author: FRANK CONLEY, Special Judge.

text:
    STATE of Missouri, Plaintiff-Respondent, v. Jesse BEBEE, Defendant-Appellant.
    No. 10658.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 13, 1979.

      John D. Ashcroft, Atty. Gen., Paul Robert Otto, Carson Elliff, Asst. Attys. Gen., Jefferson City, for plaintiff-respondent.
    Charles Buchanan, Public Defender, Joplin, for defendant-appellant.
   FRANK CONLEY, Special Judge.

Jesse Bebee, appellant herein, was charged by information filed April 9, 1976, with felonious assault upon a fellow prisoner in the Jasper County Jail. Appellant was convicted after a trial by jury and sentenced to a term of five years. Appeal is taken from this conviction upon the following grounds:

(1) The trial court erred in overruling appellant’s motions for mistrial or continuance based upon the prosecutor’s failure to disclose an exculpatory statement in violation of Rule 25.32.

(2) Failure to disclose the exculpatory statement was a violation of due process.

(3)The trial court erred in denying a new trial based upon the ground that the exculpatory statement discovered during the course of the trial constituted newly discovered evidence.

Before discussion of the facts directly relevant to the grounds alleged as the basis for reversal, a brief statement regarding the underlying incident is required. It was undisputed at trial that appellant was involved in an assault upon one Sam Rankin while they were prisoners in the Jasper County Jail. The nature of appellant’s involvement was sharply contested however. The victim and another prisoner, Ricky David Barnett, testified that appellant held the victim while he was beaten by Chris Brownfield, another prisoner. Appellant and Chris Brownfield, however, testified that appellant intervened only to stop a fight between Brownfield and Rankin. Carl Greeson, the chief jailer, testified that appellant had been placed in the cell because it was thought that he would have a “calming effect” on other prisoners.

Turning now to the facts which are directly related to the issues at hand, on January 10, 1977, the public defender filed a motion for discovery on appellant’s behalf pursuant to Rule 25.32, requesting of the state, inter alia:

“(6) Any material or information within the possession or control of the State which tends to negate the guilt of the defendant as to the offense charged or mitigate the degree of the offense charged or reduce the punishment.”

After filing the motion for discovery the public defender went to the prosecutor’s office to seek discovery of information. At the prosecutor’s office, the public defender requested and received his client’s file. Finding little information in his client’s file, he asked the secretary if there were anything in the Brownfield file, a companion case, which was not in appellant’s file. In response to this request the prosecutor’s secretary went into the prosecutor’s office and returned with an inculpatory statement (hereinafter State’s Exhibit 7) made bjr Ricky David Barnett. The public defender was given State’s Exhibit 7, and told by the secretary that there was no other material in the file other than an information showing the charges in the companion case. State’s Exhibit 7, in addition to accusing appellant of holding the victim while he was beaten, contained the following statement:

“Then they got up a thing saying that Rancks [sic] throw [sic] the first paunch [sic]. I signed it because I was a frad [sic] that I would get paunched [sic] to [sic].”

During recess of appellant’s trial, the public defender was informed by Carl Gree-son, the chief jailer, that the statement referred to in State’s Exhibit 7 had been turned over to the prosecutor’s office. The public defender then requested that the prosecutor check to see if he could locate the statement. Within 5-10 minutes the prosecutor returned with the statement (hereinafter State’s Exhibit 3) and told the public defender that it had been located in the Brownfield file where State’s Exhibit 7 had been found.

State’s Exhibit 6 contained the following statement:

“Webber [sic] and myself [sic] were sitting talking to Sam Rankin [the victim] when Rankin said come over here Chris. Chris said Ill [sic] be right there. Chris came over Rankin got up when Chris got there Rankin hit Chris and they started swinging at each other. Jesse [appellant] came over and pulled them apart and they kept swinging and kicking at each other. Finely [sic] they were brock [sic] up.
/s/Kenneth R. Garrett /s/Lorin Weber
Signed on Back by other’s [sic] that seen [sic] what Happined [sic]. The rest was aslept [sic]”

On the back appeared the signatures of ten others, including appellant, Kelly Bag-gerly and James Seifried.

When the trial resumed, the public defender moved for either a mistrial or a continuance to afford an opportunity to interview the witnesses who signed the statement. Both motions were denied. After appellant’s conviction, a hearing on appellant’s motion for a new trial was held, but the motion was denied.

Rule 25.32(A) provides that:
“. . . [T]he state shall, upon written request of defendant’s counsel, disclose to defendant’s counsel such part or all of the following material and information within its possession or control designated in said request:
“(9) Any material or information, within the possession or control of the state, which tends to negate the guilt of the defendant as to the offense charged, mitigate the degree of the offense charged, or reduce the punishment.”

In State v. Stapleton, 539 S.W.2d 655, 659[4, 5] (Mo.App.1976) the court stated:

“. . . [T]he rules of criminal discovery are not a mere etiquette but the festoons of due process. They are meant to allow a defendant a decent opportunity to prepare for trial and avoid surprise. State v. Johnson, 524 S.W.2d 97, 101[7] (Mo. banc 1975). . . . Compliance with discovery is not at discretion; the obligation to make answer under the rules is peremptory. Rules 25.32, 25.37; State v. Buckner, 526 S.W.2d 387, 392[3, 4] (Mo.App.1975).”

Thus, the first inquiry is whether the rules of discovery have been violated.

Respondent argues that in order for the suppression of evidence to be established as error it must be established that the state “willfully” suppressed the evidence. The cases cited by respondent are not on point. The correct rule is stated in State v. Dayton, 535 S.W.2d 469, 477[14] (Mo.App.1976):

“The duty to disclose, whether under Brady or Rule 25.32, rests on the prosecutor, and [if] the material and information are within his possession or control, the cause of his failure cannot soften the sanction.”

The respondent, like the trial court, places considerable weight upon the fact that an agreement existed between the prosecutor and the public defender, whereby the prosecutor agreed to open his files for inspection. It is argued that this constitutes compliance with Rule 25.36 and that the sanctions under Rule 25.45 are therefore inapplicable. Respondent’s contention, however, ignores the fact that the duty to disclose is placed upon the prosecutor. State v. Dayton, supra. Even in the absence of a request, the prosecutor has an affirmative duty to disclose exculpatory evidence. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Abernathy, 525 S.W.2d 414, 416[1] (Mo.App.1975). In this ease the public defender made a written request for disclosure as required by Rule 25.82 and attempted to obtain discovery of the information, but was informed by the prosecutor’s secretary that the file contained only State’s Exhibit 7. Respondent seeks to absolve the state of its responsibility to disclose by claiming that the secretary was unauthorized to speak on such matters. The record reveals, however, that the door to the prosecutor’s office was closed, and that the public defender had assumed that the secretary had consulted with the prosecutor when she went into the office to obtain the file. Moreover, if the prosecutor’s staff undertakes his duty to disclose without authority to do so it is the prosecutor who should suffer the consequences. The manner of discovery utilized in this case necessarily creates a risk of nondisclosure. When such nondisclosure occurs the state has failed to comply with the rules of criminal discovery. Cf. State v. Dayton, 585 S.W.2d 469, 477[14] (Mo.App.1976).

Having concluded that the prosecutor’s office failed to comply with the rules of discovery, the question remains whether the appellant is entitled to a new trial because of the nondisclosure. The mere failure to disclose does not in and of itself entitle appellant to a new trial; it must be shown that the nondisclosure resulted in fundamental unfairness, see State v. Davis, 556 S.W.2d 45, 48 (Mo. banc 1977); State v. Harrington, 534 S.W.2d 44, 48 (Mo. banc 1976); State v. Helms, 559 S.W.2d 587, 590 (Mo.App.1977); State v. Broyles, 559 S.W.2d 614, 615 (Mo.App.1977), or that the trial court abused its discretion in refusing to apply a proper sanction under Rule 25.45. State v. Davis, supra.

As the rules of discovery are the embodiment of due process, the guidelines set by United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) are instructive. In Agurs the Supreme Court concluded that the test for fundamental unfairness may vary depending upon the cause of the government’s failure to disclose. Where, as in this case, there is merely general request for “anything exculpatory” and the prosecutor innocently fails to disclose, due process requires reversal only “if the omitted evidence creates a reasonable doubt that did not otherwise exist . .” United States v. Agurs, supra, at 427 U.S. 112, at 96 S.Ct. 2402. This test also applies to nondisclosure under the rules of discovery. See State v. Helms, supra. In Helms the court stated at 590:

“The question to be decided is whether or not the failure to produce as required by the rules results in a fundamental unfairness to the defendant. State v. Moten, [542 S.W.2d 317 (Mo.App.1976)]; State v. Buckner, [526 S.W.2d 387 (Mo.App.1975)]; State v. Johnson, [524 S.W.2d 97 (Mo. banc 1975)]; State v. Mitchell, 500 S.W.2d 320 (Mo.App.1973). Whether prejudice results in any given case from the State’s failure to produce, upon request, evidence favorable to the defense depends upon the nature of the charge, the evidence presented by the State, and the role that nonproduced evidence would likely have played. State v. Dayton, 535 S.W.2d 469 (Mo.App.1976). The nonpro-duced evidence must be of a character to raise a reasonable likelihood that it would have affected the result, if known at the trial. State v. Dayton, supra.”

At the hearing on appellant’s motion for new trial, the trial court heard the testimony of two witnesses, Baggerly and Seifried, who had signed State’s Exhibit 6. At the close of the testimony the trial court concluded:

“I admit the testimony of Mr. Baggerly and Mr. Seifried might very well have been sufficient for the jury to find Mr. Bebee not guilty, but I can’t see the failure to put them on is anybody else’s fault but the Defendants [sic].”

This court need not weigh the evidence to determine if the test has been met. The trial judge, who heard the testimony and observed the witnesses, has himself concluded that the testimony was of some importance. In addition, it was not argued on appeal that the evidence was not adequate to raise a reasonable doubt which did not otherwise exist, therefore the test must be considered satisfied.

Notwithstanding the importance of the evidence, the state finally contends that the conviction should be affirmed because the trial court found that the names of the witnesses were as readily available to defense counsel as they were to the state. It is apparent from the record, however, that the trial court relied upon a mistaken understanding of the facts in arriving at its conclusion. First, the trial court presumed, without any support in the record, that the public defender could have obtained the names of the witnesses by simply inquiring at the jail. In oral argument, however, it was revealed that at the time the public defender conducted his investigation the list of prisoners in the cell was" not available. Moreover, due to multiple markings on the exhibits, the trial judge appears to have mistakenly understood that the public defender had received State’s Exhibit 6 some nine days before the trial, but failed to request a continuance until the time of the trial. In fact, the public defender had not seen State’s Exhibit 6 until the day of the trial, at which time it was of little use to counsel since its primary value was in its disclosure of possible witnesses.

Although it may be assumed that a substantial investigation would have disclosed to defense counsel the names of most if not all of the witnesses who signed State’s Exhibit 6, there is no requirement in Rule 25.32 that the information not be available by other means. Indeed one of the implicit reasons for the duty to disclose is the recognition that defense counsel often lack the investigatory resources of the state. A requirement that information sought by defense counsel not be available elsewhere would largely strip the rules of discovery of their purpose of helping defense counsel prepare for trial. See State v. Johnson, 524 S.W.2d 97, 101[5] (Mo. banc 1975); State v. Stapleton, 539 S.W.2d 655, 659[4] (Mo.App. 1976).

The court concludes that the state failed to produce State’s Exhibit 6 and that such failure resulted in fundamental unfairness to the appellant. The trial court could have cured the failure to produce by a continuance, but declined to do so. Because we find that the trial court’s failure to apply an appropriate remedy at the time the nondisclosure was revealed constitutes reversible error, we need not consider appellant’s argument concerning newly discovered evidence.

The judgment is reversed and the cause remanded for a new trial.

BILLINGS, C. J., and HOGAN, J., concur.

      . The public defender had an agreement with the prosecutor’s office whereby the prosecutor made his files available to the public defender. Rule 25.36(B).

      . Rule 25.36 provides:
      “Unless otherwise ordered by the court, disclosure under Rules 25.32 through 25.35 shall be:
      (A) In a manner agreed to by the state and the defendant, or
      (B) By the party making disclosure notifying opposing counsel that the material and information to be disclosed may be inspected, obtained, tested, copied or photographed at a specified time and place and whether suitable facilities are available.

      . Rule 25.45 provides:
      “If at any time during the course of the proceeding it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to make disclosure of material and information not previously disclosed, grant a continuance, exclude such evidence, or enter such other orders as it deems just under the circumstances. Wilful violation by counsel of an applicable discovery rule or an order issued pursuant thereto may subject counsel to appropriate sanctions by the court.”

      .Although Rule 25.36 permits the prosecutor to produce his file and thereby relieve himself of the necessity of judging the exculpatory value of each item therein, producing the file is not compliance in and of itself. The request for discovery may encompass items not within the file and therefore require further disclosure. In this case there is no evidence of what was in the file when the public defender sought discovery. State’s Exhibit 6 may not have been in the prosecutor’s file at that time. The Missouri Bar OLE series on criminal law suggests that defense attorneys should inventory the file and retain a record. While this is certainly sound advice, the burden of showing what was in the file and thereby produced should be upon the prosecutor. Merely handing over a mass of papers leaves no record of compliance. If a document is later found in the file, nondisclosure is the only reasonable presumption.

      . If the state’s position were accepted, this court would be in the position of affirming a conviction because the failure to discover crucial evidence was due to defense counsel’s incompetence.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Missouri, Plaintiff-Respondent, v. Linda PROCK, Defendant-Appellant.
    No. 10564.
    Missouri Court of Appeals, Southern District, Division Two.
    Feb. 13, 1979.

      John D. Ashcroft, Atty. Gen., Kathryn M. Krause, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
    Scott B. Tinsley, Anderson & Tinsley, Springfield, for defendant-appellant.
   FRANK CONLEY, Special Judge.

Defendant was charged by information with the sale of a salt of amphetamine, a Schedule III controlled substance. Sections 195.017-6.(2)(a), 195.020 RSMo (Supp. 1975). After a trial by jury, defendant was found guilty and sentenced to a term of six years’ imprisonment.

At the trial, defendant did not contest the fact that a sale had been made. Rather, defendant relied upon the defense of entrapment. Briefly stated, the state’s evidence on this issue consisted primarily of the testimony of one Donald Potter, a paid informant. Potter testified that he first met defendant at a truck stop where they engaged in conversation for about five minutes. Potter returned to the truck stop the next evening, and defendant was there again. According to Potter’s testimony, during the conversation which ensued during this second encounter, defendant indicated that she desired to sell “[s]ome drugs, speed, marijuana.” In response, Potter told defendant that he was not interested, but that he had a friend who was. About a week later, Potter saw defendant again at a local club. During this third conversation defendant allegedly indicated that she was ready to sell “some drugs,” i. e., “speed and marijuana.” Potter then called his “friend”, Miller, an undercover narcotics agent. When Miller arrived a meeting was arranged whereby the sale was consummated.

Defendant’s evidence consisted of her own testimony, as well as the testimony of one Elsie Peltz, a friend. Defendant testified that she first met Potter at the club, and that she had never spoken to him at the truck stop. Both defendant and Peltz testified that it was Potter, not defendant, who initiated the conversation about drugs, and that Potter kept “bugging” the defendant to obtain drugs for him. Defendant also testified that she had obtained the drugs from a trucker with whom she had never previously dealt, and that she did not permit drugs in her home.

Defendant’s first ground for challenging her conviction is that the court erred in permitting Potter to testify regarding her alleged offer to sell marijuana. Defendant contends that she was charged with the sale of a salt of amphetamine and that the testimony regarding marijuana was therefore prejudicial and lacking in probative value. The testimony defendant objects to is as follows:

Regarding conversation at truck stop
“Q. Do you recall what, if anything, she said?
A. She said she would like to sell some.
Q. Some what?
A. Some drugs, speed, marijuana.”
Conversation at the club
“Q. Do you know what, if anything, she indicated to you and what, if anything, you indicated to her?
A. She indicated to me at this time that she was ready to sell some drugs.
Q. Did she in any other manner indicate what type of drugs?
A. Yes, at this time she also said speed and marijuana.”

It should be noted that this case does not, as defendant contends, involve the admission of evidence of a crime other than that for which defendant was tried. Defendant has cited no cases which suggest that an offer to sell drugs is a crime, nor do the statements necessarily imply that defendant had possession of drugs. However, even assuming the testimony does constitute evidence of a crime other than that for which the defendant was charged, the result would be the same.

When entrapment becomes an issue in a criminal trial, the state must prove the absence of entrapment just as though it were an element of the offense for which the defendant is being tried. State v. Weinzerl, 495 S.W.2d 137, 139[1] (Mo.App.1973). In this state, the “origin of intent” test is followed. State v. Keating, 551 S.W.2d 589, 592[1] (Mo. banc 1977), cert. denied, 434 U.S. 1071, 98 S.Ct. 1255, 55 L.Ed.2d 775 (1978); State v. Devine, 554 S.W.2d 442, 446[3] (Mo.App.1977); State v. Long, 550 S.W.2d 854, 857[3] (Mo.App.1977). Under this test, the state must show that the criminal intent necessary to commit the crime originated with the defendant, rather than with agents of the state. State v. Day, 506 S.W.2d 497, 500[5] (Mo.App.1974); State v. Weinzerl, supra, at 142[8]. Consequently, the state had the burden of proving, beyond a reasonable doubt, that defendant “was ready and willing to engage in the criminal activity with the informant.” State v. Devine, supra, at 448.

Defendant does not contend that the admission of evidence regarding offers to sell “speed” was improper. Indeed such a contention would be frivolous as this type of evidence clearly relates to defendant’s intent and predisposition to sell “speed”. Nevertheless, defendant argues that the reference to marijuana was not necessary to the prosecution’s case, and that the failure to suppress such evidence was reversible error. Defendant would have the prosecution carefully dissect testimony regarding intent and predisposition to screen out any words attributable to defendant which are to some extent cumulative, and which may tend to place defendant in a less favorable light. Such a contention cannot be accepted.

Had defendant offered to sell only marijuana during the first meeting, such evidence would be admissible as relevant to the issue of predisposition.

There is no requirement that the state's evidence of predisposition pertain precisely to the crime defendant actually committed. So long as the evidence relates to conduct evidencing wrongful intent of the same nature as involved in the actual offense, it may be properly considered on the issue of predisposition. State v. Hyde, 532 S.W.2d 212, 215 (Mo.App.1975). We need not decide whether testimony regarding a discussion of completely unrelated conduct such as murder or robbery would be inadmissible, as the sale of marijuana clearly involves the same type of wrongful intent as does the sale of “speed”.

In State v. Van Regenmorter, 465 S.W.2d 613, 617 (Mo.1971), the defendant was convicted of possession of marijuana. At the trial, the narcotics agent who had arrested the defendant testified that the defendant had agreed to sell, in addition to the drugs in question, information as to the location of the field in which the marijuana had been grown. The defendant argued that the evidence pertaining to the field should not have been admitted, but the court concluded:

“In any event, the state had the right to produce evidence of the negotiations between the defendant and Clark. Inasmuch as the negotiations involved both the marijuana defendant had and information as to the location of the field, the state was not required to extirpate from its case the testimony pertaining to the sale of the location of the field. Testimony as to such statements tended to prove the commission of the offense charged and was admissible. State v. Page, Mo, Sup., 395 S.W.2d 146, 150[9]. Furthermore, the testimony was relevant on the attempted defense of entrapment, because it showed the predisposition of the appellant to handle and deal in marijuana. Therefore, the trial court’s refusal to exclude the testimony was not error.”

In this case the prosecution’s evidence contained testimony of conversations which, if believed, would prove that defendant was predisposed to traffic in unlawful drugs. As in State v. Van Regenmorter, supra, we reject defendant’s argument that the prosecutor must excise relevant testimony because it is somewhat cumulative. The trial court properly permitted testimony of the entire context of the negotiations. State v. Burr, 542 S.W.2d 527 (Mo.App.1976) as well as the other authority cited by defendant, are clearly distinguishable from the case upon the grounds that they do not involve an issue of entrapment.

Defendant’s second contention on appeal is that the prosecutor’s closing argument improperly invited the jury to decide the case based upon whether they approved of defendant’s conduct, rather than upon the instructions of the court. The argument in question is as follows:

STATE: “. . . You are the conscience of this community. You have an obligation to yourselves and to this community. If this is the type of conduct, as the evidence shows, that you approve of and agree with — ”
DEFENSE: “Your Honor, I will object
THE COURT: “Your time is up, Mr. Geisler.”
STATE: “Thank you, Your Honor.”
THE COURT: “Objection overruled.”
STATE: “ — then acquit her. . . .”

The rule in Missouri is that specific objections are required to arguments of counsel. State v. Lang, 515 S.W.2d 507, 511[6] (Mo.1974); State v. Snow, 558 S.W.2d 414, 416[2] (Mo.App.1977); State v. Harper, 553 S.W.2d 895, 896-897[l] (Mo.App.1977); State v. Miceli, 549 S.W.2d 113, 116[3] (Mo. App.1977). Defendant did not call the trial court’s attention to any ground or reason for the objection, or request any action by the court; therefore, the defendant’s objection does not preserve any question for appeal.

Although defendant has not claimed plain error, we note that the prosecutor’s argument clearly does not rise to “manifest injustice”. V.A.M.R. Rule 27.20(c). Defendant’s argument that the prosecutor’s single interrupted statement may have led the jury to ignore the instructions read to them by the court, presumably explained to them by the defendant's attorney, and presented to them in writing, is simply too speculative to warrant serious consideration. The prosecutor’s argument, taken as a whole, merely emphasizes the jury’s duty to enforce the law. This is proper argument and the single questionable statement, though possibly misleading when taken out of context, is not grounds for reversal.

Defendant’s final point is that the court erred in refusing to permit defendant to cross-examine state witnesses Potter and Miller as to the location of agent Miller's residence as of the date of the offense. Normally, where the credibility of an important state witness is in issue, the right to confrontation includes the right to inquire as to the address of the witness. Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968); Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931); Caldwell v. Minnesota, 536 F.2d 272, 273 (8th Cir. 1976). The right is not absolute, however, as both Smith and Alford recognized the right of a trial court to protect a witness “from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.” Alford, 282 U.S. at 694, 51 S.Ct. at 220, quoted in Smith, 390 U.S. at 133, 88 S.Ct. at 750. This exception has also been held to permit a limitation on inquiry regarding the witness’ address where disclosure might endanger the personal safety of the witness, and where the defendant has made no showing of materiality. Caldwell v. Minnesota, supra, at 273; State v. Kirk, 510 S.W.2d 196, 200 (Mo.App.1974).

In this case defendant suggests that no protection should have been afforded agent Miller because he is an officer of the law, and because he had revealed his identity by taking the stand and giving his name. We find no reason for denying an officer and his family the protection from harm or harassment which may be afforded other witnesses. Defendant’s argument that the disclosure of Miller’s name made it possible for him to be located and that there was therefore no further interest to protect, is groundless. Locating one’s home from knowledge of his name is clearly not so easily accomplished as defendant suggests or defendant would have obtained such information himself for trial.

The question then is whether defendant’s right to know Miller’s address outweighed the court’s interest in protecting him from harm or harassment. It should first be noted that defendant does not contend, as in Smith and Alford, that the witness’ address was desired for purposes of “identifying the witness with his environment.” There is no reason to suspect that Miller’s place of residence would, in and of itself, lend any support to defendant’s effort to discredit his testimony. Moreover, Miller’s credibility was not particularly critical. The crime itself was admitted, and the crucial evidence rebutting entrapment came from Potter, not Miller.

Although Miller’s address does not of itself aid defendant’s case, defendant nevertheless argues that the address was material because it might have revealed an incongruity in the state’s ease. Defendant had elicited testimony from Potter on cross-examination that Potter “believed” he had called Miller later in the evening after the entire transaction in question had taken place. According to Potter the call was made “[h]al£ an hour, maybe” after Miller left him at his vehicle. Potter “believed” the call was made to Miller at Region II Headquarters.

Cross-examination of Miller disclosed that Miller had gone home after the incident, and he did not recall whether he had gone to Region II Headquarters or not later that evening. From this testimony defendant hoped to impeach the credibility of the witnesses by showing that Miller’s residence was so located that he could not have gone home and then to Region II Headquarters within approximately 30 minutes.

Apart from the fact that the testimony defendant sought to impeach concerned only collateral matters which were not in issue, the hopes of impeachment were unrealistic. Potter’s testimony was vague, and already contradicted to some extent by Miller’s testimony that he did not recall going to Region II Headquarters. Defendant was permitted to question Miller regarding distances between the various points and approximate driving time. Any more precise information regarding the location of Miller’s house would have been of little or no value. Consequently, if it was error to deny defendant the right to question the witnesses regarding Miller’s address, it was clearly harmless error.

BILLINGS, C. J., and HOGAN, J., concur.


author: COOPER, Justice.

text:
    Tommie M. WATSON, Appellant, v. UNITED STATES FIRE INSURANCE COMPANY, Appellee.
    Supreme Court of Tennessee.
    March 5, 1979.
    J. Gregory O’Connor, Bond, Carpenter & O’Connor, Knoxville, for appellant.
    Thomas S. Scott, Jr., Knoxville, for appel-lee.
   OPINION

COOPER, Justice.

This is a workmen’s compensation case. Tommie Watson has appealed the denial of his claim for benefits for injuries suffered in an automobile accident. The chancellor grounded his denial on his determination that the accident did not arise out of and in the course of Watson's employment. We reverse.

By the consent of the parties, and with the agreement of the chancellor, the case was tried on the issue of liability, only. Insofar as is material to our disposition of the case, the chancellor found that, at the time of the incident giving rise to this claim, Watson was employed by the Community Action Committee of Knox County. In connection with his employment, Watson was authorized to attend a training program that was to be given at Paris Landing State Park. The program was scheduled to begin near noon on Monday, June 6, 1977, and to continue for several days. On Sunday, June 5th, Watson left Oak Ridge, where he had spent the previous day, and travelled in his own car to Jackson, Tennessee, where he visited a friend. Watson stayed at Jackson that night, and left for Paris Landing State Park the next morning. He was severely injured in an automobile accident on his way there. Our review of the record shows that these findings are supported by material evidence, and we do not question them. See, e. g., Davis v. Gulf Insurance Group, 546 S.W.2d 583 (Tenn.1977).

However, our agreement with the facts as found by the chancellor does not extend to the legal conclusions that he drew from those facts. While this court is bound by the findings of the chancellor on questions of fact whenever there is material evidence to support them, it is not bound by his determination as to the legal effect of those facts, nor is it bound by his determination of a mixed question of law and fact. Travelers Insurance Co. v. Evans, 221 Tenn. 199, 425 S.W.2d 611 (1968); Sullivan v. Green, 206 Tenn. 42, 331 S.W.2d 686 (1959); Wilson v. Van Buren County, 196 Tenn. 487, 268 S.W.2d 363 (1954).

The chancellor concluded that Watson’s excursion to Jackson was a “detour,” motivated solely by personal concerns, from an employment-related trip from Knoxville to Paris Landing State Park, with the result that Watson’s injuries, arising in the course of that detour, were not compensable. We reverse, for we believe that the facts as found by the chancellor compel a different conclusion. We would characterize the journey in which Watson was engaged at the time of his accident not as the end of a detour from Knoxville to the State Park, but as an employment-mandated trip from Jackson to the same destination. There is no indication in the record before us that Watson had anything but a perfect right to be in Jackson, as opposed to Knoxville, on the morning of June 6th, or that his employer had any interest, expressed or otherwise, in the starting point of the trip to the training session. Even granting that Watson’s employer may have assumed that Watson would travel on a reasonably direct route from Knoxville to the State Park, there is no indication that such a route was mandated by his employer, or that Watson’s departure from it materially increased the risks of the journey. We are faced, then, by a situation in which Watson finds himself in Jackson on the night of June 5th. Left to his own devices, he would have returned to his home and his work in Knoxville. However, he was under the orders of his employer to report to Paris Landing State Park on the following day. In the course of doing so, he was injured. We believe the conclusion inescapable that, at the time of his injury, Watson was engaged in a trip made necessary by the requirements of his employment, and thus that his injury was compensable. Mark’s Dependents v. Gray, 251 N.Y. 90, 167 N.E. 181 (1929). See Ward v. Ward, 213 Tenn. 657, 378 S.W.2d 754 (1964); Peterson v. Taylor, 255 Minn. 220, 96 N.W.2d 247 (1959).

Accordingly, the judgment of the chancellor is reversed, and the case remanded for further proceedings. Costs will be taxed to the appellees.

FONES, BROCK and HARBISON, JJ., and ALLISON B. HUMPHREYS, Special Justice, concur.


author: LEWIS, Judge. SHRIVER, Presiding Judge,

text:
    Abbie P. WALDRON and Phoebe P. Davis, Co-Conservators of Phoebe T. Peay, Plaintiffs-Appellants v. COMMERCE UNION BANK, Defendant-Appellee.
    Court of Appeals of Tennessee, Middle Section.
    Aug. 25, 1978.
    Rehearing Denied Sept. 21, 1978.
    Certiorari Denied by Supreme Court Feb. 26, 1979.

      Fred E. Cowden, Jr., Nashville, for plaintiffs-appellants.
    Charles C. Trabue, III, Trabue, Sturdi-vant & DeWitt, Nashville, for defendant-appellee.
   OPINION

LEWIS, Judge.

This is an appeal by plaintiffs-appellants, Abbie P. Waldron and Phoebe P. Davis, Co-Conservators of Phoebe T. Peay, from the dismissal of their suit against defendant-appellee, Commerce Union Bank.

We adopt the first 16 paragraphs of the Chancellor’s excellent memorandum which succinctly set out the facts:

“In this case the conservators of Phoebe T. Peay, an incompetent, have sued Commerce Union Bank contending that the bank is liable for releasing the corpus of a trust to Mrs. Peay. The bank contends that since Mrs. Peay was both the grantor and the beneficiary, she had absolute control over the corpus and could dispose of it as she saw fit. The resolution of the controversy centers around the effect of a letter, signed by Mrs. Peay, and attached to the trust instrument, which directed that the bank allow no withdrawals from the corpus of the trust unless approved by either one of Mrs. Peay’s daughters, Abbie or Phoebe.
“Mrs. Peay had inherited securities valued at slightly over $100,000.00. In March 1974, due to her inexperience in financial matters and her family’s long-standing relationship with Commerce Union (her father was a bank director), she created a revocable trust with Commerce Union as the trustee and herself as the beneficiary. The instrument is a brief standard form document prepared by the bank, and it provided that the bank would invest her funds and pay the income to her. She had absolute power to terminate the trust at any time she desired.
“Mrs. Peay had a history of alcoholism and within a few weeks after creating the trust she disappeared and was later found intoxicated in New Orleans, having paid a Nashville Cab driver to transport her. She was returned to Nashville where she spent a month in Madison Hospital. Two of her daughters, Abbie and Phoebe, now her conservators, filed a petition in Probate Court to have Commerce Union appointed her conservator. On the day of the hearing, the daughters withdrew the petition and no conservator was then appointed. On that date the daughters met for the first time Kirk Scobey, the bank trust officer who supervised Mrs. Peay’s account, and made arrangements to meet with him to learn more about their mother’s trust.
“The meeting occurred at the bank on June 12, 1974 with Mrs. Peay, her two daughters, and Scobey present. What transpired is in dispute. According to Abbie, she and her sister were concerned about the possibility of their mother squandering her money since she had spent $5,000.00 on her New Orleans outing. Abbie had prepared a power of attorney to be executed by her mother and took it to the bank for the meeting to inquire of Scobey if the giving of the power of attorney to Abbie would have the effect of allowing Abbie and her sister control over the withdrawal of trust funds by Mrs. Peay. Abbie and Phoebe are positive that Mrs. Peay’s alcoholism was discussed at the meeting and it was explained to Scobey that Mrs. Peay needed protection from her own indiscretion. Sco-bey, according to Abbie, advised that the power of attorney would not have the desired effect and he prepared another document for Mrs. Peay to execute. That letter, signed by Mrs. Peay, stated as follows:
Commerce Union Bank Nashville, Tennessee
Re: Tr. U/A Phoebe T. Peay
Gentlemen:
With regard to my Trust, dated March 15, 1974, with you, I direct you to pay income monthly and send such checks to 3610 Hewlett Court, Nashville, Tennessee 37211. I further direct that you allow no withdrawals from the corpus of this Trust unless such is approved by Abbie P. Waldron or Phoebe Peay Davis.
/s/ Phoebe T. Peay
Phoebe T. Peay
“Abbie and Phoebe insist that Scobey advised them that before Mrs. Peay could withdraw trust corpus, she would have to have the signed approval of both daughters. He told them they were wise to have Commerce Union remain as a trustee because as a corporate, non-family entity, the bank could easier resist Mrs. Peay’s attempts to withdraw funds should she resume her abusive drinking habits and seek to make withdrawals. Scobey, according to the daughters, said nothing about the trust being revocable at the will of Mrs. Peay. The two young women, both in their 30’s and not knowledgeable about such matters, testified that they left the bank secure in the knowledge that their mother’s money would be safe from her own indiscretion.
“Scobey’s recollection of the meeting differs substantially from that of the daughters. He testified that he first explained to the daughters the nature of a ‘grantor trust,’ the duties of the trustee, and the fact that it was a devise to utilize the bank’s common trust fund to provide income for Mrs. Peay. He has no recollection of any discussion of Mrs. Peay’s chronic alcoholism and is confident that he would recall such conversation if it had occurred. Had there been any intent to amend the trust instrument and make it irrevocable, then a formal amendment would have been required and it would have to have been executed by Mrs. Peay and the bank. Scobey has no recollection of being asked by Abbie if the power of attorney she drafted would tie up Mrs. Peay’s funds.
“Scobey’s dominant recollection of the meeting is that Mrs. Peay was about to move into a duplex adjoining Abbie and that she wanted her daughter to look after her affairs and to be aware of what she was doing with her money. Even though the letter he drafted for Mrs. Peay says that the bank is directed ‘to allow no withdrawals from the corpus of this trust unless such is approved by Abbie P. Waldron or Phoebe P. Davis,’ Scobey states that the purpose of the letter was simply to insure that the daughters would be advised if Mrs. Peay were to make a withdrawal.
“Scobey acknowledges that he knew about the New Orleans ‘drinking junket’ and the Madison Hospital stay, but he did not know Mrs. Peay had a history of prior drinking problems and knew of no urgency about the drinking, especially in light of the withdrawal of the conservatorship petition on the day of the hearing. In his many conversations with Mrs. Peay after June 12, he states that he never had one with her during which she appeared to be intoxicated.
“A power of attorney was prepared and executed by Mrs. Peay at the June 12 meeting. It directs that the daughters close her personal bank accounts and deposit all monies into a joint account in their names. It states that the daughters are to manage any and all monies payable to Mrs. Peay or due her through ‘contracts, agreements, dividends and trusts.’ (Ex. 2). The daughters then established what they term a ‘power of attorney account’ in which they deposited income from a trust different from the one involved in this suit. The daughters then began to pay her bills and give her a weekly allowance.
“As contemplated, Abbie and Mrs. Peay occupied adjoining units in a duplex on Faulkner Drive. By July, Mrs. Peay had resumed her drinking and began associating with a collection of undesirable characters. Abbie moved out of the duplex and from time to time attempted to check on her mother, but was usually forced to leave her mother’s apartment by one of the rogues at Mrs. Peay’s.
“On July 24, Mrs. Peay called Scobey and instructed him to send her mail, which included her monthly income checks and bank statements, to her address on Faulkner Drive rather than the Hewlett Court address of Abbie’s in-laws. She told Scobey that she was no longer living with Abbie and that her daughters were no longer involved in her affairs. On September 16, 1974, Mrs. Peay attempted to cash a $3,000.00 check at the Nolensville Road branch of Commerce Union. After being advised by Buddy R. Dukes, the branch manager, that she had insufficient funds for the check, Mrs. Peay telephoned Scobey. She told Scobey that she wanted to withdraw the $3,000.00 from the corpus of her trust. Scobey reminded Mrs. Peay that she had decided that she wanted her daughters to have control over her expenditures. Mrs. Peay advised Scobey that she no longer wanted her daughters to have anything to do with her affairs and that she was revoking the power of attorney. She instructed Scobey not to discuss her affairs with her daughters. Scobey requested that Mrs. Peay send a written verification of her decision. He later received an undated letter from Mrs. Peay confirming the September 16 telephone conversation regarding the $3,000.00 and instructing him to ‘revoke the power of attorney new held by Abbie P. Waldron.’ (Ex. 19)
“Scobey and the branch manager Dukes worked out an arrangement whereby when Mrs. Peay came to cash checks and had insufficient funds, Scobey would have the necessary money transferred from the corpus of the trust into Mrs. Peay’s checking account. On October 4, 1974, Scobey sent Mrs. Peay a letter in which he confirmed her stated desire to make an additional withdrawal and asked her to sign a copy of the letter authorizing him to make subsequent transfers from the corpus of the trust to the checking account. Mrs. Peay signed a statement which followed:
“ ‘In accordance with the terms of my trust with you, I direct you to transfer funds from my trust to my checking account whenever such transfers are needed to cover overdrafts.
/s/ Phoebe T. Peay
“As a result of this arrangement, Mrs. Peay would go to the Nolensville Road branch and cash checks. According to Dukes, on the occasions when he saw Mrs. Peay, she was intoxicated and usually was in the company of one or more disreputable characters. On her second or third visit to withdraw funds, Dukes became worried about Mrs. Peay and tried to discuss the withdrawals with her. She told Dukes that her financial matters were none of his business, that she only had a few months to live, and that she could spend her money as she wanted. Usually, she would inform Dukes that she was withdrawing the money to use for travel, to buy boats, to buy cars, to make gifts, or to make investments. Scobey was told by Dukes what Mrs. Peay said she was using the money for and Sco-bey was also told that she was intoxicated when the withdrawals were made. Dukes asked the trust officer if there was anything that could be done about her wateful spending habits and Scobey advised Dukes that there was not, that in the type of trust she had she could spend all the money at any time, at her request. At no time were the daughters ever notified of these withdrawals.
“On one occasion, Mrs. Peay sought to withdraw $20,000.00 for an investment in a nightclub operation with one of her seedy associates. Scobey questioned Mrs. Peay about the investment and even consulted with Mrs. Peay’s brother, an attorney.
“Mrs. Peay continued on her spending binge throughout the balance of 1974 and into January of 1975. She purchased several automobiles and apparently gave them to the rogues with whom she was consorting. Several of the large checks are simply made out to cash and indorsed by her new friends. Between September 16,1974 and mid-January 1975, Mrs. Peay withdrew over $100,-000.00 of the corpus of her trust and spent in (sic) in what appears to be a most frivolous manner. She took up residence with another daughter after her funds were exhausted, and in May Mrs. Peay was declared incompetent by the County Court of Williamson County and Abbie and Phoebe were appointed her conservators. Mrs. Peay now suffers from organic brain damage and was unavailable to testify in this cause.”

Plaintiffs have assigned three (3) errors.

(1)“The Chancellor erred in holding that Phoebe T. Peay had the power to partially terminate her trust by making withdrawals of corpus subsequent to June 12, 1974, without the consent of one or the other of her two daughters. This was error because the letter of June 12, 1974 constituted an amendment to the trust which had the effect of converting it from a revokable trust to a trust revokable only with the consent of a third party.”
(2) “The Chancellor erred in holding that the act or acts of Phoebe T. Peay on or near September 16, 1974 constituted a revocation of the trust amendment of June 12,1974. This was error because (1) her undated letter following the phone conversation of September 16, 1974 with Mr. Scobey did not constitute a plain, clear and unequivocal intention on her part to terminate or revoke the amendment to the trust, and (2) the statements allegedly made by Mrs. Peay in her phone conversation with Mr. Scobey, even if admissible, likewise did not constitute a plain, clear and unequivocal intention on her part to terminate or revoke the amendment to the trust.”
(3) “The Chancellor erred in exonerating Commerce Union Bank for the multiple acts of negligence of its Trust Officer, M. Kirk Scobey.”

We discuss the first two assignments together.

It is not necessary to determine if the June 12, 1974 letter amended the trust, since even assuming that it did Mrs. Peay was the sole beneficiary of the trust and could therefore compel its termination either in whole or in part.

“If the settlor is the sole beneficiary of a trust and is not under an incapacity, he can compel the termination of the trust, although the purposes of the trust have not been accomplished.” Restatement (2d), Trusts, § 339.

The comment on this section is set out in the footnote.

By the great weight of authority it is held that a settlor who is the sole beneficiary of a trust and is not under a legal incapacity can revoke the trust even though the purposes for which he created it may have been to preclude him wasting his own assets. The suggestion that if in a moment of wisdom he has created a trust for his own protection, he should not be allowed in a moment of folly to deprive himself of that protection is imaginary. He has no protection against his own folly since his interest under the trust may be assigned by him or reached by his creditors. He cannot create a spendthrift trust for his own benefit. McArthur v. Faw, 183 Tenn. 504, 518, 193 S.W.2d 763 (1945); Rose v. Third National Bank, 27 Tenn.App. 533, 183 S.W.2d 1 (1944). “At any rate, regardless of his wisdom or folly in creating the trust, since nobody but he has at any time any beneficial interest in the property, he should be permitted to do as he likes with it, if he is not under a legal incapacity.” Scott, The Law of Trusts, § 339, p. 2699 (3d).

The rule, as will be noted, is subject to the condition that the settlor not be under a legal incapacity at the time of termination.

The plaintiffs assert that their mother was an alcoholic and that acute alcoholism can render a person legally incompetent.

Prior to May 15, 1975, when Mrs. Peay was adjudicated mentally incompetent, so far as the defendant knew Mrs. Peay was under no legal incapacity.

Mr. Scobey knew of Mrs. Peay’s trip to New Orleans and her stay at the sanitarium but did not know she had a drinking problem. He was present at the courthouse the day Abbie and Phoebe voluntarily withdrew the petition to have a conservator appointed for their mother. If Mr. Scobey had suspected a problem, Abbie and Phoebe’s actions would have been sufficient to dispel his suspicions. In Mr. Scobey’s conversations with Mrs. Peay after June 12 she never appeared to him to be intoxicated.

While there is proof that Mrs. Peay made withdrawals from the corpus of the trust while she was in some degree intoxicated, it does not appear from the record that her drunkenness was excessive so that she was deprived of the use of her reason and understanding. See Belcher v. Belcher, 18 Tenn. 121.

Plaintiffs contend that Tennessee does not adhere to the majority rule and, in support, cite Guion v. National Bank of Commerce, 31 Tenn.App. 540, 218 S.W.2d 739 (1948).

Mr. Guión was adjudged to be non compos mentis in 1907 and committed to Western State Hospital. He remained a “technical inmate” until 1937 (He had been allowed to come and go almost at will.) when he filed his petition to be released. In his petition, he alleged that while he was capable of self-control he did not feel his large estate should be turned over to him and that it should continue under a guardianship.

In 1939 he filed a petition for complete restoration to sanity but stated that on account of his lack of experience and ability to manage business matters he had executed an irrevocable trust. Subsequently, an order was entered approving the trust and restoring his competency. In January 1944 he filed a bill alleging that he was coerced into signing the trust agreement since the Probate Court would not remove his disability until he had signed the agreement and, therefore, the trust was neither binding nor irrevocable.

The Chancellor, after hearing, found that the Probate Court would not have removed his disability unless the trust had been executed and that his mental condition at the time of the hearing was the same that it was on May 9, 1939, i. e. such that he was not competent to handle his affairs. No appeal was taken and in 1945 a “supplemental” bill was filed, praying for revocation of the trust.

The Chancellor entered a final decree denying revocation of the trust because Mr. Guión was incompetent (specifically finding that his mental capacity was that of a child of 12 years).

In Guión there had been an adjudication of incompetency. Later his disability was removed on the condition that he agree to put his estate in an irrevocable trust. He was not thereafter permitted to revoke the trust because the Court found he was incompetent. We see no conflict with the majority rule. The majority rule is subject to the condition that the settlor-beneficiary must not be under a legal incapacity at the time of termination.

The plaintiffs are co-conservators for their mother. As such, they stand in the shoes of their mother and this suit is, in effect, a suit by Mrs. Peay to hold the defendant liable for breach of the terms of the trust agreement. Even if the trust had become irrevocable and the withdrawals by Mrs. Peay from the corpus of the trust were in violation of the terms of the trust, there could still be no recovery against the trustee. A beneficiary who was under no incapacity and who fully consented to an act of the trustee in wrongfully allocating or distributing trust assets cannot hold the trustee accountable or deny the trustee credit for funds thus disposed of. Knox County v. Fourth and First National Bank, 181 Tenn. 569, 182 S.W.2d 980, 989 (1944). Mrs. Peay not only consented, she requested the withdrawals.

During the time the withdrawals were being made Mrs. Peay was not confined. She lived alone, maintained her own checking account, had her own automobile, bought her own groceries, cooked her own meals, came and went as she pleased and incurred certain debts which the plaintiffs recognized as valid.

We are not cited to any proof in the record nor are we able to glean any that Mrs. Peay did not understand the nature and effect of her actions. The testimony was that she did understand what she was doing, that she fully intended to act precisely as she did despite being warned of the consequences of her actions by at least one of defendant’s employees. There is no proof that Mrs. Peay was under a legal incapacity when the requests were made.

The trust agreement between Mrs. Peay and the defendant specified no special mode of revocation. Mrs. Peay could revoke in any manner sufficiently manifesting an intention to revoke. Restatement (2d) Trusts, § 330, Comment i.

Assignments (1) and (2) are overruled.

We next discuss plaintiffs’ third assignment.

Plaintiffs complain that the defendant negligently placed an interpretation upon the trust agreement which was contrary to the interpretation they placed upon it. They say they were assured at the time of the execution of the June 12, 1974 modification (if such it be) that the corpus of their mother’s trust was now safe from her own encroachments since she could obtain the money only with the consent of one of them. There is no evidence that the defendant ever had any knowledge of a contrary interpretation placed upon the agreement by plaintiffs. As the Chancellor so aptly points out in his memorandum, what Abbie and Phoebe thought is irrelevant, since they were not a party to the agreement between defendant and Mrs. Peay. There is no evidence that the parties to the trust agreement ever interpreted it as being irrevocable.

They say it was negligence on the part of the defendant in failing to notify them of the withdrawals. The uncontradicted testimony was that Mrs. Peay instructed Mr. Scobey not to discuss her financial affairs with her daughters. She was the bank’s customer and as such they felt they owed a duty to follow her wishes. As we have said earlier, there is no proof that the defendant knew prior to May 15, 1975 that Mrs. Peay was under any incapacity.

In order for there to be a recovery on the theory of negligence, it must be proven by the plaintiffs that the defendant owed a duty and that it breached that duty. In this instance the duty which the defendant owed was to Mrs. Peay. The proof is that it acted at the request and direction of Mrs. Peay.

We adopt the following from the Chancellor’s memorandum.

“Notwithstanding the bank’s sloppy handling of the matter, the bank is not liable. The bank’s customer was Mrs. Peay and this suit is brought as if she were the plaintiff. The Court cannot conclude that Mrs. Peay ever desired to create a permanently irrevocable trust. While that may have been the daughters’ desire, they were not the bank’s customers. Since it is not shown that Mrs. Peay wanted an irrevocable trust to be created, the bank cannot be estopped by any failure to create such a trust. The trust arrangement may have been exactly as Mrs. Peay desired it to be, and since the contrary has not been clearly shown, the bank is not liable on this issue.
“Even if the Court were to find the bank liable, it would be difficult to ascertain the amount of damages. Mrs. Peay, through her conservators, is seeking to recover from the bank funds which Mrs. Peay has already received. To require the bank to pay this money to Mrs. Peay twice would necessitate a finding by this Court that the use of the funds by Mrs. Peay were utterly without any value to her. This would require a most subjective decision by this Court as to the merit or lack of merit of her expenditures. According to the bank branch manager, Mrs. Peay thought she had only six months to live and chose to spend her funds buying cars for her new friends, taking them to Las Vegas, and making unwise investments. While such expenditures may appear frivolous to the average person, it would be difficult for this Court to substitute its personal judgment about such expenditures for that of Mrs. Peay. What is a frivolous expenditure to one person is certainly not necessarily a frivolous expenditure to another. If Mrs. Peay believed that she had only a few months to live, chose to spend over $100,-000.00 in the manner in which she did and derived pleasure from it, it would be most difficult for a court to conclude that she should be entitled to recover that amount from the bank which released her own money to her.”

All assignments are overruled, the judgment of the Chancellor is affirmed. Costs are taxed to the plaintiffs.

SHRIVER, P. J., and TODD, J., concur.

SHRIVER, Presiding Judge,

concurring.

It is with great reluctance that I concur in the Opinion whereby the judgment of the Trial Court is affirmed in dismissing the complaint.

It seems to me that the Trust Officer of the defendant Bank was clearly negligent in the handling of the trust fund. In view of all the circumstances shown by the record he should have come to realize that Mrs. Peay was incompetent to make rational decisions concerning withdrawals of large sums from the corpus of the Trust, having in mind the purpose of creating the Trust in the first place, and, especially after the Trustor signed an agreement that future withdrawals would require the written concurrence of one or both of her daughters.

At the very least the Trustee should have notified the daughters before honoring the repudiation of this agreement that was obviously made for Mrs. Peay’s protection against improvident withdrawals and expenditures due to intoxication or otherwise.

In recognition of the legal difficulties pointed out by the learned Trial Judge in trying to find a way to sustain the complaint, I feel compelled to concur in an affirmance of the judgment below.

      . For clarity, the daughters will be referred to by their first names. Abbie Peay was Abbie P. Waldron when suit was filed and when all of the relevant transactions occurred. Her first husband, Waldron, is deceased and she has since remarried and her married name is Abbie Peay Glover. Phoebe Peay’s married name is Phoebe Peay Davis.

      . “a. Scope of the Rule. The rule stated in this section is applicable although the settlor does not reserve a power of revocation, and even though it is provided in specific words by the terms of the trust that the trust shall be irrevocable. It is applicable although the purpose of the Settlor in creating the trust was to prevent himself from mismanaging the property. It is applicable although by the terms of the trust, it is provided that the beneficial interest should not be transferable or subject to the claims of creditors since a restraint on the alienation of the beneficial interest is ineffective where the beneficiary is the settlor.
      “If the settlor is not under an incapacity at the time when he creates the trust, but he subsequently becomes under an incapacity, he cannot therefore terminate the trust. Thus, if the settlor becomes insane or is judicially declared a spendthrift, he cannot terminate the trust. The mere fact, however, that he is a person who is unable wisely to manage or dispose of his property does not preclude him from terminating the trust and compelling the trustee to re-transfer the trust property to him if he is the sole beneficiary of the trust; and it is immaterial that his purpose in creating the trust was to put the management of his property out of his own hands, because of his fear that he would mismanage it and to protect himself against his own incompetence, wasteful habits or intemperance. He can terminate the trust, if he is not under an incapacity, because he is both the settlor and the sole beneficiary.” Comment a., Restatement (2d), Trusts, § 339.


author: LEWIS, Judge.

text:
    Robert T. IRVIN, Appellant, v. Thomas C. BINKLEY, Chairman of the Tennessee Department of Employment Security’s Board of Review and Tennessee Valley Authority, Appellees.
    Court of Appeals of Tennessee, Middle Section.
    Dec. 1, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    Robert T. Irvin, pro se.
    Sam J. McAllester, Jr., E. Lee Allen, Randall P. B. Harris, Nashville, for Thomas C. Binkley, Chairman of the Tennessee Dept, of Employment Security’s Bd. of Review.
    Herbert S. Sanger, Jr., Gen. Counsel, Charles A. Wagner, III, Associate Gen. Counsel, Justin M. Schwamm, Sr., Asst. Gen. Counsel, Bonnie B. Zachary, Knoxville, for Tennessee Valley Authority.
   OPINION

LEWIS, Judge.

Appellant, Robert T. Irvin, appeals from the judgment of the Law and Equity Court for Montgomery County affirming the denial of unemployment compensation benefits by the Tennessee Department of Employment Security and in the dismissal of his Petitions for Certiorari.

Appellant’s assignment of errors raise the issues, (1) was the trial Court correct in holding that there was ample evidence to support the finding of the Tennessee Department of Employment Security’s Board of Review that appellant was guilty of such misconduct in connection with his work as would sustain a disqualification for unemployment benefits as contemplated by T.C.A. § 50-1324(B)(2), and (2) was it error for the trial Judge to disallow the introduction of a report compiled by appellant’s employer, Tennessee Valley Authority.

The standard for judicial review applicable in unemployment compensation benefit cases where the Chancellor sits as an appellate judge to review the administrative record by writ of certiorari is set forth in T.C.A. § 50-1325(1):

In any judicial proceedings under this section, the findings of the board of review as to the facts, if there be any evidence to support the same, shall be conclusive and the jurisdiction of said court shall be confined to questions of law.

Our Supreme Court, in Bailey v. Tennessee Department of Employment Security, 212 Tenn. 422, 370 S.W.2d 492 (1963), has stated:

“[I]f, from the facts in the record, reasonable minds could differ as to the cause of the unemployment, then the decision of the Board is final.” 370 S.W.2d at 495.

The Tennessee Department of Employment Security and its Board of Review are expressly exempt under T.C.A. § 4-529(e) from the provision of the Tennessee Uniform Administrative Procedures Act dealing with the scope of judicial review of administrative agency decisions and the substantial evidence test as set forth in T.C.A. § 4-523. Here, we are concerned with only the very limited review of administrative fact findings long afforded by common law writ of certiorari.

The Supreme Court, in Cawthron v. Scott, 217 Tenn. 668, 400 S.W.2d 240 (1966) at 242, has stated:

“To sustain the Board of Review’s application of the provision in the statute under consideration, ‘we need not find that its construction is the only reasonable one or even that it is the result we would have reached had the question arisen in the first instance in the judicial proceedings . . . .’ All that is needed to support the commission’s interpretation is that it has ‘warrant in the record’ and a ‘reasonable basis in law’. Milne Chair Co. v. Hake, 190 Tenn. 395, 230 S.W.2d 393 (1950): Moore v. Commissioner of Employment Security, 197 Tenn. 444, 273 S.W.2d 703 (1954); Aluminum Company of America v. Walker, 207 Tenn. 417, 340 S.W.2d 898 (1960).”

There is evidence in the record to support the Board of Review’s fact findings regarding the appellant’s discharge from his employment.

The evidence amply sustains the finding that appellant failed, after written warnings, to report for work on scheduled overtime shifts without notifying his supervisor. The evidence sustains the finding that he threatened his supervisor.

Appellant admits that he refused overtime and threatened his supervisor. He admits that he refused an offer of re-hiring made to him on November 8, 1977, by his employer, Tennessee Valley Authority.

The appellant’s own proof before the Board shows his bad attendance record with his employer.

Mr. Justice Fones, writing for a majority of our Supreme Court, stated in Wallace v. Stewart, 559 S.W.2d 647 (1977) at 648:

“No aspect of [contracted] employment is more basic than the right of the employer to expect employees will appear for work on the day and at the hour agreed upon. Persistent failure to honor that obligation evinces a substantial disregard for the employer’s interest and may justify a finding of misconduct connected with the employment.”

The record contains material evidence of the appellant’s substantial disregard for his employer’s interest.

Appellant contends the trial Judge erred in failing to receive evidence outside the administrative record. The proceeding before the trial judge is not de novo.

It was the duty of the Chancellor to review the records of the proceedings before the Board of Review and to determine whether there was any evidence in the records to sustain the Board’s findings of fact, and if there was, it was then the Chancellor’s duty to apply the applicable law to those findings. Cawthron v. Scott, 217 Tenn. 668, 674, 400 S.W.2d 240, 242-3 (1966).

The burden of establishing the right to benefits under the Tennessee Employment Security Law is upon the claimant. Reese v. Hake, 184 Tenn. 423, 199 S.W.2d 569 (1947). Since appellant did not introduce at the hearing before the Board of Review the evidence he sought to introduce in the Law and Equity Court, only he can be faulted for what he terms an “incomplete record”.

While he does not assign it as error, he does allude to the absence of a jury in the Law and Equity Court. T.C.A. § 50-1325(1) states that a challenge of the denial of benefits in the courts “shall be heard by the chancellor either at term time or vacation as a matter of right, any other statute of this state to the contrary notwithstanding”. The proceeding is before the Chancellor without a jury.

Appellant has filed an “amendment” asking this Court to award him $1,500,000.00 for “character assassination” and “violation of appellant’s constitutional rights”.

These allegations and request for relief were not raised by appellant in the Law and Equity Court and cannot be raised in this Court for the first time. The jurisdiction of the Court of Appeals is appellate only. T.C.A. § 16-408. This Court can only consider such matters as were brought to the attention of the trial court and acted upon or permitted by the trial court. Clement v. Nichols, 186 Tenn. 235, 237, 209 S.W.2d 23 (1948). In this instance, this Court may not go beyond the issue of the review of the denial of unemployment compensation benefits.

The assignments of error are without merit. The judgment of the Law and Equity Court is affirmed with costs to the appellant.

SHRIVER, P. J., and DROWOTA, J., concur.


author: DAUGHTREY, Judge.

text:
    Bobby Joe MYERS, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    June 22, 1978.
    Certiorari Denied by Supreme Court Sept. 18, 1978.

      Marvin J. Brode, Memphis, for appellant.
    Brooks McLemore, Jr., Atty. Gen., Robert A. Grunow, Asst. Atty. Gen., Nashville, John A. Irvine, Asst. Dist. Atty. Gen., Memphis, for appellee.
   OPINION

DAUGHTREY, Judge.

This case was set for oral argument following entry of an order by another member of this Court, who granted certiorari and supersedeas from an order of the trial court overruling the petitioner-defendant’s plea in abatement. In his original petition for certiorari, the petitioner alleged that he had previously pleaded guilty in the Municipal Court of the City of Memphis to the same offense as that now pending against him in the Shelby County Criminal Court, and that the trial court’s failure to abate the indictment there violated his constitutional right to protection against being twice placed in jeopardy for the same offense.

At the time the writs were granted and at the time the case was argued, the records of the Shelby County Criminal Court and the Memphis Municipal Court were not before this Court. These records have since been filed, and they wholly fail to substantiate the allegations of the petition. The technical record indicates that Bobby Joe Myers was indicted on October 16,1973, for the offense of “unlawfully and feloniously possesspng] a weapon commonly known as a sawed-off shotgun” on September 7,1973, an apparent violation of T.C.A. § 39-4918. A capias warrant was issued on November 20, 1973, after Myers failed to appear and answer that charge. Myers was arrested on November 1, 1977, on a plures capias issued May 20, 1974, and he was finally arraigned on November 4,1977. The case was set for report on December 2,1977, and for trial on December 14, 1977; it was subsequently continued on December 2, 1977 (“by consent”), on December 14, 1977 (“on application of the defendant”), on January 20,1978 (by order of the Court “for Disposition”), on January 27, 1978 (by the Court, again “for Disposition”), and on February 1, 1978. Myers filed his plea in abatement on February 8, 1978.

In the meantime, Myers had appeared in Municipal Court on October 10, 1977, at which time a purported charge of “carrying a dangerous weapon T.C.A. § 39 — 4901” was continued to December 7,1977, and on that date the case was continued to January 12, 1978. At that time, Myers waived a jury and pleaded guilty to “carrying a dangerous weapon”; he was fined $50.00 and received a suspended thirty day sentence.

Of central importance to our current determination is the total absence of any sort of charging document in the Municipal Court records. Thus it conclusively appears that the city judge had no jurisdiction to entertain the defendant’s plea and that the resulting judgment must be considered void. Furthermore, in the absence of an arrest warrant specifying the nature of the offense and the date on which it allegedly occurred, it is impossible to determine whether the putative charge to which Myers pleaded guilty in city court (T.C.A. § 39-4901) and the charge now pending in criminal court (T.C.A. § 39-4918) are the same or grew out of the same transaction. In the absence of proof to the contrary, we must assume that they do not violate the double jeopardy clauses of the state and federal constitutions.

Given the duty of the petitioner to demonstrate grounds for extraordinary relief, and given the state of the record before us, we must conclude that Myers has totally failed to substantiate his claim. We hold, therefore, that the writs of certiorari and supersedeas heretofore granted by the Court must be dismissed as improvidently granted.

The writs are dissolved and the case is remanded to the trial court for further proceedings.

RUSSELL and DUNCAN, JJ., concur.


author: WALKER, Judge.

text:
    James Earl RAY, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Aug. 24, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.

      Kenneth R. Krushenski, Oak Ridge, for appellant.
    Brooks McLemore, Jr., Atty. Gen., William J. Haynes, Jr., Senior Asst. Atty. Gen., Nashville, Arzo Carson, Dist. Atty. Gen., Huntsville, William P. Phillips, Asst. Dist. Atty. Gen., Oneida, for appellee.
   OPINION

WALKER, Judge.

James Earl Ray, imprisoned under a 99-year sentence for first degree murder, was one of several inmates who escaped over the prison wall of Brushy Mountain penitentiary on June 10, 1977. He was recaptured on June 13 after bloodhounds led guards to the place he was hiding in the surrounding mountains. After his trial and conviction for escape, the trial judge sentenced him in accordance with the verdict to one to two years’ imprisonment consecutive to his murder sentence.

In this appeal Ray urges that his escape conviction cannot stand because he has already been subjected to jeopardy in the proceedings before the prison disciplinary board, which he insists is a body whose function is best characterized as judicial. This contention is in direct conflict with State ex rel. Turner v. Gore, 180 Tenn. 333, 175 S.W.2d 317 (1943), where the court expressly distinguished the judicial function of a criminal prosecution from proceedings before prison authorities, which are administrative. The rule in federal courts is to the same effect that administrative disciplinary action by prison authorities does not preclude prosecution for escape on principles of double jeopardy. United States v. Cluck, 542 F.2d 728 (8th Cir. 1976); United States v. Salazar, 505 F.2d 72 (8th Cir. 1974). Thus, despite Ray’s deprivation of good and honor time and his administrative segregation for a time pursuant to administrative proceedings, this escape prosecution does not run afoul of constitutional guarantees against double jeopardy.

Ray next attacks the weight of the evidence, urging that the evidence preponderates against the jury’s verdict, and that there is too much doubt and uncertainty in the proof to warrant his conviction under T.C.A. 39-3802. In this connection he argues that the minute book entry, which the state introduced, was improperly admitted as proof of the underlying conviction for which he was incarcerated. His objection to the minute entry is that it fails to specify in which court the March 10, 1969, proceedings concerning him occurred; and additionally, that the minutes are not the best evidence of a final conviction which the state could have adduced. Without proper proof that he was lawfully imprisoned, Ray says that he cannot be convicted of violating T.C.A. 39-3802.

The proof of Ray’s guilt of escape is overwhelming. In his own testimony he conceded that he had built a ladder and escaped over the wall although he insisted that he did so because it was the only means of reopening his murder case.

As for the question of showing that Ray had been duly convicted, the certified minute entry signed by W. P. Battle, Judge, was introduced by the deputy clerk of the Criminal Court of Shelby County, who was the administrative assistant to the Clerk of the Criminal Court of Shelby County. This official testified as to the preparation and entry of the order with its signature by the trial judge. This minute entry shows that Judge Battle, whom we judicially know was judge of Division III of the Criminal Court of Shelby County, assumed the bench on March 10, 1969; that the appellant appeared in person and by counsel; that the jury was sworn and on arraignment the appellant pled guilty; after the testimony of five witnesses and a lengthy stipulated statement the jury returned its verdict of guilty of first degree murder and fixed Ray’s punishment at 99 years in the penitentiary. On that verdict the court passed sentence ordering him to be delivered to the warden of the state penitentiary to be confined for 99 years. He was allowed credit for time in jail awaiting trial.

Minutes are indigenous to courts of record; and when signed by a trial judge, they become the highest evidence of what has been done in the court. Howard v. State, 217 Tenn. 556, 560, 399 S.W.2d 738 (1965). The judgment and sentence here supplies the same information that this court found sufficient in Chisom v. State, 539 S.W.2d 831 (Tenn.Crim.App.1976). Although T.C.A. 41-718 allows copies of records sent to the warden as presumptive evidence of the former conviction, this alternative method does not detract from the authority of court minutes showing the judgment and sentence. There is therefore no deficiency in the proof of Ray’s guilt and these assignments are overruled.

Ray also urges that the proof did not conform to the specific allegation of the indictment that he was lawfully confined in the custody of authorities at Brushy Mountain penitentiary and that this shortcoming constitutes reversible error. That Ray was lawfully incarcerated was established by the certified minutes of the Criminal Court of Shelby County. The locus of his incarceration is not a critical inquiry in establishing the crime of escape. As was said in Chisom, the offense is the escape from custody of the confining authority, so that the place of confinement is not, in fact, a relevant inquiry. Both Johnson v. State, 148 Tenn. 196, 253 S.W. 963 (1923), and State v. Brooks, 224 Tenn. 712, 462 S.W.2d 491 (1970), recognize that for such a variance between the indictment and the proof to be fatal to a conviction the variance must pertain to a material aspect of the offense. If surplusage is with respect to a matter legally essential to the charge in the indictment, then it must be proven in the degree of detail alleged. Johnson, supra. The indictment here charged Ray with escaping “while confined as an inmate in the Brushy Mountain Penitentiary in Morgan County, Tennessee, under the custody and supervision of the Department of Corrections of the State of Tennessee, and serving a sentence pursuant to a conviction in the Criminal Court of Shelby County, Tennessee, . .” (emphasis added). The trial court’s minutes show that Ray was committed to the warden of the state penitentiary, and the state penitentiary must be viewed as a system of prisons, rather than one place of incarceration. By T.C.A. 41-101 the term penitentiary includes Brushy Mountain penitentiary. Further, the testimony shows that Ray was lawfully incarcerated at Brushy Mountain penitentiary. This assignment is without merit.

Ray further claims prejudicial error in the district attorney general’s closing argument, insisting that certain remarks were improper and inflammatory. Defense counsel objected to the portion of argument in question, and the trial court sustained the objections. This cured the error, if any. Cantrell v. State, 3 Tenn.Cr.App. 434, 463 S.W.2d 145 (1970).

The trial judge’s exclusion of evidence of Ray’s state of mind was not error. His state of mind has no bearing on his guilt of the crime of escape.

All assignments of error have been fully considered and are overruled.

Judgment affirmed.

DUNCAN, J., and ARTHUR C. FA-QUIN, Jr., Special Judge, concur.


author: RUSSELL, Presiding Judge.

text:
    Gregory Lee POWERS and Doug Moore, Appellants, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 13, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    J.Klyne Lauderback, Bristol, for appellants.
    William M. Leech, Jr., Atty. Gen., Linda Ross Butts, Asst. Atty. Gen., Nashville, Carl K.Kirkpatrick, Jr., Dist. Atty. Gen., Phyllis Fitzwilson, Asst. Dist. Atty. Gen., Kings-port, for appellee.
   OPINION

RUSSELL, Presiding Judge.

The appellants, Gregory Lee Powers and Doug Moore, were convicted, after pleading guilty in the Criminal Court of Sullivan County, Tennessee, of the crime of improper disposition of a dead human body, and both were sentenced to one to five years in the State Penitentiary. The appellants petitioned for suspended sentences and probation, but the trial court denied their applications, They now appeal from those denials. We have consolidated these two cases on appeal in view of the fact that they arise out of the same series of events and present identical issues.

The facts show that on the night of May 12, 1977, the appellants and another friend went to the home of an eighteen-year-old girl, an acquaintance of appellant Powers, picked her up, purchased some beer, and drove to Powers’ mobile home. There they drank the beer, smoked marijuana, and the girl drank between a pint and a quart of moonshine whiskey. All three men apparently had sexual relations with the girl during the course of the evening. At some point, the girl became very ill, lost consciousness, and attempts to revive her failed. The appellants then undressed her, washed her clothes, and placed her in the shower. After her clothes dried, they dressed her and placed her on a bed, leaving her there until the next morning, when they finally determined that she was dead. After some deliberation, they placed the girl’s body in the trunk of a car, proceeded to a mountainous area of Sullivan County, and buried her.

At the probation hearing, appellant Powers offered the testimony of his wife, who stated that she and appellant had been married for four and one-half years, that the appellant was employed, supported her and their child and was a good husband. A neighbor testified that Powers was a “good boy” and that she had never heard anything bad about him. The State offered the testimony of the dead girl’s mother and the Sullivan County Sheriff, who stated that the appellants changed their statements several times during the course of the investigation. A probation report was submitted to the trial court.

Appellant Moore offered no testimony on his own behalf, choosing instead to rely on the contents of his probation report. The State presented a Deputy Sheriff, who testified that Moore showed no signs of remorse and smiled and smirked throughout the preliminary hearing.

The trial judge, in considering appellants’ petitions for suspended sentences and probation, heard testimony generally favorable to the appellants, with the exception of the testimony by the Sheriff and his deputy. He had before him the probation reports, which we have read, and which cannot be said to be unfavorable to either appellant. In denying probation, the court indicated that the sole basis for his decision was the circumstances and nature of the offense. The appellants, in their only assignment of error, contend that this constituted an abuse of discretion, noting that Stiller v. State, 516 S.W.2d 617 (Tenn.1974), provides five factors to be considered by the trial court in determining whether probation is appropriate.

The precise issue in this case, therefore, is whether it is an abuse of discretion for the trial court to base his decision to deny probation solely upon the nature and circumstances of the crime, when the other factors to be considered, i. e., criminal record, social history, present condition, and physical and mental condition, do not negatively reflect upon the defendant’s candidacy for probation.

In order for the reviewing appellate court to be warranted in finding an abuse of discretion in these cases, we must find that the record contains “no substantial evidence to support the conclusion of the trial court that the defendant is not entitled to probation or suspended sentence, giving due consideration to the criteria set out in the statute [Tenn.Code Ann. § 40-2904] and decisions” of the Supreme Court. State v. Grear, 568 S.W.2d 285 (Tenn.1978).

We find nothing in either the case law or the statutory law which requires the trial judge to enumerate all of the Stiller factors when one such factor alone provides a sufficient basis for his decision. Indeed, our Court, in Mattino v. State, 539 S.W.2d 824 (Tenn.Cr.App.1976), has stated that the nature or circumstances of the offense may provide a sufficient basis for denial of probation, particularly where heinous crimes or crimes of violence against the person are involved. We note, also that the General Assembly has expressly provided that “the trial judge may deny probation upon the ground of the deterrent affect upon other criminal activity”. T.C.A. § 40-2904. While that statute requires that the trial judge set out the reasons for the ruling made, setting out one sufficient reason would be a compliance and permit the review contemplated.

Since the nature and circumstances of the crime is a proper factor to be considered, Stiller, supra, and the record contains ample evidence concerning the nature and circumstances of the crime, we cannot say that there is no substantial evidence to support the conclusion of the trial court. We find, therefore, no abuse of discretion.

The judgments of the trial court denying the petitions for probation of Gregory Lee Powers and Doug Moore are affirmed.

DUNCAN, J., and JOHN D. TEMPLE-TON, Special Judge, concur.


author: BYERS, Judge.

text:
    Willie Joe GLADSON, Appellant, v. STATE of Tennessee, Appellee.
    Court of Criminal Appeals of Tennessee.
    Nov. 17, 1978.
    Certiorari Denied by Supreme Court Feb. 20, 1979.
    William W. Petty, Knoxville, for appellant.
    William M. Leech, Jr., Atty. Gen., Charles L. Lewis, Asst. Atty. Gen., Nashville, Ronald A. Webster, Dist. Atty. Gen., James R. Dedrick and William H. Crabtree, Asst. Dist. Attys. Gen., Knoxville, for appellee.
   OPINION

BYERS, Judge.

The appellant was convicted of murder in the second (2nd) degree and sentenced to serve ten (10) years.

The appellant says the evidence preponderates against the verdict and says two (2) slide pictures of injuries to the deceased were erroneously admitted into evidence.

We are of the view the introduction of the pictures was erroneous and, therefore, reverse the judgment of the trial court and remand this case for a new trial.

On March 26, 1977, between 11:30 p. m. and 12:00 midnight Robert Stout received injuries to his head in a confrontation with the appellant which resulted in his death. The appellant was the only living eyewitness to this event and claimed he acted in self-defense to repel an attack upon him by the deceased.

The State’s case relied primarily upon the circumstances of the death and whatever inferences the jury might draw from the facts, including any inferences drawn from the use of a stick to inflict the wounds and the testimony of a woman who did not see the altercation but heard words and noises indicative of conflict.

In the absence of the two (2) slide pictures, we are of the opinion the evidence would be sufficient to support the jury verdict. However, we are unable to say this introduction did not affect the jurors’ view of the evidence.

One of the pictures was a view of the cranial bones after removal of the deceased’s hair. The pathologist scalped the deceased to reveal the cranial bone and then took a picture of this bone.

The other picture complained of was a view of the deceased’s brain. This picture was made after the cranial bone, exposed in the scalping procedure, was removed.

The State insisted in the face of objection to the introduction of these pictures they were offered because there was a dispute as to the cause of death. They based this on questions elicited to determine if the deceased had been struck on the head by a pop bottle earlier in the day on which he died.

The appellant’s attorney stated the appellant would concede the death was as a result of the injuries received in the altercation between him and the deceased, and offered to stipulate this with the State. The State refused to agree to such stipulation.

It is true both sides must agree to effect a stipulation. However, the State, by refusing to stipulate, cannot make inadmissible and inflammatory evidence admissible or noninflammatory. The basic fallacy in the State’s premise is the failure of these pictures to bear significantly on their claim of admissibility. The medical proof shows the death was a result of the injuries received. The appellant concedes the deceased received these injuries as a result of an altercation with him. The State had already introduced pictures showing the wounds prior to the surgical revelation of the cranial bones and brain, these pictures added nothing to this evidence. These pictures are inflammatory, irrelevant and unnecessary. State v. Banks, 564 S.W.2d 947 (Tenn.1978).

We cannot say these pictures did not inflame the jury to a degree which might well have caused them to reject the plea of self-defense or to not consider the offense of manslaughter.

WALKER and O’BRIEN, JJ., concur.