text:
    STATE of Missouri, Respondent, v. Hayes W. LOWE, Appellant.
    No. KCD 29840.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Thomas J. Briegel, Briegel & Kimme, Union, for appellant.
    John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SHANGLER, P. J., SWOFFORD, C. J., and WASSERSTROM, J.
   SHANGLER, Presiding Judge.

The defendant Hayes Lowe was convicted of the unlawful possession of more than thirty-five grams of the controlled substance marihuana and was sentenced to a term of imprisonment for three years.

The marihuana was seized from premises Lowe and his wife shared as the marital residence but from which he was absent because of a domestic tiff. The defendant contends that the evidence was not sufficient to prove possession of the marihuana in him so that the conviction may not stand.

The marihuana was taken by the police under the execution of a search warrant for the substance on premises described as an apartment on the east side of the second story of the building at 711 West Main Street in Jefferson City, Missouri. The warrant was issued by the county magistrate some minutes earlier and was executed at about 1:55 a. m. by forcible entry after the front door was not opened to the announced presence of the officers. Other officers made entry through the rear entrance. The wife of defendant, Brenda Lowe, was found on the premises alone in full dress. An immediate search disclosed two plastic bags of marihuana in a handbag suspended on the bedroom doorknob. The wife was promptly placed in arrest and removed from the premises. A subsequent more detailed search disclosed some of the substance within a plastic cigar box aside a chair and some loose marihuana in a metal pan under that chair in the living room. In a bare back room [referred in the evidence as the back bedroom] was a stalk of marihuana with leaves intact leaning against a radiator. The stalk was so situated that when the door to the room was open the plant was concealed from view. In that same back bedroom was found a closed valise on the floor which contained marihuana. In the kitchen were three potted marihuana plants on the windowsill.

Later that day, June 25,1977, the defendant Lowe was taken into custody, warned of his rights, and then interrogated. The defendant responded that he and his wife had resided in the premises searched for about a year, but that he was last there on Friday, the 24th of June. The officer then asked Lowe “if he knew anything about the presence of marijuana in the apartment and he said, ‘No.’ ” The defendant went on to say without further inquiry [according to the discursive account of Officer Tedeschi]: “that, sure, he had smoked marijuana, you know, and didn’t see any big deal. And at the same time he said he didn’t want to answer any more questions.” On cross-examination Officer Tedeschi acknowledged that during the interview he did not ask Lowe whether, when he visited the residence building on the 24th of June, the defendant actually went into the house.

The defendant was then formally charged with the unlawful possession of more than 35 grams of marihuana. [The quantity seized from the search was actually 115.7 grams.] The wife, Brenda, was charged with possession of under 35 grams of the substance [presumably on the basis of the marihuana found in her purse] but, according to her testimony, was eventually dismissed from the charge altogether.

The evidence for the defense came from Brenda Lowe and one Haldiman. It was the testimony of Haldiman that defendant Lowe had spent the five days with him from Monday until Saturday, June 25th [the day of the search and his arrest] where they lived together at his home in rural Hartsburg. Haldiman had known Lowe for a number of months and came to the apartment that Monday to enlist his help to move a double trailer. When he arrived, he made his presence known by the sound of the horn on his car, but heard Lowe and his wife in argument and so did not go into the apartment premises. Haldiman and Lowe left together and during that week, until Saturday, worked and lived together. Lowe was without means of transportation so they returned to the Lowe apartment on Friday, the 24th of June, at about eleven a. m. to pick up his motorcycle. They did not enter the apartment because the door was locked and Lowe was without a key. They returned directly to Hartsburg; Lowe on his motorcycle, Haldiman in his pickup truck.

The wife, Brenda, testified that at the time the police entered the apartment under the search warrant she was alone. She had separated from her husband and had been apart since the prior Monday. He left with some of his clothes and had not returned during that time. The marihuana the officers discovered on the premises all belonged to her and none to her husband. During the two weeks before they separated they spatted so that Lowe was at the apartment only intermittently. She concealed the marihuana from her husband during the times when he came. She kept the doors locked and only she had a key to the premises. The wife acknowledged that she made no effort to conceal the marihuana stalk from her husband but explained that the plant was in an off-room. According to her testimony, the stalk had been on the premises for a week before discovery by the police, the plants on the kitchen sill for only a few days before, the cigar box with the marihuana in the living room for not “very long,” the valise in the off-room for “the past couple of weeks” and the pan under the living room chair had been plen-ished with marihuana the very day of the police search. At the time the testimony was given, Brenda had reunited with her husband.

The charge of unlawful possession of a controlled substance [in this case, marihuana] under Chapter 195, RSMo 1969, requires proof that the accused had conscious possession of the substance. State v. Burns, 457 S.W.2d 721, 725[3, 4] (Mo.1970). For the penal purposes of these statutes actual possession need not be shown but proof of constructive possession will suffice. State v. Worley, 375 S.W.2d 44, 47[4, 5] (Mo.1964). The possession which the narcotics law prohibits, therefore, is not proprietary only but also such an exercise of control over drugs not in physical possession as will give rise to an inference of possession. In either case, the possession need not be exclusive but may be shared and is culpable only where the accused knew of the contraband and had control of the substance. State v. Norris, 460 S.W.2d 672, 677[5, 6] (Mo.banc 1970); State v. Berry, 488 S.W.2d 667, 668[1-A] (Mo.App.1972).

In a case where an accused is in exclusive control of premises the law makes the inference that a contraband substance found there also rests within his possession and control. State v. Wiley, 522 S.W.2d 281, 292[20, 21] (Mo.banc 1975). This rule rests on the logic that no one other than the exclusive proprietor could control — and so account for — the drugs. State v. Funk, 490 S.W.2d 354, 360[8] (Mo.App.1973). In a case where premises are shared, a like inference of possession of the contraband does not arise in the absence of additional circumstances to inculpate the accused. State v. McGee, 473 S.W.2d 686, 687 (Mo.1971); State v. Berry, supra, 1. c. 668[l-4]. This rule rests on the logic that a shared proprietary interest in premises does not render it more likely that an accused either knows of the presence of drugs on the premises or in fact exercises control over the substances. State v. McGee, supra, 1. c. 687; State v. Funk, supra, 1. c. 361; Whitebread and Stevens, Constructive Possession In Narcotics Cases: To Have and Have Not, 58 Ya.L. Rev. 751, 763 (May, 1972).

Nor does the status of husband and wife between the defendant and Brenda found alone on shared premises amidst the marihuana give rise to a presumption that the husband had control of the substance. Those jurisdictions which continue to deem the possession of contraband by the wife that of the husband ?■: head of the household on premises shared by them cling to the common law unity of persons of a husband and wife, a fiction the emergent status of women and contemporary mores no longer allow. The more correct analysis sees no distinction between spouses and other cotenants of premises but directs inquiry only to whether or not the accused was in a position to exercise control over the drugs found on the premises. Grantello v. United States, 3 F.2d 117 (8th Cir.1924); Puckett v. State, 13 Md.App. 584, 284 A.2d 252 (1971); Commonwealth v. Hannan, 229 Pa. Super. 540, 331 A.2d 503 (1974); United States v. DiNovo, 523 F.2d 197 (7th Cir.1975); Mills v. State, 325 N.E.2d 472 (Ind.App.1975); Barnhart v. State, 559 P.2d 451 (Okl.Cr.1977); Annotation: Illicit Drugs— Nonexclusive Possession, 56 A.L.R.3d 948 §§ 2a and 3. See also State v. Funk, supra, 1. c. 363[9],

In terms of our decisional law, therefore, the question posed on appeal is whether the evidence shows a circumstance, in addition to the joint control of the apartment premises shared with wife Brenda, which renders it more probable than not that the defendant possessed the drugs taken under warrant.

The prosecution contends that seven incidences of evidence prove that the defendant had conscious, albeit constructive, possession and control of the drugs taken by the police: (1) defendant and wife Brenda lived for one year on the premises where the contraband was found; (2) defendant visited the premises the day before the seizure of the marihuana and of his arrest; (3) 115.7 grams of the substance were found throughout the apartment on the next day; (4) some of the marihuana was on the apartment premises for more than the week defendant was continuously absent from those premises; (5) testimony by wife Brenda [so it is asserted] that defendant knew of the presence of the marihuana stalk with leaves intact in the rear room; (6) defendant remained absent from the premises ex-tendedly only for the five days prior to his arrest; and (7) defendant admitted to the officer that he had smoked marihuana and “didn’t see any big deal” about it.

Item (1): We have shown that the law does not, without more, infer control by a cotenant of drugs found on shared premises. State v. McGee, supra, 1. c. 687. Nor does the Missouri [and other considered] law, on the rationale of McGee and Funk, impute to the husband the admitted possession of contraband by the wife on premises shared by them. That is because possession is the very gist of such a criminal offense [State v. Young, 427 S.W.2d 510, 513[2-6] (Mo.1968)] and so, by definition, only the possessor can commit the crime. Commonwealth v. Hannan, supra, 331 A.2d 1. c. 505[3]. To find guilt on the fictive assumption that a husband so dominates the conduct of the wife as to be blamed for her crimes committed on family premises subverts the sense of the statute and tenet of criminal responsibility that culpable possession means conscious possession. LaFave & Scott, Criminal Law p. 182 (1972).

Item (2): The defendant answered the interrogation of Officer Tedeschi that he had last been to the marital premises on Friday, the day before the search under the warrant. From this the prosecution finds that inculpatory circumstance — in addition to joint possession of premises itself — from which the knowledge of the presence of the marihuana in the apartment and, we assume, an inference of control of the substance requisite to prima facie possession. The full testimony of Tedeschi was, however, that the defendant stated to him that he had gone to the premises — not that he had entered the apartment or even the building. The testimony of the defense witness Haldiman was that he accompanied defendant to retrieve a motorcycle from the apartment building but that Lowe was unable to enter the apartment itself because it was locked and he was without a key. The wife corroborated that the apartment was locked even when she was there and that she kept the only key. This evidence taken most favorably to the State allows no inference of knowledge by the defendant of the contents of the apartment during the week, more or less, when he was absent altogether from the interior premises.

Item (3): The discovery of the 115.7 grams quantity of marihuana found throughout the apartment on the day after defendant attempted entrance onto the premises, and in his absence, corroborates neither knowledge of the presence of the drug nor constitutes that proof of dominion over the substance the law equates with constructive possession of contraband.

Item (4): There was evidence by wife Brenda that some of the marihuana had been on the domestic premises for more than the week she and her husband had been separated. The stalk and the valise, she testified, had been in the back bedroom for about a week. This means, of course, that the defendant was on the apartment premises at the same time these quantities of marihuana were there. The evidence also was, however that for the two weeks before their separation [and, hence, during the time the stalk and marihuana in the valise were on the premises] the husband and wife were in a state of contention so that his stay on the premises was only intermittent. The argument by the State on this evidence suggests that, even without more specific proof, a reasonable mind will infer that the defendant came to the knowledge of the presence of the stalk and contents of the valise from these visits and that such knowledge of the presence of the drug on premises jointly shared makes probable his control — and hence constructive possession — of the substance.

This evidence allows neither inference of knowledge by the defendant of the presence of the drug nor of his constructive possession of the substance. It is quite beyond dispute that the stalk was so placed in the otherwise empty rear bedroom so as to be cut off from view when the door was open — as certainly it must have been concealed from view when the door was shut. It is also quite clear that the valise in that same room was kept closed. That means that unless the defendant already knew of the presence of the substance in that room the open door would not have disclosed it. There is no evidence that the defendant ever went into the back room — nor, for that matter, any other room — on his intermittent visits during the two weeks before the separation. The testimony of Officer Te-deschi shows that entry into the apartment from the front door led to the living room from which the bare back bedroom was quite removed. Entry into the apartment from the rear door led to the kitchen and bathroom. The meager evidence allows no basis to assume that the momentary visits by the defendant took him to the one room which contained the marihuana. All the more so, when considered with the testimony of wife Brenda that she purchased the marihuana for her own use and concealed its presence from her husband during the two-week estrangement.

The inference of constructive possession the State makes for this evidence reverts to a principle of property law: that ownership entails possession — so that the owner of a house “possesses” all the contents. 58 Va.L.Rev. 751, 763, supra. The possession meant by the statute, however, is not of this order but means some circumstance of inculpation, other than mere joint possession of premises, which proves knowledge by the accused of the presence of the marihuana on his premises and his control over the substance. State v. McGee, supra, 1. c. 687; State v. Funk, supra, 1. c. 363[10]; People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177, 179[2 — 5] (1954); see, also, State v. Berry, supra, 1. c. 668[1 — 4]. The evidence of the conduct of the defendant on the premises during the two weeks prior to his separation, taken most favorably to the State, does not allow inference of his knowledge of the presence of the marihuana in the back room. Guilty knowledge may not be presumed but must be proved as an element essential to conviction for unlawful possession. State v. Burns, supra, 1. c. 625; State v. Wiley, supra, 1. c. 292[22-25].

Item (5): The prosecution contends also that in testimony for the defense wife Brenda acknowledged her husband knew of the marihuana stalk in the rear room of the apartment and so that the knowledge of presence element of unlawful possession was proved. This assertion rests on the [emphasized] trial colloquy between the prosecutor and witness Brenda:

Q. Brenda, did you . . . purchase the marijuana that was found in there [the cigar box found in the living room]?
A. Yes.
Q. Did you purchase the marijuana that was found in the pan underneath the chair in the same room?
A. (Nodded head.)
Q. Did you purchase the marijuana that was found in the suitcase?
A. (Nodded head.)
Q. And it is your testimony that Hayes had no knowledge of any of it?
A. No, he didn’t.
Q. Did you purchase the marijuana stalk that was lying on the radiator ?
A. Yes.
Q. Now, did Hayes Lowe have any knowledge of that ?
A. (Nodded head.)
Q. All right. Now, it is not your testimony that he was not living there prior to your starting to have — when he moved out on Monday, is it; I mean, he might have been here
A. I don’t understand what you mean.
Q. Your testimony thus far has been, has it not, that at least for a few weeks before this incident you had marijuana in and out and in these places where we just talked about?
A. I didn’t keep marijuana hidden around there when Hayes was living there; no, I didn’t.
Q. You mean to tell me that during that two-week period, which you said Hayes was there the week before but not during the immediate week before this incident on the 24th or 26th of June, but the week before that he was there then, that was your testimony a minute ago.
A. He was there on and off. I didn’t
Q. All right. Did you conceal .
A. You are putting words in my mouth.
Q. Did you conceal the marijuana that was there when Hayes came in?
A. Yes, I did.
Q. All right. Did you have some reason to know that Hayes wouldn’t be back on the night of the execution of the search warrant?
A. I had the doors locked, and I had the only key to get in.

The efficacy of the prosecution conclusion that the testimony by the wife proves knowledge by the defendant of the presence of the marihuana stalk on the premises derives solely from the answer: Nodded head to the question whether her husband had knowledge of the purchase of the marihuana stalk “that was lying on the radiator.” The gesture of the head, reported as a nod, if intended as an affirmation of the question, could only signify knowledge by the husband that the wife had purchased the stalk, and not of its presence on the apartment premises. In the context of the full testimony of wife Brenda that she purchased the marihuana for her own use, that the substance was not kept on the premises when the husband lived there and that she took care to conceal the presence of the drug from him during his intermittent visits while they were estranged, there was no reasonable basis to misunderstand the purport of the witness — that the defendant had no knowledge of the presence of the stalk or any other form of marihuana on the apartment premises.

Item (6): The contention that the defendant remained absent from the premises for only five continuous days prior to his arrest merely recapitulates Item (4) — that some of the marihuana substance was in the apartment for longer than that period and so, presumably, noticed by the defendant and was part of his personal knowledge. That assertion has already been dispelled and does not require further comment.

Item (7): What remains is the contention that the statement by the defendant while in police custody that “he had smoked marihuana and ‘didn’t see any big deal’ about it” was a circumstance to inculpate the defendant to the drugs found on the apartment premises in his absence. The cases which consider whether evidence that the accused was a user of narcotics at the time of arrest, of itself, is a circumstance sufficient to incriminate him to drugs found on shared premises so as to sustain a conviction for unlawful possession of the narcotics are collected in the annotation: Illicit Drugs— Nonexclusive Possession, 56 A.L.R.3d 948, § 8. These cases disclose, with some exception, that the admission of use, without other circumstance, [such as paraphernalia of possession for use (People v. Valenzuela, 174 Cal.App.2d 759, 345 P.2d 270 (1959))] and the admission that the accused had made recent purchases of quantities of narcotics and kept the key to the storeroom for drugs [People v. Redrick, 55 Cal.2d 282, 10 Cal.Rptr. 823, 359 P.2d 255 (1961)] does not suffice to prove guilt of a conscious possession of drugs found on premises shared by the accused with others.

The statement by defendant Lowe to the police, in any event, was only that “he had smoked marijuana” [our emphasis] not that he practiced a present use. Any such evidence bears on the criminal charge only to the extent that it tends to prove the defendant possessed the drugs taken from the apartment he shared with his wife. In the circumstance of marihuana present on those premises without his knowledge, a discarded [or even continued] use of that drug by the defendant does not imply the probability more than less that the defendant was in possession of the substance found there and taken by the police. Nor — if we assume the knowledge of the presence of the marihuana — does the evidence of a present use, without more, logically prove the constructive possession of the substance found on premises to which the defendant had limited access and which were not shown to have been on the premises during the time of his conjugal occupancy. People v. Antista, supra, 276 P.2d 1. c. 181[9 — 11].

In terms of legal theory, constructive possession is figurative actual possession. To convict for constructive possession of an unlawful substance, the knowledge of the presence of the drug and dominion over the substance requisite for conviction for actual possession in fact must be proved by evidence of equivalent effect. State v. Wiley, supra, 1. c. 292[22-25]; State v. Polk, 529 S.W.2d 490, 492[2] (Mo.App.1975). In this proof, knowledge of the substance necessarily precedes possibility of control. State v. Burns, supra, 1. c. 724[1, 2]. There was no evidence of the knowledge by the defendant of the marihuana on the shared premises — or, if we assume knowledge of the purchase and presence of the stalk— there was certainly no evidence of dominion over that substance.

The rule which requires that an inculpation in addition to joint use of premises be shown for a submissible issue of constructive possession shows judicial wariness that guilt on circumstantial evidence be imputed only on substantial proof. State v. Berry, supra, 1. c. 668[1-2]; United States v. Holland, 144 U.S.App.D.C. 225, 227, 445 F.2d 701, 703[1] (1971). Thus, in State v. McGee, supra, 1. c. 687 proximity to the substance by the accused on premises shared by him was not sufficient to convict for a constructive unlawful possession even when the drugs were in his presence; but physical possession of the drug receptacle was a sufficient additional circumstance of guilt [State v. Scarlett, 486 S.W.2d 409, 410 (Mo.1972)], as was admitted ownership of the drugs taken [State v. Lockhart, 501 S.W.2d 163, 164[1] (Mo.1973)], and also where the drugs were taken from a safe in a room within the exclusive possession of the accused [State v. McCracken, 518 S.W.2d 229, 230 (Mo.App.1974)].

The case at bench resembles most nearly the facts in Grantello v. United States, supra, where the court held that possession by the wife of morphine on the marital premises from which the husband had been absent for six months was not sufficient to render his guilt of possession of the substance a jury issue. The evidence before us shows an admitted possession of the marihuana by wife Brenda — a possession, for all the record discloses, actual, exclusive and dominant. The rudiments of proof of the constructive possession of the drugs by the defendant husband were not made. Accordingly, the defendant is entitled not only to reversal of judgment but to discharge. Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 2150[7], 57 L.Ed.2d 1 (1978).

The judgment is reversed and the defendant ordered discharged.

All concur.

      . The principle is stated succinctly in Wharton’s Criminal Evidence, § 116 (13th edition): “When the defendant and his wife are in joint occupancy and possession of premises, there is a presumption that the defendant, as head of the household, had possession or control of narcotics . . . found therein.” This rationale has been followed, without explanation or analysis, in Landers v. State, 114 Ga.App. 687, 152 S.E.2d 431 (1966); Quick v. State, 191 Miss. 179, 2 So.2d 812 (1941); Martinez v. State, 539 S.W.2d 885 (Tex.Cr.App.1976). One jurisdiction, State v. Baxter, 285 N.C. 735, 208 S.E.2d 696 (1974), continues the presumption even when the husband is “temporarily absent” from the premises where his wife was found.

      . The additional incrimination essential to convince a cotenant of possession of drugs found on the premises, according to generally accepted legal statement, derives from “evidence allowing an inference [of knowledge of the presence of the drugs and control over them] based on defendant’s statements, admissions, conduct, or the situation.” State v. Rivers, 554 S.W.2d 548, 551 [5, 6] and cases cited in note 2 (Mo.App.1977); Annotation: Illicit Drugs— Nonexclusive Possession, 56 A.L.R.3d 948, 953.

      . We restate the indispensible proof for possession of an unlawful substance — even when the accused is found on the premises where the drug is discovered [a circumstance not present here]:
      “Where a person is present on premises where drugs are found but does not have exclusive use or possession of the premises, it may not be inferred that he had knowledge of the presence of the drugs or had control, so that no submissible case is made. Additional factors are required. Where the defendant is present on the premises and if there are additional independent factors showing his knowledge and control, then that is sufficient to withstand a motion for a directed verdict. To justify a conviction in any case on a charge of possession it is necessary

        to prove that the accused knew of the presence of the forbidden substance and that the same was under his control. In the absence of incriminating circumstances no case is made.” [Emphasis added.] State v. Wiley, supra, 1. c. 292[22-25].
      Should we assume [what we plainly do not] that the testimony by the wife means the husband knew of the presence of the stalk on their premises, there remains lack of proof of circumstance altogether that the stalk — or any other marihuana — was under his control so as to make out a submission of unlawful possession. In any event, that portion of the stalk and leaves which yielded marihuana weighed substantially less than the excess of 35 grams the law proscribes as a felonious possession and for which the defendant was prosecuted.


source: Caselaw Access Project

author: DIXON, Judge.

license: Public Domain

text:
    Donald HONTZ, Petitioner-Appellant, v. STATE of Missouri, Respondent.
    No. KCD 29945.
    Missouri Court of Appeals, Kansas City District.
    Nov. 27, 1978.

      Paul E. Panek, Belton, for petitioner-appellant.
    John D. Ashcroft, Atty. Gen., John M. Morris, III, Asst. Atty. Gen., Jefferson City, for respondent.
    Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ., concur.
   DIXON, Judge.

Movant appeals denial of relief under Rule 27.26 after an evidentiary hearing.

The issue raised is a jurisdictional issue involving movant’s request for a change of judge.

At the same time movant filed the motion for relief under Rule 27.26, he also filed a motion to disqualify the judges of Division 1 and Division 2 of the 17th Circuit. The judge of Division 1 who was assigned to the case denied the request. The docket entry making the ruling is as follows:

“September 7,1977. Motion of Petitioner to disqualify
Judge Robert G. Russell and Judge William M. Kimberlin overruled as there is no provision in the law that authorizes the disqualifying two judges in the same motion at the same time.”

The motion to disqualify the judges was filed pro se and the ruling was made, as noted, on September 7, 1977. Counsel was appointed October 17th, and the hearing was held November 7.

Proceedings under Rule 27.26 are civil in nature, and the rule governing a change of judge is Rule 51.05 which in its terms is applicable to the court which imposed the sentence. State ex rel. Reece v. Campbell, 551 S.W.2d 292 (Mo.App„1977). Thus, the determination of the issue presented is governed by Rule 51.05, but the statutory history and the comparable Criminal Rules 30.12-30.16 demonstrate that the modern procedures are similar.

The history of the area of change of judge in Missouri is complex and confusing. Such a practice has existed since territorial days. Act of July 3, 1807, 1 Territorial Laws, page 117, § 32. While a fair number of cases, both civil and criminal, exist, they all have to be read in conjunction with the change of venue statutes in force at the time of the case.

Early civil cases in Missouri were measured against § 818 Rev.Statutes of 1899 which allowed a party to challenge a judge for prejudice, but limited such challenges to one judge, even in a court with several divisions. See Gerhart Realty Co. v. Wetter, 108 Mo.App. 248, 88 S.W. 278 (1904); Eudaley v. Kansas City, Ft. S. & M. R. Co., 186 Mo. 399, 85 S.W. 366 (1904).

In 1921, however, the basic statute on civil change of venue was modified to allow a challenge to a judge or judges for prejudice. This change meant that in a county where all the judges on a court with a single division were challenged, the cause had to be transferred to a different county unless an agreement on a special judge was made between the parties. Clark v. Atchison, T. & S. F. Ry., 319 Mo. 865, 6 S.W.2d 954 (1928) and Gauck v. Advance Finance Co., 17 S.W.2d 576 (Mo.App.1929).

The 1921 change did not apply to certain counties, such as Jackson County, which had their own peculiar change of venue statutes because of their unique size and population concentration. In these counties, transfers were allowed from one division of the circuit court to another, but only one such transfer was permitted. State ex rel. Payne v. Pence, 240 S.W. 443 (Mo. banc 1922); Leimer v. Hulse, 352 Mo. 451, 178 S.W.2d 335 (1944). The modern civil procedure rules, including 51.06 which governs this case, preserve the distinction between circuits of different size, but unify the rule that only one application for transfer for change of venue will be allowed. Rule 51.-06(a), (b)(l)(2).

The criminal change of venue statutes underwent a similar transformation, but the same basic distinctions were preserved. While certain of the statutes seemed to imply that a criminal defendant could challenge more than one judge, see §§ 2127, 2130 RSMo 1929, the cases uniformly held that in a circuit court with more than one division, only one transfer between divisions was allowed. State v. Wagner, 311 Mo. 391, 279 S.W. 23 (1925); State v. De Shon, 334 Mo. 862, 68 S.W.2d 805 (1934); State v. Pierson, 343 Mo. 841, 123 S.W.2d 149 (1938).

Modern criminal rules of procedure 30.12-30.16 provide the guidelines for the disqualification of a judge on his own motion, or on the motion of a defendant. Differences in the procedure depend, as they do in the civil area, on the size and composition of the circuit court in any particular county. The rule remains that only one challenge to a judge for prejudice is allowed in a criminal case. State ex rel. Oswald v. Buford, 518 S.W.2d 690 (Mo.App.1975). State ex rel. Johnson v. Green, 452 S.W.2d 814 (Mo. banc 1970).

It is not surprising that the circuit judge was perplexed with the dilemma presented by the application disqualifying both judges of the circuit. The many changes in the statutes relating to change of judge over the years would be persuasive of the view that almost every factual variation with respect to the request for change of venue would have occurred. However, the parties have not cited any case similar to the instant one. Independent research has not disclosed any case where the application for change of judge has been denied when the application sought more relief than the statute permitted. In the course of the development of that statutory law, some cases arose in which applications for disqualification of more than one judge were made in circumstances where the existing statutory law permitted disqualification of only a single judge in a multi-judge setting. The closest case which deals with the problem is Gerhart Realty Co. v. Wetter, supra. In that case, arising in the City of St. Louis, defendant applied for a change of venue, alleging that the judge in the division where the suit was pending was prejudiced, and then continued to assert prejudice against all of the ten judges of the ten divisions of the Circuit Court of the City of St. Louis. The appellate court pointed out that under the existing law, it was improper to charge prejudice against any judge other than the one to whom the application was addressed. In that case, the judge who received the erroneous affidavit disqualified himself and transferred it to another division of the City of St. Louis Circuit Court. The reviewing court affirmed the judgment against the defendant who had sought the improper change and said:

“The affidavit was sufficient to disqualify the presiding judge, who so ruled, and transmitted the cause to Division No. 5 for trial.” Gerhart, supra 108 Mo.App. at 279, 83 S.W. at 279.

The same result has been reached in criminal cases. In State v. De Shon, supra, the defendant attempted to disqualify all three of the judges of the Circuit Court of Buchanan County. The trial judge who had the case assigned to him disqualified himself but refused to disqualify the other two judges, and the defendant appealed; the Supreme Court held that the trial court had acted properly.

To the same effect is State v. Pierson, supra, which cited De Shon, supra. In the Pierson case, the defendant had not alleged prejudice against all of the judges of the circuit. The trial court acting on the motion transferred the case to a judge against whom prejudice was not charged.

The steady course of development of the law with respect to the disqualification of the judge assigned to the case has continued along two courses: first, to make technical requirements for such applications less onerous and restrictive, and second, to include requirements with respect to timeliness and dispatch by providing for time limits within which such motions can be filed.

This court has recently had occasion to consider the application of Rule 51.05 to a Rule 27.26 proceeding in Fulsom v. State of Missouri, 573 S.W.2d 116 (Mo.App.1978) [No. KCD29738, filed October 30,1978]. In that case, the trial judge who received notice of the movant’s claim with respect to disqualification of the judge by its inclusion in the motion itself denied disqualification, and the cause was reversed. This court held that the trial court’s finding that there was no service of the request for change of judge under Rule 51.05(c) was in error since Rule 27.26(e) provided that the motion under Rule 27.26 should be forwarded to the prosecuting attorney as soon as filed, and the inclusion of the request for change of judge in the motion was equivalent to the notice to the prosecuting attorney of that request. Fulsom represents the view of modern cases with respect to requests for change of judge and demonstrates the trend towards eliminating technical grounds for denial of such requests.

In all the circumstances, this court believes that the trial judge, confronted with an application such as the one in the instant case, should disregard the attempt to disqualify judges other than the judge assigned, but looking to the substance of the request, disqualify himself and follow the usual procedure of transferring the cause to another judge within the circuit. In view of this determination, it is necessary to reverse and remand this case for another hearing on movant’s proceeding under Rule 27.26 because our ruling that the trial judge should have disqualified himself means that he was without jurisdiction to proceed further, and the proceedings before him thereafter are without effect.

Reversed and remanded with directions to enter an order transferring the cause from Division One of the 17th Circuit in accordance with Rule 51.05(e).

All concur.


author: CLEMENS, Judge.

text:
    Kathleen CROAK, Appellant, v. Clarence E. WINES, Respondent.
    No. 39578.
    Missouri Court of Appeals, St. Louis District, Division Three.
    Nov. 28, 1978.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Dec. 15, 1978.
    Application to Transfer Denied Jan. 8,1979.

      James S. Collins, II, St. Louis, for appellant.
    Ben Ely, Jr., Amy R. Reichman, St. Louis, for respondent.
   CLEMENS, Judge.

Motor vehicle collision case wherein verdict and judgment were for defendant. Plaintiff has appealed, contending defendant’s converse instruction erroneously injected the element of negligence as a requirement into plaintiff’s per se submission of violating the speed limit. We agree and reverse and remand for a new trial.

The court gave two verdict directors for plaintiff. One submitted defendant’s negligence in failing to keep a careful lookout (MAI 17.01-17.05); there is no issue as to this. Plaintiff’s other verdict director submitted defendant’s excessive speed, without reference to negligence (MAI 17.18 — Per Se Negligence — Violating Speed Limit).

Defendant countered both verdict directors with a single converse instruction. It told the jury to find for defendant unless plaintiff’s damage was the “direct result of defendant’s negligence.” (MAI 33.03(4)).

Plaintiff contends on appeal that the converse instruction was erroneous. She argues that her excessive speed instruction properly omitted a finding of negligence since violating a speed limit is negligence per se, and that defendant’s converse instruction erroneously declared plaintiff could not recover under that instruction unless defendant negligently drove at an excessive speed. We agree that defendant’s converse instruction was erroneous as to plaintiff’s excessive speed per se submission.

Defendant argues that his challenged instruction “conversed causation, not negligence.” Not so. Negligence is presumed under a per se submission. The instruction plainly told the jury it must find for defendant unless plaintiff was injured “as a direct result of defendant’s negligence.” This was erroneous when applied to plaintiff’s excessive speed submission since that instruction properly omitted a finding that defendant’s speed was negligent.

Judgment reversed and cause remanded.

REINHARD, P. J., and GUNN, J., concur.


author: HARBISON, Justice.

text:
    Laurence E. McKENNA, Appellant-Plaintiff, v. The SUMNER COUNTY BOARD OF EDUCATION et al., Appellees-Defendants.
    Supreme Court of Tennessee.
    Oct. 30, 1978.
    Rehearing Denied Dec. 18, 1978.

      Charles Hampton White, Nashville, for appellant-plaintiff.
    Charles W. Bone, C. L. Rogers, Gallatin, for appellees-defendants.
   OPINION

HARBISON, Justice.

This case arises under the transfer provisions of the Tennessee Teachers’ Tenure Act, T.C.A. § 49-1411. Appellant was transferred by the Board of Education, upon recommendation and with concurrence of the Superintendent of Schools, from a position as a full-time principal of a large elementary school to that of principal and teacher at a smaller elementary school in the system. He received the same base salary in the new position, but his total compensation was reduced because there were fewer teachers in the school to which he was transferred. The principal’s salary consisted, in part, of a supplement based upon the number of teachers on his faculty.

Appellant insisted that he was entitled to formal written notice of charges and to a hearing before the Board of Education, before he could validly be transferred, insisting that the transfer amounted to a “demotion” in position. In addition, he insisted that the actions of the Board of Education and of the Superintendent were arbitrary, capricious and motivated by politics or other improper considerations.

After a full evidentiary hearing involving conflicting testimony, the Chancellor found that the actions of appellees were not arbitrary, capricious or based upon any consideration other than the statutory criterion of efficient operation of the school system, T.C.A. § 49-1411. He further found that under the circumstances appellant was not entitled to formal notice and a hearing.

After careful consideration, we affirm the decision of the Chancellor. Because the subject of teacher transfers has been the source of considerable litigation in this state, however, and because the language used in some of the reported opinions appears to be conflicting and difficult to reconcile, we think it important to review in some detail the statutory provisions and the decisions construing them. Apparently the subject is one upon which there is wide diversity of opinion among trial judges and among persons administering or concerned with the public school system.

At the time of the trial of this case, appellant was a tenured teacher in the Sumner County schools, serving in his ninth year with that system. He had a Master’s Degree plus twelve years experience. In January 1973 he had been made principal of Howard School in Gallatin, an elementary school for children from kindergarten through the second grade. This school had approximately 680 students and 31 faculty members.

On July 19, 1977, appellant was transferred to the position of principal of Millers-ville School, lying in the southwest portion of Sumner County and having 231 students with 10 faculty members. In his former position he was a full-time administrator, with no teaching duties; at his new position he taught four hours each day in addition to serving as principal. His total compensation at Millersville was $2,145 less than that which he would have received at Howard School for the academic year 1977-78, a differential slightly in excess of ten percent.

Appellant was re-elected for service in the Sumner County school system in April 1977. On May 12, 1977, he executed and returned to the Superintendent a form contract, which recited that he accepted:

. .an appointment to a teaching or other position in the Sumner County Public Schools, subject to the rules and regulations of the Board of Education for the school year 1977-1978.”

The form concluded with a statement of understanding that the contract was subject to the provisions of “all applicable legislative enactments of the General Assembly of the State of Tennessee.”

On this form appellant designated his position as that of principal of Howard School. He testified that the form had already been executed by the Chairman of the Board and by the Superintendent at the time it was sent to him for signature.

The transfer of appellant to the Millers-ville School took place on July 19, 1977. The minutes of the Board for that date recite:

“Superintendent Bills recommended that for the efficient operation of our school system that Mr. Larry McKenna, Principal of Howard School, be transferred from Howard School to Millersville Elementary to fill the vacancy created by the resignation of Mr. Charles Anderson. Motion was made by Mr. Brown, seconded by Mr. Hawkins, that this recommendation be approved by the Board. Motion carried unanimously.”

Appellant had been told on the morning of July 19 that the transfer would be recommended by the Superintendent, and he was officially advised of it by letter from the Superintendent the next day. He refused to accept the appointment and demanded that he be furnished with formal written charges and afforded a hearing before the Board of Education. These demands were refused by the Board, through its counsel, and this suit resulted.

Appellant has asserted throughout the litigation that he held tenure in his position as principal of Howard Elementary School and that his transfer amounted to a demotion in position, equivalent to a dismissal or suspension under T.C.A. § 49-1412, entitling him to written charges and the formal notice and hearing provisions of the Teachers’ Tenure Act, T.C.A. §§ 49-1414 et seq.

The statutes and case law, however, do not bear out his contention that he held tenure as principal. It has been repeatedly held by the courts of this state that, while principals and other administrative personnel are covered by the Teachers’ Tenure Act, they have tenure only as teachers and not in any particular job assignment. The statute itself is clear on this subject, stating:

“Administrative and supervisory personnel shall have tenure as teachers and not necessarily tenure in the specific type of position in which they may be employed.” T.C.A. § 49-1401(4).

In one of the first cases construing the act, State v. Yoakum, 201 Tenn. 180, 192, 297 S.W.2d 635, 640 (1956), the Court stated:

“No teacher under the tenure law is guaranteed continuity of employment in a particular assignment or school.”

See also State ex rel. Pemberton v. Wilson, 481 S.W.2d 760, 768 (Tenn.1972) (“we can only conclude that complainant has tenure as a ‘teacher’ but not tenure as an ‘Attendance Teacher’.”); Mitchell v. Garrett, 510 S.W.2d 894, 898 (Tenn.1974) (“plaintiff had no tenure in the exact position she was holding and she could be properly transferred at the board’s discretion.”); Coe v. Bogart, 519 F.2d 10, 12 (6th Cir.1975) (legislature “did not intend that a teacher or principal have an entitlement to a specific job to which he is assigned.”).

There can be no question from the statutory provisions that a teacher having permanent tenure can be dismissed from the school system only for specified reasons, and, when these involve neglect of duty or other misconduct, only after written notice and a formal hearing. See Sanders v. Vinson, 558 S.W.2d 838, 844 (Tenn.1977).

In the case of Fleming v. Wade, 568 S.W.2d 287 (Tenn.1978), however, it was emphasized that persons holding the office of principal do so under different contracts and pursuant to separate statutory provisions from those governing classroom teachers. There the Court said:

“The two positions, of course, are not identical. Dismissal of an individual as a school principal would not necessarily justify or require his termination as a tenured teacher.” 568 S.W.2d at 289.

Further the Court stated:

“The superintendent, by statute, is entitled to expect the cooperation and support of principals in the school system who, both in theory and in practice, are key figures in the orderly and efficient operation of the schools. The Board of Education and the superintendent must necessarily be accorded considerable discretion in the employment and retention of such personnel.” 568 S.W.2d at 290.

The provisions governing transfer of personnel within a school system are separate and distinct from those governing dismissal. The transfer provisions contained in the first tenure statute enacted in 1951 were amended on four subsequent occasions. At all times material to this action the statutes provided:

“49-1411. Transfers within system.— The superintendent, with the approval of the board, when necessary to the efficient operation of the school system, may transfer a ‘teacher’ from one location to another within the school system, or from one type of work to another for which he is qualified and certificated. Such a transfer can be made only by the concurrent action of the superintendent and the board.” (Emphasis added).

Nothing in the text of this statute calls for prior notice or a formal hearing, nor do we believe that it was the legislative intent to make requisite the same procedural steps for transfers as were provided in subsequent sections for out-right dismissal or suspension. Upon consideration, we are of the opinion that the term “transfer” was not intended to be synonymous with the terms “dismissal” and “suspension” used in T.C.A. §§ 49-1412 et seq.

We recognize that these concepts have not been kept separate and distinct in many of the reported cases, and that there are several decisions containing general language to the effect that a “demotion,” or transfer of tenured personnel to a position of less responsibility or lower compensation, can validly be made only after formal notice and a Board hearing. After a thorough study of the cases, however, we are of the opinion that, while the result in each case may be justified by its particular facts and circumstances, this language was either dictum or was otherwise not essential to the disposition made.

Upon analysis, it appears that there are actually two lines of cases upon the subject of transfers in this state, and like counsel, from whom we have received excellent briefs, we find it difficult, if not impossible, to reconcile all of the language contained in the various opinions.

In State v. Yoakum, 201 Tenn. 180, 297 S.W.2d 635 (1956), a group of tenured teachers had been transferred en masse by action of the Board of Education, over the objection of the superintendent of schools. The transferred teachers filed a complaint and alleged that their transfer was illegal and that it was also arbitrary, capricious and in bad faith. By demurrer, the defendants, in effect, admitted the allegations of the complaint, and this Court held that the complaint stated sufficient facts to withstand challenge by demurrer. Further, the Court held that the Board, under the provisions of the transfer statute as it then existed, could transfer tenured teachers without concurrence of the superintendent, so that, to that extent, the transfer was legal. The Court held, however, that the action of the Board was subject to judicial review and said:

“Where it is shown that there is an arbitrary or capricious use of power being exercised by those in authority the courts will not tolerate the use of this power. The presumption of good faith which is ordinarily accorded to officials of the kind cannot prevail and stand where it is shown as is shown by the allegations of fact here of an arbitrary and capricious use of power in transferring these teachers.” 201 Tenn. at 195, 297 S.W.2d at 642.

The Court held that the teachers in question were not required to seek an administrative hearing before making a direct challenge of the Board’s action in the courts. On the other hand the Court did not hold that the teachers were necessarily entitled to written charges and an administrative hearing before they could validly be transferred from one position to another.

In the case of State ex rel. Gilliam v. Hendrixson, 202 Tenn. 428, 304 S.W.2d 624 (1957), a transfer of two tenured teachers was enjoined upon their allegation, admitted by demurrer, that not only had there been no charges or accusations against them but “no valid reasons” existed for effecting their transfer. The statute at that time, as now, authorized transfers only “when necessary to the efficient operation of the school system . . . .”

A case which upheld the transfer of a school administrator without formal notice, written charges and a hearing was Mayes v. Bailey, 209 Tenn. 186, 352 S.W.2d 220 (1961). In that case the complainant had served as supervisor of the public schools of Claiborne County from 1952 until September 1960, at which time he was relieved of duties by joint action of the superintendent and of the county school board and was assigned to the position of a principal. This was a position of less responsibility and lower pay. He filed suit, seeking restoration to his former position. He contended that the transfer was improper and was politically motivated. After an evidentiary hearing, the trial court found that there was no improper motive and that the factual contentions of the complainant were not sustained.

The Court traced the history of the transfer statutes, and noted that they had been amended following the decision in the Yoa-kum case, so as to expressly require concurrent action by the superintendent and the board of education. The Court said:

“The statute plainly says that the superintendent, with the approval of the board, when necessary to the efficient operation of the school system may transfer teachers from one location to another within the school system or from one type of work to another for which he is qualified and certificated. In this case, there was a recommendation by the superintendent and two-thirds of the members voted in favor of such recommendation. The superintendent stated he believed that such transfer was in the best interest of the school system of Claiborne County.
“There is a presumption of good faith ordinarily accorded to public officials and quasi public officials and there is nothing in this record which would overturn this presumption. There are many matters affecting the proper discharge of the duties of such officials about which they, necessarily, are given discretion and unless such discretion is abused, the courts ordinarily will not interfere.” 209 Tenn. at 192-193, 352 S.W.2d at 223.

The opinion concludes:

“We believe that all the administrative requirements and the requirements of the law have been met in this case and it is our opinion that the Chancellor has rendered the proper decision.” 209 Tenn. at 193, 352 S.W.2d at 224. (Emphasis added).

This clear holding that transfers may be effected for the efficient operation of the system, in good faith, and without any requirement of prior notice and hearing was reaffirmed in State ex rel. Pemberton v. Wilson, 481 S.W.2d 760, 770 (Tenn.1972). There the Court said:

“It is our opinion that for us to hold that transfers within the system must be accompanied by charges and a hearing would emasculate the discretion allowed the Board and the Superintendent in the matter of transfers. The fact that such transfer was to a lower-paying teacher position from an administrative position would only have bearing on the question of abuse of discretion.”

In the years between the decisions in the Mayes and Pemberton cases, supra, several other cases reported which seemingly have provided support for the contention that a transfer cannot be made without affording the transferee with notice and a board hearing.

Two of these cases, however, involved private acts only, and dealt with specific provisions in such acts requiring notice and hearings before demotion as well as before dismissal or removal. The general Teachers’ Tenure Act does not contain the word “demotion” and has different transfer provisions from the Campbell and Hamilton County statutes involved in State ex rel. Taylor v. Rasnake, 209 Tenn. 229, 352 S.W.2d 427 (1961), and McCoy v. McConnell, 224 Tenn. 677, 461 S.W.2d 948 (1970). In the first of these cases the transfer was held not to comply with statutory requirements, while in the second the transfers were sustained.

In Rasnake, supra, and in Blair v. Mayo, 224 Tenn. 108, 450 S.W.2d 582 (1970), is found some of the language upon which appellant understandably bases his contentions in the present case. In the latter case the principal and an assistant principal of a high school were transferred to the positions of classroom teachers. Both held tenure in the Cannon County school system. Their transfer was ordered by a majority of the members of the Board of Education, over the express objection of the county superintendent and entirely without his concurrence. It was under these circumstances and upon these facts that the following statement was made by the Court:

“The appellants’ contention that the appellees were not entitled to an administrative hearing before they were transferred, must be considered in the light of the facts of the case as the Chancellor found them. The appellees were summarily demoted from the positions they had held for years to lower paying positions without being given any reason for the demotions. This action was as the appellees contend, dismissal from their existing positions and violated their rights under the Teachers’ Tenure Act. The appellees had the right to bring this suit without making any further effort to get an administrative hearing before the Board.” 224 Tenn. at 116, 450 S.W.2d at 586. (Emphasis added).

The actual holding of the Court was that in the absence of a bill of exceptions preserving the trial evidence, the findings of fact of the chancellor were presumed to be correct, and that upon those facts his conclusion that the action of the Board was arbitrary and unjustified would be sustained in a direct action brought by the transferred personnel. Both Rasnake and Blair, however, contain language indicating that a transfer involving a demotion in position requires prior administrative notice and hearing.

In the case of Potts v. Gibson, 225 Tenn. 321, 469 S.W.2d 130 (1971), a tenured teacher was transferred from the position of principal of a high school to principal of an elementary school. In that case he was in fact presented with written charges, and a full evidentiary hearing was held before the Board of Education. The trial court and this Court sustained the transfer and found that the action of the Board was not arbitrary, capricious or unlawful. In that case the transfer had been recommended to the Board by the superintendent.

There is language in the opinion, however, as follows:

“Our cases recognize and to some degree emphasize the right of a teacher having tenure to notice of a hearing before the Board before he can be transferred to a position with less responsibilities and where he will be required to serve at a reduced salary.” 225 Tenn. at 328, 469 S.W.2d at 133.

Cited in support of this proposition were the cases of State v. Yoakum, State ex rel. Taylor v. Rasnake and Blair v. Mayo, supra. There was no reference to the case of Mayes v. Bailey.

In the Potts case, seemingly the Board conceded that the principal was entitled to notice and a hearing, and much of the opinion is devoted to the adequacy of the notice that was given and to the sufficiency of the evidence heard by the Board.

Perhaps the case upon which appellant places greatest reliance is Gibson v. Butler, 484 S.W.2d 356 (Tenn.1972). The opinion in this case was released less than one month after the decision in State ex rel. Pemberton v. Wilson, 481 S.W.2d 760 (Tenn.1972), discussed above, in which it had been expressly held that prior notice and a hearing were not requisite to the transfer of tenured personnel. In Gibson v. Butler, however, the Court seemed to indicate that such notice and hearing were mandatory if any demotion in status or pay were involved. In commenting upon the transfer of several tenured employees the Court said:

“The Chancellor properly ordered that each be restored to his former position and that he be compensated for the financial loss suffered until such time as he should be so restored. Each was entitled to notice and to written charges justifying his dismissal or demotion. Sections 49-1414 and 49-1415, T.C.A. Each was entitled to an opportunity to be heard by the Board. Section 49-1416, T.C.A.” 484 S.W.2d at 358.

The Court held that the rights of the tenured personnel had been violated by action of the School Board. In that case, however, as in Blair v. Mayo, 224 Tenn. 108, 450 S.W.2d 582 (1970), the transfers were made without the approval of and over the strenuous objection of the superintendent of schools. This fact alone might well have invalidated the transfers under T.C.A. § 49-1411, and would also have furnished strong evidence of arbitrary or capricious conduct.

When a seeming conflict between this case and the Pemberton case, supra, was called to the attention of the Court on petition to rehear, this Court undertook to distinguish Pemberton on the ground that:

“there the employee was transferred under circumstances that did not amount to a demotion; here each of the three employees was transferred to a position of lesser responsibility and suffered a reduction in compensation. Each was demoted.” 484 S.W.2d at 360.

This attempted distinction of the Pember-ton case is, at best, tenuous, in view of its express holding that prior notice and a hearing were not requisite and the transfer of tenured personnel to less responsible positions “would only have bearing on the question of abuse of discretion.” 481 S.W.2d at 770.

The teacher transfer provisions were further considered by this Court in the case of Mitchell v. Garrett, 510 S.W.2d 894 (Tenn.1974). There a tenured teacher was initially transferred under circumstances clearly amounting to a demotion. Upon her complaint to the trial court, the transfer was set aside and she was ordered to be reinstated. Before the trial court’s decision could be implemented, however, the position which the teacher had originally held was abolished. The Board therefore transferred her to a roughly equivalent position, without notice or a hearing. Both the trial court and this Court found the latter action of the Board not to be arbitrary or unreasonable and held that it complied with statutory requirements. The Court cited and followed the Pemberton case, which it deemed to be controlling. It distinguished Gibson v. Butler, supra, as being a case in which arbitrary and capricious conduct had been established.

We conclude from the statutory language and from the foregoing cases that the transfer of a tenured employee must be made with the concurrence of the superintendent of schools and the Board of Education. When so made, it need not necessarily be preceded by formal written notice and a hearing, so long as it is made in good faith, in accordance with the criterion set forth in the statute — efficient operation of the school system. An employee so transferred, however, is entitled to be protected from arbitrary and capricious action, or from transfers actuated by political or other improper motives. To this end he may bring a direct action in the courts to have determined the question of whether or not a transfer was made in accordance with the statutory requirements. Judicial review is limited to determining that question, and must be conducted in light of the broad discretion which the statutes clearly give to the superintendent and to the Board.

As well stated in the case of Potts v. Gibson, 225 Tenn. 321, 333, 469 S.W.2d 130, 135 (1971):

“The difficulty in all cases of this nature is to strike a proper balance between that degree of flexibility necessary for the Board of Education to maintain its administrative authority over schools and school personnel and the duty of the Courts to intervene to protect the tenure rights of teachers.”

It is clear from the cases that a Board of Education may afford a transferred teacher notice and a hearing, and in some of the foregoing cases this procedure was followed. It seems to us that this would be a desirable procedure when a demotion in status or when any move other than a pure “lateral” transfer is involved. As presently written, however, the statutes do not actually mandate that procedure, and an otherwise proper transfer will not be invalidated simply because notice and a Board hearing were not afforded.

Accordingly we overrule the assignments of error by appellant which assert a statutory right to prior notice and a hearing before his transfer could validly be effected.

Since appellant’s transfer was made upon concurrent action of the Superintendent and the Board, he bore the burden of proof to establish by a preponderance of the evidence that the transfer was arbitrary, capricious, or improperly motivated. He offered evidence, which, if accepted by the trier of fact, might sustain his contentions. He testified that he had appeared before the Board advocating a new school building for Howard Elementary School, contrary to the wishes and preference of the Superintendent. He contended that teachers and others who testified in support of the Superintendent in this case had supported the latter in a popular election, and that his transfer was actuated by personal or political motives.

On the other hand, there was abundant testimony, some of which originated with a witness called on behalf of appellant, to the effect that for a considerable period of time prior to the transfer, there had been tension and dissatisfaction among the faculty members at his school. A number of complaints had been received by Board members from parents, teachers and interested school patrons. These culminated after the close of school in June 1977, when two teachers with many years of experience advised the Superintendent that they would resign rather than serve another year under appellant as principal. It was shown that appellant handpicked the faculty committee to evaluate his performance, rather than permitting faculty election as required by Board policies. There was evidence that he intimidated teachers and created an atmosphere of fear among them, not conducive to a good teaching situation. The Superintendent testified positively that his recommendation of the transfer of appellant was not actuated by political, personal or any other improper motive, but was solely for the efficient operation of the school system. He testified that he felt that appellant would function better in a school with fewer students and faculty members. The school to which appellant was transferred was about the same distance from his home as that to which he had previously been assigned.

After a careful review of the evidence, we are unable to hold that it preponderates against the factual findings of the Chancellor, who saw and heard the witnesses. Questions of weight and credibility of the testimony were presented. He concluded that the actions of the Superintendent and of the Board comported with statutory requirements and were neither arbitrary nor capricious.

The assignments of error are overruled and the judgment of the Chancellor is affirmed at the cost of appellant.

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

      . In the recent case of Fleming v. Wade, 568 S.W.2d 288, 289 (Tenn.1978) this Court repeated the language quoted above from the Potts case. In Fleming, however, outright dismissal from the system was attempted, and the school principal was given notice and a hearing on written charges, as required by T.C.A. §§ 49-1414 et seq.


author: STEAKLEY, Justice.

text:
    Manuel R. HURTADO, Petitioner, v. TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Respondent.
    No. B-7583.
    Supreme Court of Texas.
    Nov. 22, 1978.
    Rehearing Denied Dec. 20, 1978.
    Putman & Putman, J. Vick Putman and Harold D. Putman, Sr., San Antonio, for petitioner.
    Groce, Locke & Hebdon, Ray A. Weed and Thomas H. Crofts, Jr., San Antonio, for respondent.
   STEAKLEY, Justice.

Manuel R. Hurtado, our Petitioner, sued for Workers’ Compensation benefits. See Tex.Rev.Civ.Stat.Ann. art. 8306, Supp. 1978. He alleged that he is totally incapacitated as a result of injuries he sustained while “getting down from a cherry picker and slipped and twisted [sic] injuring his back and body generally”; further, “that as a result of said injuries, or in the alternative, as a result of said injuries having aggravated and accelerated the pre-existing arthritic condition as well as other physical conditions, plaintiff is totally incapacitated . .” The defense of Texas Employers’ Insurance Association to the suit of Hurtado was, as pleaded, that “both prior to and subsequent to the alleged injuries in question Plaintiff suffered from injuries and conditions which were the sole cause of any incapacity he has had or might have at the present time.”

Upon trial, the jury found that on the occasion in question Hurtado received an injury in the course of his employment but answered “no” to the issue inquiring whether the injury was a producing cause of any total incapacity. The trial court decreed that Hurtado take nothing. The Court of Civil Appeals, with the Chief Justice dissenting, affirmed this judgment. 563 S.W.2d 360. Hurtado seeks a reversal of the judgments below and a remand of the cause for a new trial. We agree there was error entitling him to this relief.

During the trial, Counsel for TEIA offered into evidence in the form of four exhibits the complete medical records pertaining to Hurtado from Memorial Hospital, Uvalde; from Santa Rosa Hospital, San Antonio; from the office of Robert E. Scott, M. D., of Uvalde; and from the office of Karl H. Hempel, M. D., of San Antonio. The exhibits reflected Hurtado’s history of health problems with diabetes, rheumatoid arthritis, and a prior back injury, over an extended period of time. They contained 280 pages of medical records, including clinical records, hospital records, nurses’ notes, physical examination reports, letters to and from attending doctors, and statements of medical and hospital charges. That which transpired after the offer of the exhibits and their admission in evidence “in total” is reported in nineteen pages of the Statement of Pacts. A portion of the original objection of Counsel for Hurtado was this:

MR. PUTMAN: May it please the Court, plaintiff objects to the offer and acceptance of the various hospital records and doctors records into evidence because under the shopbook rule, under Article 37.-37E, [sic] which they are being offered, they are admissible only in those instances to show matters upon which the minds of reasonable men cannot differ, such as diagnoses and the performance of certain clerical tasks, such as giving medicines or taking the temperature or things of this nature which are not in question.
But as far as being offered, they contain matters of hearsay and of a conclusion nature and matters of opinion and they are not admissible.
It is incumbent upon the one offering the records to go through and pick those parts out which he is offering. It is not incumbent upon the Court or upon us to go through and delete the unacceptable and inadmissible portions.

Counsel for Hurtado then enumerated a number of excerpts from the record as examples of their inadmissibility. A portion of the reply of Counsel for TEIA was this:

The only question that we are involved with here is the purpose for which they were introduced, and that is causation, whether it’s caused by this or not.
If there is anything objectionable in there that Mr. Putman does not want in there he can take it up with the Court and it can be taken out. We are offering them primarily for the purpose of showing that nowhere in these records is there any history of this man having the injury of which he describes.
I don’t take the position that in all instances I could do this and the burden would be upon him, but for the purpose of which I offer them, the major purpose, is that I offer them so. that the entire records be in there. In other words, I am offering them for the purpose of the entire records, the absence of something from the entire records.

Finally, this occurred:

THE COURT: Well, gentlemen, it’s a close question but I’m going to overrule your objections to the records as submitted.
MR. PUTMAN: What is the Court’s ruling, that I have to go through and pick out the inadmissible parts?
THE COURT: I’m saying the whole thing is admissible for the purpose for which he offered them.
MR. PUTMAN: That’s as to the hospital records of the Santa Rosa Hospital?
THE COURT: The whole thing.
MR. PUTMAN: I object to the entry of the hospital records of the Uvalde Hospital for the same reasons. Shall I go ahead?
THE COURT: Let’s just have the record show that the same objections are leveled at each one of them. As I understand you, Mr. Weed, you are offering all of them for that purpose, the purpose as you’ve stated?
MR. WEED: Yes, for that purpose. I am not saying solely for that purpose, but I’m saying it’s primarily for that purpose.
THE COURT: That’s the ruling of the Court.

It is noted that TEIA sought admission into evidence of the whole medical records and not particular or specified parts. After reciting that Hurtado vigorously objected to the exhibits because they contained inadmissible letters, notes, opinions, guesses, conjecture and speculative matters, the Court of Civil Appeals stated that the problem is one of determining which party has the burden of separating inadmissible portions of a proffered exhibit from the admissible portions. The Court held that the trial court had discretion in deciding which party should specifically point out to the trial court the objectionable parts of the records and, inferentially, that there was not an abuse of discretion here. Cited was the statement of the rule in Brown & Root v. Haddad, 142 Tex. 624, 180 S.W.2d 339 (1944): “A general objection to evidence as a whole, whether it be oral or documentary, which does not point out specifically the portion objected to, is properly overruled if any part of it is admissible.” The dissenting Chief Justice was of the view that the attention of the trial court had been specifically called to the inadmissible nature of the medical records; and that there was no justification for the holding that the trial court did not err in ruling that all of the records were admissible. We are in agreement with this view.

It is apparent from our study of the record, portions of which we have quoted above, that it was made clear to the trial court by Counsel for Hurtado that the objections to the medical records went in part to the hearsay, opinion and conclusional matters they contained, illustrative excerpts from which are quoted in the margin. Counsel for Hurtado also pointed the trial court to a number of examples supportive of his objections. He was not required to examine each of the 280 pages in the voluminous exhibits and segregate the inadmissible items from the admissible items. Even so, TEIA contends that in any event the whole of the records were admissible for the limited purpose of showing the absence of any reference to the injury allegedly sustained by Hurtado upon which his claim of incapacity was predicated. Apart from the fact that the offer of the records in evidence was not so limited — this was stated to be a primary purpose — there was no showing, and it does not appear from the records themselves, that the statements, findings, and opinions contained therein were directed to the question of causation, that is, whether the injury allegedly suffered by Hurtado aggravated his pre-existing condition of arthritis and diabetes. The medical findings appearing in the records pertained to the physical state or condition of Hurtado at the times of the medical examinations, treatments or hospitalization; they were not intended to speak to, or to be determinative of, the question of whether such state or condition was caused or aggravated by Hurtado’s alleged injury while at work. Evidence upon the issue of causation is to be offered and received in an admissible manner, including the opportunity of cross-examination of any witness whose statements, opinions or conclusions relate thereto. We further do not agree with the argument of TEIA that the stipulation of the parties obviating the formal proof of the medical records under Tex. Rev.Civ.Stat.Ann. art. 3737e, Supp.1978, removed the records from the infirmities of hearsay and the absence of the opportunity of cross-examination.

Finally, TEIA says that even if the admission of the whole records was error, there was no prejudice or harm to Hurtado and did not probably result in the rendition of an improper judgment. As to this, it is asserted that nothing in the records probably persuaded the jury to the verdict adverse to Hurtado. The argument seems to be that Hurtado could not have been harmed by the numerous references in the medical records to the diseases of diabetes and arthritis since his claim of incapacity was based on the aggravation of these preexisting diseases. We think this misses the point. It was stated in oral argument, as well as in the briefs, and was not disputed, that the medical records were available in the jury room during jury deliberations. Indeed, after the records were admitted in evidence, the Statement of Facts records the following:

[Counsel for TEIA]: At this time we would like to read only a portion of the medical records which will be available to you for review. This is a portion of the Santa Rosa Hospital records, which is a history report by Dr. Karl Hempel, attending physician.
Without going into the complaints and other things I am only going to read a portion of it.
“The patient has been treated with numerous medicines, most of them containing corticosteroids and is presently on medrol, sixteen milligrams every other day. He is also taking phenaphen Number 4. He is also taking insulin fifty units qd. He had been taken care of by Dr. Scott in Uvalde, Texas, and has been unable to work for the past several months.
He also notices that his vision has decreased over the past two months and he has nocturia two times per night. He has recently noticed that his vision has decreased and he can’t read or watch TV well.
He has presacral pain and pain in his right thigh and it is most noticeable and he relates it all to lifting a,” and then there was a blank, nothing was typed in, “lifting a (blank) beam some three or four years ago and hurting his back.”

An inference could have been drawn by the jury from the medical records that the incapacity claimed by Hurtado was entirely attributable to the pre-existing diseases and prior back injury — which no doubt explains why TEIA offered the whole records in the first place — when, as pointed out above, none of the medical findings were directed to the question of an injury-induced incapacity resulting from an aggravation of Hurtado’s pre-existing state of health.

The judgments of the courts below are reversed and the cause is remanded to the trial court.

      . Italics are added throughout.

      . A consultation report of Dr. Walter F. Buell for Dr. Karl H. Hempel, dated January 14, 1974:
      This 45 year old man is seen because of proximal leg weakness which he describes as having been present for the past two or three months. ... He denies change in sensation. He denies injury to the back, except that five years ago while carrying an heavy weight he felt something crack in his back, and since that time has had intermitted back pain. . . . This is very likely a diabetic neuropathy.
      A letter from Dr. Karl H. Hempel to Mr. R. H. Friedel of White’s Uvalde Mines, dated January 21, 1974:
      This gentleman is very ill with several diseases. He has rheumatoid arthritis of 5 year’s duration, diabetes mellitus of 8 year’s duration. Recently, his diabetes was made much worse, requiring the use of Insulin, because of the administration of corticosteroids in moderate doses. He has subsequently noticed very marked weakening of his thigh muscles so that he can get around only on crutches.
      A letter from Mr. Lemuel H. Joiner, Disability Examiner, Texas Rehabilitation Commission, to Dr. Karl H. Hempel, dated January 22, 1974:
      Your patient has filed a Social Security claim and requests you send a'medical report regarding alleged disability since 1974 due to arthritis and diabetes.
      A letter from Dr. Karl H. Hempel to Dr. Robert E. Scott, dated February 5, 1974:
      [Manuel Hurtado] has turned out to be a very interesting patient who has a proximal lower extremity neuropathic change with quadriceps atrophy, loss of his reflexes, and weakness so profound that he was unable to rise out of a chair or walk. This was most likely secondary to a combination of etiologies. The first is a lumbar stenosis which was relieved by surgery by Dr. George Livesay on 1-15-74, and diabetes mellitus with neuropa-thy and also perhaps the corticosteroids.

        A letter from Dr. Walter F. Buell to Dr. Karl H. Hempel, dated February 20, 1974:
      I discovered this article, “In Review of Diabetic Neuropathy,” and think that it might have some relevance to Mr. Hurtado’s case. . He seems to fit the picture that is described, and according to this one might expect improvement over many months.
      It is interesting that many times these neuro-pathies first are noted shortly after beginning the use of insulin in adult diabetics.


author: JOHNSON, Justice.

text:
    RANGER INSURANCE COMPANY, Petitioner, v. Doris BOWIE, Respondent.
    No. B-7581.
    Supreme Court of Texas.
    Nov. 29, 1978.
    Rehearing Denied Jan. 10, 1979.

      Ray, Anderson, Shields, Trotti & Hemp-hill, L. W. Anderson, Dallas, for petitioner.
    Harold J. Dollinger, Jr., Dallas, for respondent.
   JOHNSON, Justice.

Doris Bowie instituted this suit against Ranger Insurance Company to recover on an insurance policy for damage done to her husband’s airplane when it crashed into the ground near Garland, Texas on May 5,1975. She sued Ranger individually and as executrix of the estate of her husband, Loren C. Bowie. On the occasion in question, Bowie was piloting the plane and was alone in the aircraft. He was found dead at the crash site. The cause of the crash was undetermined. American Bank & Trust Company intervened, claiming a security interest in the damaged airplane, but it did not pursue an appeal following a decision adverse to it in the trial court.

The case was tried to the court based mainly upon stipulated facts and deposition testimony. The trial court rendered a take-nothing judgment against the Bank and Mrs. Bowie. Upon appeal by Mrs. Bowie, the court of civil appeals reversed and rendered judgment awarding her $7,500, the amount provided for in the policy. 563 S.W.2d 394. We reverse the judgment of the court of civil appeals and affirm the judgment of the trial court.

Loren Bowie had a history of heart trouble since 1962. He nevertheless applied for a private pilot’s license in 1971. At the same time, he applied for the required airman’s medical certificate; in so doing, he deliberately and knowingly denied that he had prior heart trouble. He repeated this misrepresentation two years later, in 1973, when he applied for renewal of his medical certificate. Even at the time of his death, he was taking medication for his heart condition. It was stipulated by the parties that had Loren Bowie not made these false representations he would not have been issued a certificate.

The insurance policy on Loren Bowie’s plane contained the following clause:

“7. PILOT CLAUSE: Only the following pilot or pilots holding valid and effective pilot and medical certificates with rating as required by the Federal Aviation Administration for the flight involved will operate the aircraft in flight.” [Emphasis added.]

The controlling issue in this case is whether Loren Bowie, as the pilot at the time of the accident, satisfied this clause. Mrs. Bowie claims that since the Federal Aviation Authority had neither revoked nor invalidated her husband’s medical certificate, that the certificate is necessarily valid and effective. We disagree.

In a case involving the interpretation of an insurance policy, the general rule in Texas dictates that exceptions and limitations found in an insurance policy are construed against the insurer. Continental Cas. Co. v. Warren, 152 Tex. 164, 254 S.W.2d 762 (1953); and Glover v. National Ins. Underwriters, 545 S.W.2d 755 (Tex.1977). However, this rule is applicable only when the terms of the contract of insurance are susceptible to several reasonable constructions. Mang v. Travelers Insurance Company, 412 S.W.2d 672, 674 (Tex.Civ.App.—San Antonio 1967, writ ref’d).

The “pilot clause” in this case clearly contemplates a valid medical certificate, one which has been granted on the basis of health deemed suitable by the Federal Aviation Administration for the command of an aircraft, not one granted upon the basis of a fraudulent misrepresentation. The term “valid” has been held to mean “[h]aving legal strength or force; executed with proper formalities; legally sufficient or efficacious; incapable of being rightfully overthrown or set aside.” Edwards v. O’Neal, 28 S.W.2d 569, 572 (Tex. Civ.App.—Fort Worth 1930, writ dism’d); and Black’s Law Dictionary at 1719 (4th ed. 1951). Under the facts and stipulations of this case, it is evident that this medical certificate was not “incapable of being rightfully overthrown or set aside.” The parties stipulated that the required medical certificate was obtained only through the misrepresentations of Loren Bowie. Merely the fact that it had not been cancelled by the Federal Aviation Administration does not make the medical certificate valid.

Since the medical certificate was not valid, the plane was not piloted by a person who qualified under the “pilot clause” of the policy. Therefore, the flight upon which this plane was damaged was excluded by the policy and Ranger is not liable to Mrs. Bowie.

The judgment of the court of civil appeals is reversed and judgment of the trial court that Doris Bowie take nothing is affirmed.

      . The actual stipulations were as follows: Stipulation XIII: “That such false representation made by Loren C. Bowie was material to the issuance of Airman’s Medical Certificate; and Dr. Beiser would not have issued such a certificate to Loren C. Bowie if the doctor had been truthfully advised of ‘prior heart trouble.’ ”
      Stipulation XIV: “That Dr. Beiser was not authorized by the Federal Aviation Administration to issue a valid and effective medical certificate if an applicant affirmatively answered questions as to whether or not the applicant had ever had ‘heart trouble’. Upon receiving such an affirmative answer, Dr. Beiser was required to forward the application to the Federal Aviation Administration’s Aero-Medical Center in Oklahoma City for any action. The FAA Aero-Medical Center did not take any such action and did not issue a medical certificate.”

      . The Federal Aviation Administration has indicated this intent by the following regulation which it has issued:
      “No person may act as pilot in command, or in any other capacity as a required pilot flight crewmember while he has a known medical deficiency, or increase of a known medical deficiency, that would make him unable to meet the requirements for his current medical certificate.” 14 C.F.R. 61.53.


author: DALLY, Judge. DALLY, Judge. ONION, Presiding Judge,

text:
    Earnest MOSS, Appellant, v. The STATE of Texas, Appellee.
    No. 54392.
    Court of Criminal Appeals of Texas, Panel No. 2.
    May 3, 1978.
    On Rehearing Nov. 15, 1978.

      John C. Hendrik, Dallas, court appointed, for appellant.
    Henry Wade, Dist. Atty., Maridell J. Templeton, Dale G. Markland and Reed W. Prospere, Asst. Dist. Attys., Dallas, for the State.
    Before ONION, P. J., and DALLY and VOLLERS, JJ.
   OPINION

DALLY, Judge.

This is an appeal from a conviction for the offense of burglary of a habitation; punishment is imprisonment for 5 years.

Appellant contends that the evidence is insufficient to sustain the conviction because it was not proved that he had the intent to commit theft at the time he entered the house in which he was found, nor was it proved that the house was a habitation within the statutory definition.

Appellant was arrested at night hiding behind a mattress and box springs which were leaning against a wall of the front room of an unoccupied house in Dallas. He had entered the house without the effective consent of the owner. The back door to the house was open, and a window had been pried open and a knife inserted in the window frame so that it could .not be opened further. Appellant testified that he did not intend to commit theft at the time he entered the house, but he entered the house to hide from police officers, because he knew there was a warrant out for his arrest for failure to report to his probation officer.

Several food stamps were found on appellant when he was arrested, and others were found near him in the same room. A witness who had stored furniture in the house testified that she had lost some food stamps earlier in the day. Appellant and two other witnesses testified that he had been given food stamps and was en route to a grocery store shortly before he was arrested.

It is presumed that an entry made without consent in the nighttime is made with the intent to commit theft. Clark v. State, 543 S.W.2d 125 (Tex.Cr.App.1976); Williams v. State, 506 S.W.2d 868 (Tex.Cr.App.1974); Clayton v. State, 493 S.W.2d 526 (Tex.Cr.App.1973). Appellant argues that his testimony as to why he entered the house rebutted this presumption. We do not agree. The jury was able to infer from the circumstances of the offense that appellant entered the house with the intent to commit theft. See Williams v. State, 537 S.W.2d 936 (Tex.Cr.App.1976); Hawkins v. State, 467 S.W.2d 465 (Tex.Cr.App.1971). Appellant cannot successfully complain on appeal that a disputed fact issue was resolved against him.

Appellant also contends that the State failed to prove that the house in question was a habitation within the statutory definition. V.T.C.A. Penal Code, See. 30.01, provides, in pertinent part, as follows:

“(1) ‘Habitation’ means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:
“(A) each separately secured or occupied portion of the structure or vehicle; and
“(B) each structure appurtenant to or connected with the structure or vehicle.”

We have construed this provision to mean that “the structure or vehicle alleged to be a habitation must at the time of the alleged offense have been actually ‘adapted for the overnight accommodation of persons’ or at least at some prior time used for the overnight accommodation of persons and still ‘adapted for the overnight accommodation of persons.’ ” Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976).

In Jones v. State, supra, we concluded that the State failed to prove that the building in question was a habitation; in Hargett v. State, 534 S.W.2d 909 (Tex.Cr.App.1976), we held that the evidence was sufficient to sustain a conviction for burglary of a habitation. Since the resolution of this issue depends on whether the structure in question was “adapted for the overnight accommodation of persons,” we shall compare the facts in Jones and Hargett to those in the instant ease.

Jones involved a new house, the construction of which was completed; a contract of sale had been entered into, but possession had not changed hands. No one was living in the house or had lived there, and there was no furniture or refrigerator in the house. There was a water connection and light fixtures, but there may not have been “power.”

The house in Hargett was one which was rented periodically; it had been rented in the past and was rented at the time of the offense, although the new tenants had not yet moved in. The house was completely furnished and ready for occupancy. There was no evidence that any utilities had been connected.

The instant case involves a house which had been rented in the past, most recently some two months prior to the date of the offense. Cathy Taylor, who had care, custody, and control of the house, testified that she intended to rent it in the future. She also testified that the electricity “wasn’t supposed to be off,” but there were no light bulbs in the house; the water was turned off. Other than “an old dresser” that was across the front door, the only furniture contained in the house was that belonging to Taylor’s goddaughter. Her belongings included the mattress and box springs behind which appellant was found hiding, a bed, dining room set, stove, and gas heaters. These items had been stored in the house on the day of the offense, and Taylor planned to let them remain there “for awhile.” The stove and heaters were not connected. Taylor testified that her belongings were in the house for storage only, and that in order to rent the house she would have had to move them out and install other furniture and appliances.

The facts of the case at bar are more similar to Jones than Hargett. Although the house involved here had been rented in the past, as had the one in Har-gett, the evidence shows that it was not “still ‘adapted for the overnight accommodation of persons.’ ” (Emphasis added.) Jones v. State, supra. While this conviction cannot be sustained as a burglary of a habitation, which is the first degree felony (Y.T.C.A. Penal Code, Sec. 30.02(d)(1)), the evidence is sufficient to sustain a conviction for burglary of a building, which is a second degree felony (V.T.C.A. Penal Code, Sec. 30.02(c)), and which is a lesser included offense of the offense of burglary of a habitation. Jones v. State, supra. Since the penalty assessed, imprisonment for five years, is within the range of punishment for both a first degree felony, (V.T.C.A. Penal Code, See. 12.32) and a second degree felony (V.T. C.A. Penal Code, Sec. 12.33), the conviction can be affirmed as one for burglary of a building, with the judgment and sentence reformed accordingly. Jones v. State, supra.

As reformed, the judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

DALLY, Judge.

The appellant in his motion for rehearing urges that we have misapplied the rule in Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976) because Jones’ punishment was assessed by the court and the appellant’s punishment was assessed by a jury. This case cannot be distinguished from Jones v. State, supra, on that basis. In both cases the convictions were for burglary of a residence but this Court has found in both cases that the evidence only supports the lesser included offense of burglary of a building for which the range of punishment is less. If here we improperly assumed that the same jury would assess the same punishment for burglary of a building as it assessed for burglary of a residence, then in Jones v. State, supra, this Court improperly assumed that the trial judge would have assessed the same punishment for burglary of a building as he assessed for burglary of a residence.

We have now concluded that we were incorrect in both cases. It is not proper for this Court to speculate on what punishment would have been assessed by either the jury or the judge. This Court by doing so determined the punishment; we were not authorized to determine the punishment in either case. In Jones v. State, 532 S.W.2d 596 (Tex.Cr.App.1976) we should have remanded the cause for the trial court to reassess punishment and to that extent we overrule our decision in that case.

We agree with the dissent that the Supreme Court opinions of Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978) and Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) prevent the retrial of the appellant for the offense of burglary of a residence. However, there is nothing in these opinions which would prevent retrial for the offense of burglary of a building. We hold that the appellant may be retried for the offense of burglary of a building.

The appellant's motion is granted and the judgment is reversed and the cause is remanded.

ONION, Presiding Judge,

dissenting.

In Jones v. State, 532 S.W.2d 596 (Tex.Cr. App.1976), this court held:

“In the instant ease, while the conviction cannot be sustained as a burglary of a habitation under the facts proved, the proof is sufficient to sustain a conviction for burglary of a building. Since the penalty was assessed by the trial judge, and since the punishment was ten (10) years, which falls both within the range of punishment for both a first degree felony and a second degree felony, the conviction can be affirmed as a conviction for burglary of a building with the judgment and sentence reformed accordingly.” (Citations omitted.) (Emphasis added.)

In our opinion on original submission in the instant case, we extended Jones to a similar fact situation where the jury, however, had assessed the punishment.

Now on rehearing the majority decides it is improper to speculate on what punishment would have been assessed by either the jury or the judge and to reform and affirm the conviction as a conviction of a lesser included offense with punishment remaining the same. The majority concludes that the instant case cannot be disinguished on the fact that the judge assessed punishment in Jones and the jury did so in the instant case. I do not agree. Nevertheless, there are important considerations this court should undertake if Jones is to be overruled.

It is observed that the majority simply reverses and remands the case based on the insufficiency of the evidence to sustain the jury’s verdict that appellant was guilty of burglary of a habitation as charged in the indictment.

In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1, the United States Supreme Court by opinion on June 14, 1978, held that the “Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient to sustain the verdict.” In Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), the United States Supreme Court granted certiorari to decide whether a state may retry a defendant after conviction has been reversed by an appellate court on the ground that the evidence introduced at the prior trial was insufficient, as a matter of law, to sustain the jury’s verdict. In Greene v. Massey, supra, the Court wrote:

“Since the constitutional prohibition against double jeopardy is fully applicable to state criminal proceedings, Benton v. Maryland, supra [395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)], we are bound to apply the standard announced in Burks to the case now under review.”

Thus, it can be seen that upon remand the appellant cannot be retried for the offense of burglary of a habitation. The question still remaining is whether there being sufficient evidence to sustain a conviction for burglary of a building, may the appellant be retried for this lesser included offense? In its decision in Greene v. Massey, supra, the Court left this question open and did not decide it (see footnote # 7). Before this case is remanded, that decision should be made with reasoning, but the majority declines to reason.

For the reasons stated, I dissent.

PHILLIPS and W. C. DAVIS, JJ., join in this dissent.