author: McMILLIAN, Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. James Edward LEWIS, Defendant-Appellant.
    No. 39546.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 8, 1978.

      Paul L. Dobberstein, St. Louis, for defendant-appellant. .
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., Jeffrey A. Cowin, St. Louis, for plaintiff-respondent.
   McMILLIAN, Judge.

Appellant James Lewis appeals from a judgment of conviction entered by the circuit court of the City of St. Louis, without a jury finding him guilty of arson of an occupied dwelling, § 560.010, RSMo 1969, and sentencing him to a term of five (5) years imprisonment.

For reversal appellant argues that the trial court erred in overruling his motion for judgment of acquittal because the evidence was insufficient to sustain a conviction. For the reasons stated below, we affirm the judgment.

From the evidence the court reasonably could have found the following: On February 24, 1977, appellant, homeowner Jeanette Davis, and a friend, Reginald Smith, were in Mrs. Davis’ home. Appellant and Mrs. Davis had an argument and Mrs. Davis asked appellant to leave the house. Shortly thereafter, appellant knocked on the door and shouted obscenities at Mrs. Davis. She refused to open the door. Approximately one-half hour later, Mrs. Davis and Mr. Smith smelled smoke. Mr. Smith ran into the kitchen, looked out the window, and saw appellant running from Mrs. Davis’ basement across the backyard. A fire investigator determined the fire to be the result of an act of arson.

Appellant testified in his own defense, to the following: that he had knocked over some paint and left the house to get some gas to clean up the paint; that he came back and knocked on the door but no one answered. Appellant further testified he saw two men in the Davis yard and chased them up the alley because he suspected they were prowlers.

Appellant contends that the trial court erred in overruling the motion for judgment of acquittal because the evidence was insufficient to sustain a conviction. To support a case of arson three elements must be proven by the state. First, a building was on fire; second, the fire was of incendiary origin; and third, the suspect participated in the commission of the crime. See, e. g., State v. Bunton, 453 S.W.2d 949, 952 (Mo.1970); State v. Adams, 537 S.W.2d 201, 202 (Mo.App.1976). Here the home in the present case was destroyed by fire; a fire investigator determined that the fire was of incendiary origin. Regarding the defendant’s participation in the crime, all that is necessary is that it could reasonably be found that defendant was present and could have committed the crime. The “. evidence need not demonstrate the impossibility of innocence . . . .” State v. Hatten, 561 S.W.2d 706, 711 (Mo.App.1978). “. . . Presence, companionship and conduct before, during and after the commission of an offense are circumstances from which participation in the criminal act may be inferred. . . . ” State v. Jones, 524 S.W.2d 186, 187 (Mo.App.1975).

In the instant ease, there is no question about appellant’s presence at the scene because as soon as Mrs. Davis and Mr. Smith smelled smoke, Mr. Smith testified that he rushed to the window and saw appellant running from the Davis basement where the fire originated. The circumstance coupled with the earlier argument and the vocal obscenities shouted out by the appellant are compelling circumstances pointing toward his guilt.

As the reviewing court, we must consider all the evidence and all reasonable inferences in the light most favorable to the state. Contrary evidence is to be discarded. State v. Hatten, supra, at 711; State v. Scott, 525 S.W.2d 410, 412 (Mo.App.1975). Applying this standard to the facts at hand, we find that there was sufficient evidence to sustain the conviction. Appellant quarreled with Mrs. Davis, threatened her and was refused re-entry to her home. Mr. Smith saw appellant running from the home. Appellant’s flight from the scene of the crime is relevant in determining the guilt. State v. Rutledge, 524 S.W.2d 449, 458 (Mo.App.1975). The fire investigator inspected the basement area and found a gas meter which suffered severe fire damage. There was a puncture mark in the top of the meter caused by a sharp object. This in itself would not, under the circumstances, start a fire unless ignited. There were rags hanging on the meter, one of which was combustible. The inspector felt that the hole was punched and lit immediately or the fire was set and the hole punched shortly thereafter. From these facts the court could reasonably have found that appellant participated in the crime.

Accordingly, the judgment is affirmed.

CLEMENS, P. J., and SMITH, J., concur.


source: Caselaw Access Project

author: CLEMENS, Presiding Judge.

license: Public Domain

text:
    Ulysses Simpson JAMES, Movant-Appellant, v. STATE of Missouri, Respondent.
    No. 39115.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 15, 1978.
    Crouppen, Walther, Zwibelman & Walsh, P. C., Roy A. Walther, III, St. Louis, for movant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, John M. Morris, III, Asst. Attys. Gen., Jefferson City, for respondent.
   CLEMENS, Presiding Judge.

Movant Ulysses Simpson James (hereafter defendant) pled guilty in 1973 to second degree murder and first degree robbery. He was sentenced to two concurrent twenty-year terms, with credit allowed for 321 days he had served while awaiting trial.

Defendant has now appealed denial of his Rule 27.26, VAMR, motion without an evi-dentiary hearing. His motion alleges: (1) his guilty pleas were induced by plea bargaining for a ten-year sentence, (2) he was denied effective assistance of counsel, and (3) the court erred in failing to credit him for three-fourths of the time served before his guilty plea.

Defendant’s first point has no merit. Counsel’s unkept promises do not render a guilty plea involuntary when the trial judge has informed defendant that promises made to him are not binding on the court. Mainord v. State, 541 S.W.2d 779[1, 2] (Mo.App.1976). Mainord presents an identical situation to the case at bar. There, movant alleged his guilty plea was involuntary because he relied on his attorney’s promise he would get a lesser sentence than he received. Movant also alleged his attorney instructed him to say nothing about the promise when questioned by the judge. The court, after noting the trial court twice alerted defendant that any promises made by others were not binding on the court, stated: “Even if backroom promises had been made to appellant, we are convinced that the questioning and statements by the trial judge thoroughly advised the appellant that all deals were no longer effective.” Mainord, supra, at [1, 2].

Here, the transcript shows the trial court directed three specific questions and warnings to defendant, who acknowledged he understood the court had made no promises as to punishment nor authorized others to do so, and that no recommendation would be binding on the court.

The record clearly indicates defendant was made fully aware of the consequences of pleading guilty. The trial court did not clearly err in denying this point. Further, as in Smith v. State, 513 S.W.2d 407[1] (Mo.1974), defendant was properly denied an evidentiary hearing because, even if un-kept promises had been made, the record indicates they did not affect the voluntary and knowing character of the pleas.

At the guilty-plea proceedings the court meticulously established defendant’s understanding of the state’s accusation (which defendant knowingly admitted), his rights to trial and confrontation and the consequences of pleading guilty. Defendant declared he was satisfied with his counsel’s services and advice, and was pleading guilty of his own free will because in fact he was guilty. We conclude the guilty pleas were voluntarily and understandingly made. Since the transcript refutes defendant’s contention, the trial court did not err in denying this ground without an eviden-tiary hearing. Haliburton v. State, 546 S.W.2d 771[1] (Mo.App.1977).

Defendant’s charge of ineffective assistance of counsel is also without merit. “Once a guilty plea is entered, a determination of the adequacy of counsel is immaterial except as it bears on the issues of volun-tariness and understanding . . . The test is whether the representation of an attorney reaches the level of adequacy so that the plea is voluntarily and understandingly made.” Baker v. State, 524 S.W.2d 144[4, 5] (Mo.App.1975). We have held, supra, that defendant’s pleas were so made, and the point is denied.

We turn to defendant’s third contention. Sections 221.180(4) and 216.355, RSMo.1969, provide that “three-fourths rules” apply to felons who have been imprisoned for that portion of their sentence. The rules do not apply to jail time awaiting trial, full credit for that being mandated by § 546.615, RSMo.1969, which defendant was allowed. Defendant’s third point was properly denied.

Affirmed.

SMITH and McMILLIAN, JJ., concur.

      . We note the recent decision of State ex rel. James v. Stamps, 562 S.W.2d 354 (Mo. banc 1978), holding a prisoner guilty of a graded felony, upon serving three-fourths of his jail sentence is eligible for good time credit.


author: GUNN, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Eddie Duke FLEMING, Defendant-Appellant.
    No. 39227.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 22, 1978.
    Roy A. Walther, III, Crouppen, Walther, Zwibelman & Walsh, P. C., St. Louis, for defendant-appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant was convicted of stealing a motor vehicle and sentenced by the trial court to eight years imprisonment. His sole point on appeal is that the trial court erred in instructing the jury that a reasonable doubt could be equated with a substantial doubt touching the defendant’s guilt. Judgment affirmed.

Defendant does not challenge the sufficiency of the evidence and for good reason. From the evidence a jury could reasonably find that two police officers accosted defendant while he was sitting behind the wheel of a partially stripped 1971 Plymouth station wagon. The officers ran a routine check on the license number and discovered that the car had been reported stolen earlier that same day. Based on that information the officers arrested defendant, informed him of his constitutional rights and took him to the precinct station. Shortly after his arrival at the police station defendant confessed to stealing the car. Defendant’s defense was that he was a heroin addict and was only stripping the car to get money for a fix.

Defendant was precluded from appealing his conviction in the first instance, because his attorney failed to file a timely notice of appeal. Defendant’s request for vacation of sentence by means of a 27.26 motion was granted on April 29, 1977, and he was re-sentenced at that time with credit given for the time already served. Motion for appeal was thereafter timely filed and the case has arrived before us for our consideration without further detour.

The portion of the instruction upon which defendant bases his appeal reads as follows:

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit, but a doubt to authorize an acquittal on that ground ought to be a substantial doubt touching the defendant’s guilt and not a mere possibility of defendant’s innocence.”

Defendant complains that the instruction deviates from MAI-CR 2.20, which became effective on January 1, 1974. At the time of defendant’s trial, December 5 and 6, 1973, the instruction which was given had Supreme Court approval and was absolutely proper. State v. Aikens, 507 S.W.2d 386 (Mo.1974); State v. Scott, 491 S.W.2d 514 (Mo. banc 1973). The use of the challenged instruction at defendant’s trial was not error.

Judgment affirmed.

KELLY and REINHARD, JJ., concur.


text:
    STATE of Missouri, Plaintiff-Respondent, v. William Ronald BASHAM, Defendant-Appellant.
    No. 38417.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Aug. 22, 1978.
    Lester W. Duggan, Jr., St. Charles, for defendant-appellant.

      John D. Ashcroft, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
   GUNN, Presiding Judge.

Defendant Basham was convicted by a jury on the charge of perpetrating a confidence game (§ 561.450 RSMo.1969) and was sentenced to two years imprisonment. On appeal, Basham claims that the information was defective; that the court erred in permitting witnesses other than the victim to testify concerning their transactions with him. Basham also contends that the evidence was insufficient to support his conviction. We reverse.

The evidence is detailed, perhaps fulsomely, as follows: Basham approached Henry Finck at his Audrain County farm and offered to paint his barn. A written contract was entered into whereby Basham was to paint Finck’s barn for vx,000 with additional amounts for paint and materials totalling approximately $1,600. Mr. Finck was to advance money for the paint and Basham would reimburse him for any unused portion. Mr. Finck testified that he thought the price fair and gave Basham a check for $614 to buy paint. Basham was to commence painting as soon as he had completed a work project for a neighbor, but he failed to appear except for a brief inspection of the job with a helper. Finck was unsuccessful in his efforts to reach Basham at his home on several occasions in order to prod him into initiating the work. On the final visit, Finck removed 27 gallons of paint from Basham’s property, which was to be used for the painting job.

In support of Finck’s testimony, the State presented the testimony of five other witnesses who related their experiences with Basham within the same general time frame as the episode involving Mr. Finck.

Delbert Brown testified that he had paid Basham $100 in advance to buy paint for work to be performed for him. Bad weather impeded him, but Basham did start and completed a substantial amount of work. Brown was dissatisfied with Basham’s performance but nonetheless negotiated with him for additional work and gave him a $200 advance to buy more paint. Brown finally halted Basham’s painting because he did not like his work methods. Brown later tried unsuccessfully to have him finish the project and did not pay anything for the labor on the completed portion.

Paris Craighead, Sr. testified that he gave Basham $100 to buy paint; that he appeared at Craighead’s farm only once and without any paint. After a lapse of about two months, Craighead reported the incident to the county prosecutor and received his $100, presumably from Basham.

Richard Erisman testified that he made two contracts with Basham. He paid him $175 for paint and labor in painting a barn roof and shed. After the roof and shed were painted and the work paid for, Bas-ham, at Erisman’s request, painted some barn doors and fence but failed to complete painting the house as contemplated, and Erisman paid only $100 for the work which was considered “fair for the amount of labor he [Basham] has done. . . . We kind of caught him up for his labor.”

Edward Busse related that he did not need any painting done but that he had asked Basham to put a new roof on his shed. He refused Basham’s request to pay in advance for the roofing materials but agreed to reimburse him when they were delivered. He paid $212 for shingles when they were brought to his farm, but Basham never did the work or attempt to collect the remainder of the agreed price.

Flavel Page testified that he advanced $400 to Basham for paint; that he brought ten gallons of paint to the Page farm but was never seen again.

Paul Purvis, the manager of a farm supply store in the area, stated that Basham had charged paint valued at $643.50 and related that he was doing work for Brown and Finck. Purvis said that he did not sell Basham the 27 gallons of paint which Finck ultimately took from Basham and kept for himself.

Basham objected to the admission of the testimony of Brown, Craighead, Erisman, Busse and Page on the ground that it purported to prove offenses other than the offense charged, but the court admitted the testimony to show “intent to cheat and defraud” by showing a common scheme in the defendant’s activities. Basham continues to press the point on appeal.

To sustain a charge under § 561.-450, the State must establish that the defendant had the intent to cheat or defraud at the time the false representations were made to cause the victim to part with his property. State v. Basham, 568 S.W.2d 518, (Mo. banc 1978). Otherwise, there is no element of deceit or fraud, and the defendant upon non-performance would be guilty of no more than breach of contract, not subject to criminal sanction. The subjective intent of the defendant at the time of making his promise is, of course, rarely open to direct proof. Therefore, the mens rea may be proved by means of circumstantial evidence. In particular, it has been held that in order to prove intent to defraud in a confidence scheme based upon a promise, the State may introduce evidence of similar incidents whereby the defendant obtained money from other victims by making the same sort of promise. State v. Weber, 298 S.W.2d 403 (Mo.1957). The theory which underlies admission of such evidence is that if a defendant consistently makes the same promise to a number of victims, and, after obtaining the victims’ money, consistently fails to perform, it may be fairly inferred from the pattern of behavior that no mischance could reasonably explain all the failures of performance. Thus, a strong presumption exists that the defendant must have intended not to perform in any instance and particularly in the situation in which he has been charged. Before this evidentiary strategy may be used, however, it is essential that the behavioral attributes of the other activities be unequivocal and sufficiently similar to the offense charged. State v. Klosterman, 471 S.W.2d 175 (Mo.1971).

We are constrained to hold that the evidence here is insufficient to support Bas-ham’s conviction. Craighead lost nothing. Basham not only produced supplies for Brown and Erisman but did a substantial amount of painting for them to the extent they hired him to do additional work. There were no complaints that Basham euchred them out of anything. In fact, the record indicates that in some instances Bas-ham was not fully compensated for work he performed.

The testimony of Busse argues most conclusively against the State’s case. Busse refused to advance any money for supplies. That should have concluded Basham’s efforts if he were a confidence trickster, but he did not object. He purchased the necessary supplies himself and had them delivered, receiving payment after delivery.

Page received only 10 gallons of paint for his $400 advance payment, which is so scant that if intent could be proven, a scheme based on such minimal performance might be considered a confidence game. See e. g., State v. Fields, 366 S.W.2d 462 (Mo.1963). But in State v. Basham, supra, a separate case against Basham, the Supreme Court specifically held that the testimony of Page was insufficient to show intent by Basham to cheat and defraud:

“The facts relied on by the state do not singly or collectively indicate that defendant [Basham] had the intent to cheat and defraud at the time he promised to paint the barns or when he received the check [Page’s check] for $400. Even considering defendant’s behavior after he received the check, which evidence the state claims is relevant and admissible to prove an earlier intent, there is insufficient evidence to sustain this conviction. The evidence merely raises a suspicion of guilt.” State v. Basham, supra.

The sum of the testimony does not resemble the clear cut, consistent scheme evident in the Weber case. It appears that none of the witnesses was totally pleased in his dealings with Basham, but that is not the crime with which he is charged. The testimony was offered as circumstantial proof from the witnesses’ experience that when Basham contracted to buy paint and do painting for Finck, he had no intention of fulfilling his promises but made the promise only to obtain Finck’s confidence in order to secure the $614 check. If he had done so with all the others, such an inference could be fairly drawn from his behavior with Finck. However, three of the four witnesses gave uncontradicted testimony that he either minimally or substantially performed upon his promises, at least to the extent of buying paint. Thus, the evidence does not support the desired inference. The evidence was consistent in showing that Bas-ham failed to perform the work involved in each of his contracts. But conviction cannot rest on that fact, because he did not ask for or receive advance payment from any of his customers for labor. His scheme, if he had one, had to depend on unearned profits from monies advanced for supplies.

The fundamental tenet on the admissibility of circumstantial evidence requires that the facts and circumstances must be consistent with each other and with the hypothesis of defendant’s guilt. They must be inconsistent with his innocence and exclude every reasonable hypothesis of his innocence. State v. Thoe, 565 S.W.2d 818 (Mo.App.1978). Applying this precept to the facts of this case, it is readily apparent that the circumstantial evidence supports a reasonable inference that the defendant was a rather shoddy businessman with little working capital, who procrastinated on his obligations and often failed to complete his jobs. Such an inference would support civil liability for breach of contract with his dissatisfied customers but not criminal liability for perpetrating a confidence game. The requisite intent not to perform is belied by the evidence that he usually did perform in some manner, however inadequately.

The cumulative effect of the circumstantial evidence of Craighead, Page, Erisman and Brown is such that an inference supporting Basham’s innocence can reasonably be drawn from it. The presumption of innocence is not, therefore, effaced. State v. Gonzales, 533 S.W.2d 268 (Mo.App.1976).

The evidence presented by the complaining witness Finck is insufficient to support Basham’s conviction. In the matter of intent, there is no evidence that he did not intend to do the painting on Finck’s farm. The circumstantial evidence of the other witnesses, except for Page, is not beneficial to the State’s case, as it showed that at least some of the time Basham did do painting; that he owned painting equipment and hired others to work for him. As mentioned, the Supreme Court held that Page’s testimony would not support a conviction. State v. Basham, supra. As to his promise to buy paint with the money advanced, the State produced ample direct evidence that he kept his promise. The 27 gallons of paint taken and retained by Finck were assorted according to the specifications for the job and apparently were purchased by Basham for that purpose. This is circumstantial evidence that he intended to do the painting on Finck’s farm. Additionally, the evidence given by Purvis that Basham actually purchased paint at a cost of $643.50 in addition to the 27 gallons retained by Finck is substantial proof of his general pattern of buying paint after having been advanced money to do so.

The State has failed to prove misrepresentation either in the promise to paint or in the promise to buy paint. These are the only promises made by Basham material to inducing Finck to advance money to buy paint. As the proof fails in that respect, it is insufficient to support the conviction. State v. Basham, supra; State v. Washburn, 549 S.W.2d 636 (Mo.App.1977).

The judgment of conviction is reversed.

WEIER and KELLY, JJ., concur.

      . Busse’s testimony was ultimately stricken as being too remote.

      . In a separate action, the State brought a confidence game charge against Basham on the Flavel Page transaction, relying only on the testimony of Page to make the case. Basham was convicted by a jury, but on appeal, the Supreme Court reversed finding the evidence insufficient to support the conviction. State v. Basham, 568 S.W.2d 518, (Mo. banc 1978).

      . The Criminal Code, effective January 1, 1979, includes within the stealing provisions of § 570.030, the appropriation of property by deceit, which is congruent with the current § 561.450 confidence game terms.


author: SWOFFORD, Chief Judge.

text:
    Fred M. COUNTS and Ladee Alice Counts, Respondents, v. Bernard H. MOODY and Vera M. Moody, Appellants.
    No. KCD 29088.
    Missouri Court of Appeals, Kansas City District.
    Aug. 28, 1978.

      Roy W. Brown, Kansas City, for appellants.
    John R. Moore, Moore, Lay & Deis, Platte City, for respondents.
    Before PRITCHARD, P. J., SWOFFORD, C. J., and DIXON, J.
   SWOFFORD, Chief Judge.

The respondents, owners of a tract of land in Platte County, Missouri, filed suit to quiet and determine title to a smaller tract lying to the east and contiguous to their land. They claimed ownership of the land by adverse possession. The appellants were the owners of a tract of land lying to the east of respondents’ and they also claimed ownership and title to the strip of land in dispute. The case was tried to the court below, without a jury, and judgment was entered in favor of the plaintiffs-respondents and the defendants-appellants appealed therefrom. The parties will be referred to here as they were below. For clarity, a sketch of the properties here involved and their relationship to each other is here incorporated in this decision.

[See following illustration]

The defendants rely upon a single point or assignment of error on appeal, the propriety of which is doubtful under Rule 84.-04(d) because it is merely an abstract statement of the law. The purport of defendants’ position here is that the court below erred as a matter of law in granting judgment to plaintiffs because they failed to establish by the evidence the necessary elements of adverse possession of the disputed land. This argument commits the defendants to the position that the evidence in this case, viewed in the light most favorable to the plaintiffs, does not, as a matter of law, establish any right in them to a judgment of title to the land by adverse possession.

This position requires a review of the evidence in somewhat complete summary. In so doing, the function to be performed here in the decision of this court-tried case is confined to an affirmance of the judgment below unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it represents an erroneous declaration or application of the law. Murphy v. Carron, 536 S.W.2d 30, 32 [1-3] (Mo. banc 1976).

In 1939, by contract, Lewis W. Law and his wife, Bertha May Law, acquired the property now owned by the plaintiffs. The plaintiffs are the daughter and son-in-law of Mr. and Mrs. Law. Both of the Laws were deceased at the time of trial, which commenced May 25, 1976. The Law contract was supplanted by a deed from their predecessor in title dated January 1, 1950. This deed described the land conveyed in metes and bounds followed by a general description that there were 12 acres in the tract. The parties to the conveyance believed for many years that it included all land up to a fence that was the east line of the property. Many years later, a survey disclosed that the metes and bounds description contained only 10.3 acres of land and did not include the 1.725 acres now in dispute, as shown on the attached sketch.

At the time the Laws acquired this property, their neighbors to the east were named Pierce. This property was conveyed to the defendants by deed on October 9, 1959. There was substantial evidence that during the years that the Laws and the Pierces were adjoining landowners and occupiers of their respective places, the fence line was considered by and treated as the boundary line between the two properties.

The Laws lived upon their property from the time of its acquisition in 1939 until their deaths. Mrs. Law, the survivor of the couple, died in February, 1975. The plaintiffs lived upon the land with the Laws for about six months in 1940. From 1940 to 1956, they visited the Laws at least once a week. They built a home on the property and the land was deeded to them by the Laws in 1968.

Across the north end of the disputed land a private driveway leads to the Law-Counts property from the county road, as shown on the sketch. The exact date this was established does not definitely appear, but it has apparently been in use for many years by the plaintiffs and their predecessors in title. It is significant to note that at the trial of this cause the defendants raised no objection that the title to the part of the disputed tract occupied by the driveway and triangular piece north of it could be quieted to plaintiffs.

The evidence was impressive that the Laws and the plaintiffs, over the years since 1939, claimed title to the disputed land and occupied and used it as their own. Law planted rose bushes along the west side of the fence; did repairs to the fence; had an oral agreement with both Pierce and the defendant Bernard Moody to share the maintenance of the fence; pastured livestock on the land; planted vegetable gardens, grapevines and trees thereon; mowed and cleared up the ground; paid taxes on it, based upon a 12-acre assessment; and that no one except the Laws and the plaintiffs have made any use of the land.

There was never any dispute about the fence being on the property line until the land was surveyed in 1969, and plaintiff, Fred Counts, asked the defendants to sign a quitclaim deed, which they refused to do.

The defendants acquired their parcel by deed in 1959 from Gladys Pierce. The defendant Bernard Moody’s testimony was principally directed at contradicting the testimony that the Laws and Counts had used and occupied the land, and affirmatively, that he had mowed the land west of the fence, or had it mowed “a few times” because he “thought it was his”. There is evidence that the last time he had done this was eleven years before the trial. He also stated he had made repairs to the fence. He always claimed some land west of the fence but didn’t know the exact location of the property line.

On cross-examination, however, he stated that he thought he must have some land west of the fence when plaintiffs wanted him to sign the quitclaim deed. It was then he thought he had some land “over there”. When he mowed the land eleven years ago that he was just “trying to be a good neighbor”; he was not claiming it then.

Further facts in this record, established by documentary evidence, should be noted.

Deeds in the chain of title of plaintiffs’ land dated from 1890 leading to and including the deed to the Laws in 1950 described the land as containing 12 acres. Also, the plaintiffs introduced paid property tax statements showing that they had, in fact, paid such taxes on 12 acres of land, which included the disputed property.

A suit to quiet title is a special statutory action to adjudge the respective estate titles and interests of the persons claiming the land. Gorman v. State High way Commission, 552 S.W.2d 335, 336 [2] (Mo.App.1977). A person who claims title to land by reason of prescription or adverse possession for the period prescribed by the statutes of limitation, Section 516.010 RSMo 1969, may maintain an action on title thus acquired and seek a decree that the legal title to such land be quieted in him. McRee v. Gardner, 131 Mo. 599, 33 S.W. 166 (1895).

Parties seeking to establish such a title have the burden of establishing all of the elements of adverse possession. These elements are clearly and consistently defined by the courts of this state as (1) the possession must be hostile, that is, under claim of right; (2) actual; (3) open and notorious; (4) exclusive; and (5) continuous, over the statutory period. Conran v. Girvin, 341 S.W.2d 75, 90 [14] (Mo. banc 1960) and cases cited therein. See also, Feinstein v. McGuire, 297 S.W.2d 513, 515 [1] (Mo.1957), and Franklin v. House, 533 S.W.2d 243, 245 [1] (Mo.App.1976). For the purpose of testing whether such burden has been met, acts which constitute adverse possession depend upon the facts of each particular case, and consideration is given to the nature and location of the property, the uses to which it is put, the intent of the parties and those under whom they claim, and all other facts and circumstances of the possession and use. Moise v. Robinson, 533 S.W.2d 234, 242 [12] (Mo.App.1975).

As above noted, the defendants’ single “Point Relied On” states the foregoing elements necessary to establish title by adverse possession in the abstract and states that the plaintiffs failed to establish these elements by proof “by a preponderance of the credible evidence”. The argument portion of their brief is only slightly less vague. A careful study of that portion of the brief discloses that defendants are really urging two principal arguments.

The first of these is apparently based upon the fact that the deed to the plaintiffs’ property described the land in metes and bounds; that such description did not include the disputed land; that the description therein did not refer to any monument (the fence line); and that in any event, the metes and bounds description takes “precedence over any so-called monuments (the old fence) * * * By this argument the defendants are merely asserting that the subsequent surveys disclosed that the deed description did not constitute a conveyance of the disputed land. The record herein shows that no dispute existed at the trial (nor here) as to this fact. The plaintiffs do not depend upon a deed or other conveyance to establish title. Rather, they assert title by adverse possession, which imparts to the problem here an entirely different complexion than a case where formal conveyances form the basis for the dispute, as was the case in Boxley v. Easter, 319 S.W.2d 628 (Mo.1959), upon which authority defendants rely in support of this argument. Such reliance is misplaced, and Boxley is inapposite here.

The second argument brought forward by defendants is that since the deed to the plaintiffs made no mention that 12 acres were being conveyed (which would include the disputed land) and such conveyance was made in 1968, the plaintiffs had not “held the property for the prescribed statutory period (ten years)” and, therefore, if they are to succeed to this disputed land by adverse possession, they must do so by tacking any adverse possession of their predecessors in title, the Laws. The defendants argue that since the Laws did not convey by their deed or transfer the disputed land by some act (by gift or otherwise) to the plaintiffs, any rights the Laws may have had by adverse possession could not be tacked onto the adverse possession rights of the plaintiffs in order to satisfy the statutory period of limitation. In advancing this argument, the defendants overlook some basic facts in this record which call into authoritative control a rule of law which departs to some degree from the usual rules regarding adverse possession.

It should be here noted that the fact that the Laws and the plaintiffs on the one hand, and the defendants and those under whom they claimed on the other hand, were unaware that the fence line encroached upon land owned by the defendants (and their predecessors in title) until the land was surveyed in 1969, would make the adverse possession of the Laws and the plaintiffs no less “adverse or hostile”. This term is a legal concept and to come within its ambit actual malice, hostility, indifference, or intent to take the property which belongs to another is not necessary. The intent to possess, occupy, control, use and exercise dominion over such property satisfies the legal concept. State ex rel. Edie v. Shain, 348 Mo. 119, 152 S.W.2d 174, 177 [5, 6] (1941).

The undisputed facts in the case at bar establish that the land in dispute was physically enclosed on the east by a fence and was physically an integral part of the plaintiffs’ property and possessed and used as such by the Laws and the plaintiffs continuously since 1939, a period of 36 years prior to the filing of this action. These facts call into application the principle stated in Auldridge v. Spraggin, 349 Mo. 858, 163 S.W.2d 1042, 1045 [11] (1942), where the court said:

“The fact that the strip was not expressly described in the deeds in plaintiffs’ chain of title does not affect plaintiffs’ claim of ownership. The rule appears to be where land adversely held is included in the same enclosure with land owned and conveyed by the grantor, the taking of possession by the grantee of the entire enclosed area creates a privity with the grantor as to the portion not conveyed. 1 Am.Jur., Adverse Possession, § 158. Thus, the possession of such a grantor becomes tacked to that of his grantee.” (Emphasis supplied)

In 3 Am.Jur. 2d, Adverse Possession, § 43, p. 132, it is stated:

“* * * If a fence is constructed as a boundary line fence between two properties and if the parties concerned claim ownership of the land to the fence during the statutory period without interruption in their possession or control during that time, they will acquire title by adverse possession to any land that was improperly inclosed with or added to the land they owned at the time the fence was constructed. * * *”

This rule was cited with approval by the Supreme Court in Crane v. Loy, 436 S.W.2d 739 (Mo.1969) which case also reaffirmed the above-quoted statement and the ruling in Auldridge v. Spraggin, supra, as to tacking.

Crane v. Loy, supra, involved a dispute as to the title to a strip of land enclosed by a fence with land owned by the party (a church organization) asserting ownership by adverse possession. This party thus claiming ownership had purchased land contiguous to the disputed strip, within the same enclosure, about two years prior to the litigation, but its predecessors in title had occupied the disputed strip for many years. Its immediate grantor had been in possession of the disputed strip for 26 years under contract and deed. Crane further held (adopting a statement from 5 Thompson Real Property, § 2541, pp. 507-510 [and adopted as a rule in Missouri in earlier cases cited in Crane]) l.c. 743:

“Adverse possession for sufficient time to bar an action to recover real estate confers title, against any title whatsoever, as effectively as if the original owner had made a formal conveyance to the possessor. It operates as complete investiture of title. A title acquired by adverse possession is as good as the best when established.”

Applying that rule to the Crane facts, the court stated, l.c. 743:

“The absolute title by adverse possession being thus established in the respondents’ predecessors the only problem is whether they have transferred that title and occupancy to Mr. John and the respondents. And that again as with adverse possession itself is a question of intention. * * * ” (Emphasis added)

Under this record there can be no doubt that it was the intention of the Laws to take the land within the enclosure and to use and occupy it over the 29 years prior to the transfer to the plaintiffs, and that they did, in fact, accomplish this intention continuously and without interruption. Neither can any doubt arise from this record that the plaintiffs entertained and accomplished the same intention when they took possession of the enclosed land in 1968. Under the principles of Crane, the Laws became vested with absolute title to the disputed strip long before 1968 and their rights became those of the plaintiffs by tacking.

This record establishes by substantial and convincing evidence that all of the elements of adverse possession were established and the burden of proof convincingly met, and the judgment will be affirmed.

However, there appears to be an omission or typographical error in the metes and bounds description of the judgment as it appears in the transcript before this Court. This is found at T-100, line 19, in the EXCEPT portion of the description where the word “East” is omitted before the last word in that line. Compare plaintiffs’ petition T-2, line 7.

The judgment is affirmed and the cause remanded to correct the legal description in the judgment, if necessary.

All concur.


text:
    STATE of Missouri, Respondent, v. Gertrude Alta DENNISON, Appellant.
    No. 39409.
    Missouri Court of Appeals, St. Louis District, Division One.
    Aug. 29, 1978.
    Mcllrath & Williams, Robert A. Mcllrath, Michael L. Maynard, Lenzie L. Leftridge, Jr., Flat River, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, J. Michael Davis, Asst. Attys. Gen., Jefferson City, Gary E. Stevenson, Pros. Atty., St. Francois County, Farmington, for respondent.
   CLEMENS, Presiding Judge.

Defendant Gertrude Alta Dennison was convicted by a jury of manslaughter (Sec. 559.070, RSMo.1969) and sentenced to ten years’ imprisonment. She has appealed and we affirm.

Defendant does not challenge the sufficiency of the evidence so only a brief factual recitation is necessary. Responding to a radio dispatch, police officer Jimmy Bayless arrived at defendant’s home, where he found a man lying on the floor and the defendant seated nearby. The man, defendant’s husband, Roy Dennison, was dead of a gunshot wound. Defendant told police Roy and her son had been arguing all day. Roy had obtained a shotgun and threatened to shoot her son; she “could not allow that,” so she wrestled the gun from Roy and shot him. Sheriff James Hickman testified he advised defendant of her Miranda rights, and she then admitted killing Roy because of an illicit sexual relationship between him and her daughter-in-law. She further said that she and her son had considered killing him earlier that day. Sheriff Hickman further testified defendant said she, Roy and her son had been drinking all day, arguments had broken out and Roy had threatened to kill her and her son.

Defendant first contends the trial court erred in allowing the assistant prosecuting attorney, James Pennoyer, to testify, because his right to testify was strictly limited to peculiar circumstances by the ruling in State v. Hayes, 473 S.W.2d 688[2, 3] (Mo.1971). The court in Hayes enunciated a general rule that “the right of a prosecuting attorney to testify in a criminal case ‘is strictly limited to those instances where his testimony is made necessary by the peculiar and unusual circumstances of the case.’ ” The court noted that a prosecutor who testifies should withdraw from the case and have other counsel prosecute it. The court adopted these general guidelines to maintain consistency with its own ethical canons which provided at the time of the Hayes’ case that when a lawyer is a witness for his client, he should “leave the trial of the case to other counsel.”

In Hayes the prosecuting attorney interviewed the defendant (to obtain a confession) while he was incarcerated in Nevada. He endorsed himself as a witness, testified in detail regarding the confession, handled the prosecution of the case and referred to his own testimony during closing argument. This extensive intrusion into the case was clearly prejudicial to the defendant.

The Hayes’ case is distinguishable from this one. Here, the assistant prosecutor testified while prosecuting attorney Stevenson conducted the prosecution. He joined discussions in chambers, but this could not have prejudiced the jury since it was out of the jury’s presence. Furthermore, Pennoyer’s testimony was limited to explaining a reference to what defense counsel had called a “script,” made during defense counsel’s cross examination of Sheriff Hickman. Defendant opened the door for this explanation by referring to the document as a “script” when he knew it to be a transcription of the Sheriff’s statement made in response to a discovery request by defense counsel. Defendant overlooks the initial statement in Hayes, l.c. 691, upon which we rely, that “the trial court may exercise discretion in determining to what extent and as to what matters he [the prosecuting attorney] may be permitted to testify.” We find the trial court properly exercised its discretion in allowing the assistant prosecuting attorney to testify for the limited purpose of explaining a collateral matter raised by defense counsel.

Defendant next contends the court improperly refused to allow cross examination of Pennoyer about defendant’s son, who had been endorsed as a state’s witness but not called to testify. Since this point was not “set forth in detail and with particularity” in defendant’s motion for new trial, nothing has been preserved for review. Rule 27.20(a); State v. Sykes, 559 S.W.2d 643[4] (Mo.App.1977). On our own motion we have reviewed the record and conclude the plain error rule is inapplicable since the court’s refusal to permit cross examination about the witness who did not testify did not result in manifest injustice or miscarriage of justice.

Judgment affirmed.

SMITH and McMILLIAN, JJ., concur.

      . Defense counsel was provided with a copy of the transcription in advance of trial.


author: STEPHAN, Judge.

text:
    Wardell H. PATTERSON, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. 39635.
    Missouri Court of Appeals, St. Louis District, Division Two.
    Aug. 29, 1978.
    Daniel W. Deiter, McQuie & Deiter, Montgomery City, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
   STEPHAN, Judge.

This is an appeal from the denial of appellant’s second Rule 27.26 motion without an evidentiary hearing, the first such motion having been denied by the Circuit Court of Montgomery County on November 18, 1976 also without an evidentiary hearing. No appeal was taken from the ruling on the first motion. Both motions were filed pro se and denied after the trial court entered findings of fact and conclusions of law. Appellant is represented before this court by appointed counsel. Appellant here seeks to vacate a judgment of conviction for second degree murder entered upon a jury verdict on July 19, 1973. The jury having been unable to agree on punishment, appellant was sentenced by the court to twenty-five years imprisonment. The conviction was affirmed. State v. Patterson, 516 S.W.2d 571 (Mo.App.1974). An earlier conviction for the same crime had been reversed and the cause remanded. State v. Patterson, 484 S.W.2d 278 (Mo.1972). We affirm the action of the trial court in denying the second Rule 27.26 motion.

In the second motion for post-conviction relief, the appellant alleged that the prosecutor wrongfully suppressed evidence relating to the appellant’s physical condition immediately after the killing and that the prosecutor elicited testimony which he knew to be false. Appellant also alleged ineffective assistance from the attorney whom he employed to defend him at the trial, in that he failed to call certain witnesses whom the appellant thought would be helpful to his case, failed to put the defendant on the stand as a witness on his own behalf, failed to conduct adequate pretrial discovery and adequate investigation, and failed to include in his appeal all of the points in the motion for new trial.

In the instant motion, appellant effectively concedes that he was aware of all of the facts alleged in the second motion at the time he filed his first motion and attempts to excuse his initial failure to raise the points by stating that he did not appreciate the significance of those facts at that time. In the appellant’s words:

“None of the grounds were raised in the prior proceedings. The Movant wasn’t knowledgeable of the law and wasn’t aware of these new legalities that are now being raised and he wasn’t aware that these legalities were unconstitutional. The movant didn’t know that these new grounds/allegations were unconstitutional until he read some laws of the United States that are in the law library at this prison.”

Appellant further contends that since he raised a question of law in his first motion, the trial court erroneously failed to appoint counsel for him at that time as required by Rule 27.26(h). Therefore, he cannot now be held to have waived the grounds he now alleges since counsel could have amended the first motion to include all of his grounds.

As best we can determine, the “question of law” raised in the first motion was appellant’s contention that the jury was improperly instructed with respect to the difference between second degree murder and manslaughter. The verdict-directing instruction relating to second degree murder required the jury to find that defendant intentionally caused the death of the victim by shooting him and that “defendant did not do so in sudden agitation provoked by violence committed by [the victim] to the person of defendant . . . ” The instruction conversing the verdict director told the jury that the defendant must be found not guilty of second degree murder unless the jury found “beyond a reasonable doubt that the defendant did not [intentionally kill the victim] in sudden agitation provoked by violence committed by [the victim] to the person of defendant and that the death of [the victim] was not a justifiable homicide as submitted . . . ” in another instruction not included in the record on this appeal. Appellant contends that such instructions do not conform to MAI-CR No. 6.06 and particularly the third paragraph thereof, which reads:

“that the defendant did not do so in (anger) (fear) (agitation) suddenly provoked by the unexpected acts or conduct of [name of victim], . . . ”

In ruling on this contention in the first 27.26 proceeding, the trial court correctly noted that the trial occurred on July 19, 1973 and that the use of the Missouri Approved Instructions-Criminal did not become mandatory until January 1,1974. Supreme Court Rule 20.01.

Initially we address ourselves to appellant’s contention that lack of legal knowledge prevented him from raising in the first motion the points he now raises. Rule 27.26(d) specifically prohibits the sentencing court from entertaining a second or successive motion grounded on a “new” allegation which could have been presented in the prior motion and places the burden on the movant “to establish that any new ground raised in a second motion could not have been raised by him in the prior motion.” Prior lack of legal knowledge has consistently been rejected as a cognizable excuse for failure to raise matters in the first Rule 27.26 motion. As was said in Careaga v. State, 552 S.W.2d 25, 27 (Mo.App.1977):

“In the case at bar, movant attempted to excuse his failure to raise his present contentions in the prior motion by alleging he ‘was not aware of the new grounds for relief’ until he met a fellow prisoner. However, ‘the bare allegation of “lack of legal knowledge” will not authorize a finding that appellant could not have previously presented the new ground in his first Rule 27.26 motion.’ Jones v. State, 521 S.W.2d 504, 506 (Mo.App.1975); accord, Grant v. State, 516 S.W.2d 69, 71[1— 3] (Mo.App.1974).”

See also Evans v. State, 545 S.W.2d 674 (Mo.App.1976). Appellant was possessed of the information upon which the second motion was based at the time he filed the first. Under such circumstances, it has been said that “the second motion should be dismissed.” Agee v. State, 562 S.W.2d 762, 764 (Mo.App.1978). (Emphasis added.) Cf. Newman v. State, 481 S.W.2d 3, 5[1] (Mo.1972) in which the dismissal of a second Rule 27.26 motion was affirmed where the movant, though aware of the facts on which it was based when he filed the first motion, had apparently developed new legal theories to support the second.

Appellant next argues that because he raised a question of law in his first motion, i. e., the claimed instructional error mentioned supra, counsel should have been appointed to represent him in connection with the first motion. If this had been done, appellant argues in his brief, “counsel would have learned of, and raised, some or all of the grounds raised by Appellant in the motion now at bar.” By convolutions of logic based upon speculation, appellant reasons that the only way he can be made whole for this claimed error is for an evi-dentiary hearing to be held now. We need not consider whether the instruction referred to in the first motion was erroneous or whether the claim relating to it presented a question of law under Rule 27.26(h) (thus requiring appointment of counsel) for the reason that the ruling on the first motion, not appealed, has long since become final. It is not the office of a Rule 27.26 motion to function as an appellate apparatus to attack alleged defects in a prior post-conviction proceeding. Neal v. State, 569 S.W.2d 388 (Mo.App.1978); Hamilton v. State, 548 S.W.2d 267 (Mo.App.1977); Duncan v. State, 524 S.W.2d 140, 142 (Mo.App.1975); Williams v. State, 507 S.W.2d 664 (Mo.App.1974).

The judgment is affirmed.

STEWART, P. J., and REINHARD, J., concur.


author: COOPER, Justice.

text:
    Cletus H. BENTON, Petitioner, v. Mary Stamper ANDERSON, Executrix of the Estate of Mae Beard Stamper, et al., Respondents.
    Supreme Court of Tennessee.
    Aug. 14, 1978.
    Robert L. McMurray, Bell, Painter, McMurray, Callaway, Brown & Mashburn, Cleveland, for petitioner.
    W. Keith McCord, McCord & Cockrill, P.C., Knoxville, James S. Thompson, Fin-nell, Thompson, Logan & Rogers, Cleveland, for respondents.
   OPINION

COOPER, Justice.

Mary Stamper Anderson, individually and as executrix of the estate of Mae Beard Stamper, filed an action against her sister, Ann Hines, and Cletus H. Benton seeking, among other things, to have the chancery court determine the validity of two long-term leases by which Mrs. Stamper leased to Mr. Benton acreage valuable for commercial development. Mrs. Hines filed a cross-action against Benton asking that the leases be declared void because of fraud or, in the alternative, that the leases be reformed to reflect what Mrs. Hines alleged was the true agreement of the parties— that is, that the development of the leased acreage was a “joint venture” between Mrs. Stamper and Mr. Benton. As a further alternative, Mrs. Hines asked that the leases be reformed to provide for the payment of a fair and equitable rental. Mrs. Hines also sought to recover additional rent for the past use of the property and attorneys’ fees.

Mr. Benton joined issue on all charges, and affirmatively pled laches and the six year statute of limitations.

On trial of the actions by oral testimony, the chancellor upheld the validity of both leases. In doing so, the chancellor specifically found that Mr. Benton was not guilty of fraud or overreaching. He also found that Mrs. Hines and Mrs. Anderson were guilty of laches.

Mrs. Hines and Mrs. Anderson appealed the chancellor’s decision to the Court of Appeals. Benton filed a motion to strike the bill of exceptions on the ground it was incomplete. The Court of Appeals overruled the motion and, in a comprehensive opinion, found that Mrs. Anderson and Mrs. Hines were not guilty of laches and that Mr. Benton secured the leases “through fraud ... by overreaching the position of confidence he held with Mrs. Stamper.” The Court of Appeals reversed the decree of the chancellor, declared both leases to be void, and remanded the cause to permit the chancellor to fix “the interests of the parties in keeping with the law and evidence in the case.” The Court of Appeals also directed the chancellor to hear such proof as necessary to determine whether or not Mr. Benton was entitled to any compensation for expenditures he had made on the leased property and, if so, how much.

Mr. Benton filed a petition for certiorari, taking issue with the action of the Court of Appeals in overruling the motion to strike the bill of exceptions, and with the findings by the Court of Appeals on reviewing the evidence in the bill of exceptions.

Petitioner insists that the bill of exceptions is incomplete in that

(1) the discovery depositions admitted into evidence were not made exhibits and authenticated by the chancellor, and

(2) the bill of exceptions lodged with the clerk and master pursuant to T.C.A. §27-110 contained none of the trial exhibits.

The record shows that all exhibits, including the discovery depositions taken by the parties, were in the possession of the clerk and master at the time the transcript of testimony was lodged in his office. The transcript bore the certification of the court reporter, and notice of filing of the bill of exceptions was given all parties. The Court of Appeals was of the opinion that, under these circumstances, the bill of exceptions was properly lodged with the clerk and master. See T.C.A. § 27-110. We agree.

Subsequently, and after ruling on objections to the bill of exceptions, the chancellor approved the bill of exceptions and authenticated the exhibits. The discovery depositions were not authenticated. The Court of Appeals, in overruling Benton’s motion to strike the bill of exceptions, held that authentication of the discovery depositions was not necessary to make them a part of the record for consideration on appeal, citing T.C.A. § 27-104 which provides that:

In equity causes removed to the Court of Appeals or Supreme Court by writ of error, or appeal in the nature of writ of error, the depositions read and exhibits introduced as evidence on the hearing below shall be a part of the record, and the cause shall be reviewed and examined as if brought up by appeal. * * *

In Wilson v. Tranbarger, 218 Tenn. 208, 402 S.W.2d 449 (1965), in striking a wayside bill of exceptions as being incomplete, this court pointed out that:

When this statute [T.C.A. § 27-104] is construed in pari materia with T.C.A. § 27-302 and T.C.A. § 27-303, it is obvious the statute applies only to cases tried on depositions and exhibits and not to cases tried on oral testimony before a jury, a trial judge or a chancellor. See Rose v. Third Nat. Bank, 27 Tenn.App. 553, 183 S.W.2d 1 (1944); Rose v. Brown, 176 Tenn. 429, 143 S.W.2d 303 (1940).

In Johnson v. Steele, 541 S.W.2d 795 (Tenn.App.1976), the Court of Appeals emphasized at page 798 that:

[W]hen depositions or parts thereof are read in open court, the words read should be preserved as part of the evidence (bill of exceptions), or the deposition itself should be designated by the Trial Judge as a legitimate substitute therefor.

The discovery depositions in this cause were neither copied in toto into the transcript, nor were they identified and authenticated by the chancellor. As a consequence, at this stage of the proceedings, the discovery depositions are not a part of the bill of exceptions and can not be considered by the appellate courts for any purpose. See Wilson v. Tranbarger, supra. However, the failure of the chancellor to authenticate the discovery depositions in this case is not, in our opinion, fatal to the appeal of Mrs. Hines and Mrs. Anderson.

The record shows that several of the discovery depositions were used extensively in testing veracity of witnesses. Where so used, the material parts of the depositions were included verbatim in the transcript. Near the close of the trial, the following colloquy between counsel and the chancellor occurred:

“Mr. McMurray: Could we take a break about now, your Honor.

THE COURT: Yes, sir. How much longer do you expect of this witness?

MR. McMURRAY: I expect probably another half hour or so.

(Whereupon, court was in recess for a few minutes.)

MR. McMURRAY: May it please the Court, in order to expedite this matter, I think we’ve agreed that rather than having to come back and read the — any discovery deposition or something like that, that either one of us can use any part of the discovery deposition we want to for — as part of their evidence in this case.

MR. McCORD: That’s right.

THE COURT: Let these discovery depositions be entered into the record then, and I trust that you’re entering them as proof, if need be.

Mr. McMURRAY: If need be.

THE COURT: And do either of you have any objection to the court reading them as proof, if need be ?

MR. McCORD: No, sir, your Honor.

THE COURT: All right. I trust that everything has been pretty well covered, but I—

MR. THOMPSON: Your Honor, I want to join in that stipulation.

THE COURT: Certainly.

MR. McCORD: I’ll join in that, too, your Honor.

THE COURT: I will state to you, in all confidence at this time, I do not intend to read these discovery depositions because I think I’ve heard a lot of proof, and if you have the record typed up, but nevertheless I wanted to be clear as to how you stand. All right. * * * [emphasis supplied]”

According to the bill of exceptions, the depositions referred to by counsel were not specifically designated as exhibits, were not assigned an exhibit identification number, and were not included in the bill of exceptions — this despite the lengthy hearing in the trial court relating to the filing of the bill of exceptions. We think a fair reading of the record, part of which is set out above, is that the material parts of the discovery depositions — the parts relied on by the chancellor in arriving at his decision — are included verbatim in the bill of exceptions. In short, the bill of exceptions is complete in all material respects without the discovery depositions.

It should be noted that had the discovery depositions been material to a decision in this cause and consequently had to be included in the bill of exceptions for it to be complete, the failure of the chancellor to authenticate the discovery depositions at the time he signed the transcript and authenticated the other one hundred six depositions would not be fatal, nor would it require that the bill of exceptions be stricken as being incomplete. Where, as in the instant case, a complete and correct bill of exceptions is lodged with the clerk within the specified period of time bearing “the certificate of approval of the parties or the certificate of the court stenographer,” and the trial judge fails to authenticate the bill of exceptions or exhibits included therein, he can do so on remand of the case for that purpose. As noted in Arnold v. Carter, Tenn., 555 S.W.2d 721 (1977), where the cause was remanded to have the chancellor approve the bill of exceptions,

T.C.A. § 27 — 110 provides that when any bill of exceptions has been timely filed, by either of the methods above discussed, the trial judge shall affix his certificate of approval thereon “as soon as practicable after the filing thereof” or after the expiration of the ten-day notice period, and this action of the trial judge “shall comprise the requisite authentication.” It seems to us that these provisions are clear, and that they both change and simplify the procedure under the former statutes and case law. The new statutes emphasize initially the timely filing of the bill of exceptions and describe the necessary steps. Authentication by the trial judge is, of course, essential, but it may now follow rather than precede filing, contrary to prior law. There is no specified number of days within which authentication must occur, so long as it is done “as soon as practicable” after the filing.
Since the failure of the trial judge to sign the bill of exceptions promptly was clearly an oversight or an inadvertence in the Arnold case, and inasmuch as the bill of exceptions in that case was timely filed with the clerk and approved by all parties, we are of the opinion that the Court of Appeals was in error in striking it. The Court should have remanded the record to the trial judge so that he could properly affix his signature. This, of course, would not be permissible in a civil case if the bill of exceptions were not properly and timely filed with the clerk in the first place.

As to the other issues, after a comprehensive review and analysis of the record in this case, we have concluded that the Court of Appeals correctly decided the issues presented on appeal; and, specifically, that that court was correct in its analysis of the evidence and in its conclusion that the evidence clearly shows that Mrs. Anderson and Mrs. Hines were not guilty of lach-es and that Mr. Benton secured the leases that are the subject of this action “through fraud ... by overreaching the position of confidence he held with Mrs. Stamper.”

Accordingly, the judgment of the Court of Appeals is affirmed. The case is remanded to the chancellor to carry out the judgment of the Court of Appeals. Costs are adjudged against Cletus H. Benton and his surety.

HENRY, C. J., FONES and HARBISON, JJ., and W. I. DAVIS, Special Judge, concur.


author: COOPER, Justice. HENRY, Chief Justice,

text:
    Max E. STINER, Appellant, v. Larry MUSICK, Calvin Byrd, Fred A. Mitchell, Robert M. Sams and Donna N. Thompson, Individually and in their Capacity as Members of the Jefferson County Election Commission and the Jefferson County Election Commission, Appellees.
    Supreme Court of Tennessee.
    Sept. 18, 1978.
    Franklin Park and John R. Conkin, Jefferson City, for appellant.
    A. Benjamin Strand, Jr., Strand & Goddard, Dandridge, for appellees.
   OPINION

COOPER, Justice.

This appeal turns on the question of whether a conviction and a six month sentence imposed in federal court disqualifies a person from holding office under this State.

In May, 1977, the appellant, Max Stiner, was convicted of aiding and abetting mail fraud as proscribed by 18 U.S.C. §§ 2, 1341 (1964), a felony under federal law. He was sentenced to six months imprisonment, which he served at the Federal Prison Camp at Maxwell Air Force Base, Maxwell, Alabama. On March 1, 1978, he filed with the appellees, the Jefferson County Election Commission, a petition which nominated him as a candidate for the office of Trustee of Jefferson County, subject to the Republican primary scheduled for May 2, 1978. The Election Commission refused to place the appellant’s name on the ballot, contending that he was barred from holding public office by the provisions of T.C.A. § 40-2714, which provides as follows:

Every person convicted of a felony and sentenced to the penitentiary, except for manslaughter, is also disqualified from holding any office under this State, [emphasis supplied]

The appellant brought this action, seeking to enjoin the appellees from refusing to place his name on the ballot for the Republican primary, and to obtain a declaratory judgment that he is not disqualified from holding office by virtue of T.C.A. § 40-2714. The chancellor found that he is disqualified, and this appeal ensued.

The statute in question sets forth two conditions, each of which must be satisfied before the penalty attaches: First, the individual must have been convicted of a felony, and, secondly, he must have been sentenced to the penitentiary. It is not clear what, if any, application the legislature intended T.C.A. § 40-2714 to have to persons convicted and sentenced under federal law. It is, for instance, less than obvious that “felony” and “penitentiary” as used in the statute may be construed so as to include felonies under federal law and penal institutions in the federal system, respectively. See T.C.A. § 41 — 101; Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9 (1948); State v. DuBose, 88 Tenn. 753, 13 S.W. 1088 (1890); Crothers v. Jones, 239 La. 800, 120 So.2d 248 (1960). Compare cases cited, Annot., 39 A.L.R.3d 303. This is particularly true given the difference in both the significance and the purpose of the commitment of a convicted felon to an institution denominated a “penitentiary” in the federal as contrasted with our state system. Compare, e. g, T.C.A. § 40-2703, § 41-101 with 18 U.S.C. §§ 4082, 4083. See also United States v. Ramirez, 556 F.2d 909 (9th Cir.1976). However, assuming that such a construction is possible, we nonetheless believe that the statute is not applicable to the appellant or to those similarly situated. As we noted above, for the prohibition of § 40 — 2714 to apply the individual in question must have been sentenced to the penitentiary. Implicit in this criterion for a person convicted in state court is the further condition that he be sentenced to a term of one year or more, for persons sentenced to a lesser term cannot be sentenced to the state penitentiary. T.C.A. § 40-2703. We cannot believe that the legislature intended that a greater disability should result from a conviction and sentence in federal court than could have resulted had the same sentence been imposed in a court of this State. Therefore, we hold that the civil disability imposed by T.C.A. § 40-2714 does not attach when a person is convicted of a crime in federal court and receives a sentence of less than one year.

In the instant case, the appellant was sentenced to a term of six months. Perforce, he is not barred from holding office under this State by the provisions of T.C.A. § 40-2714. In so far as it held to the contrary, the chancellor’s decree is reversed.

The costs of this cause will be taxed to the appellees.

HARBISON, J., and W. I. DAVIS, Special Judge, concur.

HENRY, C. J., and FONES, J., dissent.

HENRY, Chief Justice,

dissenting.

Section 8-1801, T.C.A., provides, in pertinent part:

All persons of the age of eighteen (18) years who are citizens of the United States and of this state . . . are qualified to hold office under the authority of this state except:
(1) Those who have been convicted of offering or giving a bribe, or of larceny, or any other offense declared infamous by law, unless restored to citizenship in the mode pointed out by law. (Emphasis supplied.)

Any final determination of the qualification of the appellant for public office cannot be made without consideration of this statute, which specifically prohibits an individual convicted of an offense “declared infamous by law” from holding office. Section 8-1802, T.C.A., provides that any person who takes office in this state, “being under any of the disqualifications specified in § 8-1801, is guilty of a misdemeanor.” To ignore the provisions of § 8-1801 in this case would be to assist in the violation of the laws of the State of Tennessee.

As set forth in the majority opinion “aiding and abetting mail fraud as proscribed by 18 U.S.C. §§ 2, 1341 (1964), [is] a felony under federal law.” It is also an infamous offense under federal law. Falconi v. United States, 280 F. 766 (6th Cir. 1922). Mail fraud, however, is a crime known only to federal law. It is not found among the crimes listed as offenses against the State of Tennessee and is not specifically denominated or excluded as an infamous offense under state law.

The crucial question then is whether the phrase “any other offense declared infamous by law” found in Sec. 8-1801(1) refers to or includes offenses declared infamous not only by the laws of this state but also by the laws of the federal government. I would hold that it does.

The language of the statute is clear. It does not provide any limiting or restrictive definition of the “law” by which an offense must be declared infamous.

Section 8-1801 is not a part of the laws of criminal procedure of this State as are Sections 40-2714 (upon which the Chancellor based appellant’s disqualification) or 40— 2712 (the infamy statute). It is a part of those statutes designed to regulate and protect the governmental integrity of this state. Such a provision is designed to protect the public interest by assuring that only those who meet certain minimum standards may indulge in the privilege of holding office in Tennessee. It is not a form of punishment but an attempt by the legislature to insure and preserve good government. See in general People ex rel. Taborski v. Illinois Appellate Court, First District, 50 Ill.2d 336, 278 N.E.2d 796 (1972); People ex rel. Symonds v. Gualano, 97 Ill.App.2d 248, 240 N.E.3d 467 (1968); State ex rel. Chavez v. Evans, 79 N.M. 578, 446 P.2d 445 (1968); Crampton v. O’Mara, 193 Ind. 551, 139 N.E. 360 (1923); State ex rel. Barrett v. Sartorious, 351 Mo. 1237, 175 S.W.2d 787 (1943).

It is this concept that distinguishes this case from those strictly construing Section 40-2712, T.C.A., the statute listing crimes considered infamous in Tennessee. As stated before, Sections 40-2712 and 2714 are part of the laws of criminal procedure of this state. They deal with the consequences of convictions in criminal actions and as such have been considered penal in nature and strictly construed. See e. g., Wilcox v. State, 50 Tenn. (3 Heisk) 110 (1871). A narrow construction of Section 8-1801, on the other hand, is not required and would defeat the purposes of the statute.

Section 8 — 1801 provides that any person convicted of an offense “declared infamous by law” is disqualified from holding office in this state. To hold that one who is guilty of a crime declared infamous by the laws of the United States is eligible to hold office, while holding that an individual guilty of a crime declared infamous by the laws of this State is ineligible, would be, to quote the language of the court in Crampton v. O’Mara, supra, 139 N.E. at 362, “anomalous, illogical and unjust.” It would be to make the place where a crime occurred rather than the nature of the offense the determinant of a candidate’s disqualification. See State ex rel. Wier v. Peterson, 369 A.2d 1076 (Del.1976). It would be contrary to the clear language of the statute.

I am bolstered in my opinion by the history of Section 8-1801(1). As it appeared in the Code of 1858, § 748, this section provided that individuals were not qualified to hold office if they had been convicted of any “offense declared infamous by the laws of this State.” (Emphasis supplied.) This language continued unchanged until the Code of 1932, § 1812, was enacted. At that time, this phrase, specifically requiring conviction of a crime declared infamous by the laws of Tennessee, was replaced with the present, more comprehensive language, the words “by law.” I can think of no other legislative purpose for this modification.

The appellant, having been convicted of an “offense declared infamous by Law” is disqualified from holding office in this state.

I would affirm.

I am authorized to state that Mr. Justice FONES concurs in this opinion.

      . Congress has passed several statutes that exclude persons convicted of specified offenses from holding a federal office. See Vand.L.Rev. 929, 990 for partial list of such statutes. However, the denial of the right to hold federal office is not a part of the punishment prescribed for conviction of the offense of aiding and abetting mail fraud. See 18 U.S.C. §§ 2, 1341 (1964).

      . See Collateral Consequences of Criminal Conviction, 23 Vand.L.Rev., 929, wherein it is pointed out on page 964 that “[b]oth the Model Penal Code and the Uniform Act on the Status of convicted Persons state that the forum should use its own laws to characterize crimes so that the civil disability statutes of the forum state are applicable to foreign convictions only if the offense in question is a disabling crime under the laws of the forum State.” Model Penal Code § 306.2(1) (Proposed Off. Draft 1962); Uniform Act on Status of Convicted Persons § 1 in Handbook of the National Conference of Commissioners on Uniform State Laws 295-97 (1964).

      . Burdine v. Kennon, 186 Tenn. 200, 209 S.W.2d 9 (1948); Wilcox v. State, supra.