author: SIMEONE, Presiding Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Timothy RUTLEDGE, Defendant-Appellant.
    No. 36237.
    Missouri Court of Appeals, St. Louis District, Division Three.
    June 3, 1975.

      James Wynne, Charles D. Kitchin, Richard A. Knutson and James C. Jones, Public Defender Bureau, St. Louis, for defendant-appellant.
    John C. Danforth, Atty. Gen., and Scott A. Raisher, Asst. Atty. Gen., Jefferson City, Brendan Ryan, Circuit Atty., and Neis C.. Moss, Asst. Circuit Atty., St. Louis, for plaintiff-respondent.
   SIMEONE, Presiding Judge.

This is an appeal by the defendant-appellant, Timothy Rutledge, from a judgment entered by the circuit court of the City of St. Louis, sentencing the appellant to twenty years in the Department of Corrections for the offense of robbery in the first degree by means of a dangerous and deadly weapon. §§ 560.120, 560.135, RSMo 1969, V.A.M.S. For reasons hereinafter stated, we affirm the j'udgment.

Since appellant does not question the sufficiency of the evidence, we will state only those facts necessary for the disposition of the appellant’s points on this appeal.

On the morning of April 28, 1973, Mr. Roger Niebruegge, manager, and three other employees, James Sieker, Sue Walker and Sarah Frank, were present in the Steak and Shake restaurant located at 9009 River-view Boulevard in the City of St. Louis.

At about 7:40 a. m., two men, each holding a gun, entered the restaurant. One of the men was tall (between 6' and 6'2") and the other was shorter (about 5'10"). The shorter man, later identified as the appellant, Mr. Rutledge, “stuck a gun” in Nie-bruegge’s ribs and said, “this is a hold-up.” Niebruegge turned and saw the man. The man told him to open the safe. Niebruegge went to the safe in the store, “[pjulled [money] out of the safe, and gave it to him, over my shoulder.” The amount taken was $200.00. The shorter person “wore a stocking cap over the top of his head,” which covered his ears, but Niebruegge could see his face — nose, eyebrows, eyes and mouth. The shorter person was “[r]ight next to me [Niebruegge.]” At the time the two men were in the Steak and Shake, Niebruegge looked at the shorter man’s face “five seconds, or so.”

At the time of the entry, James Sieker (referred to in the defendant’s brief as “Sie-ber”), a manager trainee, was seated at a booth and was told to remain seated by the other person who entered the restaurant. As Niebruegge and the shorter person went to the safe, Sieker could see a “side view” of the robber’s face, and after the person obtained the money from the safe Sieker was able to see the other side of the shorter man’s face.

After taking the money, which was put in Niebruegge’s briefcase, Niebruegge was instructed to lie down on the floor. Sarah Frank, an employee who was sitting at the counter, saw the man grab Niebruegge by the arm. She went to the booth where Sieker was and put her head down on the table because she was so scared all “I could do was cry.” Sieker attempted to calm her. Sue Walker, the kitchen or “set up lady,” was also requested to lie on the floor.

The whole episode took about five minutes. After the men exited, Niebruegge got up, saw the two men pull off the parking lot in a LeMans Pontiac, and Nie-bruegge jotted down the license number. Sieker got into his car and attempted to follow the car, which he located some distance away on Duenke Road.

Niebruegge called the police and gave a description of the two men. He described the men; he described the shorter man, giving a description of his weight (160-170), his age (mid-twenties), build, race, clothing and complexion. When Sieker returned to the restaurant, he too described the two men — weight, height, age, clothing, etc.

On several occasions after the robbery on April 28, 1973, the police showed Nie-bruegge and Sieker several photographs to determine if they could identify the men who held up the restaurant. On each occasion, they were shown some two to six photos. Finally, on May 29, 1973, Officer Robert Priest came to the restaurant with some photographs, and both Niebruegge and Sieker separately identified the defendant as the shorter of the two who entered the restaurant and took the money. Nie-bruegge first looked at the photos, which were black and white with no identifying marks relating to names, heights, weights or ages. He identified defendant independently of Sieker. The photograph identified as the defendant by both Niebruegge and Sieker showed no mustache worn by the defendant. Sieker was not present when Niebruegge identified defendant from the photo, but was “working on the line, up front . . . Sieker also viewed the photographs outside the presence of Niebruegge and recognized one of the photos as the shorter of the two men who entered the restaurant. He was “certain that [he] was the shorter of the two robbers.” There was no discussion between the officer and the two victims.

Nothing then occurred until August 20, 1973. On that date, Officers Fred Armes and his partner Ronald Roach, together with an F.B.I. agent, saw Rutledge in his El Dorado Cadillac “[c]oming out of a driveway in the 10000 block of Belfontaine Road.” “We recognized the car and the driver, and we immediately pulled out of the driveway behind him, and he accelerated at a high rate of speed north.” When the car accelerated, the officers activated the siren. Rutledge’s car went on to 1 — 270 and attained speeds of 90 to 95 m. p. h. and speeded east toward Illinois. As it approached the bridge, the Cadillac crossed the median, made a U-turn and headed west. The officers did the same. As they were making a turn, the officers fired a shot. Rutledge swerved down the highway for “possibly a hundred yards and pulled over and stopped.” In the Cadillac was Rutledge, his wife and their six-month-old baby.

Rutledge was taken into custody and conveyed to headquarters where a lineup was held with three other men. Niebruegge and Sieker, independently, viewed the lineup and recognized Rutledge as the shorter of the two men who came into the restaurant on April 28, 1973. At the lineup, Rutledge had a mustache. On the day of the robbery, Niebruegge testified that he did not have a mustache, but at trial Nie-bruegge was “certain” that Rutledge was the shorter of the two on that April day. At trial Niebruegge was “certain that he was one of the robbers.”

Niebruegge viewed the lineup first outside of the presence of Sieker, and then Sieker viewed it. Niebruegge recognized the shorter of the two men who had come in the restaurant as one of the holdup men, although at the lineup he had a mustache. Sieker viewed the lineup and recognized just one person as one of the “robbers that robbed us that morning” — “ft]he shorter one.” There was no communication between Niebruegge and Sieker between the viewings, and the officers conducting the lineup — Armes and Roach — never indicated whom they should identify.

Eventually, appellant was charged with a prior conviction and with the robbery which occurred on April 28, 1973. Trial began on February 28, 1974. At trial, Niebruegge identified Rutledge as one of the men who entered the restaurant and took the money. He was “positive and certain.” Sieker also was “positive and certain” that Rutledge was one of the individuals who took the money on April 28, although on that date he had no mustache.

The defendant’s defense consisted of testimony of his wife, Diane Nelson, who was also known as Diane Rutledge, Diane’s brother-in-law, Terry Mitchell, Diane’s mother and a neighbor, Tony Carr.

Diane testified that on April 28, Rutledge awoke early in the morning and went fishing with Terry Mitchell in Festus. Diane also testified that she was in the car on 1-270 on August 20, 1973, when it was speeding 90 to 95 m. p. h. but didn’t hear a siren and didn’t know why they were speeding, although she and the baby were on the floor. Terry Mitchell also stated that he and Rutledge went fishing and stayed until about midday. The thrust of the testimony of all these witnesses was that Rutledge had always worn a mustache from about November or December, 1972, and had a mustache in April 1973. Photographs of Rutledge taken during this period showing him with a mustache were introduced.

The State, in rebuttal, introduced the testimony of Officer William Miller. He testified that one week prior to the robbery, he saw Rutledge run a stop sign and gave him a traffic ticket. At this time, he said, Rutledge did not have a mustache.

Prior to rebuttal testimony, evidence was taken on the appellant’s two pretrial motions to suppress identification. Appellant moved to suppress (1) “any identification-testimony by the State’s witnesses on the grounds that it would rest on a pre-trial confrontation which was unnecessarily suggestive and conducive to an irreparable mistaken identification,” and (2) the in-court identification, because the lineup “did not contain a sufficient number of similarly appearing individuals so that by reason of physical characteristics the defendant was chosen by reason of his individuality rather that [sic] the knowledge of the witnesses as to appearance of the suspect,” and by reason of the lineup, “the witness or witnesses who will identify the defendant in Court will base their identification on their memory of the identity of the defendant at the lineup rather than their memory of the identity of the individual who committed the offense.” At the evidentiary hearing on the motions, Rutledge testified he was not advised of his rights to be in a lineup or to have an attorney present and he requested an attorney. No facts were presented as to how the confrontation was unduly suggestive.

The court gave a number of instructions including a circumstantial evidence instruction and a “flight” instruction.

During the first half of the closing argument of the prosecutor, the prosecutor referred to the photographic identification. He said, “Then, a month later both of these individuals [Niebruegge and Sieker] without any suggestion on the part of Sgt. Priest, identified this same man out of á set of mug shots they had been shown. . . ” No objection was made.

In the closing half of the argument, the prosecutor stated, “The question here is, are these people who testified before you, positive? Are they certain? Did they have the means at hand to view this man and later identify him. They looked at mug shots . .” (Emphasis added). Defense counsel objected and said, “Your Honor.” The prosecutor then immediately said, “Excuse me. They looked at photographs.” (Emphasis added). The court sustained the objection, the jury was instructed to disregard the reference, but the court denied counsel’s motion for mistrial. The prosecutor made one further reference to “mug shots — pardon me, out of the photos.” Again, counsel objected, which was sustained; the jury was instructed to disregard it, but a motion for mistrial was denied.

During the closing argument, the prosecutor also argued:

“When he’s finally arrested, he has his wife lie on the floor of the car, while he is chased down the highway, runs down the highway in a car; a Cadillac, El Dorado, doing 90 to 95 miles an hour. Sure, he has great concern for his wife, Diane, Diane Nelson and his child when he is doing that. He wants you to have greater concern for him and his wife now. He is a man who looks like a man, he walks like a man, he talks like a man. He is old enough. He’s been around long enough to know — ”

The jury found the defendant guilty. The court, after overruling a motion for new trial and granting allocution, sentenced the defendant to twenty years. Defendant was granted leave to appeal as a poor person.

On this appeal, appellant contends that the court erred in (1) “overruling the defendant’s pretrial motion to suppress the in-court identification testimony of Mr. Nie-bruegge and of Mr. Sieber [sic], because that identification rested on pre-trial confrontations which were unnecessarily suggestive and conducive to irreparable mistaken identification”; (2) “overruling defendant’s motions for a mistrial and objections to the prosecuting attorney’s closing argument because [it] was highly prejudicial, inflammatory, and conveyed to the jury that defendant had a prior criminal record”; and (3) in giving the “flight” instruction because it constituted an improper comment and because the instruction is not authorized by MAI-CR.

As to the first point, while recognizing that both “Mr. Niebruegge and Mr. Sieber [sic] separately viewed the line-up [emphasis added],” appellant argues only that because of the “photographic identification procedure and the line-up confrontation, both witnesses based their in-Court identification on their memory of the identity of the defendant in the photograph and at the line-up, rather than their memory of the identity of the individual who committed the offense.” He relies on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

He does not, however, favor us with facts as to how, and in what way the photographic and lineup procedure was impermissible or conducive to irreparable mistaken identification, other than the in-court identifications are based on memory of the photograph and lineup procedures. But appellant contends that the identification procedures — photographic and lineup — were impermissible and caused a misidentification. We garner from his contentions that each of the persons, other than defendant, wore a narrow wrist-band on his wrist, and the fact that defendant had a mustache made the lineup suggestive.

I

The principles relating to due process protection against the admission of evidence derived from allegedly suggestive identification procedures are now well-settled and have been explicitly set forth by the United States Supreme Court and by the highest court of this state.

In Stovall v. Denno, supra, the Supreme Court held that the defendant could claim that the “confrontation conducted was so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process of law.” 388 U.S. at 301-302, 87 S.Ct. at 1972. Whether the identification procedures are so unnecessarily suggestive is to be determined from the “totality of the circumstances.” Stovall, supra; Simmons v. United States, supra. In Simmons, the Court stated that:

“[W]e hold that each ease must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misiden-tifieation. This standard accords with our resolution of a similar issue in Stovall v. Denno, 388 U.S. 293, 301-302, 87 S.Ct. 1967, 1972-1973, 18 L.Ed.2d 1199, and with decisions of other courts on the question of identification by photograph.” 390 U.S. at 384, 88 S.Ct. at 971.

As stated in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), certain guidelines emerge from the eases. The primary evil to be avoided is “a very substantial likelihood of irreparable misidentification.” Simmons, supra, 390 U.S. at 384, 88 5.Ct. at 971. “It is the likelihood of mis-identification which violates a defendant’s rights to due process . . . . Suggestive confrontations are disapproved because they increase the likelihood of misidentifi-cation.” The central question is:

“[WJhether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive. . . . [TJhe factors to be considered in evaluating the likelihood of misidentifieation include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” 409 U.S. at 198, 199, 93 S.Ct. at 382.

In Neil v. Biggers, there was a lapse of seven months, but the Court held that in view of the reliability of the identification the identification was not impermissible.

In Missouri, the Stovall-Simmons test to determine whether identification procedures are impermissibly suggestive is stated in numerous decisions. State v. Tidwell, 500 S.W.2d 329, 331 (Mo.App.1973); State v. Cole, 519 S.W.2d 370, 372 (Mo.App.1975); State v. Parker, 458 S.W.2d 241, 244 (Mo.1970), and State v. Ealey, 515 S.W.2d 778, 779-780 (Mo.App.1974). Whether due process is violated is to be evaluated in the light of the totality of the circumstances. State v. Boothe, 485 S.W.2d 11, 13 (Mo. banc 1972). Each case must be considered on its own facts, but consideration should be given to (1) the presence of an independent basis of identification, (2) the absence of any suggestive influence by others and (3) a positive courtroom identification. See also State v. McIntosh, 492 S.W.2d 843, 846 (Mo.1973), and State v. Gay, 523 S.W.2d 138 (Mo.App., St.L.D., 1975).

Furthermore, it is no longer open to argument in this state that even though the photograph or lineup identification is tainted or in some way suggestive, where there is an untainted positive in-court identification made upon a factual basis independent from such photographic or lineup procedures, such in-court identification is proper. State v. Ealey, supra, 515 S.W.2d at 780; State v. Ealey, supra, 519 S.W.2d at 320.

Tested by all these legal principles, we are convinced that under the facts of this case the identification procedures as to both the identification of the defendant from the photographs and the lineup were not impermissibly suggestive so as to give rise to a substantial likelihood of misidenti-fication. As to the photographs, Officer Priest, who displayed the photographs to Niebruegge and Sieker, in no way channeled their thinking or made any suggestions. Officer Priest, on May 29, merely stated that he had some photographs to show them. There were no identifying marks on the photos. Each witness viewed the photographs independently. No communications occurred between them. Each identified the defendant as the shorter of the two men who entered the restaurant on April 28, 1973.

As to the lineup, there was no impermis-sibility. After the chase and at the lineup, each victim viewed the lineup separately. Each identified the defendant. The police officers conducting the lineup made no suggestions to either witness. The other three men in the lineup from the photograph we viewed appear similar in size, build, age and race.

The fact that each of the three men had on a wrist-band is not decisive. When questioned on this point, Sieker stated that he did not notice them. None of the officers influenced the witnesses as to who should be picked out. Sieker picked out the defendant “because he was the robber.”

In fact, the lineup seemed to be weighted in favor of the defendant, since the two eyewitnesses stated that the shorter person had no mustache at the time of the incident in April, but appellant was the only participant in the lineup with a mustache.

Furthermore, because of the presence of an independent basis of identification, we are convinced that the in-court identifications by Niebruegge and Sieker were properly permitted and the court did not err in denying the defendant’s motion to suppress identification. State v. Cole, supra; State v. Mentor, 433 S.W.2d 816, 820 (Mo.1968); State v. Hampton, 509 S.W.2d 139, 141 (Mo.App.1974); State v. Taylor, 456 S.W.2d 9, 10 (Mo.1970).

Niebruegge could see the shorter person’s face; he saw the person well enough to give a description. The stocking cap did not cover the shorter person’s face but just his ears. Sieker also observed both sides of the face.

In short, where the witnesses saw the assailant during the course of the robbery, where they gave a reasonable description of him to the police, where they each were able to select the defendant’s picture from a collection of photographs, and where they each, without suggestions from officers, identified defendant in the lineup, there was an ample basis for the in-court identification of the defendant having a source independent of any allegedly tainted identification procedures. State v. Taylor, supra; State v. Cole, supra.

Based on the law and the record in this case, we are convinced the trial court did not err in overruling the defendant’s pretrial motions to suppress the identification.

II

As to the appellant’s second point, the appellant contends that the prosecutor’s argument concerned “prior convictions” apparently because the prosecutor used the term “mug shots” and that the defendant had “been around long enough to know . .” He contends that these comments were “highly prejudicial and conveyed to the jury that defendant had a prior criminal record.” He also contends that the reference to the defendant and his wife traveling in the automobile at high speed arouses a personal “hostility toward or personal fear of the defendant.”

He therefore contends that the trial court should have sustained his motion for a mistrial.

The declaration of a mistrial is a drastic remedy and should be exercised only in extraordinary circumstances where the prejudicial effect of the incident is so grievous that it can be removed in no other way. State v. Heather, 498 S.W.2d 300, 303 (Mo.App.1973). Whether remarks of counsel re-quire a mistrial and the discharge of the jury rests largely in the discretion of the trial court which is in a much better position than the appellate court to evaluate the prejudicial effect and the possibility of its removal by action short of mistrial.

While we do not condone the two references to “mug shots,” we cannot say that the trial court erred in denying the motion for mistrial. The jury was instructed to disregard the references, and in the context, the prosecutor quickly corrected himself. On each of two occasions, the prosecutor corrected himself, even prior to the court’s ruling. He made no reference to a prior arrest. A closing argument need not have the polish and exactness of a scholarly address. Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 1873, 40 L.Ed.2d 431 (1974).

Furthermore, we are not convinced that a reference to “mug shots” indicates the commission of separate crimes. Cf. State v. White, 495 S.W.2d 448, 449-450 (Mo.App.1973); Annot., 30 A.L.R.3d 908 (1970). The context in which the term was used was in the identification from photographs and not that the defendant had committed other offenses.

The remarks concerning that “he’s been around long enough to know” are not a reference to a prior criminal record. Merely because a person has been around does not connote a prior criminal record.

Appellant argues that the statements of the prosecutor which indicate he had little concern for his wife and baby showed hostility toward him. We disagree. The trial court has wide discretion in determining the latitude in permitting argument of counsel, and we will not reverse unless there has been an abuse of discretion. As long as the prosecutor stays within the record and its reasonable inferences, his argument is legitimate. State v. Taylor, 508 S.W.2d 506, 514 (Mo.App.1974). The remarks were within the record and showed no personal hostility toward defendant such as is found in other decisions. These remarks certainly do not rise to the level of remarks in State v. Heinrich, 492 S.W.2d 109 (Mo.App.1973), relied upon by the appellant. The comments regarding defendant’s “concern” for his wife were an inference deducible from the facts in evidence.

Lastly, appellant complains that the court erred in giving the “flight” instruction. We disagree.

Defendant argues that since the flight was not from the scene of the crime and did not occur “promptly” after commission of the offense, a flight instruction was not warranted. Defendant’s flight from pursuing police officers occurred almost four months after the robbery and began in an area other than that of the robbery scene.

Unexplained flight is a relevant circumstance in connection with guilt or innocence. Flight may be either from the scene of the crime or elsewhere if it is in order to avoid arrest or prosecution. Remoteness of the flight — in space and time— from the scene and time of the alleged crime goes only to the weight of the evidence and not to its admissibility. State v. Coleman, 441 S.W.2d 46, 53 (Mo.1969). In State v. Ball, 339 S.W.2d 783, 91 A.L.R.2d 1042 (Mo. banc 1960) our Supreme Court held that unexplained flight, even thirty days after the supposed commission of a crime, is a relevant circumstance to be considered.

Furthermore, our Supreme Court has long held that a flight instruction is proper and is not a comment on the evidence. State v. Griffin, 87 Mo. 608, 613 (1885); State v. Jordan, 306 Mo. 3, 268 S.W. 64, 70 (banc 1924); State v. Meininger, 306 Mo. 675, 268 S.W. 71, 76-77 (1925); State v. Bryant, 361 Mo. 318, 234 S.W.2d 584, 586 (1950); State v. Coleman, supra, 441 S.W.2d at 53. See State v. Hudson, 491 S.W.2d 1, 3 (Mo.App.1973). We believe there was sufficient evidence to warrant giving a flight instruction. Appellant relies on State v. Aubuchon, 394 S.W.2d 327 (Mo.1965), but in that case the instruction was permitted.

Defendant raises the additional objection to the instruction that flight is one form of circumstantial evidence and the State should be precluded from submitting instructions on both circumstantial evidence and on flight.

The court gave a circumstantial evidence instruction (MAI — CR 3.42 verbatim) in addition to the above-quoted flight instruction. However, the Notes on Use of MAI-CR 3.42 do not explicitly exclude the giving of a flight instruction.

Although our Supreme Court on January 13, 1975, directed that after March I, 1975, no “so-called flight or counter-flight instruction may be given,” the court’s explanatory note on flight is not retroactive. State v. Fleming, 523 S.W.2d 849 (Mo.App., St.L.D., 1975). We do not believe the Supreme Court, by adopting some instructions, intended to abolish others until it specifically so provided. Rule 20.01 alerts us to the fact that “[ajpproval of pattern instructions to juries . . . will be made from time to time by order of this Court.” The MAI — CR is not yet complete. Until new applicable instructions are adopted or explicitly are disapproved, other instructions which correctly state the law but are not contained in MAI-CR still obtain.

The MAI-CR Comment on the section labeled “Instructions Never Given” (which was left blank in the originally promulgated MAI-CR) reinforces our belief that flight instructions were not banned retroactively, since

“[s]ome of these [instructions] will be gathered together in the 5.00 Series, there to be quarantined and barred from further use.” MAI — CR Comments at 13 [emphasis added].

At the time of trial, the instruction on flight was a proper one. We decline to adopt the appellant’s contention that the flight instruction should be eliminated from Missouri practice prior to March 1, 1975.

We have read the entire record, the briefs and all the authorities cited by the parties. We are convinced that no prejudicial error occurred and hence affirm the judgment of conviction.

The judgment is affirmed.

McMILLIAN and GUNN, JJ., concur.

      . There is no constitutional right to counsel at a pre-indictment lineup or showup, Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), or at a photographic display conducted to allow witnesses to identify the offender. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973).

      . INSTRUCTION NO. 8: ‘“The Court instructs the jury that while flight to avoid arrest of itself does not establish the question of guilt or innocence, yet if you find and believe beyond a reasonable coubt [sic], from all the evidence, that the defendant, when St. Louis Police Officers sought to take him into custody on this charge on August 20, 1973 for the alleged charge of robbery first degree by means of a deadly and dangerous weapon for which he is now on trial, attempted to flee from them with an intent to avoid prosecution and arrest for the alleged offense for which he is now on trial, then such attempted escape is a circumstance which may be taken into consideration by you, with all other facts and circumstances in the case, in determining the defendant’s guilt or innocence.’ ”

      . It is incumbent on the movant to state facts of such specific nature so as to enable the court to conclude that a serious claim was presented. “[M]otions must state facts, not conclusions.” State v. Jordan, 506 S.W.2d 74, 80 (Mo.App.1974), citing State v. Parker, 413 S.W.2d 489, 494 (Mo. banc 1967), cert. den. 390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874 (1968).

      . Appellant’s argument seems to be that an in-court identification after a photographic or lineup identification is impermissible. The United States Supreme Court, while recognizing the hazards, was unwilling to prohibit such practices either in the exercise of its supervisory power or as a matter of constitutional requirement. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968).

      .Foster v. California, 394 U.S. 440, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969), is perhaps the only Supreme Court decision in which due process has been held to be violated. See Neil v. Biggers, supra.

      . The following facts do not necessarily constitute a valid challenge to the propriety of a lineup: one participant has growth of hair on chin—State v. Tidwell, supra; assailant is bald but another in lineup has full head of hair—State v. Ealey, supra, 515 S.W.2d at 780, State v. Ealey, 519 S.W.2d 314, 319 (Mo.App.1975); one in lineup is older and wearing hat and coat—State v. Britt, 504 S.W.2d 38, 41-42 (Mo.1973); appellant is only one in lineup with a “weather-beaten face”—State v. Tomizoli, 519 S.W.2d 713, 715 (Mo.App.1975). For a complete discussion of allegedly suggestive procedures, see Annot., 39 A.L.R.3d 487, 791 and 1000 (1971).

      . Cf. State v. Britt, supra, 504 S.W.2d at 41-42, where the defendant appeared in the lineup with coat and hat and all the testimony indicated that robbers did not have on such clothing.

      . The victim looked at his assailant during the robbery; the victim gave a reasonable description and was able to select the defendant’s picture from a collection without suggestions from the officers. There was ample basis for an in-court identification having a source independent of any alleged lineup.

      . See cases summarized in State v. Jackson, 499 S.W.2d 467, 471 (Mo.1973).

      . A flight instruction relating to a defendant’s fleeing “from his usual place of abode” was upheld in a case wherein defendant, upon hearing that a grand jury would be convened two days hence, left Columbia, Missouri, for Chicago, where he remained five or six months before returning. State v. Kelley, 187 Mo.App. 163, 173 S.W. 22 (1915). Apparently, “usual place of abode” is construed to include a town or city. Note that in the case at bar, appellant, a St. Louis resident, was speeding toward an Illinois bridge as he was pursued by police.

      . This specific ground was not set forth in defendant’s motion for new trial. Rules 70.-02, 28.01, 27.20(a). Therefore, we review defendant’s claim only insofar as it may constitute plain error. Rule 27.20(c).

      . Defendant’s trial began on February 28, 1974.


source: Caselaw Access Project

author: VANCE, Commissioner.

license: Public Domain

text:
    Ronald TACKETT, Appellant, v. LAGRANGE PENITENTIARY et al., Appellees.
    Court of Appeals of Kentucky.
    June 6, 1975.
    W. David Klingman, Frockt & Benovitz, Louisville, for appellant.
    Ed W. Hancock, Atty. Gen., Lloyd R. Edens, Asst. Atty. Gen., Frankfort, James M. Graves, William P. Swain, Boehl, Sto-pher, Graves & Deindoerfer, Louisville, for appellees.
   VANCE, Commissioner.

Appellant, Ronald Tackett, while confined in a state prison and working in a prison industry, suffered an injury to his body. He was receiving compensation at the rate of fifteen cents per hour for the work at the time of the injury. His claim for Workmen’s Compensation was dismissed upon the ground that he was not an employee of the state. He appeals.

The only issue presented is whether KRS 342.640(1), (3) provide Workmen’s Compensation coverage to inmates of state prisons. Those sections provide coverage to the following:

“(1) Every person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employes whether paid by the employer or employe, if employed with the knowledge, actual or constructive, of the employer.
U * * *
“(3) Every person in the service of the state or of any political subdivision or agency thereof, or of any county, city of any class, school district, drainage district, tax district, public or quasi-public corporation or other political entity, under any contract of hire, express or implied, and every official or officer thereof, whether elected or appointed, while performing his official duties. Every person who is a member of a volunteer fire or police department shall be deemed for the purposes of this chapter, to be in the employment of the political subdivision of the state where the department is organized. Every person who is a regularly enrolled volunteer member or trainee of the civil defense corps of this state as established under KRS chapter 39, shall be deemed for the purposes of this chapter, to be in the employment of this state. Every person who is a member of the Kentucky national guard, while said member is on active state service shall be deemed for the purposes of this chapter to be in the employment of this state. * * * »

The basic ingredient of compensable employment under the Act is a contract of hire, express or implied. Most states which have considered the question of workmen’s compensation coverage for inmates while working within the prison have denied the coverage. The reason given is that such a convict cannot and does not enter into a true contract of hire with the authorities by whom he is confined. The inducements which might be held out to him in the form of extra food or even money are in no sense consideration for an enforceable contract of hire. 1A Larson’s Workmen’s Compensation Law, Section 47.31 and cases cited therein. Also see Frederick v. Men’s Reformatory, Iowa, 203 N.W.2d 797 (1973); Abrams v. Madison County Highway Department, Tenn., 495 S.W.2d 539 (1973), in which the same result was reached.

Prison labor is the very antithesis of voluntary employment. Prisoners do not enter prison for the purpose of seeking employment, and providing employment for them is not the primary purpose of their incarceration by the state.

The rationale of California Highway Commission, Department of Engineering v. Industrial Accident Commission, 200 Cal. 44, 251 P. 808 (1926), the only case cited by appellant, is not persuasive to us, and additionally, it involved work by a prisoner outside prison for someone other than the confining authority.

KRS 197.070(1) commands the Department of Corrections to provide employment for all prisoners in the penitentiaries and to exhaust every resource at its command to provide employment for all prisoners in its custody. We do not construe the use of the word “employment” to mean that prisoners are thereby constituted “employees” as that word is commonly understood. It is simply a direction that the department shall make work available to occupy the time of prisoners rather than to allow them to remain idle.

The coverage of prisoners by a Workmen’s Compensation Act presents unique problems that can best be approached by direct legislative action. It is true that a permanent injury sustained in prison will be no less disabling to a prisoner upon his release than will the same type of injury sustained by the ordinary employee, but a different social problem is involved because some prisoners may never be released and in most cases there would be some period of confinement between the date of injury and the date of release.

Although KRS 342.004 commands liberal construction of questions of law pertaining to Workmen’s Compensation, we cannot read into our present statute any language which would transform a prisoner working inside a prison industry during the term of his confinement into an employee of the state.

The judgment is affirmed.

All concur.


author: HARBISON, Justice.

text:
    STATE of Tennessee, Petitioner, v. Arthur T. PRITCHETT and Johnny Green, Respondents.
    Supreme Court of Tennessee.
    June 2, 1975.
    William C. Koch, Jr., Asst. Atty. Gen., Nashville, for petitioner; R. A. Ashley, Jr., Atty. Gen., Nashville, of counsel.
    J. Pope Dyer, John W. Murrey, III, Chattanooga, for respondents.
   OPINION

HARBISON, Justice.

Respondents were jointly indicted by the Grand Jury of Hamilton County, Tennessee for the burglary of a warehouse and also for receiving and concealing ten automobile tires belonging to the warehouse. Upon the trial of the case the jury acquitted the respondents of the charges of burglary, but found them guilty on the charges of receiving and concealing. Pursuant to the provisions of T.C.A. § 39 — 4218, the jury were instructed that there could be a conviction only on one of the two charges of receiving and concealing, and the jury then found the defendants guilty of receiving stolen goods of a value in excess of one hundred dollars pursuant to T.C.A. § 39 — 4217(A). Each defendant was sentenced to serve not less nor more than three years in the state penitentiary.

Upon appeal of this conviction, the majority of the Court of Criminal Appeals found the evidence insufficient to establish ownership of the ten tires in question, and remanded the case for a new trial. This Court granted certiorari to consider the sufficiency of the evidence, and thereafter counsel for one of the respondents also assigned errors pursuant to the provisions of T.C.A. § 27-823.

There is little dispute as to the material facts. A warehouse owned by Cherokee Warehouses, Inc., situated on Eighth Avenue in Chattanooga, Tennessee, was equipped with a silent burglar alarm. On Sunday afternoon, May 6, 1973, at a time when the warehouse was closed for business, this alarm was tripped at 5:18. Charles W. Hill, an employee of the alarm company, and his supervisor noticed the signal in the offices of the company, American District Telegraph, and Mr. Hill immediately drove to the burglarized warehouse, while his supervisor telephoned the police. A member of the Chattanooga Police Department received the alert from the alarm company at approximately 5:20 p. m. and arrived at the warehouse within a very few moments. Upon turning into a large parking lot on the south side of the warehouse, he observed a white Chevrolet automobile bearing a Georgia license plate parked within 35 to 50 feet from the warehouse. Respondent Green was sitting in the automobile on the passenger’s side and respondent Pritchett was standing close to the right side of the vehicle. The officer observed six new automobile tires with tags still attached, in the back seat of the automobile. The officer was alone, and he arrested both men and placed them in his automobile. He proceeded to examine the warehouse and discovered that a sliding door had been broken open, approximately 70 feet from the automobile of respondents. It was the breaking of this door which had tripped the silent alarm.

When the officer returned to his automobile he was told by respondent Green that the two men had purchased the automobile tires in their car from an unidentified Negro man, who was supposed to meet the respondents at the location where their car was found.

Four additional new automobile tires were found in the trunk of the automobile of respondents. All of the tires had a manufacturer’s label still attached to them. Mr. Hill, the employee of the alarm company, and Mr. Robert E. Troutman, Jr., manager of the warehouse, arrived at the scene. Both of them saw the tires in the automobile belonging .to respondents, and heard the respondents state that they had purchased the tires from two unidentified Negro men.

Mr. Troutman, the warehouse manager, stated that the warehouse would normally have been closed since Friday afternoon. He was not sure whether any work had been done at the warehouse on Saturday, but he said that only authorized personnel of the warehouse company would have been allowed to enter the warehouse when it was closed, and that they would have had to have clearance from the alarm company. The warehouse was not open on Sunday, and he said that neither of the respondents was an employee of the company or had any authority to enter the warehouse.

Mr. Troutman said that the automobile tires in question were Uniroyal tires. He said that the manufacturer of these tires stored many types of tires in the commercial warehouse. He said:

“That particular warehouse has many lines of tires, so in warehousing we keep up with them by manufacturer’s code. I took the manufacturer’s code down of all the tires that were in the car.”

Mr. Troutman stated that there were tires in the respondent’s automobile containing a number of different codes. He then testified:

“I inventoried control Monday after that and, for instance, there was one-inch 33083502.
“Q Now, what is that? That’s manufacturer’s—
“A (Interposing) Manufacturer’s Code. There was one of these tires in their car. There was 34 in our control that were in that warehouse at that time.
“Q And how many were in the warehouse — there were, supposed to be 34—
“A (Interposing) Thirty-four of that particular tire was stored in that warehouse at that time.
“Q All right, and one of those tires was found in that car?
“A Yes, sir.”

Mr. Troutman also stated that a number of other tires correlating with other inventory codes were found in the automobile. He then testified:

“Q Now, Mr. Troutman, having done all this, looked at those tires, those ten tires in that automobile, and talked of your inventory list that you’ve just gone through, and knowing what was in those warehouses, those ten tires in that ear belonged to whom?
“A They actually belonged to the Uniroyal Corporation. Cherokee Warehouse is an agent for Uniroyal in this particular case.
“Q They were stored by, for Uniroyal by Cherokee Warehouses in that warehouse, CH 4?
“A Yes, sir.”

Although Mr. Troutman was cross-examined extensively, the foregoing, in our opinion, certainly constitutes some evidence for consideration by the jury as to the ownership of the tires in question, and we therefore are not able to agree with the majority opinion of the Court of Criminal Appeals that there was insufficient evidence of the ownership of the tires in question. It is true that Mr. Troutman later testified that he did not personally go to the various racks where the lot numbers were stored to see how many tires of particular lot numbers were missing, but certainly the weight and credibility of his testimony were issues for the jury, and we are unable to say that the evidence preponderates against the verdict of the jury. On appeal from a conviction, the State is entitled to have the appellate court take the strongest legitimate view of the evidence in its favor, and, viewed in that light, we are of the opinion that there was ample evidence of the element of ownership of the tires to sustain the verdict of receiving stolen property.

The offense of receiving stolen property is defined in T.C.A. § 39-4217(A) as follows:

“Every person who shall fraudulently receive or buy any goods over the value of one hundred dollars ($100), feloniously taken or stolen from another, or goods obtained by robbery or burglary, knowing the same to have been so obtained, with the intent to deprive the true owner thereof, shall be guilty of receiving stolen property over the value of one hundred dollars ($100).”

In the present case there was, of course, very strong circumstantial evidence that the respondents had themselves burglarized the warehouse. They were, however, acquitted of this charge. They told the police and other investigating officials that they had purchased the tires from two unidentified Negro men. Respondent Green did not testify or offer any proof, but respondent Pritchett testified that he and Green had purchased the two tires from two Negro men who came by the location where the two respondents had parked their automobile. He said that they had parked at that place in order to take a drink, and that these two persons stated that they were employed at a service station and had bought some tires from their employer. Pritchett testified that he and Green bought the ten tires for a total of forty dollars, and acknowledged that he himself had made inquiry from the two men as to whether the tires were or were not stolen. He had been assured that they were not stolen, according to his testimony.

There is, therefore, evidence in the record from which the jury could have found that the respondents received the property in question knowing it to have been stolen or under circumstances which were sufficient to put them, as reasonable men, upon inquiry which if pursued would have disclosed the information that the tires were stolen. Kessler v. State, 220 Tenn. 82, 414 S.W.2d 115 (1967); Deerfield v. State, 220 Tenn. 546, 420 S.W.2d 649 (1967).

The Court of Criminal Appeals apparently concluded that there was sufficient evidence to establish all of the other elements of the crime of receiving stolen property, other than the ownership of the ten tires, and our examination of the record leads us to the same conclusion. Indeed, wholly apart from the testimony of the defendant Pritchett, the circumstances were such that the jury would have been entitled to infer knowledge of the respondents that the property in question was stolen, from the fact that they were in possession of the property shortly after the burglary had been discovered and reported. Gossett v. State, 224 Tenn. 374, 455 S.W.2d 585 (1970); Nunley v. State, 479 S.W.2d 836 (Tenn.Cr.App.1972).

We have examined the assignments of error filed on behalf of the respondent Green after certiorari had been granted in this case. Essentially these are the same contentions which were made by him in the Court of Criminal Appeals and were found by that court to be without merit. Most of these assignments challenge the sufficiency of the evidence, which we have discussed above, or complain of the cross-examination of the codefendant Pritchett concerning pri- or convictions.

Our examination of this record does not disclose any reversible error insofar as the respondent Green is concerned.

The judgment of the Court of Criminal Appeals is reversed and the judgment of the trial court is reinstated as to each of the respondents. The costs will be paid by the respondents.


author: COOPER, Justice.

text:
    STATE of Tennessee, Petitioner, v. Otis ELLIOTT and Wayne Mitchum, Respondents.
    Supreme Court of Tennessee.
    May 27, 1975.

      Milton P. Rice, Atty. Gen. and Reporter, William C. Koch, Jr., Asst. Atty. Gen., Nashville, for petitioner.
    James G. Cate, Jr., Cleveland, George M. Derryberry, Chattanooga, for Elliott.
    Carl E. Colloms, Cleveland, for Mitchum.
   OPINION

COOPER, Justice.

Otis Elliott and Jerry Wayne Mitchum were convicted “of murder in the first degree committed while engaged in the crime of robbery,” and were sentenced to ninety-nine years in the penitentiary. A divided Court of Criminal Appeals reversed the convictions and remanded for a new trial. This court granted certiorari to review the holding of the Court of Criminal Appeals that (1) the failure of the State to provide defendants with a transcript of a pretrial hearing for the suppression of defendants’ oral confessions was reversible error, and (2) that defendants’ right to a transcript of prior proceedings did not include the right to a transcript of a previous trial of co-indicted defendants; and also to consider (3) whether the admission in evidence of oral statements by Mitchum implicating Elliott was a violation of the rule set forth in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

Cornelius C. McClary, the owner and operator of the Oakdale Superette in Cleveland, Tennessee, was shot to death and robbed at about 6:30 a. m. on July 19, 1973. Acting on information previously received by a detective in the Bradley County Sheriff’s office, an all-points bulletin was issued for a 1966 T — Bird and a late model Continental Mark III. Later that morning, officers found the Continental parked at the trailer home of William Johnson in Charleston, Tennessee. Fresh tracks in the dew-wet grass led from the car to a nearby house. On searching the house, the officers found Elliott, Mitchum, and a third negro, identified as Robert T. Arnold, hiding under the house. A search of the area where the men were found produced more than $2700.00 in currency, some of which was blood-stained, three rings, a wallet containing registration papers belonging to the deceased, and a check for $50.00 which the deceased had cashed for the payee the night of July 18,1972. Subsequently, the defendants were identified and placed at the Oak-dale Superette at the time McClary was killed. According to the identifying witness, Mitchum and another negro were inside the store near the counter and Elliott was just outside the door of the store.

An indictment was returned charging Elliott, Mitchum, Arnold, and William E.. Johnson and John W. Sharp with first degree murder and murder in the perpetration of a robbery. In response to a motion for a severance, the latter three defendants were tried together in a separate trial.

While in custody and after the indictment had been returned, Elliott and Mitchum made separate oral statements which were related at trial by Detective Wayne Neeley. Each of the defendants acknowledged their participation in the robbery. Mitchum confessed to his presence at the store with two other men and to his actual participation in the killing of Mr. McClary. Elliott on the other hand denied his presence at the scene of the crime and admitted only that he, as the driver of a second car, waited for the others at a Chevron station more than one mile from the Oakdale Superette. The statements of both defendants reveal that two cars were in fact used in the get-away; one was abandoned and the other, the Continental, was used to transport the defendants to Charleston, Tennessee, where they were found and arrested.

The defendants in separate motions moved to suppress the statements given to police officers on the ground the statements resulted from violence and threats and were not freely and voluntarily made. The trial court conducted hearings on the motions on October 24 and November 8, 1972, and concluded that the defendants had confessed freely, voluntarily, and with a knowledge of their constitutional rights.

Thereafter and prior to the trial on the murder indictment, the defendants moved to have the state give them a free verbatim transcript of the hearings on the motion to suppress and of the earlier trial of the co-indicted defendants. These motions were overruled by order entered on March 6, 1973.

The trial of the defendants was March 20 and 21,1973. On the day before trial, Mitchum moved for a continuance because he had not been furnished with the transcripts requested in his earlier motion, averring that he “ha[d] thereby been deprived by state action of a material aid in his defense.” In overruling the continuance motion, the court made no reference to the transcript of the suppression hearing, but said with reference to the transcript of the prior trial of the other defendants: “Transcripts of the prior, very lengthy trial have not as yet been prepared and the Court, having heard the prior trial, is of the opinion that the transcript when prepared will be of little benefit to the defendants in this trial.”

There is no question but that an indigent defendant in a criminal prosecution must be provided with the tools of an adequate defense or appeal when those tools are available for a price to other defendants. Britt v. North Carolina, 404 U.S. 226, 227, 92 S.Ct. 431, 30 L.Ed.2d 400 (1971); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1955). Generally, included in the basic tools has been a free transcript of prior proceedings in the indigent defendant’s own case, where the transcript was needed to vindicate a legal right. Britt v. North Carolina, supra; Roberts v. LaVallee, supra; United States ex rel. Wilson v. McMann, 408 F.2d 896 (2d Cir. 1969); Gardner v. United States, 132 U.S.App.D.C. 331, 407 F.2d 1266 (1969), cert. denied, 395 U.S. 911, 89 S.Ct. 1757, 23 L.Ed.2d 225; Boney v. United States, 128 U.S.App.D.C. 279, 387 F.2d 237 (1967), cert. denied, 390 U.S. 967, 88 S.Ct. 1077, 19 L.Ed.2d 1170 (1968). But so far as we have been able to ascertain through a search of the authorities, no federal appellate court has extended the free transcript doctrine so as to make available to an indigent defendant the transcript of testimony in a third party’s trial of witnesses who are expected to testify against the indigent defendant, and this court sees no need or justification for doing so.

In this state, in the wake of Griffin and subsequent cases, the legislature established a system to provide for court reporters and official transcripts in felony and habeas corpus cases. T.C.A. Sections 40— 2029 — 40-2043. T.C.A. Section 40-2037 empowers the trial court to direct the official court reporter to furnish an indigent defendant an official trial transcript if requested. And T.C.A. Section 40 — 2040 enjoins trial judges to provide indigent defendants with a free transcript for appeal. While these statutes expressly apply only to transcripts for the purpose of appeal, the courts of this state have recognized that a trial judge has the authority to require a transcript of prior proceedings in the indigent defendant’s own case be furnished him if it appears that it is necessaary in the interest of justice. See Bowers v. State, 512 S.W.2d 592, 594 (Tenn.Cr.App.1974).

In Britt v. North Carolina, 404 U.S. 226, 92 S.Ct. 431, 30 L.Ed. 400 (1971), the trial court overruled the motion by an indigent defendant for a transcript of his first trial for use in his re-trial. The Supreme Court of the United States found no prejudicial error in the trial court’s action, as there was evidence of the availability of an alternative device that would fulfill the same functions as a transcript. The Court did emphasize, however, that the state must provide the indigent defendant with a transcript of prior proceedings in his case when the transcript is needed for an effective defense or appeal, stating:

“Griffin v. Illinois and its p.'ogeny establish the principle that the State must, as a matter of equal protection, provide indigent prisoners with the basic tools of an adequate defense or appeal, when those tools are available for a price to other prisoners. While the outer limits of that principle are not clear, there can be no doubt that the State must provide an indigent defendant with a transcript of prior proceedings when that transcript is needed for an effective defense or appeal. * * * (emphasis supplied).
“In prior cases involving an indigent defendant’s claim of right to a free transcript, this Court has identified two factors that are relevant to the determination of need: (1) the value of the transcript to the defendant in connection with the appeal or trial for which it is sought, and (2) the availability of alternative devices that would fulfill the same functions as a transcript.”

The need for a transcript of a prior proceeding involving the defendant varies with the circumstances of the case as demonstrated by the following decisions. United States ex rel. Cadogan v. LaVallee (C.A.N.Y.1970) 428 F.2d 165, cert. denied, 410 U.S. 914, 91 S.Ct. 887, 27 L.Ed.2d 813 (transcript of pre-trial suppression hearing: United States v. Carella, 411 F.2d 729 (2d Cir. 1969) (transcript of trial resulting in mistrial); United States ex rel. Wilson v. McMann, supra, (transcript of trial resulting in mistrial); Gardner v. United States, supra, (transcript of preliminary hearing); Boney v. United States, supra, (transcript of preliminary hearing).

In determining whether a transcript is needed, caution dictates that where there is any possibility of need for the transcript, the better procedure would be to require a transcript be provided the indigent defendant and thus alleviate any possibility of a retrial of a case because of the lack of a needed transcript. The reliance on hindsight to show lack of need for a transcript is to rely on a slender reed indeed.

In the instant case our examination of the evidence presented at the suppression hearing, a transcript of which is included in the record before us, convinces us that its availability to the defendants prior to trial would have provided no significant assistance, either in preparation for trial or as an aid in impeaching adverse witnesses, and that the defendants were in no way prejudiced by the lack of the transcript. The testimony at the suppression hearing was limited strictly to the issue of whether the confessions of the defendants were voluntary, an “admissibility of evidence” issue to be decided by the trial judge not the jury. There was no testimony concerning the contents of the confessions, nor any other matter which would have a significant bearing on the issue of guilt or innocence of the defendants. Further, of the four witnesses who testified in the suppression hearing at the instance of the state, only one testified in defendants’ trial, Detective Wayne Nee-ley. We find no true inconsistencies in his testimony, nor have the defendants’ cited us to any. Further, and even more important, is the fact that the evidence of guilt of the defendants is overwhelming and is fully corroborated by extrinsic evidence not the subject of the suppression hearing.

In a case where the transcript of a preliminary hearing denied to a defendant for use at trial was not before the court on appeal, and the court could not therefore know whether the transcript would be useful or not, the District of Columbia circuit held that failure to provide the transcript does not require reversal of a conviction where there is clear and convincing evidence of guilt and no showing of prejudice. Gardner v. United States, supra.

We hold, contra to the majority of the Court of Criminal Appeals, that the transcript of the suppression hearing was not an “instrument needed to vindicate legal rights” under the circumstances of this case, and that the trial court did not commit prejudicial error in denying the transcript to the defendants.

The defendant Elliott also contends the trial court committed prejudicial error in refusing to declare a mistrial when a state’s witness, in relating the substance of Mitch-um’s oral confession, implicated Elliott, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Bruton rule proscribes, generally, the use of one codefendant’s confession to implicate the other as being violative of the nonconfessing codefendant’s Sixth Amendment right of confrontation.

The Court of Criminal Appeals held in its majority opinion that “the Bru-ton rule has no application where, as in the case before us, both of the jointly tried codefendants confessed,” citing O’Neil v. State, 2 Tenn.Crim.App. 518, 455 S.W.2d 597; Briggs v. State, 501 S.W.2d 831 (Tenn.Crim.App.1973). We think this statement is an over-simplification of the impact of the Bruton rule. The fact that jointly tried codefendants have confessed precludes a violation of the Bruton rule where the confessions are similar in material aspects, which was the situation in both the O’Neil and the Briggs cases, supra. But where, the confession of one non-testifying codefendant contradicts, repudiates, or adds to material statements in the confession of the other non-testifying codefendant, so as to expose the latter to an increased risk of conviction or to an increase in the degree of the offense with correspondingly greater punishment, the latter eodefendant is entitled to test the veracity of the statements in the confession of his codefendant. A denial to him of his right through the failure of his codefendant to take the stand brings the Bruton rule into play. In the instant case we have that situation. Elliott confessed his participation in the robbery but only as the driver of the second get-away-car. He denied being closer than a mile and a half to the scene of the crime and denied any involvement in the shooting of Mr. McClary. On the other hand, Mitchum not only admitted being at the Oakdale Super-ette and shooting the victim, but made statements which placed Elliott at the murder scene contra to Elliott’s confession. The admission in evidence of the statements by Mitchum contradicting Elliott’s confession, when Mitchum did not testify, was a violation of the Bruton rule and was error. However, in the light of the overwhelming evidence of guilt of these defendants, other than the confessions, we find the error to be harmless beyond a reasonable doubt and not to justify a reversal of this case. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.

The judgment of the Court of Criminal Appeals is reversed, and the judgment of the trial court is reinstated.

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

      . The issue was raised in United States v. Bamberger, 482 F.2d 166 (9th Cir. 1973), but was not decided in view of the court’s determination that even if the defendant had the right to a transcript other than his own, any error in denying him the transcript was harmless beyond a reasonable doubt where he had a copy of the transcript of a still earlier trial. Citing Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).


author: FONES, Chief Justice.

text:
    The ST. PAUL INSURANCE COMPANY, Appellant, v. Willie Frank WALLER, Appellee.
    Supreme Court of Tennessee.
    June 16, 1975.

      Robert M. Burton, Memphis, for appellant.
    Walter Buford, Buford & Deal, Memphis, for appellee.
   OPINION

FONES, Chief Justice.

Appellant is the workmen’s compensation carrier for Thompson Non-ferrous Foun-dary, Inc., hereinafter employer. Insurance company appeals from the decree of the trial court awarding temporary total disability, fifteen (15%) percent permanent partial disability and medical and hospital expenses, which the learned trial judge found resulted from a compensable injury incurred while performing heavy lifting.

Insurance company’s assignments of error are as follows:

“(1) There is no material evidence to support the judgment of the Trial Court.
(2) The Trial Court erred in holding that the Plaintiff gave proper notice of the alleged accidental injuries pursuant to 50 — 1001 and 50 — 1002, Tennessee Code Annotated.
(3) The Trial Court erred in holding that the Plaintiff sustained an accidental injury so as to be compensable under the Workmen’s Compensation Act of Tennessee on February 15, 1973 and awarding benefits thereunder.”

At the time of the trial employee was forty (40) years old. He had a fourth or fifth grade education. He first worked for employer from June, 1966, until April, 1970. He resumed employment with this employer in April, 1972. He worked as a printing mold operator and his duties required lifting molds weighing two hundred fifty (250) pounds and more.

Employee testified that he first hurt his back in 1966 or 1967. The records in the office of Dr. John T. Outlan, a company doctor, reveal that on March 5, 1969, employee was treated for a back injury caused by lifting while at work on February 26, 1969, according to the history taken by Dr. Outlan’s brother. Employee terminated his employment on April 30, 1970, because the condition of his back was such that he could not perform the heavy lifting. As stated, he returned to work for Thompson Non-ferrous Foundary, Inc., in April, 1972. On November 21, 1972, employee was assisting a co-worker lift molds said to weigh about four hundred (400) pounds when he felt a sharp pain, “• — like needles was sticking me around in my stomach and my back.” He had difficulty straightening up and testified that he “reported” this incident.

On November 28, 1972, a similar incident occurred that he described as causing a catch in his back and a burning in his groin. He reported that incident to Mr. Jack and was sent to Dr. Outlan for treatment.

Dr. Outlan made a diagnosis of right inguinal hernia and referred employee to Dr. Pridgen. Dr. Pridgen performed a surgical repair of his hernia and released him to return to work on Monday, February 12, 1978. Temporary total disability and medical expenses resulting from the hernia operation were paid.

Employee described what occurred upon returning to work as follows:

Q. When you went back to work on February 12th, 1973, what did they have you do?
A. My job that I was on was operating a machine; so when I got back to work — they put me back to work, they took my job from me and gave it to another man and told me that if Mr. Son didn’t operate the machine that he wouldn’t have anything to do, and they put me back in the back pushing the same heavy loads I had already done been hurt on once before, and I went back and tried to do it’ so I did it for about two or three days around there.
Q. You worked from February 12th to February 15th, 1973?
A. Yes.
Q. What happened to you on February 15th, 1973?
A. That is when I had to go up and tell Mr. — talk to Mr. Jack about my injuries again, and he told me — these are the words he told me. He said, ‘Willie, there is nothing light around here that I have got for you to do’; so I asked this: ‘What about my job back there, the one I was — I can handle this machine, but that work back there is too hard for me, I can’t do it,’ and I told him I had pains in my back then, and he said, ‘Well, there is nothing around here light and if you can’t do this work, you are fired.’ because I couldn’t do the heavy work, and I told him I needed to go back to the machine and he said, ‘Go and talk to Mr. Dave about it,’ and I went and talked to Mr. Dave about it, and Mr. Dave told me to go and talk to the insurance people, and I went and talked to the insurance people and they told me to go back to the plant and talk to the people at the plant about it, and I talked to them and nobody wanted me to go back to the doctor. They said, ‘If you go to the doctor, you can go to the doctor on your own’ and that is what I did.
* * * * * sf:
Q. And you say you were pushing a heavy load and your back was hurting you again, is that correct?
A. Yes, sir I could hardly straighten up.
Q. What?
A. I could hardly straighten up. I even told them about it. I couldn’t straighten up.

The record shows that employee had been treated by Dr. Outlan on a number of occasions for unrelated work injuries. Employee went to Dr. Outlan for treatment on February 16, 1973. Dr. Outlan’s examination revealed that the hernia operation incision was still swollen, and tender and he recommended that employee do light work for two (2) or three (3) weeks. Employee returned to see Dr. Outlan on February 21, 22, and 26.

Thereafter employee was referred by his attorney to Dr. Stanley Patterson. On his first visit to Dr. Patterson on March 5,1973, he complained principally of pain in the groin and low back, giving a history reasonably compatible with the foregoing recitation of events. Dr. Patterson admitted him to the hospital in May of 1973, for ten (10) days and diagnosed his condition as a lumbar disc syndrome. Employee was again admitted to the hospital in September, 1973, and during his stay a lumbar myelogram was performed that did not show any abnormality. It was Dr. Patterson’s opinion that surgery was not warranted. He remained under Dr. Patterson’s treatment until December 4,1973. Dr. Patterson reported him improved at that time and was of the opinion that he could probably return to work around the first of January. His final diagnosis was lumbar disc syndrome and he expressed the opinion that employee had a permanent partial disability of ten (10) to fifteen (15) percent and on the question of causation, that his condition was compatible with straining and lifting heavy objects.

Insurance company denies any liability for employee’s back condition. It is the company’s contention that employee did not sustain any accidental injury to his back in November, 1972, or in February, 1973. It asserts that employee’s back trouble had its inception in 1967 or 1968 and is “the same old back trouble” which cannot be related to any subsequent specific incident.

In the brief on behalf of insurance company counsel has selected from the record, testimony of employee and the doctors that lend support to that position. However, when the entire record is read there is material evidence to support the findings of the trial judge. On the issue of liability for a compensable injury the trial judge found, ínter alia, as follows:

“It is the position of the Defendant that this is a condition which the Petitioner has suffered over a long period of time and which cannot be related to any specific incident, and, therefore, it is the position of the Defendant that the Petitioner has not sustained an accidental injury arising out of and in the course and scope of his employment under the Workmen’s Compensation Law.
The Court has considered all of the matter and the Court is of the opinion that the Petitioner has sustained a com-pensable injury under the Workmen’s Compensation Law, arising out of and in the course and scope of his employment, that the Court finds as a fact, based on all of the proof, that said injury occurred on February 15th, 1973, at which time the Petitioner’s condition reached the point that he could no longer return to gainful employment.
Now, under the Workmen’s Compensation Act, an employer takes an employee in the condition in which he finds him.
The proof is undisputed in this record that this Petitioner has suffered from alleged back complaints since 1966, with the records indicating from Doctor Out-lan, the company doctor, that in 1969 he treated him for a back injury arising out of his employment. The record so indicates, and in 1970, it is undisputed, it was brought out by the Defendant that the Petitioner left the employment of the Defendant because of the fact that his back was bothering him. However, with this knowledge in 1972, some two years after the Petitioner had left the employment because of his back, the Defendant rehired him with knowledge of his back condition; so based on all the evidence in this cause, the Court finds that the Petitioner has sustained a compensable injury under the Workmen’s Compensation Act of Tennessee, and accordingly so holds that the Defendant is liable to the Petitioner for benefits under the Workmen’s Compensation Act.”

We are aligned with the majority of jurisdiction in allowing compensation for conditions that do not occur instantaneously as the result of one accident, but develop gradually over varying periods of time, resulting from repeated work related incidents.

Brown Shoe Company v. Reed, 209 Tenn. 106, 350 S.W.2d 65 (1961) contains an elaborate exposition of the gradual injury doctrine in Workmen’s Compensation law. Therein, the questions of “injury by accident” and the time of accrual of the cause of action for the purpose of notice and the statute of limitations, are thoroughly discussed.

Central Motor Express, Inc. v. Burney, 214 Tenn. 118, 377 S.W.2d 947 (1964), involved a series of work related incidents of heavy lifting, culminating in a disc operation. The trial judge first held that Burney had not suffered an accidental injury, but after Reed was called to his attention compensation was awarded and the award sustained on appeal.

Burney had worked for defendant as a freight loader for seven (7) years. In August, 1961, he sustained a compensable injury to his back, for which he was paid. Suffering no permanent disability he returned to work in September, 1961. In late May, 1962, he had pain in his low back and legs upon lifting anything heavy. Two weeks later, on April 2,1962, he reported to his employer that his legs were going numb on him and he was sent to the company doctor for examination. The company doctor could find nothing wrong but suggested that he see another physician. A neurosurgeon diagnosed his condition as a herniated disc and operated. On May 1, 1962, as soon as he was able to leave the hospital, Burney consulted an attorney who gave notice to defendant of his injury and claim for compensation.

In said case, defendant insisted that Bur-ney did not suffer an accidental injury but rather a recurrence of an old back injury and that the alleged accident was not traceable to a definite time and place. It also appears that the issue of timely notice was raised. The same contentions are made by insurance company in the instant case.

All of these questions are foreclosed by the decisions of this court in Reed and Burney. The contention that there is distinguishing significance in the fact that Burney’s condition was diagnosed as a ruptured disc whereas in the case at bar the diagnosis was merely lumbar disc syndrome, is patently without merit.

In response to the question of notice raised herein, it is sufficient to say that there is material evidence to support the finding of the trial judge that a work related back injury was sustained by Waller on February 15, 1973, and that Waller’s report to Mr. Jack quoted herein provided ample notice to the employer.

It is suggested that there should be no liability for the medical expenses because employee was treated by a doctor selected by his attorney.

After the trial judge’s findings were announced in open court, counsel for employer insisted that it was undisputed that Waller’s attorney sent him to the doctor without consulting the company and that the eases all hold, in such circumstance, that there is no liability for medical expenses. In response the court said:

“The record is clear that by letter from the attorney shortly after this injury occurred, medical expenses were requested on behalf of the company and refused.”

It is insisted in this court that the record does not contain the letter referred to by the trial judge.

Apparently the letter that the trial judge had in mind was a letter written by employee’s attorney to Dr. Outlan, dated February 21, 1973, and read, in part, during the deposition of Dr. Outlan. The letter stated, among other things, that Mr. Waller had been released from the care of Dr. Pridgen to return to work; that he could not perform the work and upon so informing his employer, he was replaced and informed that they would not be responsible for any further medical care.

Counsel for the insurance company objected and stated that at the trial, the court would be asked to strike the letter. This was not done.

The letter was not written to the employer and is without probative value. But, the insistence that the trial judge’s apparent reliance on it constitutes grievous error is misplaced.

Employee, Waller’s positive, direct and undisputed, testimony conveys the same meaning and import as the letter. Having informed him that no further medical care would be furnished by the company, the duty to “consult” employer before selecting his own doctor, no longer existed, under the facts of this case. See Consolidated Coal Company v. Pride, 224 Tenn. 188, 452 S.W.2d 349 (1970); Proctor and Gamble v. West, 203 Tenn. 138, 310 S.W.2d 175 (1957); and unpublished opinion in U. S. Fidelity and Guaranty, et al. v. Young, released the 9th day of June, 1975, middle division.

The decree of the trial court is affirmed. The costs are adjudged against insurance company.

COOPER, HENRY, BROCK and HARBI-SON, JJ., concur.


author: COOPER, Justice. HENRY, Justice

text:
    James Arthur SIKES, alias, Petitioner, v. STATE of Tennessee, Respondent.
    Supreme Court of Tennessee.
    June 16, 1975.

      Ray H. Jenkins, Ray L. Jenkins, Jenkins & Jenkins, Knoxville, for petitioner.
    R. A. Ashley, Jr., Atty. Gen., David L. Raybin, Asst. Atty. Gen., Nashville, for respondent.
   OPINION

COOPER, Justice.

James Arthur Sikes was convicted of first degree murder for the shotgun slaying of his seventeen year old stepson, Steve Johnson, and was sentenced to serve forty years in the penitentiary. On appeal, the Court of Criminal Appeals affirmed the conviction. This court granted certiorari for the limited purpose of considering whether the evidence was sufficient to warrant a conviction of murder in the first degree.

It is undisputed in the record that Steve Johnson died at about 8:00 p. m., eastern daylight time, on April 18, 1973, from a wound in the back caused by pellets from a 20 gauge pump shotgun fired by the defendant.

It is also undisputed in the record that the deceased had been the center of family controversy from about 4:00 p. m. until his death. The record shows that defendant, his wife, and two of his stepchildren, Steve and Darlene Johnson, returned to the Sikes’ home at about 4:00 p. m. Steve began arguing with and was verbally abusive toward his mother. In the course of the argument, Steve made the statement that the defendant had better move his geese and ducks from a crate which Steve claimed belonged to him. Defendant took issue with Steve’s claim of ownership and a fistfight broke out. Though disputed, there is evidence that the fight broke up when defendant stopped to take a shotgun from Mrs. Sikes.

Steve and his brother, Gary Johnson, who also lived at the Sikes home, left together to buy ammunition for a pistol Steve owned. When they returned to the Sikes home they were met by Mr. Sikes, who ordered them to leave and fired a shotgun to emphasize his order. As the Johnson boys left, Steve fired his pistol several times in the direction of defendant and the Sikes house. Thereafter, Mrs. Sikes went looking for the boys to “cool them down.” Mr. Sikes took his shotgun and went to the barn some 70 to 100 feet from the house.

Steve and Gary Johnson returned to the Sikes home at “about 7:30 going on 8:00 o’clock” to get their clothing preparatory to moving from the house. No one else was there. Within a few minutes, Mrs. Sikes and Darlene returned home, and Steve and his mother got into another argument. Gary Johnson left and went next door to the Kennedy home.

Darlene Johnson and her mother testified that after Gary left, Steve fired several shots into a smokehouse, wounding several of the geese and ducks that were the subject of the earlier fist fight. Later, after passage of a time estimated to be “5 to 10 to 15 minutes,” Darlene went into the backyard, saw Sikes with his shotgun climbing the fence near the house, and screamed “Mama, there’s Jim.” Mrs. Sikes ran out the back door. Steve ran out the front door. Shots were fired.

In giving his version of the shooting, defendant testified that he had gone to the barn and had stayed there for some considerable period of time after the last altercation with his stepson. He further testified that he heard his stepson return home. He heard the stepson fire some shots around the house and overheard him quarreling with his mother and sister. The defendant then decided to go to the house to see what was going on. Instead of following the regular path, defendant cut across the pasture and climbed the fence at the side of the house. As he crossed the fence and started towards the house, Darlene Johnson came out the back door and started screaming “ ‘Oh, Mama, there’s Jim.’ So I seen Stevie go through the house and he said, ‘Yeh, I see the son-of-bitch,’ and about that time, he started out the front door and he shot either three or four times at me, and about the second or third time he shot, I fell flat on the ground beside of an old cellar we had and fired one time and I could not see him.”

Darlene Johnson testified that she heard a shotgun blast, then several pistol shots, and a second shotgun blast. (Darlene Johnson’s testimony on this point was shown to be contra to statements given by her earlier and with her testimony before the grand jury.)

Mrs. Sikes testified that she heard Steve shoot “3 or 4 times first.”

Gary Johnson and Franklin Kennedy, a neighbor to the Sikes’, testified they heard only two shotgun blasts, no pistol shots.

Steve Johnson was found some 70 feet from the house, “laying face down with his arms under him.” He had been shot with shotgun pellets “in the left side of the back of the chest with a few pellets present on the back of the left hand and the back of the left upper arm.” A pistol was removed from Steve’s right hand front pants pocket by Gary Johnson, who testified there were no spent shells in the gun.

The investigating officer found two spent shotgun shells at the corner of the house where the defendant was standing when he fired at his stepson.

The medical examiner testified that the shotgun “pellets (that killed Steve) came directly from the rear of the deceased,” and that the force of the pellets striking Steve would throw Steve “forward, either to the ground or nearly so.” He also expressed the opinion that Steve could not put a pistol in his pocket after having been shot.

To convict a defendant of murder in the first degree, there must be an eviden-tiary basis for a conclusion by the jury that the killing was willful, deliberate, malicious and premeditated. Bass v. State, 191 Tenn. 259, 231 S.W.2d 707 (1950). All homicides are presumed to be malicious in the absence of evidence which would rebut the implied presumption. And, if a weapon is handled in a manner so as to make the killing a natural or probable result of such conduct, malice will be presumed from the use of the weapon. Gann v. State, 214 Tenn. 711, 383 S.W.2d 32 (1964); Morelock v. State, 3 Tenn.Crim.App. 292, 460 S.W.2d 861 (1970). Deliberation and premeditation involve a prior intention or design on the part of the defendant to kill, however short the interval between the plan and its execution. It is sufficient if only a moment of time elapses between the plan and its execution as long as the jury can conclude from the evidence that there was some appreciable interval, however small. And, whether premeditation is present in a given case is a question of fact to be determined by the jury from all circumstances of the case. Clarke v. State, 218 Tenn. 259, 402 S.W.2d 863 (1966).

In reviewing the evidence on which the jury predicates its finding of murder in the first degree to see if it supports a finding that the killing was willful, deliberate, malicious, and premeditated, this court must consider the evidence in the light of the rule that the credibility of the witnesses and the conflicts in their testimony have been settled by the verdict of the jury which has been approved by the trial court, and that any conflicts in the testimony have been resolved in favor of the jury’s verdict. Osborne v. State, 512 S.W.2d 612 (Tenn.Cr.App.1974). Or, as stated by Mr. Justice Chattin in Shiflet v. State, 216 Tenn. 365, 392 S.W.2d 676, 678 (1965),

“It is also an established rule the verdict of the jury, approved by the trial judge, accredits the testimony of the witnesses for the State and resolves any conflict in the testimony in favor of the insistence of the State. A verdict of the jury also removes the presumption of the innocence of the defendant; and, here, creates a presumption of his guilt and places the burden on him of showing the evidence preponderates against the verdict and in favor of his innocence. White v. State, 210 Tenn. 78, 356 S.W.2d 411 (1962); McBee v. State, supra, [213 Tenn. 15, 372 S.W.2d 173 (1963)]; Holt v. State, supra, [210 Tenn. 188, 357 S.W.2d 57 (1962)].”

Considering the evidence in this case in the light of the above rule, we find that the defendant has failed to carry his burden of demonstrating that the evidence preponderates against the verdict of the jury that defendant was guilty of murder in the first degree. There is evidence that the defendant, who was not known to be on the premises, stealthily approached the house, carrying a shotgun loaded and ready to fire. The defendant, on seeing his stepson flee the house, fired two shots, one shot hit his stepson in the back, causing his death. The fact that the death weapon had to be manually “pumped” before it could be fired the second time is a strong indication of a wilful, deliberate intent to kill.

The defendant sought to escape punishment, or reduce it, by offering evidence tending to prove self-defense. However, by its verdict, the jury rejected this evidence and accepted instead evidence that the decedent fired no shots in his effort to escape. Having resolved the issue of credibility against defendant in his effort to prove self-defense, the jury was justified in finding, as they obviously did, that the defendant deliberately and premeditatedly shot Steve Johnson in the back as he fled from the Sikes’ home, and thus was guilty of murder in the first degree.

Judgment affirmed.

FONES, C. J., and BROCK and HARBI-SON, JJ., concur.

HENRY, J., dissents.

HENRY, Justice

(dissenting).

I respectfully dissent.

I agree with the factual recitation of the majority opinion but do not agree that they make out a case of first degree murder. Under this record one armed man shot another armed man after other shots had been fired by each, either at or in close proximity of the other.

As the majority points out, “the deceased had been the center of family controversy” for about four hours. He had cursed and abused his mother and had used ugly and profane language to her. He had discharged his pistol several times and, in a fit of temper, had even shot into a duck pen, killing at least one duck and wounding several others.

There is no escape from the conclusion that he had used up all his pistol ammunition and had left home shortly before the shooting for the sole purpose of purchasing more pistol ammunition. As a minimum, he was a “pistol toting” trouble maker.

In my view either the defendant or the deceased could have shot the other under a well-founded fear of death or the infliction of great bodily harm. It was inevitable that this “running fracas” would lead to bloodshed. This tragedy came as a result of their joint, mutual and concurrent criminal conduct. I am unwilling to visit upon the survivor of this duel in the dark the penalty of a first degree murder conviction and sentence.

Once the fact of the killing has been established, the law presumes that it was murder in the second degree. Witt v. State, 46 Term. 5 (1868); Shanklin v. State, 491 S.W.2d 97 (Tenn.Cr.App.1972).

In my opinion, defendant was guilty of second degree murder.