text:
    Henry MAESS, Appellant, v. W. Dalton GREENFIELD, Administrator of the Estate of Carl Corte Dummier, Appellee.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Burke B. Terrell, Paducah, for appellant.
    Donald S. Muir, Paducah, for appellee.
    Before HAYES, LESTER and PARK, JJ.
   PARK, Judge.

In this litigation, the plaintiff-appellant, Henry Maess, seeks to recover the proceeds of a certificate of deposit from the defendant-appellee who is administrator of the estate of Carl Corte Dummier. The case was tried by the court without a jury, the testimony being taken by deposition. After making findings of fact and conclusions of law, the circuit court entered judgment dismissing Maess’s complaint. From that judgment, Maess appeals.

On April 30, 1971, Dummier purchased a certificate of deposit from the People’s First National Bank and Trust Co. Certificate of deposit was issued in the name of “Carl C. Dummeier or Henry Masse [sic].” Dummier purchased the certificate of deposit from his own funds. Dummier was an elderly bachelor with no immediate family. His closest relative, a brother, had died some years before.

The record establishes that Maess was a long-time friend of Dummier. The two men had engaged in many recreational activities together. When Dummier constructed a residence on land inherited from his brother, Maess assisted him by performing much of the carpentry work.

Not long after purchasing the certificate of deposit in 1971, Dummier suffered a disabling stroke. As a result of the stroke, a committee was appointed who handled Dummier’s business affairs up to the date of his death. On September 9, 1974, the committee redeemed the certificate of deposit. As interest had been permitted to accumulate on the certificate of deposit, the committee received the sum of $19,270.33 from the redemption. Dummier died approximately six weeks later on October 28, 1974.

At the time the certificate of deposit was redeemed, the committee had exhausted nearly all of the personal estate owned by Dummier. Dummier’s monthly income from social security and railroad retirement benefits was not sufficient to meet his monthly needs. The evidence supports the circuit court’s finding that the committee believed in good faith that it was necessary to redeem the certificate of deposit in order to meet the anticipated needs of Dummier. However, subsequent events established that, in fact, it was not necessary for the committee to have redeemed the certificate of deposit. If the certificate of deposit had not been redeemed, the committee’s account would never have been reduced below $244.56, and a subsequent deposit would have raised the committee’s account balance to $1,103.26 on the date of Mr. Dum-mier’s death.

Following Dummier’s death on October 28,1974, the committee paid to the administrator of Dummier’s estate the sum of $20,-373.59, which included the proceeds of the certificate. The committee then filed a final settlement which was approved by the county court without objection by Maess. Notice of the final settlement of the committee was given by publication, and there is no evidence that Maess had actual notice of the settlement. The circuit court held that Maess was not entitled to trace the proceeds from the redemption of the certificate of deposit into the hands of the administrator.

Until the date of his stroke, Dummier retained exclusive possession of the certificate of deposit. Consequently, Dummier also retained the power to redeem the certificate of deposit. KRS 355.3-116.

In Saylor v. Saylor, Ky., 389 S.W.2d 904 (1965), the Court of Appeals was required to determine the ownership of a joint savings account. The account had been opened by the husband with funds owned exclusively by him. The pass book was made out to “Mr. or Mrs. Adrian M. Saylor.” In holding that a tenancy by the entirety was created, rather than a tenancy in common, the Court of Appeals stated:

“It is our belief that the average person who has a bank account in the name of himself ‘or’ another expects the balance on hand at the death of one of them to become the absolute property of the other. We hold, therefore, that there is a rebuttable presumption of such intent.” Id. at 906.

In the present case, the circuit court found, and the parties concede, there was no evidence relating to Dummier’s intention at the time he purchased the certificate of deposit. Based upon the rule enunciated in the Saylor case, it must be presumed that Dummier intended the certificate of deposit, or any portion remaining, to become the absolute property of Maess if he survived the date Dummier’s death.

Although there is no Kentucky case in point, the generally recognized rule does not permit a committee for an incompetent to exercise the same rights that the incompetent could have exercised with respect to a joint account prior to his incompetency. A typical case supporting the general rule is Hendricks v. Grant County Bank, Okl., 379 P.2d 693 (1963). In that case, a widow, Mattie Mae Hendricks, purchased a certificate of deposit in the name of herself or her son, David C. Hendricks. Mattie subsequently became incompetent, and her guardian attempted to redeem the certificate of deposit. In holding that the guardian had no right to redeem the certificate of deposit in the absence of evidence showing that the funds were necessary for the support and maintenance of Mattie, the Oklahoma Supreme Court stated:

“Any determination on the part of Mattie to cash or withdraw the funds represented by the certificate would have involved the exercise of personal discretion. In 44 C.J.S. Insane Persons § 49, P. 134, the rule is stated:
‘The guardian * * * of a mental incompetent does not become his alter ego, and is not empowered by virtue of his office to act for the incompetent in matters involving the exercise of a personal discretion so as to change an act performed by the incompetent while mentally normal. * * *’
“In the case of Howard v. Imes, 265 Ala. 289, 90 So.2d 818, 62 A.L.R.2d 1086, there was presented the question of the right of a guardian to withdraw all the funds of a joint tenancy bank account. That court in view of the circumstances and the above quoted rule and citing supporting decisions, stated:
‘In applying the rule it has been specifically held that the guardian of a non compos mentis cannot withdraw all the funds in a joint account except for the ward’s necessities, since such complete withdrawal would be the exercise of a personal right of the ward. * * *’
“See also Annotation at 62 A.L.R.2d 1091.” Id. at 697.

The cases upholding the general rule that the committee or guardian of an incompetent may withdraw from a joint account only such funds as are necessary for the needs of the incompetent are collected in an annotation, 62 A.L.R.2d 1091, at 1093-95.

The administrator of Dummier’s estate relies upon the decision in Manta v. Kahl, 348 Ill.App. 373, 108 N.E.2d 781 (1952). In that case, the Illinois Appellate Court held that the conservator of an incompetent had the right to withdraw the entire amount of a joint account. However, it should be noted that this case involved a suit by the co-depositor against the bank that honored the withdrawal by the conservator. Moreover, it is doubtful that the Manta case continues to be good authority in Illinois. In Rozycke v. Sroka, 3 Ill.App.3d 741, 279 N.E.2d 155, 157-58 (1972) the Illinois Appellate Court stated:

“The conservator seeks to contradict this rule by arguing that she has the right to withdraw the proceeds of the deposit for the use and benefit of the ward, citing Manta v. Kahl, 348 Ill.App. 373, 108 N.E.2d 781. However, in a later case, In Re Estate of Hirsh, 27 Ill.App.2d 228, 169 N.E.2d 591, it was held that a conservator should not determine the rights of joint depositors themselves, but should submit the matter to the court who would decide whether the joint funds were necessary for the support and maintenance of the incompetent. This rule is conceded by the conservator. We agree with the Hirsh case and also In Re Estate of Johnson, 351 Ill.App. 111, 113 N.E.2d 590, (abstract opinion) where the conservator of the estate of an incompetent cashed savings bonds jointly owned by his ward and another without a court order, although the bonds were not needed to be redeemed for the support of the ward, and when, after the death of the ward, the money derived from the bonds could be traced into his hands as executor, the court granted the petition of the surviving owner and ordered the proceeds paid over to her.”

In the present case, it reasonably appeared to Dummier’s committee that at least a portion of the certificate of deposit would be needed for Dummier’s support. The question remains whether Maess is entitled to trace the proceeds of the certificate of deposit which were not needed for Dummier’s support into the hands of the administrator of Dummier’s estate.

An analogous situation is presented in the law of wills. Prior to incompetency, a person may make a valid will containing specific bequests or devises. Subsequent to his incompetency, that person’s committee or other guardian may sell the property mentioned in the specific bequest or devise in order to provide for the needs of the incompetent. If the incompetent dies before the entire proceeds from the sale are expended for his benefit, the question is raised whether the specific legatee is entitled to claim the remaining proceeds of sale. Again, there are no Kentucky cases in point. Although there is some split of authorities, almost all of the recent decisions support the claim of the specific legatee on the theory that the committee of the incompetent testator had no power to defeat the terms of the will except to the extent that the funds were actually required for the support of the incompetent.

The leading case is Wilmerton v. Wilmerton, 176 F. 896 (7th Cir. 1910). In discussing the power of a conservator of an incompetent to adeem a legacy, the court stated:

“The conservation of an estate under the lunacy laws, both here and in England, is purely an administrative function. Is it contemplated that an administrator, at his will, change the testator’s will? The testator, lunacy coming on, is so far at least as a disposing mind is concerned, civilly dead. Does the disposing mind, along with the ward’s effects, go over to the conservator? Is the conservator anything more than a mere custodian and administrator of the ward’s estate, with no power, either directly or by indirection, to change the ward’s duly expressed purposes respecting the disposition of that estate until the ward recovers his reason, or the administration after death begins?
* * *t % * *
“ * * * The question, in our judgment, is not whether, as a mere matter of accident, or of purpose outside of the testator’s purpose, the thing set apart as the corpus of a special bequest has been changed in specie. The real question is whether, all things considered, the testator’s testamentary disposition did, or did not, remain, with reference to the particular thing embodied in the specific bequest or its proceeds, the same as it was the last moment he was able to exercise a testamentary disposition. In that way, and in that way only, we think, can the right of the man to dispose of his property according to his own wishes, exempt from the interference, caprice or interest of others, be fully carried out. In that way only can his intention, as embodied in his will, be truly administered.” Id. at 899-900.

In Lewis v. Hill, 387 Ill. 542, 56 N.E.2d 619 (1944), the conservator of an incompetent sold real estate which was the subject of a specific devise made by the ward prior to her incompetency. In holding that the devisee was entitled to the remaining proceeds from the sale of the real estate, the Illinois Supreme Court stated:

“The county court in this instance directed the sale by the conservator for the purpose of Mrs. Collins’ support. The conversion of the real estate into personalty was for that particular purpose and for her benefit alone. The fund produced by the sale cannot, therefore, be regarded as personalty for the benefit of her residuary legatees. All of the real estate of Sarah E. Collins in the possession of her conservator constituted a trust fund to be used, if necessary, for her support and the payment of her debts; and if not so used, then upon her death to go to the persons to whom she had devised the same when able to exercise a testamentary disposition. Conceding that the conservator could properly have used this money for her support or in the payment of her debts and the costs of administering her estate, still the money being on hand and not having been so used or its use so required, it must be regarded as a substitute for the land from the sale of which it was derived, and any rights which, under the will, would attach to the real estate itself will also exist in the fund. The fact that the conservator, in anticipation of the necessities of his ward, had converted the real estate into cash does not have the effect of transferring this fund, which represents the realty, to the residuary legatees.” 56 N.E.2d at 622.

For an extensive discussion of the cases supporting the majority rule that a committee or other guardian of an incompetent may not defeat a specific bequest or devise by selling the asset unless the proceeds of sale are actually expended for the incompetent, see Forbes v. Burket, Fla.App., 181 So.2d 682 (1966), and the Annotation, 51 A.L.R.2d 770 and Later Case Service.

Another analogous situation occurs when a guardian for an infant or a committee for an incompetent sells real estate of the ward and the proceeds of sale are not expended prior to the ward’s death. The question presented is whether the proceeds pass as personalty, or as real estate. The leading case on this question is the decision of the Court of Appeals in McCoy v. Ferguson, 249 Ky. 334, 60 S.W.2d 931, 90 A.L.R. 891 (1933). In that case, Vernon Ferguson, Jr., a minor, was the owner of a tract of land which was sold in a condemnation proceeding for $15,000.00. The proceeds from the judicial sale were paid to Ferguson’s guardian. Ferguson later married, but died while still a minor. A dispute arose between Ferguson’s widow and his grandfather with respect to the character of the remaining proceeds from the sale of the land. The grandfather contended that the proceeds constituted real estate in which the widow would have only a dower interest. In upholding the contention of the grandfather, the Court of Appeals stated:

“A judicial sale of the land was a conversion of the real estate into personalty. The proceeds in the hands of the guardians, from the moment he received them until the death of the ward, were, and continued to be, personal property as between him and his ward, within the meaning of section 2015, Ky.St., et seq. At the death of the ward, only for the purpose of descent and distribution, the proceeds are regarded by the law as real estate.
* * * * * *
“Subsection 6 of section 494 of the Civil Code of Practice provides that real estate owned by persons under disability, such as infancy, unsound mind, or an adult married woman, when sold under the provisions of chapter 14 of the Civil Code of Practice, when such owner shall die without issue, without having received the proceeds, the person who would have been entitled to the property, if it had not been sold, shall be entitled to the proceeds, or the property in which they have been invested. Weisiger v. McDonald, 116 Ky. 862, 76 S.W. 1080, 81 S.W. 687, 76 S.W. 507, 25 Ky.Law Rep. 1053, 26 Ky.Law Rep. 416; Terrell v. Maupin, 83 S.W. 591, 26 Ky.Law Rep. 1203. While the provisions of the section do not embrace sales of land of an infant who dies in infancy, without issue, when not made under the provisions of chapter 14, Civil Code of Practice, before the proceeds have been disposed of by his guardian in the exercise of the power and in the discharge of the duties imposed upon him by section 2027, Ky.St., et seq., yet this Code provision manifests the policy of the law not to permit a judicial sale of an infant’s land and a conversion thereby into personalty, to exempt the proceeds from the operation of the statutes of descent and distribution of the real estate of an infant. Collins v. Champ’s Heirs, 15 B.Mon. 118, 61 Am.Dec. 179.
“In McClain v. McClain, 151 Ky. 356, 151 S.W. 926, Ann.Cas. 1915A, 155; Id., 152 Ky. 206, 153 S.W. 234, Ann.Cas. 1915A, 155, the real estate of a lunatic was sold by order of court for the purpose of paying his debts. It was held that the surplus proceeds remained realty and the widow was entitled only to dower therein, such surplus not having been disposed of by the husband during his life.
* * * * * *
“In Pomeroy’s Equity Jurisprudence, vol. 3 § 1167, the rule is thus stated: ‘Where land is taken or purchased under compulsory powers conferred by statute and the owner is sui juris the conversion is effected; but if the owner is an infant or a lunatic or the land is in settlement, the purchase money remains land; there is no conversion. Where the land is sold by an order of court for any purpose it is a fixed principle upon which the court always proceeds that the character of the property shall be changed only so far as may be necessary to accomplish the particular purpose.’ Story’s Equity, vol. 2 § 1101.
“The rule rests upon the principle that during disability, neither a married woman, infant, nor lunatic can exercise the right of election to take their respective interest as money, and therefore the proceeds will be held in their unconverted character as realty until such election can be legally made. McLean v. Leitch, 152 N.C. 266, 67 S.E. 490. It may be safely said that it is a universal rule without exception that when real estate of an infant is converted into money by statute, or by order of court, and he dies without issue before attaining his majority, the fund will be treated as real estate and as such will descend to the heirs at law of the infant. It is apparent that it is our conclusion that the $15,000 received by the guardian as the proceeds of the sale of land of Vernon Ferguson, Jr., during his infancy was personal property subject to the expense of his support and maintenance, and having died before attaining his majority, the residue descended as real estate and as such should be distributed according to the statutes applicable to the distribution of the proceeds of real estate.” 60 S.W.2d at 932-33.

Baker v. Thomas, 272 Ky. 605, 114 S.W.2d 1113 (1938), presented a novel situation in which a committee attempted to affect the devolution of his incompetent ward’s estate upon death. The incompetent had two illegitimate children as a result of an incestuous relationship. Recognizing that the incompetent had no right to make a will, his committee instituted an adoption proceeding so that the two children could inherit as legitimate heirs of the incompetent. The Court of Appeals held that a committee could exercise only the power of possession, care and management of the incompetent’s estate. The committee had no power to initiate adoption proceedings on behalf of the incompetent so that his two illegitimate children could inherit as a legitimate heir.

As a general rule, a committee or guardian of an incompetent has no power to change the beneficiary in the incompetent ward’s life insurance. An Annotation, 21 A.L.R.2d 1191 (1952), states the rule as follows:

“In the few cases revealed by an exhaustive search of the point under annotation, it is stated generally that a guardian of an incompetent has no power, without court authority, to change the beneficiary in an insurance policy on the life of his ward. The holdings seem to be based, and rightly so, on the theory that the right 'to change a beneficiary in an insurance policy is a right personal to the insured, and thus cannot be exercised by a guardian, unless a court decides that it is in the best interests of the ward.”

There are a number of circumstances in which a personal right of an incompetent cannot be exercised by his committee. For example, a committee has no right to consent to a kidney transplant from his incompetent ward to the incompetent’s twin brother. That decision could be made only by a court of equity under the doctrine of substituted judgment. Strunk v. Strunk, Ky., 445 S.W.2d 145, 35 A.L.R.3d 683 (1969). A committee has no right to make an election for an incompetent to take under or against a will. That right of election must be exercised by a court of equity. Ramsey’s Ex’r. v. Ramsey, 243 Ky. 202, 47 S.W.2d 1059 (1932). Other Kentucky cases are collected in the Annotation, 21 A.L.R.3d 320, 336-37 (1968).

During his lifetime, Dummier had the personal right at any time for any reason to destroy the survivorship feature of the certificate of deposit. Dummier’s committee did not possess any such broad powers with respect to the certificate of deposit. The committee could properly use so much of the certificate of deposit as was actually needed for the maintenance and support of Dummier. However, Dummier’s committee did not have the right to terminate Maess’s survivorship interest in so much of the certificate of deposit as was not required for Dummier’s maintenance and support. There is no significance to the fact that the subject matter of this litigation is a certificate of deposit rather than a savings account which would have permitted periodic withdrawals. When redeemed, the certificate of deposit had almost $3,000 in accumulated interest, which the committee could have used before touching the principal of the certificate. There also was nothing to prevent the committee from renewing the certificate of deposit for a lesser amount and using the difference for Dum-mier’s support and maintenance.

The opening of a joint savings account or the purchase of a joint certificate of deposit with a survivorship feature can be a simple form of estate planning. Dummier is presumed to have intended that Maess receive any portion of the certificate of deposit remaining on Dummier’s death. The committee could not have adeemed a specific bequest or devise. The committee could not have avoided the application of the statutes of descent and distribution merely by converting realty into personalty. The committee had no authority to change a beneficiary in a life insurance policy or have his incompetent ward adopt a person for purposes of inheritance. To the extent that the committee did not actually expend the proceeds from the redemption of the certificate of deposit for the support and maintenance of Dummier, the committee had no power or authority to exercise Dummier’s personal right to terminate Maess’s surviv-orship interest in the certificate of deposit.

When the committee redeemed the certificate of deposit, the committee held the proceeds in trust for the benefit of Dummier during his lifetime. In order to carry out Dummier’s presumed intention, the committee will also be deemed to have held the proceeds of the certificate of deposit not required for Dummier’s support upon the same terms and conditions as the original certificate of deposit. It follows that Maess is entitled to trace the proceeds of the certificate of deposit remaining on Dummier’s death into the hands of the administrator of Dummier’s estate who received the proceeds from the committee.

The administrator of Dummier’s estate asserts that Maess’s claim is barred by his failure to object to the committee’s settlement. This argument is without merit. As the circuit court found, the committee did not act illegally in redeeming the certificate of deposit. Maess’s claim was against Dummier’s estate for the proceeds of the certificate of deposit which the committee was not required to expend for Dummier’s benefit. Maess would have had no claim of any kind until the date of Dummier’s death. Had Dummier lived long enough, his committee could have expended the entire proceeds from the redemption for his benefit. The committee’s power and authority terminated on the date of Dummier’s death.

The general rule with respect to the payment of claims by a committee after the date of an incompetent ward is well summarized in the following statement from the case of Re Bohnstedt, 36 Del.Ch. 97, 125 A.2d 580, 60 A.L.R.2d 959, 962 (1956):

“The text writers and almost but not all of the Courts which have considered our problem have concluded that after the death of the mentally ill person the trustee, absent statutory authority, has no power to pay existing obligations. The creditors must file their claims in the estate proceedings. See In Re Estate of Colvin, 3 Md.Ch. 278; Norton v. Strong, 1 Conn. 65 (published 1848); Hyden v. Wilkinson, 187 Okl. 348, 102 P.2d 877; Compare In re Frew’s Estate, 340 Pa. 89, 16 A.2d 26; Woerner’s American Law of Guardianship, § 150; 25 American Jur. Guardian and Ward, § 53; 39 C.J.S. Guardian and Ward § 41.
“While various reasons have been advanced for the conclusion that a trustee may not pay outstanding obligations once the mentally ill person has died, I believe the basic reason for the rule is that absent statutory power the trustee’s power arises from and is dependent upon the existence of the mentally ill person. Once that person dies the statutory scheme applicable to decedents’ estates comes into play.”

It follows that Maess was not required to assert his claim against the committee following the date of Dummier’s death, and Maess’s claim is not barred by the committee’s settlement.

This court does not express any opinion on the question whether the proceeds from the redemption of the certificate of deposit in the hands of the administrator of Dum-mier’s estate are subject to any of the costs and expenses of administration, including this litigation. The question was never presented to the trial court. It was neither briefed no argued before this court. Under the circumstances, this issue can best be determined by the circuit court having in mind that the relief available to Maess is an equitable remedy.

The judgment of the circuit court is reversed, and the case is remanded for further proceedings consistent with the opinion.

All concur.


source: Caselaw Access Project

author: WILHOIT, Judge.

license: Public Domain

text:
    MALONEY’S DISCOUNT STORES, Appellant, v. Reva CAUDILL and Workmen’s Compensation Board of Kentucky, Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Discretionary Review Granted March 30, 1977.
    C. W. Swinford, Stoll, Keenon & Park, Lexington, for appellant.
    G. C. Perry, III, Paintsville, for appellee Reva Caudill.
    William L. Huffman, Director, Kentucky Workmen’s Compensation Bd., Frankfort, for appellee Workmen’s Compensation Bd.
    Before WILHOIT, WHITE and WIN-TERSHEIMER, JJ.
   WILHOIT, Judge.

Maloney’s Discount Stores appeals from a judgment of the Johnson Circuit Court dismissing its Petition for Review seeking reversal of an Opinion and Award of the Workmen’s Compensation Board of Kentucky granting Appellee Reva Caudill one hundred percent occupational disability.

On August 16, 1974, Reva Caudill, an employee of Maloney’s Discount Stores, while in the course of her employment, slipped on leakage from an air conditioner, falling and injuring her right arm and shoulder and her back. She never returned to work and on November 14,1974, she filed a claim with the Workmen’s Compensation Board.

The evidence before the Board disclosed that Mrs. Caudill was forty-one years of age, had completed school through the seventh grade and had obtained a high school equivalency certificate. Her only work experience prior to being employed by Malo-ney’s on September 9, 1970, was eight months as a maid at a local motel. Her job at Maloney’s required her to stock shelves, squat, bend and be on her feet all day. Five physicians testified in her behalf, variously diagnosing a functional impairment of from ten to fifteen percent of her body as a whole. One of these physicians testified that she was not employable for manual labor but that she might perform sedentary work. Another testified that she would be unable to perform her job functions where she had to use her right arm. Three physicians testified for Appellant stating they found nothing physically wrong with Mrs. Caudill and that she could return to her normal work.

The Board found that due to Mrs. Cau-dill’s limited work experience, attitude toward recovery, dependence on pain killing drugs, weight problem and her serious injury, her future earning capacity was impaired to the extent of one hundred percent.

Appellant argues that the finding of permanent total disability in this instance was not supported by the evidence.

An award based upon permanent total disability must be premised upon a finding that the claimant was so physically impaired that she is not capable of performing any kind of work of regular employment or that regular employment in the kind of work she can perform is not available on the local market. Osborne v. Johnson, Ky., 432 S.W.2d 800, 803 (1968).

There is ample evidence that Mrs. Caudill is not able to continue to work in her usual occupation and she contends that this is sufficient to support an award based on total disability. However, Osborne v. Johnson, supra at 803-04, held that the only significance to be given a workman’s usual occupation is as a factor in determining his pre-injury wage capacity as compared to his post-injury wage capacity. Prior cases which based the determination of total disability solely upon the workman’s inability to perform his usual occupation or which assumed that such inability was tantamount to inability to obtain any regular employment were specifically overruled.

The evidence here, supported by the claimant’s own witnesses, disclosed that she could perform sedentary work, work in a sheltered workshop or work not involving the use of her right arm for lifting, etc. The question then becomes one of whether such work is available in the local market and the burden of proving its unavailability rests upon the claimant. Princess Manufacturing Company v. Jarrell, Ky., 465 S.W.2d 45, 49 (1971). This burden can be sustained merely by proof sufficient to raise an inference that such work is not available, Island Creek Coal Co. v. Springer, Ky., 479 S.W.2d 890, 892 (1972), but the Board must have some evidence upon which to base a determination as to a claimant’s future employment opportunities. No such finding was or could have been made by the Board here and thus a key element is missing.

We, therefore, reverse the Judgment of the Circuit Court with directions that this case be remanded to the Board to make appropriate findings as to the availability of work which the claimant could perform and to make an Award in conformity with such findings.

All concur.


author: WINTERSHEIMER, Judge.

text:
    Darrell L. BOGGS and C. S. Phillips, Appellants, v. Harry G. BURTON et al., Appellees.
    Court of Appeals of Kentucky.
    Feb. 4, 1977.
    Robert J. Greene, Paintsville, for appellants.
    Gene A. Wilson, Louisa, for appellees.
    Before WINTERSHEIMER, WHITE and WILHOIT, JJ.
   WINTERSHEIMER, Judge.

This appeal was taken from a judgment of the Lawrence Circuit Court which concluded as a matter of law that the use of the Inland Gas Corporation tap on the land of the Burtons, Plaintiffs/Appellees, existed at the pleasure of the Burtons who were entitled to terminate said use by Boggs, Defendants/Appellants, at will. The judgment permanently enjoined Boggs from exercising any control or dominion over the tap.

The Appellees, the Burtons, filed suit in the Lawrence Circuit Court on October 17, 1975, seeking to enjoin the Appellants, Boggs, from exercising any control over a gas line tap, and to a gas line owned by the Inland Gas Corporation, located on land owned by the Burtons. Stipulations of Fact were entered into between the parties and the case was submitted to the trial court on the record. A judgment was entered on February 13, 1976, permanently enjoining Boggs from exercising any control or dominion over the gas line tap. The court further enjoined Boggs from removing or taking any action with regard to the natural gas pipeline, until such time as a replacement system can be constructed to provide the present users, citizens of Blaine, Kentucky, with natural gas service. A committee of the present users was ordered to administer the interim distribution of natural gas. From that judgment this appeal was prosecuted to the Supreme Court of Kentucky. That Court transferred jurisdiction to the Court of Appeals by an order entered November 29, 1976. This Court affirms the judgment of the Lawrence Circuit Court.

The Burtons are owners in fee simple of a tract of land acquired by inheritance. In 1928, their predecessors in title conveyed to Inland Gas Corporation a pipeline right-of-way over the land in question, and as part of the consideration for the easement the gas corporation granted them the right to tap into any gas line constructed over the property, and to purchase gas at a rate of $.40 per thousand cubic feet. Subsequently, a tap was made and natural gas was piped to the town of Blaine, which was used and still continues to be used, to supply natural gas to approximately seventy residential consumers. The Burtons are responsible for the monthly bill to Inland Gas for all usage from the tap. Prior to December 30, 1943, G. B. Burton appears to have given oral permission to R. Butler to maintain and superintend the distribution of gas to the individual residential users at $.60 per thousand cubic feet. On or about September 30, 1958, another agreement was prepared and executed by Burtons and additional citizens of Blaine for gas at the rate of $.60 per thousand cubic feet. On or about December 30, 1943, R. Butler attempted to make an assignment of certain rights to C. S. Phillips, Appellant, but the document was never signed by R. Butler although it was signed by C. S. Phillips. In February, 1975, Phillips apparently orally transferred title to the gas line to his grandson, Appellant Darrell L. Boggs. At this time Boggs attempted to collect more money for the monthly meter readings and the use of the gas line. Objection was made and the matter was referred to the Public Service Commission of Kentucky. That body permitted a rate increase for Boggs. This action was brought by the Burtons on October 17, 1975, seeking the injunction. The Public Service Commission made no determination as to the relationship between Plaintiffs and Defendants. The proceeding before the PSC has no relevance to this action, and has no binding affect upon the Plaintiffs or the cause of action before the trial court.

The question presented is whether the assignor has a prescriptive easement or whether the use of the gas line tap was permissive.

The gas line tap is a covenant running with the land owned by the Appellees. It existed at the pleasure of the Appellees and their predecessors in title. There is no mutuality of rights or obligations. The Appel-lees solely are responsible to Inland Gas for all usage.

The Appellants rely on an unsigned assignment from R. Butler dated December 30, 1943. This instrument is of no value of any kind as a contractual document. Silence cannot be considered as an acceptance of such a proposed assignment. It cannot be effectively argued that the knowledge of the contents of an instrument attempting to make such an assignment can ripen into adverse possession. The Appellants are straining to bring this case under the authority of Ward v. Stewart, Ky., 435 S.W.2d 73 (1968).

The Burtons contend that they have a right to terminate the agreement when Boggs breached the contract by raising the price of gas and the use of the tap was permissive.

In order for this Court to overturn the judgment of the trial court, it is necessary for the Appellants to show some abuse of discretion by the trial court or that the judgment below is clearly erroneous. An examination of the record in this case fails to show that there has been any abuse of discretion or that the judgment is clearly erroneous. The burden of establishing a prescriptive right as distinguished from a permissive use has not been met. The judgment of the trial court is affirmed.

All concur.


author: HOWERTON, Judge.

text:
    Donnie BARNETT and Robert Barnett, Appellants, v. STEWART LUMBER COMPANY and Junior Martin, Appellees.
    Court of Appeals of Kentucky.
    Feb. 18, 1977.

      Joe Hobson, Prestonsburg, for appellants.
    Wilderman & Place, Prestonsburg, for appellee Junior Martin.
    Before HOWERTON, GANT and REYNOLDS, JJ.
   HOWERTON, Judge.

This action originated in the Floyd Circuit Court on April 3, 1972 when Stewart Lumber Company filed an action seeking to recover $3,000.00 from Junior Martin, which was the outstanding balance due the company from the sale of a sawmill to Martin and W. H. Guinn. Martin answered the complaint, and filed a third party action against the Appellants and W. H. Guinn, as third party defendants. Martin alleged that the Appellants and Guinn had contracted with him for the purchase of his interest in the sawmill and that, in so doing, the Appellants had assumed the $3,000.00 debt owing to the Appellee Stewart Lumber Company.

The case was tried before a jury. At the close of the evidence presented by Martin, the Court directed a verdict on the contract between the lumber company and Martin, in favor of the lumber company, in the sum of $3,000.00 with interest at the rate of 6% from June 13, 1973 until paid.

At the close of the evidence by the Appellants, the Court directed a verdict as a matter of law on the agreement between Martin and the Appellants to pay the debt owing the lumber company in favor of Martin, and against the Appellant Robert Barnett. In the judgment, the Court set over the claim and ordered Robert Barnett to pay Stewart Lumber Company the sum of $3,000.00 with said interest.

The jury then considered the evidence and concluded that the agreed sale price for cash was $1,364.75, of which Robert Barnett was to pay $1,114.75 and W. H. Guinn was to pay $250.00.

The Court had previously determined that Robert Barnett, together with Donnie Barnett, had paid Martin the sum of $800.00, and that Martin had retained for his own use refunds from the telephone company in the amount of $35.00, and the electric utility company in the amount of $370.00 which he had agreed to give to the buyers. The Court allowed Barnett a eredit of $1,002.50 on the purchase price and entered judgment directing Robert Barnett to pay Martin the sum of $112.25 with interest at the rate of 6% from June 13, 1973.

The Court also entered a default judgment against W. H. Guinn for the sum of $250.00 less a credit of ½ of the refunds, or $202.50, plus a credit of $21.00 for lumber belonging to Guinn and taken by Martin, leaving a balance of $26.50. At the time Martin acquired the refunds, Guinn owned of the sawmill. Guinn subsequently sold his interest to the Barnetts.

The Appellants have set forth eight errors. Some will be stated and considered separately, while others will be grouped together.

The first allegation of error is that the trial court failed to enter a directed verdict in favor of Donnie Barnett. The basis claimed for this error is that Donnie Barnett had nothing to do with the transaction for the purchase of the sawmill from Junior Martin. Unfortunately, for Donnie, he did not allege this fact as a ground for a directed verdict when he made his motion to the trial court. This Court has consistently held that failure to specify a particular ground for a directed verdict forecloses appellate review of the trial court’s denial of the motion. Hercules Powder Corporation v. Hicks, Ky., 453 S.W.2d 583 (1970); Gulf Oil Company v. Vance, Ky., 431 S.W.2d 864 (1968).

Even if the alleged error had been properly preserved for review on appeal, the record indicates that there was probative evidence for a jury to consider that Donnie was involved in the transaction. For one thing, the evidence indicated that it was Donnie who wrote the check for $799.00 as part payment for the purchase, and it was also proven that the negotiations for the sale by Martin were in the presence of both Appellants.

The Appellant, Donnie Barnett, had made himself a counter-claimant against Junior Martin in this action. The judgment of the trial court dismissed the counter-claim of the Appellants against Martin, and the only judgment entered against the Appellant Donnie Martin was to pay a proportionate share of the cost of the action. The judgment in favor of the Appellee Martin was otherwise against the Appellant Robert Barnett.

The next contention of the Appellants is that the alleged assumption of the $3,000.00 note was not in writing and is therefore barred by the Statute of Frauds. In support of this contention, the Appellants cite KRS 371.010(4).

There was, in fact, another note in the sum of $2,000.00 which from the proof was apparently assumed by the Appellants as a part of the consideration for the purchase of the sawmill. The payee for this additional note was not a party to the action, and no final disposition was made of this note such as was with the $3,000.00 debt owing to the Appellee Stewart Lumber Company. We therefore make no disposition on this note at this time. The Appellants did raise the same issue regarding the $2,000.00 note in their brief. There was ample proof throughout the trial that the assumption of both notes constituted a part of the consideration for the purchase of the sawmill.

We have a situation where possession has been taken of the property of Junior Martin and a part of the consideration has been paid. Martin has vacated the property and the Appellants now attempt to avoid additional payment on the ground that the debts incurred by Martin for his own acquisition of the sawmill were not in writing. It should also be noted that it is not Stewart Lumber Company attempting to force payment by the third parties, but it is Martin.

KRS 371.010(4) applies only to enforcement by the payee and not by the debtor whose obligation was assumed by another. Williston, Contracts, § 460 (3rd Ed., 1960); Corbin, Contracts, § 395 (1950). Furthermore, if one promises to pay the debt of another in order to further some purpose of his own, as to acquire a sawmill, such promise is not within the section. Miller v. Davis, 168 Ky. 661, 182 S.W. 839 (1916). Ordinarily, a promise to pay the debt or default of another when not in writing is prohibited by the Statute of Frauds, but there are many exceptions. It has often been held that where the consideration for the agreement to pay the debt of another redounds to the benefit of the promisor, the Statute of Frauds does not apply as it would be inequitable and unfair to permit one to receive and enjoy the benefits of a promise and then evade his part of the obligation because the promise was not in writing.

The Appellants third contention is very much like their second, in that they argue that the assumption of the notes was invalid because the sale contract was over $500.00 and not in writing, as required by KRS 355.2 — 201. Subsection (3) of the Statute provides:

A contract which does not satisfy the requirements of subsection (1) but which is valid in other respects, is enforceable
(b) if the party against whom enforcement is sought admits in his pleading, testimony or otherwise in court that a contract for sale was made

(c) with respect to goods for which payment has been made and accepted or which have been received and accepted.

There was ample proof throughout this case that a contract for the sale of the sawmill existed. It was also clear that the Appellants have received and accepted the sawmill. It was therefore necessary for the Court to determine by all of the evidence just what the provisions for the sale might have been.

The Appellants next argue that the trial court erred in awarding a default judgment against W. H. Guinn who was never summoned, and that it was also error to permit evidence to be introduced concerning the statements made by Guinn. The final argument of the Appellants also relates to such incompetent evidence. The subjects will be considered together at this time.

The default judgment entered by the Court recites the fact that W. H. Guinn was served with process under the provisions of KRS 454.210. This is not the usual warning order attorney method as referred to by the Appellants. The record on appeal contains an affidavit by Martin’s attorney, but does not contain the return of the Secretary of State, nor the return receipt acknowledging receipt of the notification and third party complaint by Guinn. Such documents were not designated to be a part of the record on appeal. We therefore must conclude that the trial court was correct in stating that the provisions of KRS 454.210 had been met. The statute authorizes a Court to exercise personal jurisdiction over a non-resident transacting business in this State.

W. H. Guinn was properly before the Court for purposes of personal jurisdiction, and any evidence introduced at the trial regarding actions and conversations between the Appellee Martin and Guinn were admissible as between Martin and Guinn. Jack Stewart, President of Stewart Lumber Company was also properly before the Court, and actions and conversations between Martin and Stewart and the lumber company were admissible as between them. The jury was frequently admonished by the trial court that the conversations between Martin and Guinn, and Martin and Stewart, were not to be considered as evidence against the Barnetts, as they were not present when the conversations took place.

The next three claims of error, by the Appellants, can be discussed together. The Appellants contend that the Court erred in awarding any judgment in favor of Martin against them, that it was error to award any judgment in favor of the Appel-lee Stewart Lumber Company against them, and finally that it was error for the Court to enter its judgment in direct conflict with the verdict of the jury.

The Appellants made several claims for damages which would, if believed, offset anything they might owe to the Appellee Martin. They sought a total of $3,536.50 against the Appellee Martin. Martin admitted that the Appellants were to receive credit on the purchase price for the deposits which had been made for the electric utility and the telephone. He specifically denied that he was to pay for a tin roof or that he converted 20,000 feet of lumber to his own use. Martin did admit that he took approximately $21.00 worth of logs, but that these had belonged to Guinn and that he had credited Guinn with $21.00 toward the payment of the amount owing by Guinn to Martin. The record contains substantial evidence for the jury to conclude in favor of either side it should choose to believe. The Court gave the instructions prepared and submitted by both sides, and the jury found against the Appellants on every claim for damage, or items which would have offset any additional amount owing by them to the Appellee Martin.

The verdict of the jury was in favor of Martin in the sum of $1,114.75. The Court had already found that the sum of $800.00 had been paid, and that Martin himself had received the refunds for the utility and telephone deposits. At the time the transaction took place for the sale by Martin, Guinn owned half of the mill. Guinn also owed Martin the sum of $250.00 for the sale, and therefore, the Court credited one-half of the net refund to Barnett and one-half to Guinn.

The Court therefore gave Barnett a total credit of $1,002.50 on the jury verdict of $1,114.75, leaving a balance to be paid by Barnett to Martin of $112.25. With a possible error in calculations in the sum of 50 cents, the trial court did correct or complete the verdict of the jury and, in essence, granted the Appellants their judgment notwithstanding the verdict.

The error referred to is based on the fact that the proof indicated Martin had recovered $371.00 from the utility deposit and $35.00 from the telephone deposit, for a total of $406.00. A division of this sum between Barnett and Guinn would have resulted in a credit of $203.00, rather than $202.50. This would change the amount owing to $111.75. The same error is found in the default judgment against Guinn wherein the Court concluded that the amount due from Guinn to Martin would be $26.50. The original sum of $250.00 should be credited with the $203.00 and the $21.00, for a total of $224.00, leaving a balance due of $26.00.

The trial court was correct in entering a directed verdict against the Appellee Martin in favor of Stewart Lumber Company on its claim for $3,000.00. The trial court also correctly set over this judgment in favor of Stewart Lumber Company against the Appellant Robert Barnett. It was not necessary for Stewart Lumber Company to make a direct claim against Barnett. The claim was made by the Appellee Martin in third party practice as provided for by rule 14.01.

This case may not be the clearest or cleanest. Confusion and uncertainty existed from the pleadings through the judgment. Loose ends were left undone or uncertain, such as the situation regarding the $2,000.00 note. Donnie Barnett, who now owns Guinn’s interest seems to be free of the $3,000.00 debt which was originally incurred jointly (and severally) by Martin and Guinn. Robert Barnett, who acquired Martin’s interest in the sawmill is now saddled with the entire amount.

But, so be it. These problems are now the result of the ingredients that were presented to the Court and the jury. Of the issues raised on appeal, this Court finds no reversible error, except for the minor discrepancy of $1.00 to be credited to the judgments against Robert Barnett and W. H. Guinn.

The judgment is, therefore, affirmed with instructions that the amounts owing by Robert Barnett and W. H. Guinn be modified to $111.75 and $26.00 respectively.

All concur.


author: WILHOIT, Judge:

text:
    Johnny Glover LEE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    March 4, 1977.

      Jack Emory Farley, Public ' Defender, Larry H. Marshall, Asst. Public Defender, Frankfort, for appellant.
    Robert F. Stephens, Atty. Gen., William H. Mohr, Asst. Atty. Gen., Frankfort, for appellee.
    Before PARK, VANCE and WILHOIT, JJ.
   WILHOIT, Judge:

A jury found Johnny Glover Lee guilty of receiving stolen property of a value of $100.00 or more under KRS 514.110 and he received a sentence of three years in prison. From this conviction he appeals to this Court.

Appellant seeks reversal of his conviction on the following grounds:

I. The trial court erred in admitting the evidence concerning the stolen television sets since they were discovered and seized as the result of an illegal search.
II.The Commonwealth failed to prove the value of the stolen property beyond reasonable doubt by relevant and competent evidence.
III. The trial court should have instructed the jury that in order to convict appellant of receiving stolen property it must find that the property was stolen by someone other than appellant.
IV. The questioning by the prosecutor of the appellant concerning his pri- or felony conviction amounted to a substantial injustice requiring reversal.

I.

We first consider the question of the suppression of the evidence of appellant’s possession of the stolen television sets.

On July 6, 1975, the automobile driven by Mr. Lee, in which there were two other passengers, was stopped by two state police officers because of an expired inspection sticker. One of the officers testified at a suppression hearing that as he got out of his patrol car and approached appellant’s vehicle, he noticed its trunk was open six to eight inches and he could see two television sets in the trunk. The other officer did not notice the television sets immediately, according to his testimony, because he was concentrating his attention on the appellant. Shortly thereafter he, too, noticed the trunk was open “about eighteen inches” and saw the television sets. The officers stated that when asked about the television sets, Lee replied that they belonged to the occupant of the front passenger seat, Phillip Holden. Both officers said that Lee invited them to look at the television sets and to check their serial numbers. One officer stated that Lee then opened the trunk completely. The other officer could not remember whether he or Lee opened the trunk.

Lee denied that the trunk was opened by him or that he gave consent for it to be opened. He testified that when he was stopped the trunk was open only an inch and the the television sets were covered with clothes and thus not possibly visible until the trunk was opened by one of the officers.

One of the officers asked Holden, who was still in the front seat, if the television sets belonged to him. He denied any knowledge of them. A hitchhiker who had been riding in the back seat of Lee’s vehicle then approached one of the officers and warned him that there was a pistol in the car. The officers then searched the car, Lee and Holden. They found the pistol in the car, a bag of marijuana, and a motel key under the driver’s seat, and one on the person of Holden. The keys were numbered and appeared to be to rooms at the Matador Inn in Nashville, Tennessee. A radio call revealed that the Matador Inn was missing two television sets, one from each of the rooms of the same numbers as the keys. Both Lee and Holden were placed under arrest, initially for possession of the marijuana.

At the conclusion of the evidence heard during the suppression hearing, the trial court ruled that “this was a reasonable search” and permitted this evidence to be admitted. No finding of fact was made. The testimony of the officers and of the appellant were contradictory. There was some question as to whether the television sets were discovered as the result of a search at all, though the trial court apparently believed there was a search.

From the record it is impossible for us to determine whether the trial court believed the testimony of the officers or, believing that of the appellant, nevertheless concluded that no illegal search had taken place. We are thus left in the dark as to whether the trial judge applied the proper standards under Section 10 of our Constitution and the Fourth Amendment to the United States Constitution. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). Full and fair litigation of claims of illegal search or seizure is not only required by our procedure, Bradley v. Commonwealth, Ky., 439 S.W.2d 61 (1969), but it obviates the necessity for applying to federal courts to obtain such relief. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). The failure of the trial court to make findings of fact here in and of itself would not require reversal. Were this case not being reversed on other grounds, we believe the proper procedure would have been to remand this case to the trial court to make the required findings. Francis v. Commonwealth, Ky., 468 S.W.2d 287 (1971).

On retrial, should a suppression hearing again be necessary, the trial judge should either write or dictate into the record his findings of fact and conclusions.

II.

At trial the Commonwealth relied upon the testimony of Peggy Smith Patton, the bookkeeper for the Matador Inn, to establish the value of the two television sets. She described the sets as RCA color portable televisions. She did not know the size of the screens and testified that the sets had been used by the motel since it opened about four years before. One of the exhibits indicates the sets had been used for more than five years. She offered an opinion that the value of each of the sets was between $300.00 and $350.00 on the date they were stolen. This opinion appears to have been based on what the motel manager told her it would cost to replace the two sets. There is no indication as to whether this figure referred to new television sets or sets in the same condition as those stolen. Finally, this witness admitted she had “no idea” of the market value of the stolen sets.

Two black and white photographs of the television sets were introduced into evidence. These photographs give some indication of the size of the sets but very little as to their condition.

At the close of the evidence, the trial court instructed the jury on receiving stolen property in this manner:

You will find the defendant guilty under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all of the following:
(a) That in this county on or about July 6, 1975, and before the finding of the indictment herein, he received two television sets owned by the Matador Inn of Nashville, Tennessee.
(b) That said television sets had been stolen from the Matador Inn of Nashville, Tennessee and the defendant Lee knew that they were stolen property:
(c) That in so receiving said television sets it was not the defendant’s intention to restore them to their rightful owner, and
(d) That the two television sets had a value of $100.00 or more (T.R., p. 9).

The lesser included offense instruction was identical to the above instruction in every respect, except this misdemeanor instruction did not state a value (T.R., p. 11).

As to the second ground cited for reversal, we agree. KRS 500.070 places the burden upon the Commonwealth to prove every element of its case beyond reasonable doubt. It has fallen far short of meeting that burden here insofar as the value of the two television sets is concerned.

There is no direct proof here as to the market value of the stolen property, nor is there sufficient descriptive testimony and exhibits which would enable a jury to make an informed conclusion as to value. See Perkins v. Commonwealth, Ky., 409 S.W.2d 294 (1966). In the case before us the jury was not furnished with sufficient descriptive testimony. The pictures introduced reveal little about the condition of the television sets or even the exact size of their screens. At no time was the jury advised as to whether or not the sets were in working order. It would seem that one of the most important factors necessary to determine the value of a television set, particularly one which had been in a motel room for four years, would be to ascertain whether or not it worked.

III.

The appellant’s complaint that the trial court should have instructed the jury that the property had to be stolen by someone other than appellant in order to convict him of receiving stolen property, is raised for the first time on appeal and need not be addressed by us. RCr 9.54; Caslin v. Commonwealth, Ky., 491 S.W.2d 832 (1973). However, since this case is likely to be tried again we will consider it. Suffice it to say that the cases cited by appellant all interpreted the now repealed statute, KRS 433.-290 (formerly Section 1199 of the Kentucky Statutes). The present statute, KRS 514.-110, permits conviction of receiving stolen property when a person receives or retains property he knows to have been stolen. This clearly no longer requires property to have been stolen by another as did the old statute. The receipt or retention of the stolen goods, not its source, is the gravamen of the offense enunciated by this statute. It seems this statute was intended to apply to situations just as this where stolen property is brought into this state from another. We are not concerned here with a situation in which the property was stolen in this state and is merely being retained incidentally to its theft.

IV.

Prior to the cross-examination of Lee, the prosecutor advised the court that he proposed to ask the appellant if he had been previously convicted of a felony. The trial court ruled after a proper “Cotton hearing” that the prior felony conviction was inadmissible. Immediately upon commencing his cross-examination, however, the prosecutor initiated the following exchange:

Q1 Mr. Lee, have you been convicted of a felony?
OBJECTION BY COUNSEL FOR DEFENDANT
A Yes. (Before the Court ruled).
2 What was that?
MR. SANDERS: Object
THE COURT: Yes, I sustained the objection (T.E., p. 57).

At the close of his cross-examination of appellant, he again asked: “And you do admit that you have been convicted of a felony prior to this time?” (T.E., p. 65). No motion was made by the defense either to admonish the jury or set aside its swearing.

The conduct of the prosecutor in inquiring as to the appellant’s prior felony conviction appears to have been both calculated and inexcusable. The American Bar Association’s Code of Professional Responsibility, adopted by the Kentucky Supreme Court (RCA 3.130), provides that a lawyer shall not “[ijntentionally or habitually violate any established rule of procedure or evidence”. DR 7 — 106(C)(7).

It is unthinkable that this conduct would recur upon retrial but if it does, the trial court, upon appropriate motion, should set aside the swearing of the jury and discipline the offender accordingly.

The judgment herein is reversed.

All concur.

      . Cotton v. Commonwealth, Ky., 454 S.W.2d 698 (1970).


author: BARDGETT, Judge. HENLEY, Judge,

text:
    STATE of Missouri, Respondent, v. Marcella BROWN, Appellant.
    No. 59348.
    Supreme Court of Missouri, en banc.
    March 14, 1977.

      James C. Jones, Asst. Public Defender, St. Louis, for appellant.
    John Ashcroft, Atty. Gen., Robert H. House, Asst. Atty. Gen., Jefferson City, for respondent.
   BARDGETT, Judge.

Defendant-appellant Marcella Brown appealed to the court of appeals, St. Louis district, from her conviction of murder in the second degree and twenty-five year sentence. A three-judge panel of the court of appeals, by opinion, reversed and remanded the case for error in refusing to permit defense counsel to interrogate the jury panel on voir dire with reference to self-defense and held that defendant did not waive her objection by “accepting the jury” in the manner that appears infra, one judge dissenting. Thereafter, and on application of respondent, this court transferred the appeal pursuant to Art. V, sec. 10, Mo.Const., as amended 1970, because the opinion of the court of appeals appeared to conflict with State v. Turnbough, 498 S.W.2d 567 (Mo.1973). Much of the following opinion is taken from the court of appeals opinion of Clemens, J.

Defendant and victim Hugh Massey had occupied adjoining third-floor apartments in a converted residence in St. Louis. They shared a bathroom and defendant had complained to the apartment manager about Massey drunkenly soiling the bathroom. The manager ordered Massey to move out and locked his apartment; he told defendant not to let Massey back in. Defendant admitted to police: That night she heard someone breaking into a second-floor bathroom through an outer window; she got her shotgun and went down the hall to the bathroom; as Massey suddenly and drunkenly emerged from the bathroom she shot and killed him.

During the voir dire examination of the venire, defense counsel wanted to question the prospective jurors with regard to self-defense and accident. The court sustained the state’s objection and refused to permit the interrogation. Appellant’s complaint is based upon the following colloquy which took place at the bench.

“MR. ADAMS (Defense Counsel): . . I intend to ask the jury — to indicate to the jury that I anticipate that the Court may instruct the jury on the question of self-defense . . .Now with that in mind, I would ask the jury whether they could follow the law with respect to the burden of proof on [self-defense].
“MR. FRIEDMAN: (Assistant Circuit Attorney) Again, Your Honor, this is beyond the scope of voir dire examination. I object to any question — the question is can you follow the law and that’s the general one I asked. Everyone said he could follow the questions and the law.
“THE COURT: Sustained as to the last question [self-defense].
“MR. ADAMS: . . . It is on the State to prove beyond a reasonable doubt that . . . with respect to the question of self-defense, and the burden of proof is on the State to prove beyond a reasonable doubt that it was not self-defense. I don’t want to go into the details of the case, but I think I have a right to ask the jury as to whether they would require the defense to prove self-defense
“MR. FRIEDMAN: ... I think any speculation at this point, when no evidence is before the jury as to self-defense ... I think is purely speculative and I think it is improper to go into at this point of the trial.
“THE COURT: Sustained.”

The constitutional right to a trial by jury would be a mockery of justice if it did not guarantee a jury with open minds, freely able to follow the law as declared by the trial court. Faught v. St. Louis-San Francisco Ry. Co., 325 S.W.2d 776[1] (Mo.1959). Deeply ingrained in Missouri law lies the principle that “a liberal latitude is allowed in the examination of jurors on their voir dire . . . The purpose of the examination by defendant of the panel on their voir dire is to develop, not only facts which might form the basis of a challenge for cause, but also such facts as might be useful to him in intelligently determining his peremptory challenges.” State v. Granberry, 484 S.W.2d 295[4, 5] (Mo. banc 1972), citing a series of cases going back to the oft-cited case of State v. Mann, 83 Mo. 589 (1884). Specifically, a defendant has the right to discover whether prospective jurors have fixed opinions against applying the court-declared law of self-defense. Compare State v. Lassieur, 242 S.W. 900[2] (Mo.1922); State v. Dill, 282 S.W.2d 456[7-9] (Mo.1955).

That was the issue here. At the voir dire stage the defendant intended to and by the court’s later instruction did submit the issue of self-defense. The jurors would be required to apply the principle that the burden of proof on this issue would not be on the defendant to establish it but upon the state to negate it. (MAI-CR 2.40) This is an apparent departure from the principle that the party asserting an “affirmative defense” has the burden of proving it. An average juror might well have a mental attitude against the converse principle in effect here. So, the defendant had good reason to determine if any venireman had a fixed opinion against the principle of requiring the state to disprove self-defense. If so, defendant would have a good ground for challenging for cause, or at least peremptorily striking, such a venireman.

“Since bias often lies deep within the minds of prospective jurors, counsel should be allowed a wide latitude to expose that bias.” Littell v. Bi-State Transit Development Agency, 423 S.W.2d 34[3] (Mo.App.1967). The principle was applied in the factually different case of State v. Hoelscher, 217 Mo.App. 156, 273 S.W. 1098[1] (1925), discussing a defendant’s rights on voir dire to explore the minds of jurors to disclose mental factors which would impede a fair trial on the law and facts of the case before them. In Hoelscher defense counsel sought to learn if the veniremen belonged to any organization, particularly the Ku Klux Klan, having for its purpose the prosecution of criminal cases. The trial court refused to allow the inquiry. In reversing, the supreme court followed State v. Mann, supra, which held a defendant “. . .is entitled to an impartial jury, and may make such inquiries as will enable him to secure that constitutional right. Must he exercise his right of peremptory challenge, without the privilege of making inquiries, except such as relate to the competency of the panel? ... If such is the law, the right of peremptory challenge may prove a snare and, at best, is of no earthly value to the accused.” And, the Hoelscher court added: “. . . But the questions asked in this case, and the information sought to be obtained, was proper if the right to trial by a fair and impartial jury is to remain inviolate. The information sought was within reasonable limits, and the trial court erred in refusing to permit counsel to examine the panel with respect to their affiliations with, or membership in, the Ku Klux Klan.” The proposed inquiry here was different, but just as reasonable an effort to select a fair-minded jury.

We realize a litigant’s method of challenging a trial court’s ruling on permissible voir dire questions should be specific. In Littell, supra, we followed State v, Mosier, 102 S.W.2d 620[7] (Mo.1937): “The correct procedure is for counsel to ask the members of the panel whether, if the court later instructs them in a specified manner, they have any opinion or conscientious scruples such as would prevent them from returning a verdict accordingly.” At 423 S.W.2d 38, we added: “The question would have been better if it had simply asked the panel whether any of them had a fixed opinion against the proposition that in a case of this kind . . .” [the burden would be on the state to show defendant did not act in self-defense].

In the instant case we cannot condemn defense counsel for not asking such a precise question because he was not permitted to ask his question. But we hold “the wide latitude allowed litigants to discover bias demanded that the defendant, in the interest of securing a fair and impartial jury, be allowed to make proper inquiry on the subject.” Littell, supra, [7]. By defendant’s “proffer” her counsel told the trial court he proposed to ask the veniremen if they could follow the principle of the state having the burden of disproving self-defense. To this, the state objected that this had been covered by the state’s previous general question about whether the veniremen can “follow the law”. The state’s general question did not cover defendant’s proposed inquiry about the critical issue of the state’s burden to disprove self-defense.

We do not have before us a specific voir dire question. But it is clear defense counsel made known to the trial court he wanted to learn if the veniremen’s minds were open or closed to the principle that the burden of proof would be on the state to disprove self-defense. This was vital to the defendant’s right to have an unbiased jury. The trial court erred in barring defendant from exercising this right.

After the colloquy set forth supra, the proceedings were resumed within the hearing of the jury panel, the voir dire examination completed, and the jury selected seated. Just before the jury was sworn, the record reflects the following colloquy took place which is the basis for the respondent’s contention that the defendant waived her right to examine the panel reference self-defense by “accepting” the jury.

“THE COURT: Is that the accepted panel, gentlemen?
“MR. FRIEDMAN: It is, Your Honor.
“MR. ADAMS: Yes, Your Honor.
“At this time the jury panel was sworn.”

The respondent contends that this constituted a waiver of any objections to the selection of the jury and that the court of appeals decision is in conflict with State v. Turnbough, 498 S.W.2d 567 (Mo.1973). In Turnbough the defendant objected to certain questions asked by the prosecutor on voir dire which the defendant claimed were intended to commit the jury to a guilty verdict. The trial court, however, overruled the objections and allowed the prosecutor to ask the questions. At the end of the voir dire, but before the jury was selected from the panel, the judge asked the lawyers: “Gentlemen is this panel satisfactory?” The defense replied, “Satisfactory to the defendant, Your Honor”, and the state merely answered, “Yes”. This was held to come within the rule regarding the waiver of objections to the jury selection process as that rule is stated in 50 C.J.S. Juries § 254 p. 1016, which reads in part as follows:

“If a party expressly accepts as satisfactory the jury as finally impaneled, he waives the right to present any challenge for cause thereafter. He also waives any prior objection to the action of the court in permitting improper questions to be put to jurors, [or] in excluding proper questions . . .

The court in Turnbough placed particular emphasis on the fact that counsel for the defendant expressly accepted the jury panel as “satisfactory”.

Although the record does not contain a verbatim account of what took place after the voir dire questions were concluded, we know that thereafter the prosecuting attorney made his peremptory strikes and told defense counsel the names of the panel so stricken; that defense counsel then made his strikes; that the court, the clerk, or the bailiff, then called out the names of the excused jurors and those persons left the jury box, and that the twelve-member jury was then seated in the appropriate chairs in the jury box. In Missouri, unlike some states, no peremptory strikes are made during the voir dire. All are made only after the voir dire examination has concluded. We say we know this happened because, having either tried or presided over the trial of cases in circuit court in this state, we know the only way to end up with the correct twelve jurors seated in their correct chairs in a jury box, this or some procedure practically identical to it is utilized in every jury-tried case. On occasion a mistake is made in seating the twelve jurors. The attorneys have the list of the veniremen in their hands and the court in order to learn if a mistake has been made and then correct it will sometimes address a question to the attorneys. That question may take the form utilized here and set forth supra, or it may be a question such as, “Are these the twelve you have selected?” or some other form. Whatever form it takesi its purpose is the same — to promptly expose any mistake made in seating the panel so as to get the correct twelve in the jury box and proceed with the trial.

In the instant case the defendant’s attorney did not expressly accept the panel as “satisfactory” as the decision in Turnbough states was the case there. Underlying the court’s question here is the knowledge that the attorneys made their peremptory challenges and the inquiry was simply to confirm that the twelve persons seated as jurors were the same twelve who remained after those strikes were made according to the jury lists each attorney used during the course of the voir dire examination.

In other words, the court used the phrase “the accepted panel” only to describe that unit of twelve who were finally seated as jurors as a result of elimination of those persons who were stricken by peremptory challenges.

In the instant case there was no question addressed to the attorneys after voir dire and before the peremptory challenges were made as to whether the panel was satisfactory as there was in Turnbough. Whether the Turnbough conviction would have been affirmed had defense counsel not expressly told the court that the panel from which he would thereafter make his peremptory strikes was “satisfactory to the defendant” is at least doubtful. It is clear from the Turnbough decision, however, that the court relied principally upon the affirmative acceptance of the panel and not the lawyers’ response to the question subsequently asked after the jury was finally selected as the basis of the waiver. That basis does not appear in the record of the instant case.

Turnbough cites three cases—Strawn v. Coca-Cola Bottling Co. of Mo., 234 S.W.2d 223, 226-227 (Mo.App.1950), People v. Rose, 268 Mich.App. 529, 256 N.W. 536, 537 (1934), and People v. Miron, 31 Mich.App. 142, 187 N.W.2d 497 (1971)-as supporting the rule on waiver of objections to a jury panel contained in 50 C.J.S. Juries § 254, quoted supra. We are not convinced they support the broad rule respondent claims Turn-bough supports.

In Strawn the defendant claimed the trial court committed error when it permitted the plaintiff’s attorney to examine the jury panel with reference to their connection with an insurance company. Counsel for defendant made no objection to the question at the time it was made nor did he ask that the panel be discharged. After the examination, defendant’s counsel said, “[t]he panel is acceptable to us.” 234 S.W.2d at 227. It was under these circumstances, i. e., defendant’s failure to make any objection and the failure to move to quash the panel, as well as defendant’s acceptance of the panel, which caused the court to find that nothing was preserved for review.

This is further illustrated by the two statutes cited by the court in Strawn to support its decision. Sec. 847.122, Mo.R.S. A.1939, provided that it was no longer necessary to make formal exceptions to the court’s rulings and it would be sufficient at the time of the ruling if the party made its objections known to the court. Similarly, sec. 847.140(a), Mo.R.S.A.1939, provided that no allegations of error, except for subject-matter jurisdiction and the sufficiency of the pleadings, would be considered in any civil case unless they had been “presented to or expressly decided by the trial court.” Unlike Strawn, both Turnbough and the instant case involved situations where the attorneys raised objections to the line of questioning or the refusal to allow certain questions. However, in Turnbough there was an express acceptance of the panel (venire) from which the jury of twelve was selected whereas in the instant case there was no such acceptance voiced. Strawn cites Gildehaus v. Jones, 356 Mo. 8, 200 S.W.2d 523 (1947), Bulkley v. Thompson, 240 Mo.App. 588, 211 S.W.2d 83 (1948), and Power v. Frischer, 229 Mo.App. 1056, 87 S.W.2d 692 (1935), which involved situations where there was either no objection made at the time of the ruling or one was made which did not comply with the statute.

People v. Rose, supra, involved a situation where the trial court erroneously restricted the scope of questioning on voir dire. The Supreme Court of Michigan refused to consider this error first because the defendant had failed to exhaust his peremptory challenges of the panel and secondly because he accepted the jury panel. Most importantly the court found the defendant was not prejudiced by the restrictive scope of voir dire because he failed to exhaust his peremptory challenges and there was no showing he was not satisfied with the panel. In the instant case there is no issue of peremptory challenges and the defendant was obviously not satisfied as demonstrated by her objection to the court’s restriction on her voir dire examination and the renewal of that point in her motion for new trial.

In People v. Miron, supra, the defendant complained of the en masse questioning of the prospective jurors and the less than full questioning of replacement jurors. The court found this claimed error lacked substantive merit in light of the record plus the defendant waived the alleged error because of his express indication of satisfaction with the panel. The Miron decision does not reveal that defendant’s attorney objected to the procedure at the time it occurred. Although Miron states the rule that objections to the jury panel are waived when the panel is expressly accepted, we have found some earlier cases of the Supreme Court of Michigan which we think qualify the decision in Miron and set forth a more acceptable rule. In Fedorinchik v. Stewart, 289 Mich. 436, 286 N.W. 673 (1939), the plaintiff’s attorney wanted to ask the prospective jurors whether they had insurance with the defendant’s insurer. The trial court, however, refused to give its permission to allow the question. The examination of the panel proceeded and subsequently plaintiff’s counsel announced he was satisfied with the jury. The Supreme Court of Michigan held the trial court erred in restricting the scope of voir dire and, with reference to the plaintiff’s express acceptance of the panel, the court stated at 675:

“This, however, should not be held to be a waiver of plaintiff’s earlier insistence upon the right to have the jurors examined on voir dire in the manner hereinbefore noted. There is no intimation that counsel was not acting in entire good faith in asking for this further examination. He was eminently fair with the court. He made his position clear, took an exception to the adverse ruling, and acted ethically in accepting the trial court’s decision. So far as could be ascertained from the restricted examination of the jurors they were acceptable. By so announcing plaintiff did not waive his rights under the very definitive record he had made.”

The court reversed and remanded the case for a new trial.

A similar line of reasoning was used in the more recent case of Tisdale v. State, 30 Md.App. 334, 353 A.2d 653 (1976), wherein the defense attorney’s challenges for cause of two prospective jurors, one of whom answered he would give more weight to a police officer’s testimony and the other who admitted being related to an assistant state’s attorney, were overruled. The defendant was forced to use his peremptory challenges to strike these jurors. The appellate court held this was reversible error and then addressed itself to the question of whether the objection to the court’s ruling had been waived. The court stated at 657:

“. . . trial counsel for appellant stated in response to an inquiry by the clerk before the jury was sworn, ‘The panel is acceptable to the defense.’ The State also replied, ‘Acceptable,’ and the jury was then sworn. No waiver of appellant’s challenges for cause occurred. His objections to the two jurors, for cause, had been clearly stated on the record and counsel’s response— that the jury ultimately selected was ‘acceptable’ — was merely obedient to the court’s rulings and obviously not a withdrawal of the request timely made, that the jurors be excused for cause.”

We are of the opinion that the reasoning of the courts in Tisdale and Fedorinchik is applicable to the instant case because we think the defendant’s attorney had no intention to waive his objections to the voir dire when he accepted the jury panel.

The court holds that the defense attorney’s response to the court’s question as to whether the jury of twelve was “the accepted panel” did not constitute an acceptance of the larger panel from which the twelve were selected as satisfactory and, therefore, does not constitute the kind of waiver found to be present in Turnbough.

The above holding disposes of the specific point briefed by the state with reference to waiver. Additionally, however, the court of appeals distinguished Turnbough as follows: “Our case is the converse of Turn-bough. There, it was the defendant who unsuccessfully objected to the State’s voir dire questions and when the defendant’s counsel accepted the panel he was aware of the harm done by the State’s questions hypothetically committing the jury to a guilty verdict. The Turnbough court held defendant should have then moved to quash the panel. By contrast, here it was the State’s counsel who objected to defense counsel’s proposed questions. Defense counsel, not having been permitted to learn if the veniremen would require the State to bear the burden of negating self defense, unlike defense counsel in Turnbough, had no basis for moving to quash the panel.”

One of the reasons we transferred this case was to examine the state’s contention that the court of appeals opinion was contrary to Turnbough because Turnbough required the objecting party to move to quash the panel in order to preserve the error for review. While Turnbough was correctly decided by the court’s interpretation of the facts in that case, we believe the breadth of the statement appearing therein, reference the requirement of a motion to quash the panel in order to preserve objections made during voir dire for appellate review, merits further examination. Therefore, the question the court must decide is whether Missouri law requires that a motion to quash the panel be made by a party in order to preserve for review specific objections which had been overruled or specific requests to ask certain questions which had been denied during voir dire examination. This assumes that the party has preserved the alleged error in his motion for new trial and on appeal.

The cases of State v. McGee, 336 Mo. 1082, 83 S.W.2d 98 (1935), State v. Garrett, 285 Mo. 279, 226 S.W. 4 (1920), and State v. Parker, 378 S.W.2d 274 (Mo.App.1964), are cited in Turnbough for the general proposition that in order to preserve the error for appellate review the party must move to quash the panel. Those cases, however, do not directly concern the consequence of failing to move to quash a panel with respect to the preservation of objections made during voir dire examination.

Contrary to the impression that perhaps is conveyed by Turnbough, there is no rule that to preserve an objection made during voir dire examination with reference to questioning prospective jurors a party must move to quash the panel at the close of the voir dire. In McGee the appellant challenged for the first time on appeal the panel of jurors on account of their political affiliation. This court found this issue was not preserved because “[t]he record fails to disclose any timely challenge to the array [panel], verbal or in writing; or any objection (or exception) to the polls [individual jurors] involving this issue.” 83 S.W.2d at 106. Although the case mentions challenges to the panel, it does not make such a motion mandatory to preserve objections specifically made during the course of the voir dire examination.

In Garrett the appellant on appeal objected to the method used to excuse twenty-two prospective jurors and to summon additional ones. This point was not preserved because appellant failed to make any objection on this ground during the voir dire and not because appellant failed to file a motion to quash.

Parker is cited in Turnbough as an analogous case. In Parker the appellant sought to quash the jury panel on the ground that the sheriff who summoned the panel was the prosecuting witness. According to the court this motion was properly overruled because, inter alia, it was not timely filed. The court, nevertheless, considered the point on its merits and concluded no wrongdoing occurred. The case is not analogous because the challenge in Parker was to the entire array and was based upon an alleged defect in the summoning process and not upon the refusal of the court to permit inquiry of the individual jurors reference their personal ability to act as jurors in the particular case.

In the following cases, objections or requests occurring during voir dire examination were reviewed on appeal and no mention was made of whether or not the party seeking review made a motion to quash the panel at the close of the voir dire examination. State v. Spidle, 413 S.W.2d 509 (Mo.1967), was reversed and remanded for error in not sustaining a challenge for cause; State v. DeClue, 400 S.W.2d 50 (Mo.1966), was reversed and remanded for the same reason; State v. Ford, 495 S.W.2d 408 (Mo. banc 1973), was affirmed but the court entertained and decided the point relating to voir dire; State v. Lovell, 506 S.W.2d 441 (Mo. banc 1974), reversed and remanded for failure to sustain challenge for cause with three judges dissenting but not on grounds that a motion to quash was not made. See 18 Mo.Dig., Jury,

Additionally, there are numerous cases collected in 18 Mo.Dig., Jury, “Extent of Examination” in which the appellate court entertained and decided issues relating to alleged error on the trial court’s overruling of objections to questions asked on voir dire and refusing to permit certain questions on voir dire. We have read a substantial number but not all of these cases and nowhere does there appear any requirement that a motion to quash is necessary to preserve for review specific objections or requests recorded during the voir dire examination which have been preserved in the motion for new trial.

In State v. Gardner, 524 S.W.2d 38 (Mo.App.1975), the appellant contended the trial court erred in permitting the prosecutor to question the veniremen about their church affiliations. No objection was made at the time the questions were asked. The court overruled the point saying at 40, “The trial court must be given the opportunity by timely objection to pass upon the propriety of questions, and where the defendant fore-goes objection, as occurred here, the trial court should not be convicted of error for allowing the questions.” This holding is in accord with all of the appellate court decisions we have found where the alleged error is in the overruling of specific objections to voir dire questions or in the sustaining of objections to questions proposed by the appellant. But nowhere does it appear that the motion to quash is necessary as to this type of matter.

State v. Hoelscher, 217 Mo.App. 156, 273 S.W. 1098 (1925), followed State v. Mann, 83 Mo. 589 (1884), and State v. Miller, 207 S.W. 797 (Mo.1918), and in all three cases the conviction of the defendant was reversed and the cause remanded upon the grounds that the trial court erred in refusing to permit defense counsel to ask certain questions on voir dire. Again, no requirement of a motion to quash was indicated in any of the cases. The objection made at the time was sufficient to preserve the matter for inclusion in the motion for new trial and review on appeal.

The respondent cites no Missouri- authority, other than Turnbough, for the broad proposition that a motion to quash or discharge the panel is necessary to preserve the prior objections or refused requests for inclusion in defendant’s motion for new trial and review on appeal.

The court holds that it is not necessary to move to quash or discharge the panel in order to preserve for inclusion in a motion for new trial and review on appeal the specific objections made during voir dire to questions asked by the other party or to preserve for review the trial court’s ruling refusing to permit proposed questions to be asked of the panel. To the extent that Turnbough is in conflict with this holding, it is overruled.

Furthermore, questions by a trial judge to attorneys which are for the purpose of learning whether the attorneys waive prior objections should be clearly stated in order that neither a trial court nor an appellate court need indulge in inferenc-' es or suppositions in order to so find.

Defendant alleges two other points which the court will rule on because the same may occur on retrial. Defendant contends the court erred in admitting into evidence state’s exhibit 9 which is a photograph of the upper half of the deceased’s body and shows the wound inflicted by the shotgun shell. The exhibit was admitted into evidence without objection. It was later passed to the jury and subsequently sent to the jury room on request. Defendant objected-to the jury’s viewing the exhibit on the ground that it was highly inflammatory and prejudicial and that the inflammatory aspects of the exhibit far outweighed its probative value. We have viewed the exhibit and in the context of this case the court holds there was no abuse of discretion. The point is overruled.

Defendant’s other contention is that the court erred in giving instruction 4, the second-degree-murder instruction, on the ground that it did not require a specific jury finding of premeditation. Instruction 4 is MAI-CR 6.06 which was approved by a majority of this court in State v. Jackson, 496 S.W.2d 1 (Mo. banc 1973), as against this same contention. The point is overruled.

Because of the error in the trial court’s refusal to permit defendant’s counsel to question the jury panel on voir dire as to whether they could follow the law with respect to the question of the burden of proof on the issue of self-defense, the judgment is reversed and the cause is remanded for a new trial.

SEILER, C. J., MORGAN and FINCH, JJ., concur.

HENLEY, J., dissents in separate dissenting opinion filed.

DONNELLY, J., dissents and concurs in separate dissenting opinion of HENLEY, J.

RENDLEN, J., not participating because not a member of the court when cause was submitted.

HENLEY, Judge,

dissenting.

I respectfully dissent. I do so because I do not believe it may be said from this record that the court abused its discretion in refusing to permit defense counsel to inquire of the prospective jurors whether they could follow the law with respect to the burden of proof on the two defenses of accident and self-defense.

Immediately after defense counsel began his voir dire examination of the panel, the trial judge called counsel to the bench for discussion, outside the hearing of the jury, of a question raised by a statement of defense counsel to which the State had objected. During this bench conference the following also occurred:

“MR. ADAMS [counsel for defendant]: As long as we are here on this question, I also anticipate asking the jury the question along these lines: That the Court is the expert on the law in this room, that I do not mean to instruct the jury on the law because the Judge will do that at the end of the case. I intend to ask the jury — to indicate to the jury that I anticipate that the Court may instruct the jury on the question of self-defense and that the Court may instruct the jury on the question of accident. Now with that in mind, I would ask the jury whether they could follow the law with respect to the burden of proof on those two questions.
MR. FRIEDMAN [counsel for State]: Again, Your Honor, this is beyond the scope of voir dire examination. I object to any question — the question is can you follow the law and that’s the general one I asked. Everyone said he could follow the questions and the law.
THE COURT: Sustained as to the last question.
MR. ADAMS: Then the Court, I gather, would not allow me to inquire of the jury as to whether they could — whether they understand the burden of proof with respect to accident? It is on the State to prove beyond a reasonable doubt that it was not accident and second, with respect to the question of self-defense, and the burden of proof is on the State to prove beyond a reasonable doubt that it was not self-defense? I don’t want to go into the details of the case, but I think I have a right to ask the jury as to whether they would require the defense to prove self-defense or require the defense to prove accident. That’s my only purpose in—
MR. FRIEDMAN: I don’t know — it is not mutually exclusive. I don’t know if accident and self-defense are not mutually exclusive defenses. I don’t know what the defense is going to be, but I think the general question is whether or not the jury will follow the Court’s instructions; the Court will instruct at the end of the case; that the State has the burden of proof beyond a reasonable doubt; proving all the offenses (sic) of the crime — of any crime they might find the defendant guilty of, and I think again the general questions are fine. I think any speculation at this point, when no evidence is before the jury as to self-defense or accident or what have you, I think is purely speculative and I think it is improper to go into at this point of the trial.
THE COURT: Sustained.
* * ⅜ * * *

The rule is that the conduct and scope of the voir dire examination of prospective jurors is left largely to the trial court’s sound discretion and will not be interfered with on appeal unless a clear and obvious abuse thereof appears. State v. Hawkins, 362 Mo. 152, 240 S.W.2d 688, 693-694[8] (1951); State v. McKeever, 339 Mo. 1066, 101 S.W.2d 22, 27[7] (1936). And, questions propounded by counsel pertaining to the plea of self-defense or accident should be complete, and carefully and correctly framed. State v. Lassieur, 242 S.W. 900, 902[2] (Mo.1922).

It is not the prerogative of counsel on voir dire to explain the law or state what the instructions of the court will be. State v. Smith, 422 S.W.2d 50, 67-68[29, 31] (Mo. banc 1967); State v. Bolle, 201 S.W.2d 158, 159-160[2, 3] (Mo.1947). It is for the court to instruct the jury in writing upon all the law applicable to the case and it is the jury’s duty to follow the law as the court gives it. An attempt by counsel, before the evidence is in, to inform the jury which instructions on the law the court will give, and especially to state orally what those instructions will say the law is, or to explain what it is if there is any indication a member of the panel does not understand the oral statement, is fraught with danger of injecting prejudice and must be tightly controlled by the trial judge. It is not until all the evidence is in that the trial judge knows with certainty which instructions will be given and even then what he says the law is must be in writing.

Here, counsel did not frame and present a specific question or questions for the court to rule upon; all he did was inform the court in general terms of the broad area about which he sought to inquire and, if necessary in his opinion, to inform and explain. His questioning members of the panel whether they could follow the law on the burden of proof of a defense would not be unlike inquiring whether they have any personal feelings for or against the rule which requires the State to bear the burden of proof throughout the case (State v. Smith, supra) or whether they believe the law on this subject is good or bad (State v. Mosier, 102 S.W.2d 620, 624[9] (Mo.1937)). In State v. Mosier, supra, the court said: “Their opinions on the merits of the law were immaterial unless so unyielding as to preclude them from following the law under the court’s instructions. That should have been the question asked.”

Moreover, counsel was seeking in this case to inquire relative to inconsistent defenses (State v. Peal, 463 S.W.2d 840 (Mo.1971) and cases therein cited) and, while instructions on both these defenses may be given in some circumstances, defense counsel did not at any time inform the court what the proof would be that would require the giving of instructions on both. If the evidence would not permit the giving of both instructions, it would have been improper to permit counsel to inquire as broadly as he sought, because as to at least one of these defenses his inquiry would have injected a false issue. The least counsel could have done at the time was inform the court what the evidence would be that, in his opinion, would require the giving of instructions on both defenses, thus permitting the court to make an informed ruling as to counsel’s inquiry on each. Instead, counsel kept mum; thus, in effect, attempting to sandbag the court.

I would hold that the court did not abuse its discretion in its rulings on the voir dire examination sought by defendant.

      . We have omitted the now irrelevant statements concerning the possible defense of accident.