author: NEARN, Judge.

text:
    UNION PLANTERS CORPORATION and Union Planters National Bank of Memphis, Plaintiffs-Appellees, v. Joseph P. HARWELL, Defendant, Fidelity & Deposit Company of Maryland and United States Fidelity and Guaranty Company, Defendants-Appellants.
    Court of Appeals of Tennessee, Western Section.
    Sept. 19, 1978.
    Certiorari Denied by Supreme Court Feb. 26, 1979.

      G. Wynn Smith, Jr., Robert M. Johnson, Mary L. Wolff, Patrick M. Ardis, of Canada, Russell & Turner, Memphis, for plaintiffs-appellees.
    Fred P. Wilson, Alan R. Strain, John W. Leach, of Nelson, Norvell, Wilson, McRae, Ivy & Sevier, Memphis, James E. Clark, of London, Yancey, Clark & Allen, Birmingham, Ala., for defendants-appellants.
   NEARN, Judge.

Union Planters National Bank filed suit against its former employee, Joseph P. Har-well, and his surety bondsmen, Fidelity and Deposit Company of Maryland and United States Fidelity and Guaranty Company, alleging that Harwell, while in plaintiff’s employment, had, by means of embezzlement and by fraudulent conduct in the making of loans to certain customers, caused a substantial loss to plaintiff. A judgment was sought against Harwell for the amount of the loss and against the sureties for the amount owed under the terms of the respective surety bond agreements.

In his answer, Harwell admitted liability for amounts embezzled, but denied any other fraudulent conduct and denied any liability for any amounts sought by plaintiff other than those embezzled.

The bonding companies denied any liability under any theory.

Subsequently, Harwell confessed judgment to the full amount claimed by the bank of $8,418,670.72.

The issues between the bank and the bonding companies were tried to a jury by means of specific interrogatories submitted to that body for their answer. A total of 45 special fact issues were submitted, plus an additional general- verdict query as to whether the jurors found the issues joined in favor of the plaintiff or defendants. The cumulative upshot of the jury answers was an award in favor of the bank against the bonding companies in the amount of $4,522,416.79. At the hearings on the motions for new trial the Trial Judge remitted that amount by the sum of $60,378.46.

Both the bank and the bonding companies have appealed.

Defendant bondsmen have filed seven Assignments of Error with the Court. Five are addressed to the charge. One is a complaint of an evidentiary nature and the last charges that the answers of the jury to the special interrogatories are inconsistent as to each other, as well as to the general verdict.

Plaintiff bank charges the Court with error in granting a remittitur.

We will first consider the defendants’ Assignments of Error.

The defendants first fault the Trial Judge for charging the jury that the burden of proof was upon the defendant bonding companies to show that plaintiff had failed to comply with the policy provisions requiring timely notice of loss. Appellant argues that the notice provision of the bond is a “condition precedent” to recovery and, therefore, the burden was on plaintiff to prove same; not defendants. We are cited to the reported opinions found in Phoenix Oil Co. v. Royal Ind. Co., 140 Tenn. 438, 205 S.W. 128, a 1918 case; Reliance Ins. Co. v. Athena Cablevision Corp., 560 S.W.2d 617, a 1977 Tennessee case; and several cases in between in an attempt to support the argument.

The notice provision in question is: “At the earliest practicable moment after discovery of any loss hereunder the insured shall give the underwriter written notice thereof — We hold that the Trial Judge did not misplace the burden of proof in his charge. First, the provision is not a condition precedent because it does not expressly provide that it is such; as did the provision in the Phoenix Oil case, supra. Second, in this case receipt of notice is admitted by defendants. They simply attack the quality of the notice and say it was not given at the “earliest practicable moment”. Courts will not presume a notice given is faulty. The presumption would be to the contrary. If the defendants wanted to insist it was a faulty notice, then it was up to them to prove its defects to the satisfaction of the trier of the facts. We find nothing in the Reliance case, supra, or any between Reliance and Phoenix that are to the contrary. Additionally, in this ease the attack on the notice is an affirmative defense which was affirmatively pleaded and, as such, the burden was on the pleader, to prove same. Tennessee Rules of Civil Procedure, Rule 8.03. The Assignment of Error is overruled.

The second Assignment of Error faults the Trial Judge for charging the jury, (a) that a leave of absence relationship between an employer and employee presupposes the continuation of an employer-employee relationship and does not, ipso facto, terminate the relationship and (b) that the burden of proof was bn the defendants to prove that Harwell did not possess the status of employee at the time of the defalcations in question. An understanding of our treatment of this Assignment of Error requires some elucidation of facts.

Harwell was one of the vice presidents of the plaintiff bank. He was a manager of one of the bank’s largest branches. Har-well became interested in the Memphis music industry. He learned about the business and became acquainted with those involved in that business. As a consequence, some of the record houses in Memphis and individuals associated therewith came to him for financial advice and loan assistance. One of these houses was the now defunct Stax Records. In time, the bank relied upon Harwell as their music industry expert. Sizeable loan transactions were involved to record houses and affiliates. Primarily, these loans were handled by Harwell. He authorized loans for Stax Records from Union Planters Bank in return for which he received cash payments to himself from Stax. To Harwell — The “Memphis Sound” became the source of pleasant and lucrative vibrations. In addition, in the early sixties Harwell began to set up fictitious accounts, without the involvement of Stax, and made loans to them and directly embezzled the money.

In November 1973 Harwell discussed with his superior in the bank, the idea of taking a leave of absence for six months to work on a “Memphis Music” show for national television and to develop a personal business called “Action for Ideas”. The business was to function as a financial advisor to the music industry. After its establishment Harwell was to resume his duties with the bank. The bank was of the opinion that Harwell’s leave of absence would benefit the bank, as such new enterprise would increase the music loan business. At that time the bank thought such business a profitable source of income, rather than the deliquium of assets that it was. During this leave of absence Harwell was to draw no salary from the bank, would be relieved of his day to day duties, but his fringe benefits were to remain intact. During the leave of absence Harwell was to continue to advise the bank regarding music industry matters and to assist with renewals and repayments of music industry loans.

Harwell commenced his leave of absence beginning January 1, 1974. In April, 1974, Harwell submitted his resignation from the bank, effective April 30,1974. Prom January 1, 1974, to April 30, 1974, Harwell “assisted” the bank in loan matters as aforesaid and during that period the bank renewed some music loans based on false and fraudulent information furnished by Har-well.

It is a position of the defend'ants that they are not liable for any of the fraudulent loan transactions made by the bank from January 1, 1974, to April 30, 1974, because Harwell was not an “employee” during that period of time. The fidelity bonds predicate liability on the condition that the loss be caused by an “employee”. For this reason defendants feel aggrieved by that portion of the Court’s charge which instructed the jury that a leave of absence does not constitute a termination of employment.

We are of the opinion that the Court did not err in this portion of its charge. “To be fired”, “to quit”, “to be sacked”, “to terminate employment”, are all general terms having the usually clear connotation of a complete severance of the employer-employee relationship. A “leave of absence” is, by the ordinary meaning of the words, something less than a complete severance or termination of that relationship. Its true meaning is a permission to be absent from duty. Therefore, it presumes a continuing relationship. If one is terminated no permission is needed to be absent. In fact, an attempted resumption of duty after termination could be a trespass. Since, in this case, it is undisputed that Harwell was on a “leave of absence” during a part of the time in question, it is also logically undisputed that a presumption must arise that employer-employee relationship was not terminated during this period and defendants had the burden of overcoming the presumption. The complained of portions of the Trial Judge’s charge are:

“There is a distinction between temporary suspension, leave of absence and termination of employment.
******
“The defendant surety or insuror has the burden of proving any affirmative defenses. Thus, in order to rely on fraudulent representation as a defense, failure to notify in time, failure to discover loss, are all affirmative defenses, as well as termination of employment, fraud and concealment, misrepresentation, and the burden of proof on these affirmative defenses is on the defendant.”
* * * * * *
“The relationship of employer and employee may continue to exist although the employee is on leave of absence. In fact, by its very nature, a leave of absence presupposes the continuation of the employer-employee relationship and, therefore, a leave of absence does not constitute a termination of employment.”

We see no error there and accordingly overrule the Assignment of Error.

The third Assignment of Error is that the Trial Judge erred in charging the jury on the doctrine of contra proferentem.

He erred; but it was harmless.

The error of the Trial Judge was not, as argued by counsel for appellant, in charging on the doctrine of contra proferentem in the Court’s effort to assist the jury in arriving at a proper legal interpretation or construction of the contract. The error was in submitting the bond contracts to the jury for construction and interpretation of the legal meaning thereof. In part the Court’s charge in this regard is as follows:

“Since this is an insurance contract, drawn by the surety company, it will be strictly construed against them. The contract will be construed as an insurance contract, and the reason for that is that the company is in the business for a consideration, taking risks of this kind.
“Being a contract of indemnity against loss, the contracts would be liberally construed in favor of the object sought to be attained.”

The interpretation or construction of contracts is a judicial function; not one for the jury. The duty of the Court was for the Court to instruct the jury as to the legal effect and meaning of the contract; then, instruct the jury as to the disputed facts and the alternative results that will follow depending upon the facts as the jury may find; then, instruct them to find the facts as they may choose and return the necessary resulting verdict depending upon which state of facts they find existent.

Additionally, insurance contracts are not strictly construed against the insu-ror. They are construed just as any other contract is construed, that is, by its plain meaning with no application of strictness in favor of either party, unless an ambiguity is found. When an ambiguity is found, it will be resolved against the drafter of the instrument, but, the existence of an ambiguity in a written contract and its resolution are for a judge, not a jury. Louisville & N. R. Co. v. Wynn (1890) 88 Tenn. 320, 14 S.W. 811, Walker v. Tennessee Farmers Mut. Ins. Co. (1977 Tenn.App., E.S.) 568 S.W.2d 103.

We are unable to find in this record that any ambiguity in the bond was pleaded, proved, or even determined by the Trial Court. We have examined the bonds and we find nothing ambiguous about them. The parties hereto confuse ambiguous terms with ambiguous facts. Whether or not Harwell was an employee in the ordinary sense of the word was a matter of fact to be determined by the jury under the facts presented. The jury, by their answer to an interrogatory, determined that he was. They then had but to apply that fact to the contract which provided indemnification in the event of defalcation of “employees”.

We say the error as assigned was harmless because, we have, without construing the contract against the insuror, but construing it ordinarily and without being strict or lenient to either side, and applying the external facts as found by the jury, reached the same construction of the contracts of indemnity as did the jury. Evidently, the Trial Judge also reached the same result, as he approved the jury findings.

The Assignment of Error is overruled.

The fourth Assignment of Error is two pronged. It first faults a portion of the charge as given and secondly, complains of the failure of the Trial Judge to charge a certain principle of law. The first prong of this Assignment of Error is not contained in the motion for a new trial and will, therefore, not be considered. Tennessee Court of Appeals Rule 12(6); Provence v. Williams (1970 E.S.) 62 Tenn.App. 371, 462 S.W.2d 885. As to the second prong of the attack, we have examined the charge and find that the Trial Court did, in substance, charge the principle which counsel for appellants claims is lacking and, moreover, counsel cannot now complain; as we find no special request to charge what counsel now says was omitted. Therefore, the second prong is unavailable on appeal. Rule v. Empire Gas Corp. (1978 Tenn.) 563 S.W.2d 551.

The Assignment of Error is overruled.

As before noted, Harwell confessed judgment against himself and admitted all allegations of fraud and embezzlement against him. Harwell did not testify; but his confession of judgment was made known to the jury. The fifth Assignment of Error complains of that portion of the Court’s charge which instructed the jury to the effect that such confession made out a prima facie case as between the bank and its bondsmen of dishonest conduct and breach of the bond and raised a presumption which requires rebuttal that Harwell’s bond had been breached. The gravamen of the Assignment is that even if such proof constitutes a prima facie showing of dishonest conduct and breach of the bond it does not give rise to a presumption which must prevail absent rebuttal proof as was instructed by the Trial Judge.

We are aware that reams of paper have been consumed in scholarly opinions and dissertations in efforts to properly distinguish and explain the meaning and effect of a “prima facie ” case in relation to the “quantum and quality” of proof required, and “presumptions rebuttable”, “presumptions unrebuttable” and “inferences” arising therefrom and “inferences” themselves. We will not attempt to bring together and explain these various views, primarily because we do not believe we can. As we understand it, a prima facie case is made out when some credible proof (sometimes supplied by law, e. g., the inference obtainable under res ipsa loquitur) is presented on the issues required to be offered in evidence by a plaintiff for a plaintiff’s recovery. When such is done, the defendant may go forward with the proof if he elects, or he may elect not to, and have the jury determine the credibility and sufficiency of plaintiff’s proof without any contra proof from the defendant. The making out of a prima facie case is simply tantamount to a judgment in posse. Whether it becomes a judgment in esse is at the jury’s option.

Therefore, so much of the charge that, in effect, states that a prima facie case entitles the party relying upon same to prevail in absence of evidence to the contrary is erroneous.

Again, however, we find this error to be harmless. Section 27-117 T.C.A. was enacted for just such instances as this, that is, where error was committed, but could have no effect on the outcome of the case. Much of appellants’ brief on this point is concerned with the law and legal principles regarding presumptions and their effect. However, all law and all legal principles exist but for one purpose, and that is to be applied to proven applicable facts. Facts cannot be ignored, as they are the true heirs of legal principles. As to Harwell’s dishonesty and breach of the bond by means of embezzlement, there is absolutely no doubt. It is proved by independent written evidence, as well as Harwell’s own later admission by confession of judgment. While no evidence was produced by anyone to counter the proof of embezzlement and the Court erroneously charged the jury that a presumption arose which required rebuttal proof, the jury would have to have been out of its collective mind, with or without aid of a presumption, to find other than that Harwell was guilty of embezzlement.

As to the losses incurred by the bank as the result of Harwell’s fraudulent conduct, proof was presented by the bonding companies in an attempt to show that the bonding companies were not liable for such losses and that there was no breach of the bond during that period. While admittedly the Court charged that a presumption requiring rebuttal existed in favor of plaintiff’s contention, the Court also charged the jury that once “contrary evidence is offered, however, the presumption disappears.” We must presume juries follow charges or error in a charge would be no ground for reversal. This being so, the presumption favorable to appellee, which appellants complain of, disappeared when defendants adduced contrary proof. Therefore, as to the losses incurred during the “leave of absence” the error in the charge was corrected by the later portion of the charge, coupled with the contrary proof adduced by the defendants.

The fourth Assignment of Error is overruled.

One of plaintiff’s witnesses was purported to have made a racial slur. Counsel for appellants sought to have such read into the record. Whether or not the witness made such statement has absolutely nothing to do with the issues joined between the parties. It was attempted to be introduced in a so-called effort to impeach the witness, as he denied having made such slurs. In rejecting the evidence the Trial Court stated:

“Unfortunately, in the zeal for advocacy, we use race as a ‘red herring’ and I am not going to permit that in this court, and the first lawyer that does it is going to be fined for contempt of court. Justice is color blind. I want to try this case on the fact that we are all persons.”

Previous to those remarks the Court had stated:

“Let me say this, gentlemen: The court sometimes has to preserve the record for itself and I don’t want this to go out publicly, but I want this record to show there are four people of black skin on this jury, because I have made previous rulings and I think the appellate court ought to know the atmosphere and flavor of a lawsuit.”

We believe the attempted injection of the completely incompetent and immaterial “evidence” was entirely unwarranted and the Assignment of Error is overruled.

The final Assignment of Error of the defendants complains of alleged joint and several inconsistencies between the general verdict and the individual answers of the jury. We do not find any inconsistency.

The argument of counsel for appellants is that by answer to the various separate interrogatories it must be inescapably concluded that all losses to the bank occurred prior to April 30, 1974. (The date of Har-well’s resignation.) Yet, the jury answered “yes” to interrogatory 29 which was: “Did the Bank, with actual knowledge of Har-well’s fraud or dishonesty, approve and ratify any of the loans or overdrafts upon which the Bank sustained a loss through Harwell’s fraud or dishonesty?” It is, therefore, insisted that the jury award must contain amounts for losses incurred by the bank with knowledge of Harwell’s dishonesty. The major premise of the argument is faulty. Correctly stated it ought to be that the answer to the various separate interrogatories impels one to the conclusion that all losses to the bank for which Harwell was responsible occurred prior to April 30, 1974. When such is the premise there is absolutely no inconsistency found. The answer given to question 29(a) fixed the amount of loss ratified and approved by the bank with actual knowledge of Harwell’s fraud or dishonesty at $24,527.08. The proof shows that the bank was seeking indemnification for losses incurred on loans made in October and December 1974 totalling $24,527.08 under the theory that they had to renew these loans as a part of a reasonable collection effort to cut their losses on these two loans originally made by Harwell. The jury simply would not buy that theory and it appears to us that these answers are all perfectly consistent and not the least inconsistent.

The final Assignment of Error of the defendants is overruled.

We now consider the bank’s Assignment of Error.

The Trial Judge granted a three category remittitur of $60,378.46 but failed to grant an additur of $159,338.65 requested by plaintiff. The bank complains of both actions.

The defendants’ insuring agreement contains a $25,000 deductible provision. It is evident, and no one disputes the fact, that the jury did not consider the matter of the deductible provision in fixing the amount of the bank’s loss. The bank complains that the Trial Judge could not grant a remittitur of $25,000 based on the deductible provision of the policy, as the defendants failed to plead the provision as a partial defense or otherwise mention it in any way prior to filing their motion for a new trial.

The bank sued the defendants for their liability under the policy. The plaintiff made the policy an exhibit to the complaint; it was introduced into evidence and recovery was sought based thereon. Plaintiff never asserted that the deductible clause was not applicable to the recovery. Therefore, defendants were never under any duty in those circumstances to allege the deductible clause as an affirmative defense as now insisted by plaintiff. The bank sued on a contract which contained a deductible provision. Why should a “defense” be required to be raised when there is no attack? The Assignment of Error is absolutely without merit and the Trial Judge did not err in applying the deductible clause.

Next, the bank charges the Court with error in double deducting from the judgment the sum of $24,527.08. We believe the complaint is meritorious. From our review of the record we find that the jury was asked by a series of interrogatories to fix the bank’s dollar loss on various specified loans and overdrafts. Some of that series of interrogatories requested not only that the loss be fixed but also inquired if such losses were incurred prior to May 1, 1974. Some of those interrogatories as to specific accounts did not request a date as to when loss incurred. However, if all of the specified account losses for which no loss dates are requested of the jury are matched with exhibits in the record, it readily appears that all such undated accounts involved transactions made long before May 1974. Therefore, of necessity, all individual amounts fixed by the jury were for losses sustained prior to April 30, 1974, when the jury found Harwell terminated his employment. However, the jury was also requested by separate interrogatory (29) to fix the amount of the bank’s loss on loans incurred after knowledge of Harwell’s defalcation which was admitted to be September 1, 1974. The jury fixed that amount at $24,-527.08. Then the jurors were asked to fix the amount of the total judgment. They fixed that amount in the general verdict at $4,546,943.87. As the jury announced their answers and general verdict, the Court inquired if the jury had included the amount of $24,527.08 in the general verdict. A simple addition of the incurred losses found prior to May 1974 and those made after September 1974 shows that the jury had done so. The jurors immediately realized their error and the general verdict was altered- and reduced by the foreman in open Court by the sum of $24,527.08 with the concurrence of all other jurors.

On motion for new trial the defendants insisted that they had not been given proper credit for the $24,527.08. This argument is based upon a misunderstanding of actions of the jury in reducing the general verdict to $4,522,416.79. It is argued by defendants that the intention of the jury was to find that the gross loss of the bank, including those losses suffered with and without knowledge of Harwell’s defalcation was $4,522,416.79 and that the sum of $24,527.08 ought be deducted from that figure. Counsel for defendants was able to convince the Trial Judge that such was the case, for on motion for new trial the judgment was again reduced by $24,527.08. However, with the Bill of Exceptions showing the statement of the jurors, an adding machine, and the written answers to the interrogatories all available to us; we conclude that the Trial Judge did, in fact, give a double credit on the judgment for $24,527.08 and make a mechanical error in computation.

The bank also charges the Court with error in further reducing the judgment by the sum of $10,851.38. This dispute revolves about the jury’s answer to a specific interrogatory regarding the “Alver-tis Isbell” account The jury fixed the amount of the bank’s loss at $36,607.67. The defendants insisted that the record clearly shows that this was the result of a $10,851.38 arithmetical computation error and the Trial Court was correct in reducing the judgment by that amount.

In order to arrive at this conclusion it must be presumed that the jury based the amount of liability on the Isbell account by using the overdraft balance of the account of December 31, 1973, of $31,213.48 and then used the figure of $5,394.19 which was the amount by which the overdraft balance was reduced on April 30, 1974, and then assume that the jury erroneously added the $5,394.19 to the $31,213.48 instead of subtracting same. The Court is then asked to treat the $63.00 difference as the result of an inadvertent transposition of the figures by the jury and as de minimis.

We cannot assume that the jury used the overdraft balance of December 31, 1973, as a basis for liability. Such assumption would be based upon pure speculation. Even larger overdraft balances are shown by the record prior to April 30, 1974. Any of various figures could have been used by ■the jury as a basis for fixing the amount of liability; any of which would be in the range of the proof and within the range of reasonableness. Therefore, such judgment amount should remain undisturbed. Robert F. Smith, Commissioner, Tennessee Department of Transportation v. Madison Shelton and wife, Ollie Shelton, Supreme Court Opinion filed July 31, 1978, marked “For Publication”. The bank’s Assignment of Error in this regard is sustained.

The bank also complains of the Court’s failure to make additur to the judgment by the sum of $159,388.65 which sum, to our mind, is arrived at by bank’s counsel by the same method as used by defendants’ counsel in attempting to support, the $10,851.38 reduction just previously disallowed.

What is sauce for the remittitur is sauce for the additur and for the same reason the $10,851.38 remittitur could not be approved, the sought after $159,388.65 additur will not be approved.

The result is that the judgment below is modified to the extent that it is increased by $35,378.46, but otherwise affirmed and the cause is remanded to the Trial Court for the enforcement of the judgment.

Costs of appeal are adjudged against the defendants and execution for same may issue from this Court if necessary.

MATHERNE and EWELL, JJ., concur.


source: Caselaw Access Project

author: DAUGHTREY, Judge.

license: Public Domain

text:
    Tommy MOTHERSHED, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 31, 1978.
    Certiorari Denied by Supreme Court Dec. 4, 1978.

      Richard J. Ryan, Jr., and Richard J. Ryan, Sr., Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., John F. Southworth, Jr., Asst. Atty. Gen., Nashville, A. H. Schoonover and Theodore H. Neumann, Asst. Dist. Attys. Gen., Trenton, for appellee.
   DAUGHTREY, Judge.

OPINION

The defendant-appellant, Tommy Moth-ershed, was convicted of raping a 79 year old woman. In addition the jury found that he was guilty of using a firearm in the commission of this felony, and Mothershed was sentenced to 40 years imprisonment for the rape, enhanced by a one to five year term on the firearms charge. On appeal the defendant raises multiple assignments of error concerning (1) his claim of insanity at the time of the offense and his alleged incompetency to stand trial; (2) the State’s failure to provide an impartial jury to hear his case; (3) the sufficiency of the proof to support the jury’s verdict; (4) the trial court’s failure to suppress certain evidence seized from the defendant’s home and the court’s failure to suppress the victim’s lineup identification of the defendant; and (5) an apparent violation of the sequestration order entered by the trial judge at the beginning of the trial. We find no error so serious as to require a new trial and, accordingly, we affirm the conviction.

The issues of sanity and competency were first raised by defense counsel by means of pre-trial motions requesting a psychiatric evaluation. The defendant was examined on two or three separate occasions at two county mental health facilities. One of the examining psychiatrists testified at trial that she interviewed Mothershed and found no evidence of mental illness. Her initial report was also introduced into evidence. It shows the defendant to be “manipulative,” but suffering from no mental illness or defect. It appears that the second evaluation likewise failed to show any indication of an existing mental deficiency or insanity at the time of the offense.

The defendant made no direct claim of insanity. His defense appeared to be based on misidentification; when Mothershed was asked at trial about his whereabouts on the day of the rape, he recited his activities in great detail — except for the crucial three hour period during which the rape and several related incidents occurred. Asked about this interval, the defendant replied, “I told the jury what I know about that day. If there’s a gap there, there’s a gap there. But that’s the way the day went for me.” Significantly, Mothershed did not testify that he could not remember what occurred during this period, although he did say he could not recall ever having seen the weapon allegedly used during the rape and later found in his attic.

The only proof offered to substantiate Mothershed’s claim of insanity was testimony offered by several members of his family and a former co-worker; they described Mothershed as a loner, often “down” or depressed, sometimes given to violence, prone to change jobs frequently, and generally unable to get along with other people. All of these lay witnesses offered their opinion that the defendant could benefit from “professional help,” but there was no evidence that he had ever sought or received treatment for his “emotional problems.”

We think the evidence shows the defendant to be a mean and highly emotional person. But there is no evidence that he was legally insane at the time of the offense nor that he was incompetent to stand trial. The jury’s special finding of sanity was therefore fully justified by the proof. Furthermore, the trial judge committed no error in refusing to continue the trial to allow evaluation by a private psychiatrist at state expense. Graham v. State, 547 S.W.2d 531 (Tenn. 1977). The State concedes, and we find, that the trial court erred in charging the jury on the defense of insanity while not at the same time complying with clear mandate of T.C.A. § 33— 709(e) that he also instruct the jury “that a verdict of not guilty by reason of insanity . shall result in automatic detention of the person so acquitted in a mental hospital or treatment center.” However, we conclude that this error does not require reversal, because in the absence of a prima facie showing of insanity, we find the proof to be such that the jury could not reasonably have found the defendant to be other than sane. It follows that the failure to charge the jury under T.C.A. § 33-709(e) did not affect the outcome of the trial, and the error must be deemed harmless. T.C.A. §§ 27-116 and 27-117. The various assignments related to issues of competency and insanity are overruled.

The defendant next charges that the trial court erred in failing to grant his motion for change of venue, which was made during the voir dire of the jury when it developed that several of the prospective jurors had formed strongly held opinions as to Mothershed’s guilt or innocence, based on what had appeared in local news stories, as well as on general knowledge in the community. We find no abuse of discretion in the trial court’s failure to declare a mistrial at this point in the proceedings. Prospective jurors who said that they could not lay aside previously formed opinions were excused by the court. We think it would have been preferable had the trial judge also excused those who, after considerable “rehabilitation” by the court, said only that they would “try” to lay aside such opinions but expressed no self-confidence in their ability to do so. See generally Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). However, the prospective jurors who fell into this category were in fact excused peremptorily by the defendant. If he had exhausted his peremptory challenges in this effort we might be persuaded to weigh more heavily his contention that the resulting jury was biased. But the defendant did not exhaust his peremptory challenges and made no effort to renew his motion before accepting the jury as finally constituted. We therefore find no error, under the authority of Sommerville v. State, 521 S.W.2d 792 (Tenn. 1975), and Tittsworth v. State, 503 S.W.2d 523 (Tenn.Cr.App. 1973), and the assignment is overruled.

The defendant next challenges the sufficiency of the evidence on the ground that proof of penetration was improperly adduced by means of leading questions. Although it appears that in some instances the form of the questions to which the defendant objected called for a simple yes or no answer, this fact in itself is not sufficient to make the question “leading,” i. e. “one that suggests to the witness the answer desired by the examiner.” E. Cleary, McCormick on Evidence § 6 (2nd ed. 1972). See also D. Paine, Tennessee Law of Evidence, § 160 (1974). Under Tennessee law, the trial judge has wide discretion in controlling the form of questioning, and “unless [the appellate court] can see that the question was not only clearly leading but clearly prejudicial, the action of the [trial court] will not be interfered with . . .” Hale v. State, 198 Tenn. 461, 476, 281 S.W.2d 51, 58 (1955). We find no such prejudice in this case, and accordingly, the related assignment of error must be overruled.

The defendant further complains that there was no proof that a firearm was used as “a means of committing the crime” of rape, but only that a gun was observed by the victim at some point during the rape incident. The record clearly refutes this claim; the victim testified that her assailant said, “ ‘You do as I say’ . . . [and he] showed me the gun . . . [and] said, ‘We won’t have any trouble.’ ” This assignment must likewise be overruled.

The defendant next contends that the trial court improperly permitted proof of other crimes to be introduced against him. The State responds that the evidence in question did not establish the commission of a crime and, in any event, that it was relevant to show a common scheme or pattern of behavior by the defendant from which the jury could properly infer that he committed the offense in question. Thus the State insists that any evidence related to another crime constitutes an exception to the general rule prohibiting proof of other offenses if used to prove the defendant’s propensity for criminal behavior. See generally Carroll v. State, 212 Tenn. 464, 370 S.W.2d 523 (1963).

The elderly victim testified that the defendant first came to her door asking to use the telephone. He purportedly wished to call a Joe Davis, whose name the victim could not locate in the phone directory. The defendant then asked to use the bathroom, and she let him in the house. He stayed in the bathroom a long time and physically attacked her shortly after he came out. The State produced as witnesses three women who lived in the same general area as the victim. All three identified the defendant as the person who came to their respective homes within a three hour period the same period of time as the rape for which Mothershed was on trial. In each instance the defendant first asked to use the phone to call a person (variously “Paul Jacobs,” “Mutt Davis,” “Joseph Davis”) whose name could not be located in the phone book. The defendant was careful in each instance to ask about the witness’ husband, in an obvious attempt to learn whether she was alone at the time. On all three occasions, when the defendant discovered that someone else was in the house, he quickly left. At one home, the gun later located in the defendant’s house (and alleged by the State to have been used in the perpetration of the rape) was found to be missing shortly after the defendant was there. At another house, the defendant pulled “a big black gun” and tried to force his way into the witness’s kitchen; but when the witness's daughter appeared, the defendant hurriedly left, threatening to return later.

The defendant denied having ever seen the gun in question and, implicitly, denied responsibility for the rape with which he was charged. We conclude that the evidence in question was relevant and admissible to show his possession and guilty use of the weapon, his identity as the perpetrator of the subsequent rape, and his criminal responsibility for his acts. Because the evidence was introduced for this purpose, the fact that it may be viewed as tending to prove other criminal acts by the defendant is not controlling in this case; under these circumstances, the proof in question qualifies as an exception to the general rule. Carroll v. State, supra at 477—79, 370 S.W.2d 523. We find no error in its admission.

The defendant next complains of the trial court’s failure to suppress certain evidence which the defendant insists was introduced in violation of the Fourth and Sixth Amendments. Unfortunately for our purposes, the trial judge failed to give reasons for his rulings on the defendant’s motions to suppress. However, it appears that the Court ruled that the two warrantless searches of the defendant’s house were valid, based, in the first instance, on the consent of the defendant and, in the second instance, on the consent of the defendant’s wife. Further, the trial judge, in overruling the defendant’s motion to suppress the lineup identification by the victim, apparently found a waiver of the right to counsel at the procedure. (The defendant insisted that the waiver had been scratched out on the advice-of-rights form he signed prior to the lineup; the State’s evidence indicated that the defendant chose not to make a statement, as indicated by the marks on the Miranda form, but that he had specifically waived his right to an attorney at the lineup after receiving oral advice that he was entitled to have an attorney present.) The evidence does not preponderate against these rulings, and, accordingly, the related assignments of error must be overruled. State v. Chandler, 547 S.W.2d 918 (Tenn.1977); Braziel v. State, 529 S.W.2d 501 (Tenn.Cr.App. 1975).

Finally, the defendant contends that the trial court erred in allowing a police officer to testify at the jury-out suppression hearing in violation of the sequestration order entered at the beginning of the trial. The court ruled that the officer was listed as the prosecuting witness on the indictment and was therefore not subject to “the rule.” It has been held that the “attorney for the state has the right to such assistance as the prosecutor can give him in the management of the state’s case, and, upon his request, it is not error to permit the prosecutor to remain in the courtroom after the rule has been called for . . .” Smartt v. State, 112 Tenn. 539, 551, 80 S.W. 586, 588 (1904). However, the opinion in Smartt also notes that “the court should impose as a condition that the state, if it desires to use the prosecutor as a witness, should examine him first.” Id. We think the rule in Smartt is a reasonable limitation on the provision of T.C.A. § 24 — 106 which purportedly exempts parties from the operation of a sequestration order. We thus find a technical error in this case, as did the court in Smartt; but, like that court, we also conclude that “[no] substantial injury was done to the defense ... in the court below by such action . . . [and therefore] it cannot be treated as reversible error in the present case.” Id. The assignment is therefore overruled.

Separate judgments were entered in this case with respect to the rape and firearms convictions. The case must therefore be remanded for modification of the judgment in conformity with the instructions laid down by Mr. Justice Brock in State v. Hudson, 562 S.W.2d 416, 420 (Tenn. 1978).

Affirmed and remanded for modification.

O’BRIEN, and BYERS, JJ., concur.


author: WALKER, Judge.

text:
    Terry Lee LACKEY, a/k/a Terry Lee Jarnigan, and Diane Lackey, a/k/a Diane Jarnigan, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 21, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.

      Ben W. Hooper, II, Newport, Richard W. Pectol, Johnson City, for appellants.
    William M. Leech, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, William M. Leibrock, Asst. Dist. Atty. Gen., Newport, for appellee.
   OPINION

WALKER, Judge.

Under a two-count indictment, Terry Lee Lackey, a/k/a Terry Lee Jarnigan, and Diane Lackey, a/k/a Diane Jarnigan, husband and wife, were charged with willful injury of another, Edna Stamey, by explosives (TCA 39 — 4912) and with malicious injury to personal property, a Chevrolet automobile, by explosives (TCA 39-1402). Similar charges were made against John Stamey, husband of the alleged victim, but he entered a plea of guilty the day before this trial and his case was disposed of at that time. The appellants will be referred to as Jarnigan since they are generally known by that name and prefer it.

On their joint trial in Cocke County October 19-21, 1977, Terry Lee Jarnigan was convicted of willful and malicious injury of another by means of an explosive and of willful and malicious destruction of property by means of an explosive, and was sentenced to consecutive terms of not less than 15l/2 years nor more than 21 years. Diane Jarnigan was convicted of aiding and abetting in these offenses and was sentenced to concurrent terms of ten years.

This case arose out of the dynamiting of the car of Mrs. Edna Stamey in Newport on April 14, 1977, as the result of which Mrs. Stamey lost both of her feet and sustained other personal injuries.

Both appellants contend that they were denied their right to a fair and impartial trial by the court’s denial of their motions for change of venue and the motion to quash the venire and by the court’s leading questions on voir dire.

This case was the subject of pretrial publicity and a number of potential jurors had read or heard about the facts of the case prior to trial. Some knew that Terry Jarnigan had previously been convicted of arson. In ruling on the motion for a change of venue, the trial judge conditionally denied it but reserved a final decision to be based on how the jury selection proceeded. He stated that if a proper jury, free from bias, prejudice or opinion, could be selected, then the motion would be denied; however, if a proper jury could not be selected, then the motion would be granted. The question for determination here is whether or not the jurors who actually sat and rendered the verdict in this case were prejudiced by that publicity. Adams v. State, 563 S.W.2d 804 (Tenn.Cr.App.1978).

At the request of the appellants, the court held the examination of the prospective jurors in his chambers out of the presence of the tentatively selected jurors and other prospective jurors. Although this procedure was desired by the appellants, we do not approve the conduct of this part of the trial out of the courtroom and out of the presence of the public. When the court considers it advisable to examine prospective jurors out of the presence of others, the prospective jurors should be kept from the courtroom and then called individually into the courtroom for their examination in a public trial.

The jurors were carefully examined by the court, the state and both defense counsel to determine that they could be fair and impartial and were then sequestered. Although the appellants used all of their challenges, there is nothing to show that any juror was other than fair. Three of the jurors selected stated that they were aware of the reputation of Terry Jarnigan, but all stated that they could lay that aside and try the case strictly on the evidence and the law charged by the court. Three others and the alternate indicated that they had seen the publicity regarding the guilty plea of Stamey (a local newspaper had been in the courtroom that morning but was confiscated on order of the court), but said that would not affect their disposition of the case, which they would decide only on the basis of evidence heard in court. Every juror selected to sit swore to make a decision wholly on the evidence presented in court and that he or she would give a fair verdict, dismissing anything he or she might have heard or read about the case.

In his examination of the prospective jurors, the trial judge did not abuse his discretion. It is proper for him to take part in this examination. See State v. Jefferson, 529 S.W.2d 674, 684 (Tenn.1975). Any juror who indicated partiality was either excused for cause by the court or was challenged peremptorily.

The mere exposure of jurors to newspaper publicity is not constitutional error. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). One who is reasonably suspected of a serious crime cannot expect to remain anonymous. Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977); Murphy v. Florida, supra. In Murphy, the United States Supreme Court said:

“Qualified jurors need not, however, be totally ignorant of the facts and issues involved.
‘To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a ver-diet based on the evidence presented in court.’ ” (citation omitted)

The question of change of venue is largely within the discretion of the trial judge, and we may not reverse his action unless there is a clear abuse of discretion. Adams v. State, supra; Broz v. State, 4 Tenn.Cr.App. 457, 472 S.W.2d 907 (1971). The jury was composed of unbiased and unprejudiced jurors whose deliberations required six hours, and no prejudice has been shown. These assignments are overruled.

Diane Jarnigan moved for the judge to recuse himself on the ground that the judge’s association with Edna Stamey, the victim of the crime, would result in inadvertent prejudice against the appellant and prevent her from obtaining a fair and impartial trial.

At the pretrial motion to recuse hirnself, the trial judge announced that, when in private practice, his firm had employed Edna Stamey as a secretary. She retained that position for about five years, until 1964. Since that time there had been no business or social relationship between them. In denying the motion the trial judge said that this case was no different from any other, and he held without hesitation that an absolutely fair and impartial trial could be granted without any impropriety or appearance of impropriety in view of the essentially severed relationship of 13 years ago.

While a trial judge should recuse himself whenever he has any doubt as to his ability to preside impartially in a criminal case or whenever he believes his impartiality can reasonably be questioned, the trial judge here had no doubt of his ability to preside fairly. See ABA Standards Relating to The Function of the Trial Judge, sec. 1.7, circumstances requiring recusation. There is nothing here to show that this past association biased the trial judge against the appellants. See Moore v. State, 568 S.W.2d 632, 635 (Tenn.Cr.App.1978).

Diane Jarnigan urges that the court erred by refusing her motion for severance. She insists that the jurors’ knowledge of the reputation of her codefendant and of the guilty plea of Stamey required her case to be severed for her to have a fair trial. She also contends that she was unable to cross-examine her codefendant because he did not take the stand.

The guilty plea of John Stamey pri- or to trial is irrelevant on the question of severance of her case from that of her codefendant. Even if Diane Jarnigan had been tried separately, the proof at trial would have necessarily shown that her husband, the codefendant, was involved. All of the jurors repeated that they would not consider Terry Jarnigan ⅛ reputation or the plea of guilty by John Stamey. In Dorsey v. State, 568 S.W.2d 639 (Tenn.Cr.App.1978), we found no prejudice when the trial judge refused a severance after a codefend-ant entered a plea of guilty. While Diane Jarnigan cites her inability to cross-examine her codefendant, no Bruton question is involved. (Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).) No prejudice has been shown and the trial judge did not abuse his discretion in denying the severance.

Both appellants challenge the sufficiency of the evidence.

The state’s evidence showed that about 8:00 p. m. on April 14, 1977, Edna Stamey drove her Chevrolet automobile to the Westgate Shopping Center parking lot in Newport at the request of her husband, John Stamey, and left it there while she accompanied him to White Pine. Her lights were on when she drove to the parking lot. On their return from White Pine, her husband stopped his truck 30 or 40 feet from her car and let her out. She testified that he “shot out of the parking lot like a bullet.” Mrs. Stamey got in her car, started the engine and turned on the lights; an explosion immediately occurred, blowing off both her feet, breaking her right wrist and leg and mutilating a hand. The car, of course, was badly damaged. In Mrs. Stanley's absence while the car was on the parking lot, someone had placed dynamite and a blasting cap in the unattended car and had attached wires to its parking lights so that when the lights were turned on the dynamite would explode. Mrs. Stamey had several insurance policies on which her husband had been named beneficiary, a fact of which he was aware. Unknown to him, however, she had changed the beneficiary. She further testified that the appellants knew her automobile.

Donald Eugene Pack was also parked in this lot on that evening. At about 9:15 p. m. he noticed Mrs. Stamey’s vehicle and a pickup truck along its side. Two people were in the pickup truck. The driver would slump down in the truck when a car would pass. The truck was gray and had a utility bumper. Mr. Pack testified that the driver wore a white T-shirt and spit out of the window several times. Mr. Pack was not facing the truck and did not see anyone get out, but he noticed that it was gone at about 9:35 or 9:40 p. m. After he left the parking lot, he heard the explosion at about 10:30 p. m. He had also seen Terry Jarni-gan that day driving a gray pickup truck with a utility bumper.

Terry Jarnigan had on a white T-shirt that night and he chewed tobacco. He was familiar with electrical wiring and had asked a junk dealer for dynamite fuse about a week before. His pickup truck fit the description of the one parked near the victim’s car the night the dynamite was placed in it. Terry Jarnigan had been with John Stamey about 6:00 p. m. on the day of the explosion.

' Evelyn Stewart testified that on April 14 Diane Jarnigan had called and asked her to come to her house that night. She and Earl Arms arrived at the appellant’s apartment about 9:30 p. m., but the appellants were not at home. When the appellants returned 15 or 20 minutes later, Diane Jarnigan said she might want to borrow Mrs. Stewart’s car after a while, and that it would not be wise for her vehicle to be seen out that road again. Mrs. Stewart testified that she asked Diane Jarnigan what they had done and Terry replied that they had put dynamite in a woman’s car. Mrs. Stewart asked whose car, and Diane said it was Mrs. Sta-mey’s. Terry said that Mrs. Stamey was going to have John Stamey sent back to the penitentiary, that he (Stamey) had used Terry’s gun in a bank robbery some years earlier and that was the reason Stamey had hired him to do it.

On cross-examination Mrs. Stewart admitted that she had not given this information to the officers the first or second time they talked with her. She denied that dynamite had ever been in her home, that she had received any from Earl Arms and that she ever had blasting caps in the presence of her son.

Gary Ray Stewart, age 15, called as a witness by Diane Jarnigan, first denied that he had seen any dynamite in the possession of his mother, Evelyn Stewart, or Earl Arms or either of the defendants. In a hearing outside the presence of the jury, the trial judge ordered the state to give defense counsel a statement the witness had given a state investigator and admonished the witness to tell the truth without any fear. Before the jury this witness testified substantially in accordance with his statement to the effect that he went with his mother to meet Earl Arms, who gave her nine sticks of dynamite. When they returned home, she called Terry Jarnigan who came to get the dynamite; Gary went home with Terry Jarnigan and saw him put it behind the stereo. Young Stewart further said that his mother also stored on a shelf some blasting caps that Arms gave her, but a few days after the explosion he and his mother threw some dynamite caps in the river. On cross-examination he said that Terry, Diane, their children and Terry’s mother came to get some blasting caps. He said no one had threatened him, but that he had told different stories because he was scared.

Terry Jarnigan did not testify. In her testimony, Diane Jarnigan denied any knowledge of or participation in the crime. She said she was not with her husband in his truck between 7:00 and 11:00 p. m. the night of the bombing, but that Evelyn Stewart and Earl Arms came to her home at 8:00 or 8:30 p. m. and her husband arrived at 9:00 p. m. ‘She stated that she had seen dynamite and blasting caps at Evelyn Stewart’s home about three weeks before the bombing but had never seen any in her own home. She emphatically denied making any statement to Mrs. Stewart concerning the dynamiting of the car or wanting to borrow Mrs. Stewart’s automobile. She said that Mrs. Stewart was drinking gin on this occasion and also taking pain pills for a toothache as well as diet pills and appeared confused.

The appellants offered alibi witnesses to show that they were at home at the time the explosive device must have been placed on Mrs. Stamey’s automobile. A cab owner testified that Terry’s three-year-old son was riding with him in his truck between 8:00 and 8:30 p. m. the night in question. Terry’s stepfather said he told him to see John Stamey about a carpentry job. This was in explanation of testimony that Stamey and Terry were together about 6:00 p. m.

From the evidence in this case, the jury was warranted in finding both appellants guilty of these offenses. As to Terry Jarni-gan, the circumstantial evidence shows that he was present in his truck at the parking lot during the time the explosive must have been put in the car, that two people were in the truck and the driver frequently spit out of the window. It was also shown that Terry wore a T-shirt like the driver had on and chewed tobacco, spitting frequently, and that he had obtained dynamite and blasting caps and was familiar with electrical devices.

A witness placed the pickup at the Sta-mey car from approximately 9:15 p. m. until about 9:35 or 9:40 p. m. By Mrs. Stewart’s testimony, the appellants returned home together at about 9:50 p. m., warranting the jury in believing that Diane Jarnigan was the passenger in the pickup truck. At that time she told Mrs. Stewart that she might want to borrow Mrs. Stewart’s car and that it would not be wise for her to be seen out that road again. When, shortly after their return home, Terry Jarnigan said that he had put dynamite in a woman’s car, Diane supplied the information that it was Mrs. Stamey’s. The record sufficiently shows that Terry attached the explosive device to the car and Diane aided and abetted him in the crime. Flippen v. State, 211 Tenn. 507, 365 S.W.2d 895 (1963).

On appeal, the jury’s verdict, approved by the trial judge, accredits the testimony of the state’s witnesses and resolves all conflicts in favor of the theory of the state. Hawkins v. State, 527 S.W.2d 157 (Tenn.Cr.App.1975). It is the exclusive province of the' jury to draw permissible inferences from the evidence. Bailey v. State, 479 S.W.2d 829 (Tenn.Cr.App.1972); State v. Cabbage, 571 S.W.2d 832 (Tenn.), filed October 10, 1978, at Knoxville. These assignments are Overruled.

Both appellants assert that the court erred by failing to declare a mistrial when it was discovered that the state had withheld the statement of Gary Stewart, exculpatory to each of them, and which discredited the testimony of the state’s chief witness, Evelyn Stewart.

At the conclusion of the state’s case, counsel for Diane Jarnigan informed the court, out of the jury’s presence, that during trial preparation he had interviewed Gary Stewart; Gary had made one statement in rite presence of the juvenile judge and another separately to the TBI which counsel considered exculpatory, but the defense had never been given a copy. Counsel said that Gary had given him a statement that Evelyn Stewart and Earl Arms had dynamite in his presence two or three days before the explosion and that they threw some blasting caps in the river; that he had been threatened by his mother and Arms if he told this, and that Gary now claimed that what he had told defense counsel before was a lie. Counsel asked for the state to provide a copy of Gary’s statement.

The district attorney general replied that he had the statement but that it was not exculpatory, that it told that Terry Jarni-gan went to the Stewart home and got the dynamite.

The court ordered that the state allow defense counsel to see this statement. Both defense counsel then examined it and had it available for use when Gary testified as a defense witness for Diane. His testimony before the jury was essentially the same as he had told counsel before trial and as recorded in his statement to the state agent.

The statement in question is not exculpatory on its face. It placed the dynamite in the hands of Terry Jarnigan and showed that Diane Jarnigan was one of those who came to get blasting caps. Its value to the appellants lay in its possible use to impeach the state’s witness, Evelyn Stewart. The appellants’ general motion for exculpatory material did not require its production and the state’s failure to disclose it before trial did not violate the rule in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), as contended by the appellants.

Counsel for Diane Jarnigan knew before trial that such a statement had been made to the state, but he had the oral statement of the witness to the same effect and had full knowledge of the substance of the statement the appellants say should have been disclosed. Counsel had cross-examined Mrs. Stewart on the damaging information and laid the ground for her impeachment by Gary’s testimony contradicting her. The trial judge did not err in refusing to declare a mistrial on motion made after argument.

Both appellants complain that the prosecuting attorney’s closing argument interjected his personal moral conviction of the appellants’ guilt and presented argument outside the record.

In his opening argument the assistant district attorney general remarked:

“Now let’s look first of all at Diane Jarni-gan, who got up on that stand and swore to you that she had nothing to do with it . in hopes of making you believe that. I don’t think you do, but I won’t tell you why I don’t believe.
THE COURT: Mr. Leibrock don’t make personal reference. You may quote the evidence but don’t make personal reference.”

Without request the trial judge properly admonished the prosecuting attorney not to make personal references. A lawyer should not assert his personal opinion as to the credibility of a witness, or as to the guilt or innocence of an accused. Code of Professional Responsibility, Canon 7, DR 7—106, Trial Conduct, (C)(4); ABA Standards Relating to the Prosecution Function, sec. 5.8, Argument to the jury. The trial court’s prompt disapproval cured any error from this improper argument.

The assistant district attorney general continued with the only objection by counsel as follows:

“You heard the witnesses. Diane Jarni-gan said, ‘We were hired to blow up Edna Stamey.’ A woman who had befriended. . .
MR. PECTOL: Your Honor, I object to that . . . that’s outside this record.
MR. SCHMUTZER: That would be by the witness .
THE COURT: You may argue the case, don’t . . . don’t argue Gentlemen. Ladies and Gentlemen you find all the facts and whether it’s- said or not said you’ll decide that.”

There was no evidence in the record that Diane Jarnigan had made such a statement, and this statement itself is not found in the record. Evelyn Stewart had testified that, in her conversation with the appellants, Terry Jarnigan had said that “Mr. Stamey had hired ’em to do it.” While the argument was improper and outside the record, the court’s ruling was sufficient to call the disputed evidence to the jury’s attention and render the remark harmless. With the court’s instructions we do not think this remark affected the jury’s verdict. See Judge v. State, 539 S.W.2d 340 (Tenn.Cr.App.1976). These assignments are overruled.

The appellants submitted no special requests for instructions. Terry Jarnigan complains of the court’s instructions on weighing the credibility of the witnesses, particularly Evelyn Stewart, but he does not set forth the instructions he contends should have been given. The court charged the jury, in part:

“Every day of your lives you have judged people, their reliability, their truthfulness, and the accuracy of their statements. In the case now on trial you will apply that same knowledge and experience in finding the truth from the evidence presented to you. . . . Where evidence is received relative to gin or pills which may affect the central nervous system or induce intoxication or otherwise alter the state of consciousness, you may consider that evidence insofar as it reflects on the ability of the witness to see, know, understand and tell what happened at the time and on the occasion in question. Where you are satisfied that a witness is interested on the outcome of the litigation for whatever reason, whether for personal advantage or vindication, or for hope of reward, or for whatever purpose, you will of course consider that testimony or evidence with greater care, giving it just such weight and value as you believe it deserves under all the facts and circumstances.”

The instructions as given were correct and covered the case. If the appellant desired further instructions, he should have submitted a special request.

We have carefully considered all assignments of error and fail to find any grounds for disturbing the lower court’s judgment as to either appellant.

It is affirmed.

O’BRIEN and BYERS, JJ., concur.


author: McGEE, Justice.

text:
    The REPUBLIC NATIONAL BANK OF DALLAS, Petitioner, v. NORTHWEST NATIONAL BANK OF FORT WORTH, Respondent.
    No. B-7731.
    Supreme Court of Texas.
    Dec. 29, 1978.
    On Rehearing March 7, 1979.
    Rehearing Denied April 4, 1979.

      Green, Gilmore, Rothpletz & Hyden, Frank B. Rynd, Gardere, Parker & Dehay, Arthur Blanchard, Dallas, for petitioner.
    Farris & Thompson, Thomas L. Farris, Fort Worth, for respondent.
   McGEE, Justice.

The Republic National Bank of Dallas sued Northwest National Bank of Fort Worth on an instrument entitled “IRREVOCABLE LETTER OF CREDIT.” The disposition of this appeal hinges on the enforceability of that instrument.

The facts of the case are virtually undisputed. In December of 1968 Ronald Hughes, Dudley Hughes, Sr., and Dudley Hughes, Jr., became interested in purchasing the stock of Crown Hill Memorial Park, Inc., corporate owner of a north Dallas cemetery. As required by the law of this state, Crown Hill had a perpetual care fund held in trust for the purpose of maintaining and caring for the grounds and physical plant of the park. American Cities Trust Company was the trustee of the fund at that time. Among the assets, and constituting a major portion of the fund, was a $50,000 promissory note made payable to the fund’s trustee in five equal installments by B&H Amusement Rides, Inc. The prospective purchasers of Crown Hill were wary of this particular note and refused to close the sale as long as it was a fund asset. Consequently, on February 28, 1969 B&H caused Northwest National Bank to issue an instrument in favor of the trustee which provided:

THE NORTHWEST NATIONAL BANK

7820 White Settlement Road Fort Worth, Texas

Speegle Berry President

IRREVOCABLE LETTER OF CREDIT

N on-Transfer able

February 28, 1969

American Cities Trust Company 1815 South Montclair, Oak Cliff Dallas, Texas,

and/or its successor as Trustee of the Perpetual Care Fund of Crown Hill Memorial Park, a Perpetual Care Cemetery.

Gentlemen:

We hereby open our irrevocable credit in your favor, available in the following manner and on the following terms:

1. Transferability. The credit is nontransferable.

2. Drafts. Your single draft drawn on Northwest National Bank of Fort Worth, at ten (10) days’ sight, in the amount of the unpaid principal, interest and attorneys’ fees then due and payable after default, pursuant to the terms of a certain Promissory Note executed January 12, 1968, by B&H Amusement Rides, Inc., payable to the order of American Cities Trust Company, which draft must state upon its face: “Drawn under Letter of Credit of the Northwest National Bank of Fort Worth, Texas, dated February 21, 1969.”

3. Total. The draft must not exceed Fifty Thousand and no/100 Dollars ($50,-000.00).

4. Purpose. To be applied to the balance remaining on a certain loan evidenced by a certain Promissory Note executed January 12, 1968, by B&H Amusement Rides, Inc., payable to the order of- American Cities Trust Company, secured by a security interest in and upon the inventory of B&H Amusement Rides, Inc.

5. DOCUMENTS. The required documents are:

(a) Original Promissory Note, executed January 12, 1968, by B&H Amusement Rides, Inc., payable to the order of American Cities Trust Company.

(b) Copy of letter advising B&H Amusement Rides, Inc. of default in the payment of the said note executed January 12, 1968, said advice letter being addressed to B&H Amusement Rides, Inc., showing receipt and being dated not less than twenty (20) days in advance of the date of Sight Draft.

(c) Copy of letter advising E. L. Baker, Jr., Jerome I. Weiner, and Henry W. Simon, Jr. of default in the payment of the said Note executed January 12,1968, said advice letter being addressed in care of Simon & Simon, attorneys, 816 First National Building, Fort Worth, Texas, and being dated not less than twenty (20) days in advance of the date of Sight Draft.

(d) Copy of letter which advised owners of B&H Amusement Rides, Inc. property of default in payment and resulting acceleration of the said Promissory Note dated January 12, 1968, said letter being dated not less than twenty (20) days prior to the date of Sight Draft.

6. OBLIGATION OF ISSUER. The Northwest National Bank of Fort Worth, Texas, agrees with American Cities Trust Company, and/or its successor as Trustee of the Perpetual Care Fund of Crown Hill Memorial Park, a Perpetual Care Cemetery, to duly honor a proper draft drawn and negotiated in compliance with the terms of this Letter of Credit upon presentation to the office of the bank.

7. RULES APPLICABLE. The Credit, except as otherwise provided, is to be governed by the Uniform Commercial Code in force in the State of Texas on the date of its issuance.

Yours very truly,

NORTHWEST NATIONAL BANK

Bv: /s/ Speegle Berry (Authorized Signature) President.

After consulting with legal counsel and the Commissioner of the Texas State Banking Department, the purchasers accepted the letter of credit and closed the sale of Grown Hill.

After making a few payments, B&H defaulted on the note. The successor trustee, Republic National Bank, thereupon, presented all the required documents along with a draft in the amount of $45,104.75 to Northwest National Bank. It is undisputed that this presentment was in full compliance with the letter of credit terms, but Northwest nonetheless refused to honor the draft. Republic then filed suit to recover damages, alleging its demand and Northwest’s dishonor. After a trial before the court, the trial judge rendered judgment for Northwest, concluding that the instrument was an ultra vires contract of guaranty and consequently unenforceable against a national bank. The court of civil appeals affirmed. 566 S.W.2d 358. We reverse the judgments below and render judgment for Republic.

The central issue presented is whether the instrument issued by Northwest is a valid and intra vires letter of credit or an ultra vires guaranty agreement. Since we have been unable to locate any Texas case law pertinent to this particular question, we will freely consult decisional authority from other jurisdictions in addition to the guidance provided by Chapter 5 of the Texas Business and Commerce Code.

Republic National Bank, as our petitioner, contends that the instrument is a valid and intra vires letter of credit, and that, even if it should be found that the instrument is a guaranty, it nonetheless should be enforced against Northwest. Northwest National Bank replies that the instrument is unenforceable as a guaranty because paragraph 4 essentially provides that the purpose of the credit is to guarantee an existing note and to protect payment in the event of default. As such, Northwest reasons that the issuance of the instrument was an ultra vires act since traditional thought has been that national banks are without authority to act as a guarantor or surety for the performance of contracts made by others. See Border National Bank v. American National Bank, 282 F. 73, 77-78 (5th Cir. 1922); Harfield, The National Bank Act and Foreign Trade Practice, 61 Harv.L.Rev. 782, 788 (1948) (collected authorities). Inasmuch as we hold that the instrument in question qualifies as an enforceable and intra vires letter of credit, we deem it unnecessary to express a further opinion as to whether a guaranty made by a national bank may be enforced against it.

Generally, a true letter of credit is the third contract in a complex of three independent contracts. The first contract is the agreement between parties to the underlying obligation; typically, this is the contract between the obligor and obligee. The second contract is ordinarily between the bank or other person (the issuer) and the obligor (the account party), which precipitates the issuance of the letter of credit. The third contract, or the letter of credit, is between the issuer and the obligee (the beneficiary), which provides that the issuer will make payment to the beneficiary upon presentation of a draft and certain documents (a documentary draft) or simply upon the presentation of a draft (a clean letter). See Venizelos, S. A. v. Chase Manhattan Bank, 425 F.2d 461, 464-65 (2d Cir. 1970); R. Braucher & R. Riegert, Introduction to Commercial Transactions 360 (1977).

Chapter 5 of the Texas Business and Commerce Code recognizes that a bank may issue a letter of credit. Section 5.102(a)(1) specifically provides that the scope of the chapter encompasses “a credit issued by a bank if the credit requires a documentary draft or a documentary demand for payment.” Furthermore, section 5.103(a)(1) provides in pertinent part:

“ ‘Credit’ or ‘Letter of Credit’ means an engagement by a bank or other person made at the request of a customer and of the kind within the scope of this chapter (section 5.102) that the issuer will honor drafts or other demands for payment upon compliance with conditions specified in the credit. . . .” Id. (Emphasis added).

By some estimates the “traditional credit” or “commercial credit” has been in use in one form or another since 1100 A.D., finding its impetus in the insecurity surrounding international sales of tangible goods. See Verkuil, Bank Solvency and Guaranty Letters of Credit, 25 Stan.L.Rev. 716, 716 n. 1 (1973). Since its genesis, however, the use of letters of credit has expanded far beyond this tangible-goods-in-sales context. One particular development has been the “standby credit” or “guaranty credit” whereby the issuer agrees to pay the beneficiary upon presentment of documentation indicating that the account party has defaulted on a payment obligation. Distinguished from the traditional credit, the standby credit is used primarily to finance or secure an underlying intangible or money indebtedness undertaken by the account party such as a promissory note. Although recognizing that there is no express statutory foundation, most courts and commentators have predicated their approval of standby credits on the basis of section 5.102(c) and comment 2 to that section which provide that Chapter 5 was not codified with the intent of “stultifying further development of this useful financing device.” See, e. g., Barclay’s Bank D.C.O. v. Mercantile National Bank, 481 F.2d 1224, 1231—32 nn. 8-12 (5th Cir. 1973), cert. dismissed, 414 U.S. 1139, 94 S.Ct. 888, 39 L.Ed.2d 96 (1974). Brummer v. Banker’s Trust, 231 S.W.2d 298, 299-30 (S.C.1977); Murray, Letters of Credit in Nonsale of Goods Transactions, 30 Bus.Law. 1103, 1112 (1974—75). See generally Tex.Bus. & Com. Code Ann. § 1.102(a)-(b) Comment 1 (Tex. U.C.C.1968).

Standby credits have also been recognized as an incident of the banking business by the Comptroller of the Currency, 12 C.P.R. § 7.1160(a)-(b) (1978), the Board of Governors of the Federal Reserve System, Id. § 208.8(d)(l)-(2), and the Federal Deposit Insurance Corporation, Id. § 337.2(a)-(b). Any troubling economic problems presented by a bank’s issuance of these credits appear to be resolved by applicable federal regulations. For exampié, standby credits are regarded as the functional equivalent of loans and are expressly made subject to the bank’s statutory lending limitations. Id. §§ 7.1160(b); 208.8(d)(2); 337.2(b). Additionally, Federal Reserve regulations require that the issuing bank undertake a credit analysis of the account party “equivalent to that applicable to a potential borrower in an ordinary loan situation.” Id. § 208.8(d)(2)(ii). Therefore, the risk to the issuing bank’s shareholders and depositors appears to be no more dangerous than the risk incurred by the making of a normal loan. See generally Note, Guaranty Letters of Credit: Problems & Possibilities, 16 Ariz. L.Rev. 822, 831-32 (1974).

It has been suggested that while a standby or guaranty credit may meet the formal requisites of a letter of credit, such an instrument is in substance a guaranty or suretyship contract and, thus, under traditional analysis beyond the bank’s power to issue. See, e. g., Comment, Recent Extensions in the Use of Commercial Letters of Credit, 66 Yale L.J. 902, 913-14 (1957). Although it is true that every letter of credit appears to function as a guaranty, there are several subtle but important distinctions. A true guaranty creates a secondary obligation whereby the guarantor promises to answer for the debt of another and may be called upon to perform once the primary obligor has failed to perform. Clymer v. Terry, 50 Tex.Civ.App. 300, 109 S.W. 1129, 1131 (1908, no writ); L. Simpson, Handbook of the Law of Suretyship § 6, at 10 (1950). Since a guaranty is ancillary to the underlying contract, a dispute as to the rights and obligations of the guarantor can only be resolved by a factual determination of the rights and obligations of the parties to the underlying contract. Asociacion De Azucareros De Guatemala v. United States National Bank, 423 F.2d 638, 641 (9th Cir. 1970). A bank that issues a credit, however, acts as a principal, not as an agent of the account party, and it engages its own credit. Tex.Bus. & Com.Code Ann. § 5.117 Comment 1 (Tex.U.C.C.1968). Thus, upon the issuance of a credit, the bank assumes a primary obligation independent of the underlying contract and engages that it will pay upon the presentation of documents required by the instrument. Id. §§ 5.114(a) Comment 1; 5.109 Comment 1; see Border National Bank v. American National Bank, 282 F. 73, 77-78 (5th Cir. 1922). If a conforming presentation of documents is made, the issuer of a credit is obligated to pay without reference to the rights and obligations of the parties to the underlying contract. Tex.Bus. & Com.Code Ann. § 5.114(a) (Tex.U.C.C.1968); Arnold & Bransilver, The Standby Letter of Credit— The Controversy Continues, 10 U.C.C.L.J. 272, 275 (1978).

The Fifth Circuit case of Barclay’s Bank, supra, presents a good illustration of this distinction in the context of a standby credit securing a purely monetary obligation. Allied Mortgage Company issued a credit in favor of the Barclay’s Bank providing that it would pay any indebtedness upon proper documentation that one Bay Holding Company had failed to pay Barclay’s on an underlying promissory note. At Allied’s insistence the Mercantile Bank issued a confirming credit in favor of Barclay’s. Bay Holding subsequently defaulted on the note and Barclay’s timely presented its documentary draft for the unpaid amount to Allied under its credit.- This draft was dishonored. Thereafter, Barclay’s presented a documentary draft to Mercantile under the confirming credit, but this draft was also dishonored. As a defense to Barclay’s subsequent suit to recover damages, Mercantile asserted that its obligation was a guaranty, and as such an ultra vires act of a national bank. The circuit court dismissed this argument on appeal and stated: “A confirming bank by confirming a credit becomes directly obligated on the credit to the extent of its confirmation as though it were its issuer.” 481 F.2d at 1236 (emphasis added) (quoting U.C.C. § 5-107(2)). From this analysis it follows that the issuer’s liability must also be direct. See id. at 1236; Note, Guaranty Letters of Credit: Problems & Possibilities, 16 Ariz.L.Rev. 822, 835 (1974).

This is not to say, however, that a national bank is without limit to issue instruments under the guise that they are credits. In Wichita Eagle & Beacon Publishing Co. v. Pacific National Bank, 493 F.2d 1285 (9th Cir. 1974) a letter of credit was issued in favor of certain lessors by Pacific National Bank providing that the bank would pay against a draft and documents indicating that the lessees had failed to complete construction of a parking garage. After default Wichita Eagle presented the draft and required documents but the presentment was dishonored. The district court held the instrument to be a valid credit but the circuit court reversed, holding that the instrument was an ordinary guaranty. The court noted that its disposition of the appeal was not predicated on the fact that payment was triggered by default, but rather, the instrument involved strayed too far from the basic purpose of a credit. Id. at 1286. Instead of requiring the mere examination of documents to ascertain liability, the credit required the bank to undertake actual determinations of fact regarding the underlying obligation. This, the court concluded, invited the very evil that letters of credit were designed to avoid —protracted, expensive litigation. Id. at 1286-87; see Intraworld Industries, Inc. v. Girard Trust Bank, 461 Pa. 343, 336 A.2d 316, 323 (1975).

We are persuaded by these authorities and therefore hold that under Chapter 5 of our commercial statutes the test of a true letter of credit may be stated as follows: The engagement is a letter of credit if the issuer has a primary obligation that is dependent solely upon presentation of conforming documents and not upon the factual performance or nonperformance by the parties to the underlying transaction. In construing the present instrument under this test, we note at the outset that letters of credit are governed by the construction rules of ordinary contracts. Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 465-66 (2d Cir. 1970); 6 Michie on Banks & Banking § 31, at 414 (1975 & Supp.1978). In Texas a writing is generally construed most strictly against its author and in such a manner as to reach a reasonable result consistent with the apparent intent of the parties. If two constructions are possible, a construction rendering the contract possible of performance will be preferred to one which renders its performance impossible or meaningless. Portland Gasoline Co. v. Superior Marketing Co., 150 Tex. 533, 535, 243 S.W.2d 823, 824 (1951); Monesson v. Champion International Corp., 546 S.W.2d 631, 631 (Tex.Civ.App.—Tyler 1976, writ ref’d n. r. e.).

Northwest’s instrument is labeled “IRREVOCABLE LETTER OF CREDIT.” Paragraph 6 expressly provides that Northwest will duly honor a draft properly drawn and in compliance with the terms of the instrument. Paragraph 2 requires that the draft state a proper recital along with the amount due and payable after default. Paragraph 5 lists the required documents to be attached. A fair and reasonable reading of paragraph 4 in relation to the rest of the instrument reveals that the purpose of the letter of credit is to pay principal, interest and attorney’s fees pursuant to the terms of the enclosed note. While it is true that the instrument refers to the underlying transaction, it has been held that such general references may be disregarded as surplus-age unless they impose some condition to the issuer’s liability. Pringle-Associated Mortgage Corp. v. Southern National Bank, 571 F.2d 871, 874 (5th Cir. 1978); West Virginia Housing Development Fund v. Sroka, 415 F.Supp. 1107, 1112 (W.D.Pa.1976). Nowhere does it appear that Northwest was required to go outside the presented draft and documents to determine its liability. To the contrary, the instrument contains only two conditions precedent to payment: (1) presentation of a properly drawn draft; (2) presentation of four specific documents.

Finally, we are not persuaded by Northwest’s argument that the present instrument is a guaranty because it secures an existing promissory note. Since by its very nature a letter of credit is a separate contract independent of the underlying transaction, it necessarily follows that there is no legal distinction between a letter of credit issued before, after, or concomitantly with the consummation of the underlying transaction. As aforementioned, the issuer of a true letter of credit creates a primary obligation dependent solely upon presentation of conforming documents. Wichita Eagle & Beacon Publishing Co. v. Pacific National Bank, 493 F.2d at 1286; Barclay’s Bank D.C.O. v. Mercantile National Bank, 481 F.2d at 1236; H. Harfield, Bank Credits and Acceptances 31 (5th ed. 1974).

Having fully considered the policy behind our commercial statutes along with all relevant authorities, we conclude as a matter of law that the instrument before us is a valid, intra vires, and enforceable letter of credit. The judgments below are reversed and judgment is rendered for Republic National Bank of Dallas.

GREENHILL, C. J., not sitting.

ON MOTION FOR REHEARING

Republic National Bank' and Northwest National Bank have both filed motions for rehearing. Republic argues that it is entitled to recover prejudgment interest under article 5069-1.03 based upon its petition in the trial court which contained a prayer for general relief seeking “other relief, both general and special, at law and in equity, to which it may show itself justly entitled.”^ This motion is granted. Northwest in its motion for rehearing reasserts that the letter of credit is unenforceable as a guaranty agreement. This motion is overruled.

Prejudgment interest is that interest calculated on the sum payable to the plaintiff from the time of his loss or injury to the time of judgment. It is recoverable as a matter of right where an ascertainable sum of money is determined to have been due and payable at a date certain prior to judgment. Phillips Petroleum Co. v. Stahl Petroleum Co., 569 S.W.2d 480, 488 (Tex.1978) (collected authorities); Black Lake Pipe Line Co. v. Union Construction Co., 538 S.W.2d 80, 95-96 (Tex.1976). One specific situation where prejudgment interest may be recovered is governed by statute. Article 5069-1.03 of our revised civil statutes provides in pertinent part:

When no specified rate of interest is agreed upon by the parties, interest at the rate of six percent per annum shall be allowed on all written contracts ascertaining the sum payable, from and after the time when the sum is due and payable . .

Tex.Rev.Civ.Stat.Ann. art. 5069-1.03.

Republic contends that its letter of credit falls within the purview of this statute and that it is entitled to prejudgment interest based on its general prayer • for relief. We agree. Texas courts have repeatedly recognized that under article 5069-1.03, an award of prejudgment interest may be predicated on a prayer for general relief if the plaintiff pleads and proves a written contract ascertaining a sum payable at a date certain prior to judgment. T J Service Co. v. Major Energy Co., 552 S.W.2d 598, 601 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n. r. e.); King Optical v. Automatic Data Processing of Dallas, Inc., 542 S.W.2d 213, 217 (Tex.Civ.App.—Waco 1976, writ ref’d n. r. e.); Liberty Mutual Insurance Co. v. General Insurance Corp., 517 S.W.2d 791, 799 (Tex.Civ.App.—Tyler 1974, writ ref’d n. r. e.); Combined Insurance Co. of America v. Kennedy, 495 S.W.2d 306, 308 (Tex.Civ.App.—Eastland 1973, writ ref’d n. r. e.); Tennessee Life Insurance Co. v. Nelson, 459 S.W.2d 450, 454 (Tex.Civ.App.—Houston [14th Dist.] 1970, no writ); Dunnam v. Dillingham, 345 S.W.2d 314, 319 (Tex.Civ.App.—Austin 1961, no writ). For example, in the Kennedy case the plaintiff brought suit against the insurance company after it discontinued disability payments under an injury and sickness policy. Judgment was for the plaintiff and the insurance company appealed, contending, among other things, that prejudgment interest was unauthorized under the plaintiff’s pleadings and prayer. The court of civil appeals disagreed. After noting that the contract in question fell within the purview of article 5069-1.03, the court held that prejudgment interest was properly awarded on a prayer that requested “such other and further relief, general and special in law and in equity, including costs of court, to which plaintiff shall be entitled.” 495 S.W.2d at 308.

This line of cases does not conflict with the rule set forth in Black Lake Pipe Line Co. v. Union Construction Co., supra at 96. In that case the plaintiff sought prejudgment interest as an element of damages in his quantum meruit action and not on the basis of a written contract under article 5069-1.03. Where prejudgment interest is sought at common law as an element of damages, the plaintiff must plead for it. Such is not the case where prejudgment interest is sought on the basis of a written contract fitting the description of article 5069-1.03. An award of this statutory interest, or interest eo nomine as it is known, may be supported by a prayer for general relief. Combined Insurance Co. of America v. Kennedy, supra at 308; Dunnam v. Dillingham, supra at 319.

This distinction was recognized in San Antonio & A.P. Ry. Co. v. Collins, 61 S.W.2d 84 (Tex.Com.App.1933, judgm’t adopted), where the court stated:

The suit being, not on the contract, because no labor was performed, but for damages . . . the Court of Civil Appeals therefore erred in holding that this suit comes within the terms of article 5070, [present article 5069-1.03] and interest should be allowed as a matter of legal right, although not alleged or prayed for, under a prayer for general relief.

Id. at 90 (emphasis added). Therefore, if the suit is on a written contract fitting the requirements of the statute, the award of prejudgment interest may be supported by a prayer for general relief. •

We hold that, under article 5069-1.-03, prejudgment interest may be awarded based on a prayer for general relief if the plaintiff pleads and proves a written contract ascertaining a sum payable on a date certain. In the present case Republic has plead and proved an enforceable letter of credit. The letter of credit and accompanying documents met the requirements of the statute in that no interest rate is stipulated, an ascertainable sum is stated, and a specific time for payment is provided. Northwest should therefore be required to pay the applicable prejudgment interest rate under the statute inasmuch as it had the extended use and benefit of the principal sum.

Republic’s motion for rehearing is granted and the judgment is reformed to reflect interest at a rate of 6 percent from March 8, 1971 to October 6, 1977. Northwest’s motion for rehearing is overruled.

GREENHILL, C. J., not sitting.

      . The United States Comptroller of Currency also acknowledges that National banks may issue letters of credit.
      A national bank may issue letters of credit permissible under the Uniform Commercial Code or the Uniform Customs and Practice for Documentary Credits to or on behalf of its customers. As a matter of sound banking practice, letters of credit should be issued in conformity with the following: (a) Each letter of credit should conspicuously state that it is a letter of credit or be conspicuously entitled as such; (b) the bank’s undertaking should contain a specified expiration date or be for a definite term; (c) the bank’s undertaking should be limited in amount; (d) the bank’s obligation to pay should arise only upon the presentation of a draft or other documents as specified in the letter of credit, and the bank must not be called upon to determine questions of fact or law at issue between the account party and the beneficiary; (e) the bank’s customer should have an unqualified obligation to reimburse the bank for payments made under the letter of credit.
      12 C.F.R. § 7.7016 (1978).
      The Comptroller explained the regulation thusly:
      Clarification was deemed desirable because some national bank issuers of letters of credit, believing the five standards listed in the previous ruling to be mandatory, have refused to honor drafts drawn under their letters of credit on the ground that the instrument failed to meet the Comptroller’s standards and was therefore not a “true letter of credit transaction.” As revised, the ruling makes clear that, while national banks for safe and sound banking purposes should issue their letters of credit in conformity with the ruling’s standards, the determination of a letter of credit’s legality and whether it should be honored is governed solely by statutory law, such as the Uniform Commercial Code, or by convention, such as the Uniform Customs and Practices for Documentary Credits.
      42 Fed.Reg. 24206 (1977).

      . See, e. g., Bossier Bank & Trust Co. v. Union Planter’s Nat’l Bank, 550 F.2d 1077, 1079-81 (6th Cir. 1977); Barclay’s Bank D.C.O. v. Mercantile Nat’l Bank, 481 F.2d 1224, 1231-32 (5th Cir. 1973); Baker v. National Boulevard Bank, 399 F.Supp. 1021, 1022 (N.D.Ill.1975); F. Beutel, Bank Officer’s Handbook of Commercial Banking Law § 19-55 (4th ed. 1974 & Supp. 1977).
      Under 12 C.F.R. § 7.1160(a) (1978) the Comptroller of Currency has defined a standby letter of credit as:
      [A]ny letter of credit, or similar arrangement however named or described, which represents an obligation to the beneficiary on the part of the issuer (1) to repay money borrowed by or advanced to or for the account of the account party or (2) to make payment on account of any indebtedness undertaken by the account party, or (3) to make payment on account of any default by the account party in the performance of an obligation.

        Id. In footnote 1 to this section the Comptroller further explained:
      [T]he term “standby letter of credit” does not include commercial letters of credit and similar instruments where the issuing bank expects the beneficiary to draw upon the issuer, which do not “guaranty” payment of a money obligation and which do not provide for payment in the event of default by the account party.

        Id. § 7.1160 n. 1. see id. § 208.8(d)(1) (similar definition provided by Federal Reserve Board); Id. § 337.2(a) (similar definition provided by FDIC).

      . In Harfield, Code Treatment of Letters of Credit, 48 Cornell L.Q. 92 (1962-1963) it was stated:
      A letter of credit always serves as a guaranty. This does not mean that it is a guaranty. A letter of credit is an identical twin to a guaranty, but the fact that the two things look alike and may be used for the same purpose and are difficult to distinguish one from the other does not mean that there are not differences, which, however subtle, are of major importance.

        Id. at 93 (footnote omitted).


author: ODOM, Judge.

text:
    Harold G. WELLS, Appellant, v. The STATE of Texas, Appellee.
    No. 55772.
    Court of Criminal Appeals of Texas, Panel No. 2.
    Jan. 17, 1979.
    Rehearing En Banc Denied March 28, 1979.
    Joe K. Crews, Tyler, for appellant.
    Bobby Phillips, County Atty., Carthage, Johnny McCollum, Asst. Crim. Dist. Atty., Marshall, for the State. -
    Before ODOM, PHILLIPS and DALLY, JJ.
   OPINION

ODOM, Judge.

This is an appeal from a conviction for driving while intoxicated; punishment was assessed by the jury at 21 days in jail and a $500.00 fine.

The sufficiency of the evidence is not challenged. Appellant contends the prosecutor made an improper comment in the presence of the jury implying an extraneous offense, and thai, the state produced evidence that appellant refused a breathalyzer test.

Regarding the alleged extraneous offense, the record rfeflects:

“THE COURT: Mr. Phillips you may arraign the Defendant.
“MR. PHILLIPS [Prosecutor]: Let’s see, are these all the papers—where is the—
“MR. McCOLLUM [Prosecutor]: This is the old one.
“MR. DAVES [Defense counsel]: Your Honor, may I approach the bench?
“THE COURT: Yes. Retire the jury.”

Appellant argues that the comment “This is the old one” conveyed to the jury the fact that appellant had been the subject of another charge. We consider the comment to be too ambiguous, taken in context, to carry such an implication. Furthermore, at counsel’s request, the jurors were instructed to disregard any statement they may have overheard. The ground of error is overruled.

In his other ground-of error appellant contends reversible error was committed when evidence was presented that he refused to take a breath test for intoxication after the arresting officer took him to the courthouse. Appellant relies on Dudley v. State, Tex.Cr.App., 548 S.W.2d 706, and Cardwell v. State, Tex.Cr.App., 243 S.W.2d 702, among other cases.

We do not construe the record to reflect a refusal to take the test such as to invoke the constitutional and statutory protections applied in those cases. These excerpts from the officer’s testimony show what occurred:

“On reaching the patrol office I requested that he take a breath test .
“I requested that he take a breath test, and Mr. Wells said he would. Attempting to give him the breath test the subject would never blow into the instrument. .
“He would just pretend like he would blow into it, just putting the mouthpiece up to his mouth and then putting his tongue over the end of it and he would just blow up his cheeks but he never would blow into the instrument . .”

This evidence did not tend to prove an inadmissible refusal to have the test administered. Instead, it shows appellant’s consent to have the test administered coupled with an attempt to avoid detection by only appearing to submit to the test and securing a false and favorable test result. His conduct was admissible as a circumstance indicative of guilt, much as flight and attempts to conceal incriminating evidence or elude officers carry such implications. Cf. Graham v. State, Tex.Cr.App., 566 S.W.2d 941, 951; Hodge v. State, Tex.Cr.App., 506 S.W.2d 870, 872 (on motion for rehearing). The ground of error is overruled.

By a supplemental brief appellant contends fundamental error occurred when the complete voir dire examination of the jury was not recorded by the court reporter even though he filed a motion requesting such a record be made pursuant to Art. 40.09(4), V.A.C.C.P. He relies on Cartwright v. State, Tex.Cr.App., 527 S.W.2d 535, and Ex parte Jones, Tex.Cr.App., 562 S.W.2d 469. Although the record does contain a motion for such a record, there is no indication that the motion was ever brought to the trial court’s attention. The mere filing of such a motion does not constitute “an affirmative request for the court reporter to take the record under Article 40.-09,” Presley v. State, Tex.Cr.App., 538 S.W.2d 624, 626, so as to invoke the rule of Cartwright and Jones. The motion must be called to the attention of the court before it will constitute an affirmative request. The ground of error is overruled.

The judgment is affirmed.