The motion to dismiss was denied. The charges were all tried together and to a jury. The jury found Hennemeyer guilty on all counts and fixed his punishment at one year in the penitentiary on the charge of theft, one year on the four counts of wanton endangerment which the court had merged into one offense, and one year on each of the remaining six wanton-endangerment charges. The sentences were ordered to run consecutively.

On appeal to the Court of Appeals of Kentucky, the judgment of the circuit court was affirmed. This court granted discretionary review on October 24, 1978.

The issues presented to this court are:

“I. The court below erred to appellant’s substantial prejudice and violated appellant’s constitutional guarantee against double jeopardy as well as his right under KRS 505.020 to be free from multiple prosecutions for the same offense when appellant’s motion to merge six counts of wanton endangerment in the first degree into one offense was overruled.”
II. The appellant was denied his constitutional right to effective assistance of counsel when his court-appointed attorney failed to properly conduct a pretrial investigation which resulted in rebuttal which appellant’s counsel was unaware that existed.”

Wanton endangerment is defined by KRS 508.060(1), as follows:

“A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.”

The movant argues that the six counts of wanton endangerment by shooting a rifle into the automobile occupied by Officers Potter and Stepp (Indictment Numbers 2564 through 2569) constitute a continuous course of conduct which manifests only one crime. As such, Hennemeyer contends that the trial court erred in putting him to trial for more than one offense. In support of his argument, he cites KRS 505.020(l)(c), which provides:

“(1) When a single course of conduct of a defendant may establish the commission of more than one offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one offense when:
(c) The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.”

We need to put the commission of the offenses in its proper setting. The evidence discloses that the truck in which Henne-meyer and his conf eder ate, Jonathan Woodell, made their first getaway, the 30.30 rifle which was used by Hennemeyer in firing on the police officers, together with its ammunition, and the 1970 blue Ford in which the second escape was attempted were all stolen.

On November 27, 1976, Hennemeyer, a nomad, was about to relieve himself in front of the Pic Pac Market, in Pikeville, Kentucky, and the manager protested. A scuffle ensued and Hennemeyer hurriedly departed in an awaiting truck driven by his male friend, Jonathan Woodell. The police were called and the manager furnished Officers Slone and Runyon, of the Pikeville City Police, the description of the two men and the truck. The officers took out in pursuit of the truck and, within a very short time and after traveling only about four miles, found it wrecked; however, the two men had fled. This minor incident developed into unusual and dangerous proportions, which resulted in the subject charges being placed against Hennemeyer. Trooper Maynard, of the Kentucky State Police, and Officers Slone and Runyon made an investigation at the scene of the wreck, but at this time they were unable to locate Hennemeyer or his confederate. Officers Slone and Runyon assisted in the investigation for about an hour. They departed; however, about fifteen minutes later they were called back to the wreck. Upon arriving they saw two men climbing up a hill to the ridgetop. One of the men was wearing boots and carrying a rifle. The officers got out of their ear, but did not give chase. By this time, in addition to Officers Slone and Runyon, Officers Goodman and Jim Bonds, as well as Kentucky State Troopers Larry Prater and and Paul Maynard, were on the scene. By the use of their public address system, Trooper Prater called to the two men to surrender, which was not done, and they made their escape again. However, there were four shots fired from the direction of the fleeing persons and the bullets hit the ground close to the officers. The officers immediately took cover, but did not return the fire. The shots were fired at irregular intervals, with a lapse of as much as two minutes to as little as seconds between the shots. Thus ended the pursuit on Saturday, November 27, 1976.

The following day, Sunday, November 28, 1976, Trooper Stepp, accompanied by Detective Potter, while traveling south on Highway 23, witnessed a car being driven in an irregular manner. Trooper Stepp made an attempt to stop the car by turning on his blue light and sounding his horn; however, the driver of the car refused to stop or pull over and Trooper Stepp gave chase. While in pursuit and at times with only about fifty feet between the two cars, the mov-ant, who was a passenger in the fleeing car, leaned out of the right front window and over a period of approximately fifteen minutes fired five shots from a 30.30 rifle at and into the police ear. After each shot was fired, the movant would pull himself back into the car. As the officers would again start closing in on the fleeing vehicle, movant would again lean out of the window, take aim, and fire at the pursuing police. The chase, over a period of four or more miles, ended when the car stopped on Little Robinson Creek Road, where movant and his confederate fled on foot. While fleeing on foot, the movant stopped long enough to fire one shot at the pursuing police, who at this time had also gotten out of their car. The car from which movant fired the shots was a 1970 blue Ford, having a value of some $800 to $1200. It was stolen from Dan Thornberry, Pikeville, earlier in the day and recovered by him on Little Robinson Creek Road when it was abandoned. The officers continued their pursuit on foot in search of movant and his confederate, who were located in a smoke house near the road. The officers called to the men to surrender and to throw out their gun before them. After several calls, the gun was thrown out and immediately thereafter Hennemeyer and Woodell appeared and surrendered. Their arrests were made by Trooper Larry Prater, of the Kentucky State Police, about 2:20 p. m. on November 28, 1976.

Following the arrests, Hennemeyer was interrogated by Detective Potter, of the Pike County Police Department. Henne-meyer related the events of the two days with particularity. For example, he told the detective that he stole the truck in Marion, North Carolina; that it contained a rifle and about forty rounds of ammunition, some hypodermic needles similar to the kind used on a cattle farm, and some ear decks. He said that when he and Woodell wrecked the truck, they fled into the hills; that he fired the shots to slow the officers down and to increase the distance between them; that he and Woodell kept moving through the night; that when stopping to rest he would cover himself with leaves to keep warm; that around daylight they came out of the hills close to the place where they had left the truck; that they followed the ridgeline to a landfill, thence crossed the road to the railroad tracks and then followed the tracks into town; that on their way they stopped at the Dixie Coal Company tipple and hid the rifle; and that when in town he bought some candy and a newspaper at the News Nook. He further related how the two of them went to a parking lot and began looking until they found a car with the keys in it; that they then stole the car and drove to the Dixie Coal Company tipple, picked up the rifle and ammunition; and that they then left town.

With this narrative background, we can consider the propriety of whether the trial court erred in refusing to merge the six counts of wanton endangerment in the first degree into one offense.

Section 13 of the Constitution of this Commonwealth and the Fifth Amendment to the United States Constitution forbid that a person be twice put in jeopardy for the same offense. Thus, movant argues that since Indictment Numbers 2564 through 2569 constitute only one offense, he was twice placed in jeopardy for the same offense. We need, therefore, to determine whether the conduct of the movant constitutes one, and only one, offense or whether his conduct constitutes six separate offenses.

The four shots first fired in the direction of the police officers were considered by the trial court as a continuing course of conduct constituting a single offense of wanton endangerment. We fail to find any fault or criticism made by movant to this procedure. The movant contends that the six shots fired at the police cruiser while it was giving chase to the ear in which he was riding also constitute a continuous course of conduct, the same as did the four shots. Therefore, movant opines that they likewise constitute a single offense.

The offense of wanton endangerment is a creature of the regular 1974 session of the Kentucky General Assembly. The Penal Code became effective as of January 1, 1975.

“COMMENT — The offense of wanton endangerment is created in KRS 508.060 and 508.070. It imposes criminal sanctions upon conduct which causes substantial risk of death or injury to another person. It is committed despite the fact that no real injury occurs. The conduct that is punishable under this offense would be sufficient to constitute assault (as that offense is defined in the Penal Code) if a physical injury had resulted from the conduct. Since the failure of the defendant in fact to cause injury is fortuitous, it is deemed by the Code only to affect the extent of his sanction. The statutes create two degrees of this offense, the only difference in the two being that the higher degree contemplates the existence of conduct which threatens death or serious physical injury and the lower degree conduct which threatens only non-serious physical injury.
Previous law did not have an offense of this type which had general application, i. e., susceptible of commission through any type of conduct. However, there were numerous special types of injury-threatening offenses. Illustrative types of conduct which can be sufficient to support a conviction of this offense are (i) an act of shooting into a dwelling or an occupied vehicle, (ii) a grossly careless use of firearms or explosives; (iii) the flourishing of a deadly weapon in public; etc.”
1 Palmore and Lawson, Instructions to Juries in Kentucky, Sec. 2.20, p. 78.

The question of when an act or series of acts constitute a single offense or multiple offenses is not new or novel or subject to fixed standards. In Queen v. Commonwealth, Ky., 434 S.W.2d 318 (1968), we said:

“The question of when an act, transaction or course of conduct shall be considered to constitute multiple offenses rather than a single offense is one on which the law is unclear, and the answer to which may vary according to a varying legislative intent.”

What was the legislative intent? Was the legislative intent to punish a particular act or to punish a course of conduct? If the intent was to punish a course of conduct, then movant should only be convicted of one offense. On the other hand, if the legislative intent was to punish the act, then, and in that event, each act of shooting constituted a separate offense and movant properly would be charged with the commission of six counts of wanton endangerment. See United States v. Jones, 533 F.2d 1387 (6th Cir., 1976). In discussing legislative intent in Commonwealth v. Colonial Stores, Incorporated, Ky., 350 S.W.2d 465 (1961), we said, “ * * * in case of ambiguity the construction will be against turning a single transaction into multiple offenses.” We shall be so guided in the determination of the present action.

In Brickey, Kentucky Criminal Law, Section 9.07, in discussing wanton endangerment, the author writes:

“The Penal Code fleshes out the pattern of assault offenses with a new concept: wanton endangerment. This is designed to provide criminal sanctions when an actor has engaged in wanton conduct but has caused no injury. Wanton conduct is punishable with respect to other crimes against the person only if it results in the death of the victim or physical injury. Absent such a result, the actor’s conduct is not punishable no matter how dangerous it is. It cannot constitute an attempt because one cannot attempt to act wantonly. There must be intent to commit a crime to be guilty of a criminal attempt.”

In Commonwealth v. Colonial Stores, Incorporated, supra, this court discussed and cited prior opinions dealing with single and multiple offenses, after which it wrote, “ * * * we shall say that our examination and analysis of the cases has disclosed no basic theory or rule for determining when there is only one offense and when there are multiple offenses.” The court went on to say:

“We shall not undertake here to lay down any general rule or rules applicable to all situations. We shall restrict ourselves to an effort to determine what the legislature meant in the particular statute here in question, as regards the particular facts here involved.”

We shall follow that procedure in the instant case.

The Kentucky statutes dealing with the offenses of assault are designed to protect each individual from defined physical abuse, not only for protection from defined actual physical abuse but protection from defined attempted physical abuse. There were instances in our framework of designed criminal assaults and attempted criminal assaults prior to January 1, 1975, where a victim found himself aggrieved within a criminal statute defining elements of his complaint without criminal remedy. For instance, in those offenses absent a trauma, the conduct of the accused, no matter how dangerous, was not criminally punishable. The wanton endangerment statute, KRS 508.060, remedied this situation and, by reason thereof, a course of conduct which, prior to the adoption of this statute, was not punishable found itself within the framework of the criminal statute of wanton endangerment. We find it significant that intent is a necessary element of the offense of assault or attempted assault. The offense of wanton endangerment is not dependent upon intent. Thomas v. Commonwealth, Ky., 567 S.W.2d 299 (1978). As a matter of fact, we can think of no situation where intent to commit wanton endangerment would arise. Did the General Assembly, by the enactment of KRS 508.060, intend to punish a particular act or did it intend to punish a continuous course of conduct? We have no difficulty in arriving at the conclusion that it was designed to protect each and every person from each act coming within the definition of the statute. It is not a statute designed to punish a continuous course of conduct. Since each of the six shots constituted a separate offense, the movant was not twice placed in jeopardy for the same offense. The trial court did not err in putting the movant to trial on Indictment Numbers 2564 through 2569.

The movant’s complaint that by reason of his trial counsel’s failure to learn of a confession he had made, he was denied his constitutional right to effective assistance of counsel is without merit.

We are confronted with the admitted fact that movant’s charge of ineffective assistance of counsel was not presented to the trial court for consideration. Until it was so presented and denied, there was no error for appellate review. Poteet v. Commonwealth, Ky., 556 S.W.2d 893 (1977). We must, therefore, decline to consider this challenge. See Hamilton v. Commonwealth, Ky., 580 S.W.2d 208 (rendered March 20, 1979).

The decision of the Court of Appeals of Kentucky is affirmed.

All concur.


author: REED, Justice.

text:
    UNITED STATES FIDELITY & GUARANTY COMPANY, Movant, v. Peggy SMITH, Respondent.
    Supreme Court of Kentucky.
    March 20, 1979.

      Robert G. Breetz, Stites, McElwain & Fowler, Louisville, for movant.
    Richard Frockt, Frockt & Klingman, Louisville, for respondent.
   REED, Justice.

This is a “no fault” automobile insurance case which involves the problem of the extent of recovery of basic reparation benefits by the insured when he also effects recovery from collateral sources.

Peggy Smith is the widow of Michael Smith. He was employed as a police officer by the Jefferson County Police Department. United States Fidelity & Guaranty was the basic reparation obligor for Jefferson County insuring the police vehicle of officer Smith. U.S.F.&G. was also the workmen’s compensation carrier covering Jefferson County policemen. On March 11, 1976 Smith was killed in a work-connected accident when he had a vehicle collision with a car driven by Howard Middleton. Middleton had liability coverage with State Farm Insurance Company. The policy limits were $25,000.

Following Smith’s death, his widow received workmen’s compensation benefits at a rate of $96.00 per week from U.S.F.&G. until she settled with Middleton and his liability carrier, State Farm, on a third-party tort-feasor claim under KRS 342.700.

The Workmen’s Compensation Board approved an agreement dated September 17, 1976. Pursuant to the provisions of this agreement, State Farm paid its liability policy limits of $25,000 to Mrs. Smith. The board ordered that U.S.F.&G. pay the burial allowance of $1500 under the compensation Act and, after allowing Mrs. Smith’s attorney an agreed fee of $8,750 (35% of the $25,000 settlement) and expenses of $50.00, ordered that the balance of $16,200 be allowed as a credit at the maximum rate of $96.00 each week against workmen’s compensation benefits to be paid by U.S.F.&G. in the future. U.S.F.&G.’s right to reimbursement for compensation paid from the recovery from the third-party tort-feasor granted by KRS 342.700 was thus protected.

U.S.F.&G. does not deny that it was a party to and apprised of all facts surrounding the settlement. It endorsed the settlement draft. In the agreement, Mrs. Smith released Middleton and State Farm from tort liability but expressly reserved all rights to proceed against U.S.F.&G. as the “no fault” insurer of her husband’s police vehicle for any and all benefits due her pursuant to the Kentucky Motor Vehicle Reparation Act. (KRS 304, Subtitle 39).

Alleging that her loss exceeded the collateral benefits received, Mrs. Smith sued U.S. F.&G. for basic reparation benefits under the Motor Vehicle Reparation Act. U.S. F.&G. defended on the basis that the benefits received by Mrs. Smith under the Workmen’s Compensation Act and the proceeds from the settlement with the third-party tort-feasor each exceeded its policy limits of liability for basic reparation benefits, therefore it asserted exoneration from responsibility. U.S.F.&G. and Mrs. Smith also disagreed concerning this insurer’s obligation to pay funeral expenses in addition to the $1500 burial allowance she received under the Workmen’s Compensation Act. In her suit, Mrs. Smith also joined as defendants, the Kentucky Assigned Claims Bureau, its insurance carrier, and Firemen’s Fund American Insurance Company, the no fault insurer of officer Smith’s personal vehicle.

The circuit court dismissed the complaint against all defendants. The Court of Appeals affirmed the dismissal as to all defendants except U.S.F.&G. As to it, the Court of Appeals reversed and remanded the cause to the circuit court for further proceedings with directions that: “If it should be determined in those proceedings that the insured incurred loss not otherwise compensated, the insurer, U.S.F.&G., shall be liable for that loss not to exceed the limits of liability as set forth in the policy of insurance.” Only U.S.F.&G. moved for discretionary review by this court. We granted the motion. We confine our consideration to the correctness of the decision of the Court of Appeals as to U.S.F.&G. We affirm that decision.

The keystone of U.S.F.&G.’s case is its overbroad construction of the effect of KRS 304.39-070(2), which provides:

“A reparation obligor which has paid or may become obligated to pay basic reparation benefits shall be subrogated to the extent of its obligations to all the rights of the person suffering the injury against any person or organization other than a secured person.” (emphasis supplied).

U.S.F.&G. argues that this statutory provision vests in it the right to credit all collateral payments received by its insured to reduce its obligation to pay basic reparation benefits, and that regardless of the element of loss for which the collateral source payment compensates, it may be used by the insurer as a credit to satisfy even a potential obligation to pay basic reparation benefits.

KRS 304.39-070(2) by its provisions did not operate to constitute U.S.F.&G. a statutory “subrogee” of Mrs. Smith. She asserted her tort rights against “a secured person.” KRS 304.39-070(1) defines “secured person” as meaning “the owner, operator or occupant of a secured motor vehicle, and any other person or organization legally responsible for the acts or omissions of such owner, operator or occupant.” KRS 304.-39-080(1) states: “ ‘Security covering the vehicle’ is the insurance or other security so provided. The vehicle for which the security is so provided is the ‘secured vehicle’ ”.

Therefore, we are persuaded that U.S. F.&G. was not a statutory “subrogee” in the sense that term is used in other provisions of the concerned statutory sections such as KRS 304.39-140(3), because its insured’s tort rights were asserted against “a secured person.”

KRS 304.39-140(3) provides: “If the injured person, or injured persons, is entitled to damages under KRS 304.39-060 from the liability insurer of a second person, a self-insurer or an obligated government, collection of such damages shall have priority over the rights of the subrogee for its reimbursement of added reparation benefits paid to or in behalf of such injured person or persons.” We regard this statutory section inapplicable to this case since it addresses itself to priority between the insured collecting collateral payments and his insurer which is a statutory “subrogee.”

KRS 304.39-070(3) afforded U.S.F.&G. a measure of protection which it did not take. That section states:

“A reparation obligor shall have the right to recover basic reparation benefits paid to or for the benefit of a person suffering the injury from the reparation obligor of a secured person as provided in this subsection, except as provided in KRS 304.39-140(3). The reparation obli-gor shall elect to assert its claim (i) by joining as a party in an action that may be commenced by the person suffering the injury, or (ii) to reimbursement, pursuant to KRS 304.39-030, sixty (60) days after said claim has been presented to the reparation obligor of secured persons. The right to recover basic reparation benefits paid under (ii) shall be limited to those instances established as applicable by the Kentucky Insurance Arbitration Association as provided in KRS 304.39-290.”

Despite U.S.F.&G.’s misplaced reliance on KRS 304.39-070(2) and its failure to observe the requirements to receive the protection extended to it by KRS 304.39-070(3), we are convinced, nevertheless, that the statutory scheme is purposefully designed to prevent an insured from receiving a double recovery for the same element of loss. Cf. State Farm Mutual Automobile Insurance Company v. Fletcher and The Western Fire Insurance Company v. Downs, Ky., 578 S.W.2d 41 (1979). The mandate of KRS 304.39-050(3) is clear. No person shall recover basic reparation benefits from more than one reparation obligor as a result of the same accident (subject to an inapplicable exception in the case before us) and no person shall recover more than $10,000 of basic reparation benefits as the result of the same accident.

We agree with the Court of Appeals that the extent of U.S.F.&G.’s obligation, if any, to Peggy Smith cannot be determined without computing her net economic loss.

As a result of the death of her husband, from injury in a motor vehicle collision, Peggy Smith became entitled to recover from the insurer basic reparation benefits for net economic loss to a maximum of $10,000 without proving fault, and to recover from the tort-feasor the balance of her economic loss and all other nonduplicative damages allowable under general tort law. See Fann v. McGuffey, Ky., 534 S.W.2d 770, 772, 773 n.16 (1975) and KRS 304.39-060(2)(b).

KRS 304.39-020(2) defines “basic reparation benefits” as reimbursement for net loss. In the same statutory section “loss” is defined as “accrued economic loss consisting only of medical expense, work loss, replacement services loss; and if injury causes death, survivor’s economic loss and surviv- or’s replacement services loss.” The same section later defines “net loss.” “ ‘Net loss’ means loss less benefits or advantages, from sources other than basic and added reparation insurance, required to be subtracted from loss in calculating net loss.” KRS 304.39-120 specifies the deductible sources. They are social security, workmen’s compensation, and a 15% income tax advantage under given conditions.

We reject U.S.F.&G.’s argument that the collateral payments should be subtracted ■ from its policy limits. The trial court should first determine Mrs. Smith’s accrued economic loss as defined herein. From this amount the deductions authorized by KRS 304.39-120 should be made. The resulting amount is economic net loss for which U.S.F.&G. is liable up to its policy limits of $10,000. Any payment from a third party that is demonstrated to be im-permissibly duplicative in violation of KRS 304.39-050(3) should be credited against the liability, if any, of U.S.F.&G. When making the necessary computations, the trial court will deal with the effect of KRS 304.-39-130. That section provides that basic reparation benefits payable for work loss, survivor’s economic loss, replacement services loss, and survivor’s replacement services loss may not exceed $200 per week. In our view, this $200 limit is a limit on benefits to be paid and not a limit on “loss” or “net loss” which go into the calculation of basic reparation benefits. See Uniform Motor Vehicle Accident Reparations Act Sec. 13, Comment [13 U.L.A. 388].

The remaining issue concerns the payment of funeral expense. The Workmen’s Compensation Act provides a death burial benefit of $1500. The Kentucky No-Fault statute also provides for payment of “a total charge not in excess of one thousand dollars” for funeral expense. It is regarded as “medical expense” under KRS 304.39-020(5). The Court of Appeals held that if the actual expense to the insured exceeded the benefits he received from workmen’s compensation, the insurer was liable for that expense up to the limits of the policy. We think that conclusion is supported by Comeau v. Safeco Ins. Co. of America, 356 So.2d 790 (Fla.1978) which U.S.F.&G. concedes destroys its argument that workmen’s compensation benefits are to be subtracted from its policy limits. We believe the same basic rationale applies to the funeral expenses.

The decision of the Court of Appeals is affirmed. The judgment of the Jefferson Circuit Court is reversed, and the cause is remanded to the circuit court for further proceedings consistent with this opinion.

All concur.

      . This language of the statute was in effect at the time this action was prosecuted. In 1978 the General Assembly added the words “basic or added” in lieu of “added” only. U.S.F.&G. concedes that it could not prevail in view of the 1978 legislative declaration if the same factual situation were presented today.


text:
    Danny Lee ZACHERY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Supreme Court of Kentucky.
    March 20, 1979.

      John Tim McCall, Louisville, for appellant.
    Robert F. Stephens, Atty. Gen., John F. Zink, Asst. Atty. Gen., Frankfort, for appel-lee.
   REED, Justice.

Zachery was indicted for (a) first-degree rape of Barbara Faye Simon (KRS 510.040), (b) kidnapping her (KRS 509.040), (c) first-degree wanton endangerment of her (KRS 508.060), and (d) as a first-degree persistent felony offender (KRS 532.080). According to the parties, the trial judge “severed the wanton endangerment count from the indictment.” The jury acquitted Zachery of rape; they also acquitted him of kidnapping but found him guilty of the lesser offense of first-degree unlawful imprisonment for which they assessed a punishment of five years’ imprisonment. In a separate, subsequent proceeding, the jury found Zachery guilty as a persistent felony offender in the first degree. His sentence was fixed at the maximum term of 20 years imprisonment, with the term of 20 years enhancing the term imposed in the verdict of first-degree unlawful imprisonment. From a judgment in conformity with the verdicts, Zachery appeals. We reverse for the reasons later stated in this opinion.

(1)

The prosecutrix, a 17-year-old, was hitchhiking along Dixie Highway in Jefferson County when she was picked up by Zachery. Zachery was accompanied by Charles Logs-don and Betty Carrier. According to the prosecutrix, Zachery drove to a secluded park near Elizabethtown where he struck and raped her. She testified that he then forced her back into his car and drove to Logsdon’s apartment in Jefferson County where he raped her again. She said that he took her from the apartment back to his car and proceeded to drive toward Shively. The prosecutrix stated that she tried to escape at a gas station, but Zachery forced her back into the car. When the Shively police gave chase, she escaped from the car. The police continued their high-speed chase until Zachery was cornered in an alley. He abandoned his car and fled on foot. He was captured a short time later.

Zachery testified that he picked up the prosecutrix as she was hitchhiking and that she had wanted to stay with him and the two other persons in his car and had not wanted him to take her home, although he offered to do so. He also stated that she was afraid to be caught by the police for anything as “there was a warrant outstanding for her from Maryhurst.”

A physician who treated the prosecutrix and a technician from the Kentucky State Police crime laboratory both testified there was no scientific evidence of rape.

The prosecutrix admitted that she lied about her real name to the police officers because she was a fugitive from Maryhurst, a juvenile correctional institution. A warrant for her apprehension had been issued some time before this incident involving the alleged rape, but the trial judge would not permit this fact to be revealed to the jury. Defense counsel was able to extract an admission from Sergeant Cooper, an investigating officer, that the police later became aware she was a runaway from juvenile authorities.

After this testimony came in, defense counsel asked Sergeant Cooper: “Did you go to the juvenile court with her on October 24, eight days after this alleged rape, and had that case dismissed against her?” The trial judge sustained an objection to the question and excluded this evidence from the jury’s consideration. Defense counsel pursued the issue by questioning the witness outside the hearing of the jury by way of avowal:

“(CONTINUING CROSS EXAMINATION BY MR. McCALL)
44 On October 24, 1977, did you appear with the defendant, Barbara Simon in Juvenile Court with Janet Johnson, and have the case re-docketed and have the case dismissed against her, do you recall that?
A. I appeared with her in Juvenile Court.
45 On October 24, 1977?
A. I’m assuming that’s the date I appeared.
46 And did you ask that the case against her be dismissed?
A. I explained the circumstances, what she was doing, related that to Miss Johnson, and Miss Johnson made her own decision of what to do at court.
47 What did you tell Miss Johnson she was doing?
A. I had information that she was living at home, that she had stayed out of trouble since running away from Mary-hurst. And with that information I believe Miss Johnson made a motion to file the charges away, and well, whatever you call it.
48 And did you tell Miss Johnson she was a witness for the Commonwealth in the case?
A. I told Miss Johnson she was purported to be a victim of a rape.
49 Did you know how long the bench warrant had been outstanding against her at that time?
A. No.
50 Did you know how many times she had escaped from Juvenile authorities up to that point?
A. No, sir, I didn’t.
51 Did you look at her file?
A. No, sir, I didn’t.
THE COURT: I don’t see where that has anything to do with it.
MR. McCALL: That’s our whole defense, your Honor.”

We hold that the excluded evidence was relevant and, under the circumstances of this case, the exclusion of it constituted reversible error.

“Thus, a defendant has a right to expose the fact that a witness has criminal charges pending against him and thereby possesses a motive to lie in order to curry favorable treatment from the prosecution.” Williams v. Commonwealth, Ky., 569 S.W.2d 139, 145 (1978).

In Parsley v. Commonwealth, Ky., 306 S.W.2d 284, 285 (1957) we made this observation:

“The interest of a witness, either friendly or unfriendly, in the prosecution or in a party is not collateral and may always be proved to enable the jury to estimate credibility. It may be proved by the witness’ own testimony upon cross-examination or by independent evidence.” Underhill Criminal Evidence, Fifth Edition, Volume 1, Section 246, pages 617 and 620; Campbell v. Commonwealth, 234 Ky. 552, 28 S.W.2d 790; Sparks v. Commonwealth, 193 Ky. 180, 235 S.W. 767; Hayden v. Commonwealth, 140 Ky. 634, 131 S.W. 521.”

See also Clark v. Commonwealth, Ky., 386 S.W.2d 458 (1965).

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) involved a situation where the state had a statutory policy of protecting the anonymity of juvenile offenders. A key witness for the prosecution in a criminal action was on probation for juvenile delinquency. The trial judge entered a protective order precluding the defendant from showing that this witness was on probation following an adjudication of juvenile delinquency. In holding the exclusion of the evidence was prejudicial, the majority opinion stated:

“But we do conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on Green’s testimony which provided ‘a crucial link in the proof of petitioner’s act.’ (citation omitted). The accuracy and truthfulness of Green’s testimony were key elements in the State’s case against petitioner. The claim of bias which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of Green’s vulnerable status as a probationer, (citation omitted) as well as Green’s possible concern that he might be a suspect in the investigation.” Id. 415 U.S. at 319, 94 S.Ct. at 1111 (footnote omitted).

The Supreme Court held that the State’s policy interest in protecting the confidentiality of a juvenile offender’s record could not constitutionally require that an accused defendant must yield his rights of confrontation and effective cross-examination.

In this case the prosecutrix was the key prosecution witness. Her credibility was the crucial element in this case. The trial judge should have permitted defense counsel’s cross examination of Sergeant Cooper to be heard by the jury to assist them in their evaluation of the extent of probative value to be afforded her testimony.

(2)

The other error committed by the trial court which necessitates reversal concerns the submission to the jury of the issue of whether Zachery was a persistent felony offender in the first degree.

The evidence shows that Zachery had pleaded guilty to dwelling house breaking and was sentenced to three years which was probated for five years. In September, 1974 his probation was revoked because he had been indicted for wilful murder. On February 10, 1975, he pleaded guilty to voluntary manslaughter and was sentenced to 15 years in the penitentiary. On cross-examination, an official of the State Probation and Parole office testified: “He is on parole for voluntary manslaughter. The sentences for voluntary manslaughter and dwelling house breaking were to be served concurrently.”

KRS 532.080, persistent felony offender sentencing, in pertinent part provides:

“(4) For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.”

The 1974 Commentary to the Penal Code which is fully applicable to the version of KRS 532.080 in force at the time of this trial states:

“When an individual has been convicted two times before serving any time in prison, his conviction shall be considered a single conviction for purposes of this section.”

The dwelling house breaking conviction and the voluntary manslaughter conviction “shall be deemed to be only one (1) conviction.” KRS 532.080(4). Therefore, the evidence authorized submission to the jury to determine whether Zachery was a persistent felony offender in the second degree [KRS 532.080(2)], but not in the first degree.

We have reviewed Zachery’s other claims of error and find that they are not likely to occur on a retrial and that they were not so prejudicial as to require reversal.

We therefore reverse the judgment and direct that Zachery’s retrial be confined to the charge of unlawful imprisonment (KRS 509.020 and KRS 509.030). In the event he is convicted for unlawful imprisonment in the first degree, then in a separate proceeding it may be determined whether he is a persistent felony offender in the second degree. In the event the jury determines that he is, then it shall enhance the punishment for the present offense under KRS 532.-080(5) by assessing a penalty of not less than five nor more than ten years. (KRS 532.060(2)(c)).

The judgment is reversed for further proceedings consistent with this opinion.

All concur.